Twelfth Amendment To The United States Constitution
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The Twelfth Amendment (Amendment XII) to the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
provides the procedure for electing the
president President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ful ...
and
vice president A vice president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vice president is on t ...
. It replaced the procedure provided in Article II, Section 1, Clause 3, by which the Electoral College originally functioned. The amendment was proposed by the
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
on December 9, 1803, and was ratified by the requisite three-fourths of state legislatures on June 15, 1804. The new rules took effect for the 1804 presidential election and have governed all subsequent presidential elections. Under the original rules of the Constitution, each member of the Electoral College cast two electoral votes, with no distinction made between electoral votes for president and electoral votes for vice president. The presidential candidate receiving the greatest number of votes—provided that number at least equaled a majority of the electors—was elected president, while the presidential candidate receiving the second-most votes was elected vice president. In cases where no individual won a vote from a majority of the electors, as well as in cases where multiple individuals won votes from a majority of electors but tied each other for the most votes, the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
would hold a
contingent election In the United States, a contingent election is used to elect the president or vice president if no candidate receives a majority of the whole number of Electors appointed. A presidential contingent election is decided by a special vote of th ...
to select the president. In cases where multiple candidates tied for the second-most votes, the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
would hold a contingent election to select the vice president. The first four presidential elections were conducted under these rules. The experiences of the
1796 Events January–March * January 16 – The first Dutch (and general) elections are held for the National Assembly of the Batavian Republic. (The next Dutch general elections are held in 1888.) * February 1 – The capital ...
and 1800 presidential elections – showing that the original system caused the election of a President and Vice-President who were political opponents of each other, constantly acting at cross-purposes – spurred legislators to amend the presidential election process to require each member of the Electoral College to cast one electoral vote for president and one electoral vote for vice president. Under the new rules, a contingent election is still held by the House of Representatives if no candidate wins a presidential electoral vote from a majority of the electors, but there is no longer any possibility of multiple candidates winning presidential electoral votes from a majority of electors. The Twelfth Amendment also lowered the number of candidates eligible to be selected by the House in a presidential contingent election from five to three, established that the Senate would hold a contingent election for vice president if no candidate won a majority of the vice presidential electoral vote, and provided that no individual constitutionally ineligible to the office of president would be eligible to serve as vice president.


Text


Background

Under the original procedure for the Electoral College, as provided in Article II, Section 1, Clause 3, each elector cast two electoral votes, with no distinction made between electoral votes for president and electoral votes for vice president. The two people chosen by the elector could not both inhabit the same state as that elector. This prohibition was designed to keep electors from voting for two "
favorite son Favorite son (or favorite daughter) is a political term. * At the quadrennial American national political party conventions, a state delegation sometimes nominates a candidate from the state, or less often from the state's region, who is not a ...
s" of their respective states. The person receiving the greatest number of votes, provided that number constituted a
majority A majority, also called a simple majority or absolute majority to distinguish it from #Related terms, related terms, is more than half of the total.Dictionary definitions of ''majority'' aMerriam-Webstercontingent election In the United States, a contingent election is used to elect the president or vice president if no candidate receives a majority of the whole number of Electors appointed. A presidential contingent election is decided by a special vote of th ...
to select the president. If there were more than one individual who received the same number of votes, and such number equaled a majority of the electors, the House would choose one of them to be president. If no individual had a majority, then the House would choose from the five individuals with the greatest number of electoral votes. In both sets of circumstances, each state delegation had one () vote. A candidate was required to receive an
absolute majority A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...
, more than half of the total number of states, in order to be chosen as president. Selecting the vice president was a simpler process. Whichever candidate received the second greatest number of votes for president became vice president. The vice president, unlike the president, was not required to receive votes from a majority of the electors. In the event of a tie for second place, the Senate would hold a contingent election to select the vice president from those tied, with each senator casting one vote. A candidate was required to receive an absolute majority, more than half of the total Senate membership, in order to be chosen as vice president. The original electoral system worked adequately for the first two presidential elections because on both occasions
George Washington George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of th ...
was the unanimous choice of the electors for president; the only real contest was the election for vice president for which an overall majority was not required. George Washington's decision not to seek a third term and the emergence of partisan political activity exposed problems with the original procedure. In the 1796 election,
John Adams John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Fathers of the United States, Founding Father who served as the second president of the United States from 1797 to 1801. Befor ...
, the
Federalist Party The Federalist Party was a Conservatism in the United States, conservative political party which was the first political party in the United States. As such, under Alexander Hamilton, it dominated the national government from 1789 to 1801. De ...
presidential candidate, received votes from a majority of electors. However, the Federalist electors scattered their second votes, resulting in the
Democratic–Republican Party The Democratic-Republican Party, known at the time as the Republican Party and also referred to as the Jeffersonian Republican Party among other names, was an Political parties in the United States, American political party founded by Thomas J ...
presidential candidate,
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
, receiving the second highest number of electoral votes and thus being elected vice president. It soon became apparent that having a vice president and a president unwilling to work together effectively was going to be a more significant problem than was originally realized. The most significant problem was that with the
French Revolutionary Wars The French Revolutionary Wars (french: Guerres de la Révolution française) were a series of sweeping military conflicts lasting from 1792 until 1802 and resulting from the French Revolution. They pitted French First Republic, France against Ki ...
raging in Europe, it was immediately apparent that President Adams was going to pursue a pro-British foreign policy, much to the disgust of the strongly pro-French Vice President Jefferson. On January 6, 1797, Federalist Representative William L. Smith of South Carolina responded to the 1796 result by presenting a resolution on the floor of the House of Representatives for an amendment to the Constitution requiring each elector to cast one vote for president and another for vice president. However, no action was taken on his proposal. This set the stage for a crisis. In the 1800 election, both major parties attempted to prevent the problem that arose in 1796 by nominating separate presidential and vice presidential candidates on a party
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. However, there was no way for the electors to distinguish between the two offices when they cast their votes, so if all the electors voted for their party tickets, the election would end in a tie between the two candidates from the most popular ticket. The Democratic-Republicans, who had nominated Jefferson for president and
Aaron Burr Aaron Burr Jr. (February 6, 1756 – September 14, 1836) was an American politician and lawyer who served as the third vice president of the United States from 1801 to 1805. Burr's legacy is defined by his famous personal conflict with Alexand ...
for vice president, managed to secure a majority of pledged electors. But the electoral margin was so slim that there was little room for error if the Democratic–Republicans were to avoid repeating the Federalists' miscues of 1796. Given the technical limitations of 18th-century communications, Democratic–Republican electors in each state were left to assume that an elector in some other state was the one responsible for casting the one abstention necessary to ensure the election of Burr to the vice presidency. In the event, all the Democratic–Republicans electors were so reluctant to be responsible for causing outgoing President Adams to be elected as vice president that every Democratic–Republican elector cast a vote for both Jefferson and Burr, resulting in a tie. Consequently, a contingent presidential election was held in the House of Representatives. Federalist-controlled state delegations cast their votes for Burr in an effort to prevent Jefferson from becoming president. Neither Burr nor Jefferson was able to win on the first 35 ballots. With help from
Alexander Hamilton Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Father who served as the first United States secretary of the treasury from 1789 to 1795. Born out of wedlock in Charlest ...
, the gridlock was finally broken on the 36th ballot and Jefferson was elected president on February 17, 1801. This prolonged contingent election, combined with the increasing Democratic–Republican majorities in both the House and the Senate, set the stage for a constitutional amendment to alter this flawed system.


Adoption


Journey to Congress

In March 1801, weeks after the election of 1800 was resolved, two amendments were proposed in the
New York State Legislature The New York State Legislature consists of the two houses that act as the state legislature of the U.S. state of New York: The New York State Senate and the New York State Assembly. The Constitution of New York does not designate an official ...
that would form the skeleton of the Twelfth Amendment. Governor
John Jay John Jay (December 12, 1745 – May 17, 1829) was an American statesman, patriot, diplomat, abolitionist, signatory of the Treaty of Paris, and a Founding Father of the United States. He served as the second governor of New York and the first ...
submitted an amendment to the state legislature that would require a district election of electors in each state. Assemblyman
Jedediah Peck Jedediah Peck (January 28, 1748 – August 15, 1821) was an American farmer, surveyor, Revolutionary War soldier, and New York State legislator described as a father of the common school system of the State of New York. He was a man of limi ...
submitted an amendment to adopt designations for the votes for president and vice president. The two amendments were not considered until early 1802 because the state legislature took a break for the summer and winter. New York state senator DeWitt Clinton moved for the adoption of the amendment in January 1802. Shortly thereafter, Clinton won a vacant seat in the U.S. Senate, where he was instrumental in bringing the designation amendment to Congress. The process continued in New York on February 15 when Representative Benjamin Walker of New York proposed the designation and district election amendments to the House. Debate on the amendments began in May. The Democratic-Republicans wanted to decide on the amendment quickly, but the Federalists argued that the ideas needed more time than the current session allowed. Federalist Samuel W. Dana of Connecticut wanted to examine the necessity of a vice president. The amendment ultimately failed in the New York State Senate, but DeWitt Clinton brought the amendment discussion to the House of Representatives. Congress was ready to debate the presented amendment, but the Democratic–Republicans decided to wait for the 8th Congress. The 8th Congress would allow the Democratic–Republicans a better chance of meeting the two-thirds vote requirement for submitting a proposed Constitutional amendment.


Congressional debate


House of Representatives

On its first day, the 8th Congress considered the designation amendment. The first formulation of the amendment had the five highest electoral vote earners on the ballot in the House if no one candidate had a majority of the electoral votes. Democratic–Republican
John Clopton John Clopton (February 7, 1756 – September 11, 1816) was a United States representative from Virginia. Early life and education John Clopton was born in St. Peter's Parish, near Tunstall, New Kent County in the Colony of Virginia on Febru ...
of Virginia, the largest state in the Union, argued that having five names on the list for a contingency election took the power from the people, so he proposed that there be only two names on the list. On October 20, the House appointed a seventeen-member committee (one Representative from each state) to fine-tune the amendment. The original proposal starting in the New York State Legislature would have, along with designation, put forward the idea of the district election of electors that Treasury Secretary Gallatin had supported. Shortly after the committee was formed, Federalist Benjamin Huger attempted to add a provision regarding district elections to the proposed amendment, but the committee ignored him. The committee then submitted an updated version of the designation amendment to the House on October 23 that changed the number of candidates in a contingency election from five to three and allowed the Senate to choose the vice president if there were a tie in that race. Small Federalist states disliked the change from five to three because it made it far less likely that a small-state candidate would make it to a contingency election. Huger and New York Federalist Gaylord Griswold argued that the Constitution was a compromise between large and small states and the method chosen by the Framers is supposed to check the influence of the larger states. Huger even asserted that the Constitution itself was not a union of people, but a union of large and small states in order to justify the original framework for electing the president. Designation, argued Griswold and Huger, would violate the spirit of the Constitution by taking away a check on the power of the large states. Next up for the Federalists was
Seth Hastings Seth Hastings (April 8, 1762 – November 19, 1831) was a United States representative from Massachusetts. Born in Cambridge in the Province of Massachusetts Bay to Seth and Hannah (Soden) Hastings, he was a descendant of the colonist Thomas H ...
of Massachusetts, who submitted the argument that the designation amendment rendered the vice presidency useless and advocated for the elimination of the three-fifths clause. John C. Smith asked the inflammatory question of whether the proposed amendment was to help Jefferson get reelected. Speaker
Nathaniel Macon Nathaniel Macon (December 17, 1757June 29, 1837) was an American politician who represented North Carolina in both houses of Congress. He was the fifth speaker of the House, serving from 1801 to 1807. He was a member of the United States House of ...
called this inappropriate.
Matthew Lyon Matthew Lyon (July 14, 1749 – August 1, 1822) was an Irish-born American printer, farmer, soldier and politician, who served as a United States representative from both Vermont and Kentucky. Lyon represented Vermont in Congress from 1797 to ...
of Kentucky denounced any reference to the three-fifths clause as mere provocation. The House proceeded to pass the resolution 88–31 on October 28, 1803. Many Northern representatives argued for the elimination of the electoral college, and argued for direct election of the President by all U.S. voters.


Senate

By October 28, the Senate had already been discussing the designation amendment. Democratic–Republican
DeWitt Clinton DeWitt Clinton (March 2, 1769February 11, 1828) was an American politician and naturalist. He served as a United States senator, as the mayor of New York City, and as the seventh governor of New York. In this last capacity, he was largely res ...
expected that the Senate, with a 24–9 Democratic–Republican majority would quickly pass the amendment. Federalist
Jonathan Dayton Jonathan Dayton (October 16, 1760October 9, 1824) was an American Founding Fathers of the United States, Founding Father and politician from the U.S. state of New Jersey. He was the youngest person to sign the Constitution of the United States ...
proposed that the office of the vice president should be eliminated and his colleague,
Uriah Tracy Uriah Tracy (February 2, 1755July 19, 1807) was an American lawyer and politician from Connecticut. He served in the US House of Representatives (1793 to 1796) and the US Senate (1796 to 1807). From May to November 1800, Tracy served as Preside ...
, seconded it. On the other side,
Wilson Cary Nicholas Wilson Cary Nicholas (January 31, 1761October 10, 1820) was an American politician who served in the U.S. Senate from 1799 to 1804 and was the 19th Governor of Virginia from 1814 to 1816. Early life Nicholas was born in Williamsburg in the C ...
was simply worried that Congress would not submit the amendment in time for the states to ratify it before the 1804 election. Despite Nicholas' concern, the Senate would not seriously deal with the amendment again until November 23. Much as it had in the House, debate centered around the number of candidates in a contingency election and the philosophical underpinnings of the Constitution. Again, small Federalist states vehemently argued that three candidates gave too much power to large states to pick presidents. Senator
Pierce Butler Pierce or Piers Butler may refer to: *Piers Butler, 8th Earl of Ormond (c. 1467 – 26 August 1539), Anglo-Irish nobleman in the Peerage of Ireland *Piers Butler, 3rd Viscount Galmoye (1652–1740), Anglo-Irish nobleman in the Peerage of Ireland * P ...
of South Carolina argued that the issues with the election of 1800 were unlikely to happen again and he would not advocate changing the Constitution simply to stop a Federalist vice president.
John Quincy Adams John Quincy Adams (; July 11, 1767 – February 23, 1848) was an American statesman, diplomat, lawyer, and diarist who served as the sixth president of the United States, from 1825 to 1829. He previously served as the eighth United States S ...
argued that the change from five to three gave an advantage to the people that violated the federative principle of the Constitution. Rather than have the office of the president balanced between the states and the people, Adams felt designation of president and vice president would tip that scale in favor of the people. Federalist senators argued for retaining the original procedure for the Electoral College. Senator Samuel White of Delaware claimed that the original procedure had not been given "a fair experiment" and criticized the proposed amendment for entrenching the
two-party system A two-party system is a political party system in which two major political parties consistently dominate the political landscape. At any point in time, one of the two parties typically holds a majority in the legislature and is usually referre ...
which had taken over presidential elections. In response, the Democratic–Republicans appealed to democratic principles. Samuel Smith of Maryland argued that the presidency ought to be as closely accountable to the people as possible. As such, having three candidates in a contingency election is far better than having five, because it would otherwise be possible to have the fifth best candidate become president. Also, designation itself would drastically cut down the number of elections that would reach the House of Representatives, and the president is then much more likely to be the people's choice. Another of Smith's arguments was simply the election of 1800.
William Cocke William Cocke (1748August 22, 1828) was an American lawyer, pioneer, and statesman. He has the distinction of having served in the state legislatures of four different states: Virginia, North Carolina, Tennessee, and Mississippi, and was one of t ...
of Tennessee took a different approach when he argued that the entire small state argument of the Federalists was simply out of self-interest. One last order of business for the amendment was to deal with the possibility that the House would fail to choose a president by March 4. It was the least controversial portion of the Twelfth Amendment and John Taylor proposed that the vice president would take over as president in that peculiar occurrence, "as in case of the death or other Constitutional disability of the President". It seemed clear all along that the Democratic–Republican dominance would render this a no-contest and the Democratic–Republicans were just waiting for all their votes to be present, but the Federalists had one last defense. A marathon session of debate from 11:00a.m. to 10:00p.m. was the order of the day on December 2, 1803. Most notably, Uriah Tracy of Connecticut argued in a similar vein as Adams when he invoked the federative principle of the Constitution. Tracy claimed the original procedure was formulated to give the small states a chance to elect the vice president, who would be a check on the president's powers. In essence, the states balanced the power of the people. However, this works only if you make it partisan, as Georgia (for example) was a Democratic–Republican small state.


Proposal and ratification

The Twelfth Amendment was proposed by the 8th Congress on December 9, 1803, when it was approved by the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
by vote of 84–42, having been previously passed by the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, 22–10, on December 2. The amendment was officially submitted to the states on December 12, 1803, and was
ratified Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties inte ...
by the
legislatures A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known a ...
of the following states: #
North Carolina North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and So ...
: December 22, 1803 #
Maryland Maryland ( ) is a state in the Mid-Atlantic region of the United States. It shares borders with Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean to ...
: December 24, 1803 #
Kentucky Kentucky ( , ), officially the Commonwealth of Kentucky, is a state in the Southeastern region of the United States and one of the states of the Upper South. It borders Illinois, Indiana, and Ohio to the north; West Virginia and Virginia to ...
: December 27, 1803 #
Ohio Ohio () is a state in the Midwestern region of the United States. Of the fifty U.S. states, it is the 34th-largest by area, and with a population of nearly 11.8 million, is the seventh-most populous and tenth-most densely populated. The sta ...
: December 30, 1803 #
Pennsylvania Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
: January 5, 1804 #
Vermont Vermont () is a state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York to the west, and the Canadian province of Quebec to ...
: January 30, 1804 #
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
: February 3, 1804 # New York: February 10, 1804 #
New Jersey New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
: February 22, 1804 #
Rhode Island Rhode Island (, like ''road'') is a U.S. state, state in the New England region of the Northeastern United States. It is the List of U.S. states by area, smallest U.S. state by area and the List of states and territories of the United States ...
: March 12, 1804 #
South Carolina )''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no) , anthem = " Carolina";" South Carolina On My Mind" , Former = Province of South Carolina , seat = Columbia , LargestCity = Charleston , LargestMetro = ...
: May 15, 1804 #
Georgia Georgia most commonly refers to: * Georgia (country), a country in the Caucasus region of Eurasia * Georgia (U.S. state), a state in the Southeast United States Georgia may also refer to: Places Historical states and entities * Related to the ...
: May 19, 1804 #
New Hampshire New Hampshire is a U.S. state, state in the New England region of the northeastern United States. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec t ...
: June 15, 1804
Having been ratified by the legislatures of three-fourths of the several states (13 of 17), the ratification of the Twelfth Amendment was completed and it became a part of the Constitution. It was subsequently ratified by: #
Tennessee Tennessee ( , ), officially the State of Tennessee, is a landlocked state in the Southeastern region of the United States. Tennessee is the 36th-largest by area and the 15th-most populous of the 50 states. It is bordered by Kentucky to th ...
: July 27, 1804 #
Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing systems, məhswatʃəwiːsət'' English: , ), officially the Commonwealth of Massachusetts, is the most populous U.S. state, state in the New England ...
: 1961 The amendment was rejected by
Delaware Delaware ( ) is a state in the Mid-Atlantic region of the United States, bordering Maryland to its south and west; Pennsylvania to its north; and New Jersey and the Atlantic Ocean to its east. The state takes its name from the adjacent Del ...
, on January 18, 1804, and by
Connecticut Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its cap ...
, on May 10, 1804. In a September 25, 1804, circular letter to the governors of the states, Secretary of State
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
declared the amendment ratified by three-fourths of the states.


Electoral College under the Twelfth Amendment

While the Twelfth Amendment did not change the composition of the Electoral College, it did change the process whereby a president and a vice president are elected. The new electoral process was first used for the 1804 election. Each presidential election since has been conducted under the terms of the Twelfth Amendment. The Twelfth Amendment stipulates that each elector must cast distinct votes for president and vice president, instead of two votes for president. Additionally, electors may not vote for presidential and vice-presidential candidates who both reside in the elector's state—at least one of them must be an inhabitant of another state. If no candidate for president has a majority of the total votes, the House of Representatives, voting by states and with the same
quorum A quorum is the minimum number of members of a deliberative assembly (a body that uses parliamentary procedure, such as a legislature) necessary to conduct the business of that group. According to ''Robert's Rules of Order Newly Revised'', the ...
requirements as under the original procedure, chooses the president. The Twelfth Amendment requires the House to choose from the three highest receivers of electoral votes, compared to five under the original procedure. The Twelfth Amendment requires a person to receive a majority of the electoral votes for vice president for that person to be elected vice president by the Electoral College. If no candidate for vice president has a majority of the total votes, the Senate, with each senator having one vote, chooses the vice president. The Twelfth Amendment requires the Senate to choose between the candidates with the "two highest numbers" of electoral votes. If multiple individuals are tied for second place, the Senate may consider them all. The Twelfth Amendment introduced a quorum requirement of two-thirds of the whole number of senators for the conduct of balloting. Furthermore, the Twelfth Amendment requires the Senate to choose a vice president by way of the affirmative votes of "a majority of the whole number" of senators. To prevent deadlocks from keeping the nation leaderless, the Twelfth Amendment provided that if the House did not choose a president before March4 (then the first day of a presidential term), the individual elected vice president would "act as President, as in the case of the death or other constitutional disability of the President". The Twelfth Amendment did not state for how long the vice president would act as president or if the House could still choose a president after March 4. Section3 of the Twentieth Amendment, adopted in 1933, supersedes that provision of the Twelfth Amendment by changing the date upon which a new presidential term commences to January 20, clarifying that the vice president-elect would only "act as President" if the House has not chosen a president by January 20, and permitting Congress to statutorily provide "who shall then act as President, or the manner in which one who is to act shall be selected" if there is no president-elect or vice president-elect by January 20. It also clarifies that if there is no president-elect on January 20, whoever acts as president does so until a person "qualified" to occupy the presidency is elected to be president.


Interaction with the Twenty-second Amendment

The Twelfth Amendment explicitly states the constitutional requirements as provided for the president also apply to being vice president and the Twenty-second Amendment bars a two-term president from being elected to a third term, but it is unexplicit whether these amendments together bar any two-term president from later serving as vice president as well as from succeeding to the presidency from any point in the
United States presidential line of succession The United States presidential line of succession is the order in which the vice president of the United States and other officers of the United States federal government assume the powers and duties of the U.S. presidency (or the office its ...
. Some contend that the Twelfth Amendment concerns qualification for ''service'', while the Twenty-second Amendment concerns qualifications for ''election'', and thus a former two-term president is still eligible to ''serve'' as vice president. Some legal scholars propose the contention above would inadequately consider the opportunity it affords for one to serve as president more than two terms plus " ctingas President, for more than two years," resulting in a violation of the Twenty-second Amendment. The interaction between the two amendments has not been tested, as no twice-elected president has ever been nominated for the vice presidency.
Hillary Clinton Hillary Diane Rodham Clinton ( Rodham; born October 26, 1947) is an American politician, diplomat, and former lawyer who served as the 67th United States Secretary of State for President Barack Obama from 2009 to 2013, as a United States sen ...
jokingly said during her 2016 presidential campaign that she had considered naming her husband, twice-elected former president
Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
as her vice presidential running mate, but had been advised it would be unconstitutional. This constitutional ambiguity allowed for speculation in 2020 about whether twice-elected former president
Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
was eligible to be vice president.


Elections since 1804

Starting with the election of 1804, each presidential election has been conducted under the Twelfth Amendment. Only once since then has the House of Representatives chosen the president in a
contingent election In the United States, a contingent election is used to elect the president or vice president if no candidate receives a majority of the whole number of Electors appointed. A presidential contingent election is decided by a special vote of th ...
, in the 1824 election as none of the four candidates won an
absolute majority A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...
(131 votes required at the time) of electoral votes:
Andrew Jackson Andrew Jackson (March 15, 1767 – June 8, 1845) was an American lawyer, planter, general, and statesman who served as the seventh president of the United States from 1829 to 1837. Before being elected to the presidency, he gained fame as ...
received 99 electoral votes,
John Quincy Adams John Quincy Adams (; July 11, 1767 – February 23, 1848) was an American statesman, diplomat, lawyer, and diarist who served as the sixth president of the United States, from 1825 to 1829. He previously served as the eighth United States S ...
(son of
John Adams John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Fathers of the United States, Founding Father who served as the second president of the United States from 1797 to 1801. Befor ...
) 84,
William H. Crawford William Harris Crawford (February 24, 1772 – September 15, 1834) was an American politician and judge during the early 19th century. He served as US Secretary of War and US Secretary of the Treasury before he ran for US president in the 1824 ...
41, and
Henry Clay Henry Clay Sr. (April 12, 1777June 29, 1852) was an American attorney and statesman who represented Kentucky in both the U.S. Senate and House of Representatives. He was the seventh House speaker as well as the ninth secretary of state, al ...
37. As the House could consider only the top three candidates, Clay was eliminated, while Crawford's poor health following a stroke and heart attack made his election by the House unlikely. Jackson expected the House to vote for him, as he had won a plurality of both the popular and electoral votes. Instead, the House elected Adams on the first ballot with thirteen states, followed by Jackson with seven and Crawford with four. Clay had endorsed Adams for the presidency, which carried additional weight because Clay was the
Speaker of the House The speaker of a deliberative assembly, especially a legislative body, is its presiding officer, or the chair. The title was first used in 1377 in England. Usage The title was first recorded in 1377 to describe the role of Thomas de Hungerf ...
. Adams subsequently appointed Clay as his Secretary of State, to which Jackson and his supporters responded by accusing the pair of making a " corrupt bargain". In the election for vice president, John C. Calhoun (the running mate of both Jackson and Adams) was elected outright, receiving 182 electoral votes. In
1836 Events January–March * January 1 – Queen Maria II of Portugal marries Prince Ferdinand Augustus Francis Anthony of Saxe-Coburg-Gotha. * January 5 – Davy Crockett arrives in Texas. * January 12 ** , with Charles Darwin on board, r ...
, the Whig Party nominated four different candidates in different regions, aiming to splinter the electoral vote while denying Democratic nominee
Martin Van Buren Martin Van Buren ( ; nl, Maarten van Buren; ; December 5, 1782 – July 24, 1862) was an American lawyer and statesman who served as the eighth president of the United States from 1837 to 1841. A primary founder of the Democratic Party (Uni ...
an electoral majority and forcing a contingent election. The Whig strategy narrowly failed as Van Buren won an electoral vote majority and an apparent popular vote majority, winning Pennsylvania by 4,222 votes. In South Carolina, whose presidential electors were Whigs, no popular vote was held as the state legislature chose the electors. The basis for the Whigs' strategy lay in a severe state-level Democratic Party
split Split(s) or The Split may refer to: Places * Split, Croatia, the largest coastal city in Croatia * Split Island, Canada, an island in the Hudson Bay * Split Island, Falkland Islands * Split Island, Fiji, better known as Hạfliua Arts, entertai ...
in Pennsylvania that propelled the Whig-aligned
Anti-Masonic Party The Anti-Masonic Party was the earliest third party in the United States. Formally a single-issue party, it strongly opposed Freemasonry, but later aspired to become a major party by expanding its platform to take positions on other issues. After ...
to statewide power. Party alignments by state in the House of Representatives suggest that any contingent election would have had an uncertain outcome, with none of the candidates (Van Buren, William Henry Harrison and Hugh White) having a clear path to victory. In that same election, no candidate for vice president secured an electoral majority as the Democratic electors from
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
refused to vote for Democratic vice presidential nominee,
Richard Mentor Johnson Richard Mentor Johnson (October 17, 1780 – November 19, 1850) was an American lawyer, military officer and politician who served as the ninth vice president of the United States, serving from 1837 to 1841 under President Martin Van Buren ...
, due to his relationship with a former slave, and instead cast their votes for William Smith. As a result, Johnson received 147 electoral votes, one vote short of a majority, followed by
Francis Granger Francis Granger (December 1, 1792 – August 31, 1868) was an American politician who represented Ontario County, New York, in the United States House of Representatives for three non-consecutive terms. He was a leading figure in the state and ...
with 77,
John Tyler John Tyler (March 29, 1790 – January 18, 1862) was the tenth president of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president dire ...
with 47 and Smith with 23. Thus, it became necessary for the Senate to hold a contingent election between Johnson and Granger for vice president, which Johnson won on the first ballot with 33 votes to Granger's 16. Since 1836, no major U.S. party has nominated multiple regional presidential or vice presidential candidates in an election. However, since the
Civil War A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
, there have been two serious attempts by Southern-based parties to run regional candidates in hopes of denying either of the two major candidates an electoral college majority. Both attempts (in 1948 and 1968) narrowly failed; in both cases, a shift in the result of two or three close states would have forced these respective elections into the House. In modern elections, a running mate is often selected in order to appeal to a different set of voters. A Habitation Clause issue arose during the 2000 presidential election contested by
George W. Bush George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
(running-mate
Dick Cheney Richard Bruce Cheney ( ; born January 30, 1941) is an American politician and businessman who served as the 46th vice president of the United States from 2001 to 2009 under President George W. Bush. He is currently the oldest living former U ...
) and
Al Gore Albert Arnold Gore Jr. (born March 31, 1948) is an American politician, businessman, and environmentalist who served as the 45th vice president of the United States from 1993 to 2001 under President Bill Clinton. Gore was the Democratic Part ...
(running-mate
Joe Lieberman Joseph Isadore Lieberman (; born February 24, 1942) is an American politician, lobbyist, and attorney who served as a United States Senate, United States senator from Connecticut from 1989 to 2013. A former member of the Democratic Party (Uni ...
), because it was alleged that Bush and Cheney were both inhabitants of
Texas Texas (, ; Spanish language, Spanish: ''Texas'', ''Tejas'') is a state in the South Central United States, South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2 ...
and that the Texas electors therefore violated the Twelfth Amendment in casting their ballots for both. Texas' 32 electoral votes were necessary in order to secure Bush and Cheney a majority in the Electoral College. With the Democrats picking up four seats in the Senate to equal the Republicans at 50 seats each in the chamber, the outcome of a contingent election in the Senate, especially if it had happened after the newly elected senators had been seated, would have been far from certain; in fact such an election in 2000, had it happened, would have determined which party controlled the Senate. Bush's residency was unquestioned, as he was
Governor of Texas The governor of Texas heads the state government of Texas. The governor is the leader of the executive and legislative branch of the state government and is the commander in chief of the Texas Military. The current governor is Greg Abbott, who ...
at the time. However, Cheney and his wife had moved to Dallas five years earlier when he assumed the role of chief executive at
Halliburton Halliburton Company is an American multinational corporation responsible for most of the world's hydraulic fracturing operations. In 2009, it was the world's second largest oil field service company. It has operations in more than 70 countries ...
. Cheney had grown up in Wyoming, had represented it in Congress and had continuously maintained a residence in the state during his tenure at Halliburton. A few months before the election, he switched his voter registration and driver's license to
Wyoming Wyoming () is a U.S. state, state in the Mountain states, Mountain West subregion of the Western United States. It is bordered by Montana to the north and northwest, South Dakota and Nebraska to the east, Idaho to the west, Utah to the south ...
and put his home in Dallas up for sale. Three Texas voters challenged the election in a federal court in Dallas and then appealed the decision to the
United States Court of Appeals for the Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * M ...
, where it was dismissed.Bravin, Jess
Obscure Texas Case Offers Peek Into Role Of Court Nominee
The Wall Street Journal, Oct. 7, 2005.


See also

*
United States presidential eligibility legislation The Constitution of the United States provides several basic requirements for eligibility to be elected to the office of President. Individual states did not introduce significant relevant legislation until Barack Obama was elected in 2008. The c ...


Notes


References


External links

*
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Ellis, E. S. (1903). ''Thomas Jefferson: A Character Sketch.''
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* {{DEFAULTSORT:12
Twelfth Amendment to the United States Constitution The Twelfth Amendment (Amendment XII) to the United States Constitution provides the procedure for electing the president and vice president. It replaced the procedure provided in Article II, Section 1, Clause 3, by which the Electoral Colleg ...
Amendments to the United States Constitution Presidency of the United States Vice presidency of the United States 1804 in American politics 8th United States Congress