Other 12th Amendment Innovations

 

 

In my prior two posts, I have already explained the two major institutional changes brought about by the 12th Amendment—which was a response to the Jefferson-Burr electoral college tie of 1800. These two reforms included: [i] separate ballots for the electors for President and Vice President; and, [ii] changes to how many candidates could be considered by the House in a House contingent election and by the Senate in a Senate contingent election. As explained, the 12th Amendment created new interpretative challenges and new risks, particularly in regard to ties.

 

The 12th Amendment also introduced several other, lesser changes that are worth discussing.

 

Let’s start with text. The original controlling text in Article II (1788) stated:

 

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. (emphasis added)

 

By contrast, Amendment XII (1801) states:

 

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. (emphases added)

 

I. Vice Presidential Eligibility. The original Constitution mandates qualifications for Representatives, Senators, and the President. Eg: citizenship, age, and inhabitancy/residence. But it did not expressly mandate that the Vice President have the same qualifications as the President; indeed, it did not expressly mandate any qualifications for the Vice President. Perhaps some in 1787–1788, thought it was implicit that the Vice President had the same qualifications as the President. In any event, the last line of Amendment XII was an effort to resolve this issue. Post 12th Amendment, Vice Presidents, according to the standard view of the meaning of “eligibility,” have the same qualifications as Presidents.

 

II. The Vice President’s Electoral College Majority. Under the original Constitution, the Vice President was the runner up in the electoral college. In other words, the President had to have a majority of the electors appointed, but the Vice President did not. A candidate would prevail for Vice President as long as he had more electoral votes than any other candidate (other than the prevailing candidate for President). By contrast, under Amendment XII, the Vice President also needs an electoral college majority.

 

III. Senate Contingency Elections. Under the original Constitution, the Senate had a limited role in choosing the Vice President. The Senate chose the Vice President if there was a tie for runner up in the electoral college once the President was chosen (by the electors or by the House). Under Amendment XII, the Senate chooses the Vice President in circumstances where no candidate for Vice President carries a majority of the electoral college.

 

But that was not the only change. Amendment XII also changed how Senate contingency elections would be held. Under the original Constitution, the Senate held a contingency election as it would conduct ordinary business. Such rules included:

 

• A simple majority of the members was a quorum; and,
• A majority of those voting would carry.

 

Furthermore, under the original Constitution, the Senate must vote by “ballot”—which apparently meant a written, secret ballot.

 

Amendment XII changed these rules for a Senate contingent election. The new rules included:

 

• A quorum was two-thirds of the members; and,
• The necessary majority was a majority of the whole number of senators.

 

Interestingly, the “ballot” requirement was dropped from the text. (I have often wondered if this was an actual oversight or mistake by the 12th Amendment’s drafters.) In the 1837 Senate contingent election for Vice President, no secret ballot was used. My own view is that these reforms were not particularly wise. Why? Because, among other reasons, a minority of dissenting senators can absent themselves and obstruct a clear senate majority which would otherwise choose the Vice President. 

 

Of course, Amendment XII was ratified to “fix” the problems associated with the contested election of 1800. It was not intended as a cure all for the electoral college’s many other ailments. These include, for example: 

• a state’s House delegation, in a House contingent election for President, with an even number of members where the delegation is equally divided; 
• appointed electors who do not accept their appointment but are not replaced in a timely manner; 
• appointed electors who do not vote at all; and, 
• perhaps, most importantly, appointed electors who do not vote as pledged.

It was and it remains an odd system.

Seth

 

Seth Barrett Tillman, Other 12th Amendment Innovations, New Reform Club (Jan. 19, 2022, 4:10 AM), <https://reformclub.blogspot.com/2022/01/other-12th-amendment-innovations.html>.

See also Seth Barrett Tillman, What the Twelfth Amendment Did and Did Not Do, New Reform Club (Jan. 18, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/what-twelfth-amendment-did-and-did-not.html>; and, 

Seth Barrett Tillman, How the Constitution’s Original (or pre-1801) Electoral College Worked, New Reform Club (Jan. 14, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/how-constitutions-original-or-pre-1801.html>.