TWELFTH AMENDMENT

The Twelfth Amendment to the U.S. Constitution reads:

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 the 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.

The Twelfth Amendment was proposed on December 9, 1803, and ratified on July 27, 1804. It superseded Article 2, Section 2, Clause 3, and changed the method used to select the president and vice president in the electoral college. The amendment resulted from the emergence of the two-party system and the presidential election of 1800.

The Framers of the U.S. Constitution provided for an indirect method of presidential selection. Under this arrangement each state was authorized to appoint as many electors as it had senators and representatives in Congress. This electoral college, as it came to be called, was empowered to choose the president, and the person receiving the second highest number of votes served as vice president. Each elector voted for two individuals without specifying which he wanted for president. It was assumed that the electors would act independently of the people in making their selections.

In the 1790s, however, the two-party system developed, and the federalist party and the democratic-republican party became bitter rivals. The two parties selected their slates of electors, which reduced the independent role of the electors. In 1796 john adams, a Federalist, defeated thomas jefferson, a Democratic-Republican, for president, but Jefferson served as Adams's vice president because he had the second highest vote total.

The presidential election of 1800 precipitated the Twelfth Amendment. The two Democratic-Republican candidates—Thomas Jefferson, the presidential candidate, and aaron burr, the vice presidential candidate—received the same number of votes. The tie threw the election into the House of Representatives. After thirty-five ballots the House chose Jefferson as president, but the divisive battle took so long that it aroused fears that there would be no president to take office on inauguration day.

The amendment was quickly and over-whelmingly ratified. Of the sixteen states then admitted to the Union, only Delaware and Connecticut rejected the amendment.

further readings

Kuroda, Tadahisa. 1994. The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787–1804. Westport, Conn.: Greenwood Press.

Levinson, Sanford, and Ernest A. Young. 2002."Who's Afraid of the Twelfth Amendment?" Florida State University Law Review 29 (winter).

Williams, Victor, and Alison M. MacDonald. 1994."Rethink-ing Article II, Section 1 and its Twelfth Amendment Restatement: Challenging Our Nation's Malapportioned, Undemocratic Presidential Election Systems." Marquette Law Review 77 (winter).

Twelfth Amendment The Twelfth Amendment provides that presidential electors vote separately for president and for vice president. Article II of the Constitution had provided for one ballot: whoever received the largest number of votes, if more than half, became president, and whoever received the next highest total, vice president. Under this system, John Adams defeated Thomas Jefferson for president in 1796 but Jefferson served as vice president under President Adams. In 1800, Democratic‐Republicans Jefferson and Burr defeated Federalists Adams and Pinckney, but, with identical totals, the election was thrown into the House of Representatives under Article II. It took the House of Representatives thirty‐five ballots to resolve the election. In response, Congress passed the Twelfth Amendment in 1803. It was ratified in 1804. By requiring separate ballots for president and vice president, the Twelfth Amendment took into account the rise of national party voting (see Political Parties).

The Supreme Court has treated the Twelfth Amendment as evidence of the decentralization of the presidential election process. The Constitution permits electors selected at large or in districts (MacPherson v. Blacker, 1892), and pledged by party to its national ticket (Ray v. Blair, 1952). The latter case was decided in the wake of the Dixiecrat challenge to the national Democratic party ticket.

The Twelfth Amendment nearly unraveled the compromise setting up the Federal Election Commission when the Court held that Congress had no power under the Twelfth Amendment ballot counting provisions to appoint members of the commission except by Senate ratification of presidential nominations (Buckley v. Valeo, 1976).

See also Constitutional Amendments.

Stephen E. Gottlieb