“Constitutional Amendments” Series – Amendment XII – “Electing the President and Vice President”

Pro-Thomas Jefferson political advertisement from the 1804 presidential election, the first to be conducted under the rules of the Twelfth Amendment. (Thomas Jefferson Foundation)

Amendment Twelve to the Constitution was ratified on June 15, 1804. It revises and outlines the procedure of how Presidents and Vice Presidents are elected, specifically so that they are elected together. The original text is written as follows:

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 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 not only a restructuring of presidential elections, but it was also a revision of American politics in the early 19th century. At its inception in 1789, the Constitution had established the Electoral College as the means for electing presidents. The approach to electing a president was that the electors were expected to select two candidates for office. There was no differentiation between the candidate who would become President and Vice President, and one of the two had to be someone who was not from the home state of the elector. This system would have the candidate with the majority of electoral votes become the President, while the candidate with the second-highest number would become Vice President. The specific purpose of having one majority winner with a runner-up was rooted in the concept of the “best man,” that being the concept by the Founders where the person most qualified to become President would be identified as such, while the runner-up would accordingly be considered the second-most qualified candidate, whereupon they would become the Vice President. This was influenced in-part by the generational perspective that political parties and alliances were antithetical to the long-term prosperity of republics, and many of the Founders accordingly advocated to prevent that outcome. By the beginning of the 19th century however, it was apparent that the emergence of political parties in America was not a possibility, but an inevitability.

In American history, the Presidential Election of 1800 was hugely significant. With Thomas Jefferson as the third President of the United States, it marked the first time in an election where an incumbent leader was defeated by a challenger. In addition to the victory of a challenger against the incumbent, the election of 1800 led to a tie majority vote. It was only after a contingent election in the House of Representatives that Thomas Jefferson was officially elected president, albeit after thirty-five gridlocked ballots. A major influence on these two subsequent tie votes was the state and federal government being divided into two major political parties: The Federalist Party, represented by John Adams in the election; and the Democratic-Republican Party, represented by Thomas Jefferson in the election. The Electoral College was not created to handle the complexity of political parties influencing the selection of presidential candidates. In 1803, a proposed amendment that would restructure the presidential elections was presented before Congress. It was subsequently ratified by fourteen of the then-seventeen states in the union, whereupon the Twelfth Amendment was enacted for all presidential elections from 1804 onward.

The Twelfth Amendment made a series of adjustments to the Electoral College system. For the electors, it was now mandated that a distinct vote had to be taken for the president and the vice president. Further, one of the selected candidates must be someone who is not from the same state as the elector. If no presidential candidate has a majority vote, or if there is a tie, the House of Representatives chooses who will be the president. The Senate goes through the same procedure for choosing the vice president if there is a tie or if no candidate gets a majority. To address prior concerns of the country not having a leader during the inter-term phase, the new amendment stipulates that the newly-elected vice president will handle the responsibilities of the president while a proper candidate is chosen by Congress. As was the case with the Constitution at the time of its creation, the original inauguration day for the new president and vice president was March 4. With the Twelfth Amendment’s provisions, it was made clear that if a new president was not decided by that calendar day, the elected vice president would perform those corresponding duties in the meantime. The Twentieth Amendment in 1933 later changed the inauguration day to January 20.

In most elections since its ratification, the Twelfth Amendment was effective in eliminating most ties and deadlocks. Elections, such as those in 1948, 1968, and 2000, would normally have led to the candidates being decided in the House of Representatives, but the new amendment’s provisions have prevented that from happening since 1824. Unorthodox voting patterns and results have still taken place in many elections, but the most pertinent issue surrounding the inner workings of presidential elections has been the purpose of the Electoral College. Those who support maintaining the Electoral College have argued that it is a fundamental part of the original Constitution, and that the Twelfth Amendment’s provisions managed to sort out the majority of the ties and deadlocks. In opposition to the Electoral College are those who have argued that having a popular election would be more simple and accommodating for voters. At the same time, certain political affiliations have since been attached to the differing perspectives. The Twelfth Amendment modified the Electoral College to be more accommodating of party politics in presidential elections, which has since gone on to be one of the defining characteristics of American politics and the voting process.

Written by Nicholas J. Dilley, Ronald Reagan Presidential Library & Museum