What the Twelfth Amendment Did and Did Not Do

 

 

In response to the Jefferson-Burr election of 1800, the Twelfth Amendment was passed by Congress and then ratified by the States. As explained in my prior post, its major institutional reform was to provide separate ballots for the electors when voting for President and Vice President. In these circumstances, only one candidate could carry a majority of electors for each of the two positions.

 

Twelfth Amendment (1804)

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; [t]he 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)

 

The Twelfth Amendment also modified the power of the House and Senate to choose the President and Vice President, respectively, in the event that there was no candidate who carried a majority of the electors appointed. Under the pre-12th Amendment constitution, the House could choose among the top five candidates; after the 12th Amendment, the House was limited to the top three candidates. The problem is that the Constitution does not identity what should happen if there are not three candidates which can be readily identified as the top three. This could happen in a number of ways.

 

Presidential Ties

• There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 4; or,
• There can be a 2-way tie for first place (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2; or,
• There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 3; or,
• There can be a first place candidate (carrying less than a majority of the electors), with a second place candidate, and an q-way tie for third place, where q is greater than or equal to 2.

 

In each of these scenarios, it could be plausibly argued that the House has a power to choose the President among the top three candidates and among anyone (else) who ties among the top three. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the House is entirely disabled from holding a contingent election for President.

 

What about the Senate? After the 12th Amendment, the Senate is empowered to choose among the top two candidates. Here, the problem is that the Constitution does not identity what should happen if there are not two candidates which can be readily identified as the top two. This could happen in a number of ways.

 

Vice Presidential Ties

• There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 3; or,
• There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2.

 

In each of these scenarios, it could be plausibly argued that the Senate has a power to choose the Vice President among the top two candidates and among anyone (else) who ties among the top two. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the Senate is entirely disabled from holding a contingent election for Vice President.

 

Certainly, these problems have been long understood. See William Rawle, A View of the Constitution of the United States of America 55 (Philadelphia, Philip H. Nicklin, 2d ed. 1829) (“[O]ne difficulty not provided for, may possibly some day occur. If more than three of those highest in [electoral] votes for president, or [more] than two of those voted for as vice president should be equal in number of votes, it is not directed how the selection shall be made.”). See generally Robert W. Bennett, Taming the Electoral College (2006); Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 West Virginia L. Rev. 601 (2003). Still these problems remain without any express constitutional or statutory fix, and, likewise, there is no substantial judicial guidance.

Seth

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>.

See also 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>; and,

See also 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>.