Jonah Patel
The Twelfth Amendment to the United States Constitution, proposed by Congress in 1803 and ratified in 1804, provides the procedure for electing the president and vice president. It replaced the procedure in Article II, Section 1, Clause 3, under which the Electoral College originally functioned. The Twelfth Amendment changed the process for contingent elections in Congress held in the event of a tie vote. Under the original rule, the House would choose the president and vice president among the top five vote-getters. The Twelfth Amendment changed it so that the House selected the president from among the top three vote-getters. The amendment also addresses the determination of a majority, outlining the steps to be taken if the number of electors appointed by a state is less than the number of electors to which the state is entitled. Over the years, there have been numerous proposals to amend or abolish the Electoral College, with some arguing that it is archaic and ambiguous. However, others have supported its continuation.
| Characteristics | Values |
|---|---|
| Amendment number | XII (Twelfth Amendment) |
| Date proposed | December 9, 1803 |
| Date ratified | June 15, 1804 |
| Electors' votes | Electors cast one vote for president and one for vice president |
| Contingent election | Held by the House of Representatives if no candidate wins a majority of electors' votes for president; the Senate breaks a tie for vice president |
| Number of electors | Equal to the whole number of Senators and Representatives in Congress |
| Electors' residence | Electors must not be inhabitants of the same state as the candidate they vote for |
| Voting procedure | Electors meet in their respective states and vote by ballot; the ballots are sent to the President of the Senate to be counted |
| Number of votes to win | The candidate with the greatest number of votes wins, provided it is a majority of the whole number of electors appointed |
| Reform proposals | Over 700 proposals to reform or eliminate the Electoral College have been introduced in Congress; the closest the US has come to abolishing it was during the 91st Congress (1969-1971) |
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What You'll Learn
The Twelfth Amendment
Under the Twelfth Amendment, each member of the Electoral College must cast distinct votes for president and vice president, instead of two votes for president. The amendment adapts the provision from the original Article II text that forbids an elector from casting both their presidential votes for inhabitants of their own state. Thus, under the Twelfth Amendment, one of the votes an elector casts must be for someone who resides in a state other than the one in which the elector lives.
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Presidential and Vice-Presidential voting
The Founding Fathers established the Electoral College in the Constitution as a compromise between the election of the President by a vote in Congress and election of the President by a popular vote of qualified citizens. The Electoral College is comprised of electors who typically cast their votes for the presidential candidate who won the popular vote in each state. The Twelfth Amendment (Amendment XII) to the United States Constitution provides the procedure for electing the president and vice president. It replaced the procedure in Article II, Section 1, Clause 3, under which the Electoral College originally functioned. The amendment was proposed by Congress on December 9, 1803, and was ratified by the requisite three-quarters 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 Twelfth Amendment, each member of the Electoral College casts one electoral vote for President and one electoral vote for Vice President. This change was made to prevent a tie between two candidates for President, each receiving a majority of electoral votes. The Twelfth Amendment also changed the process for contingent elections in Congress held in the event of a tie vote. Under the original rule, the House would choose the president and vice president among the top five vote-getters. The Twelfth Amendment changed it so that the House selected the president from among the top three vote-getters. The Senate will break a tie vote for the vice presidency between the top two vote-getters.
The Twentieth Amendment, ratified in 1933, superseded Sections 1, 2, and 3 of the Twelfth Amendment. It moved the date that Congress convened from March 4 to January 3. With this change, the newly elected House, rather than the previous House, would elect the President if no candidate received an electoral majority.
There have been many proposals to modify or abolish the Electoral College, but none have passed by Congress. The American Bar Association has criticized the Electoral College as “archaic” and “ambiguous,” and its polling showed 69 percent of lawyers favored abolishing it in 1987. However, surveys of political scientists have supported the continuation of the Electoral College.
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Contingent elections
The term "contingent election" refers to a fallback process created by the Twelfth Amendment, which is triggered when no candidate receives a majority of electoral votes (270 electoral votes). In such cases, the House of Representatives selects a president, and the Senate selects a vice president. This process was established to prevent a recurrence of the 1800 election, where a tie in the Electoral College between Thomas Jefferson and Aaron Burr resulted in the House of Representatives deciding the election after 36 ballots.
The Twelfth Amendment, proposed by Congress in 1803 and ratified in 1804, replaced the original procedure outlined in Article II, Section 1, Clause 3 of the Constitution. The amendment requires each member of the Electoral College to cast one electoral vote for president and one for vice president, eliminating the possibility of multiple candidates winning a majority of electoral votes.
In a contingent election, each state delegation in the House of Representatives gets a single vote, and a candidate must receive an absolute majority of state delegation votes (26 votes) to become president-elect. The House continues balloting until a president is elected. This process can be complicated and chaotic, particularly in the absence of federal laws governing contingent elections. There is a risk of faithless electors and court challenges, which can lead to instability and even violence.
The past three contingent elections were conducted by the outgoing Congress, as congressional terms ended on March 4, coinciding with the end of presidential terms. However, the Twentieth Amendment changed the start of congressional terms to January 3 and presidential terms to January 20, meaning any future contingent elections will be handled by the incoming Congress.
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Criticisms and proposed changes
The Electoral College has faced criticism since its inception, with over 700 proposals to reform or eliminate the system introduced in Congress over the last 200 years. The American Bar Association has criticized the Electoral College as “archaic” and “ambiguous”, and public opinion polls have shown that a majority of Americans have consistently favored abolishing it.
One of the main criticisms of the Electoral College is that it does not provide for a direct democratic election. The Electoral College system allows a candidate to win the presidency without winning the popular vote, as was the case in the 2000 and 2016 elections, where George W. Bush and Donald Trump, respectively, won the Electoral College despite losing the popular vote. This discrepancy between the Electoral College and the popular vote has created considerable contentiousness about the electoral system.
Another criticism of the Electoral College is that it affords an advantage to less populous states. Each state has two Electoral College votes regardless of population size, plus additional votes to match its number of House members. This format overrepresents small- and medium-sized states at the expense of large states, which can lead to the systematic overrepresentation of the views of relatively small numbers of people.
There have been various proposals to reform or eliminate the Electoral College over the years. One proposal, put forward as Senate Joint Resolution 152 in March 1956, suggested awarding two electoral college votes to the candidate with the plurality of the popular vote in each state, with the remaining electoral votes divided in proportion to each candidate's share of the national popular vote. This proposal passed the Senate but not the House of Representatives.
Another proposal, House Joint Resolution 681, suggested replacing the Electoral College with a simpler plurality system based on the national popular vote. Under this system, the pair of candidates who received the highest number of votes would win the presidency and vice presidency provided they won at least 40% of the national popular vote. If no pair received 40% of the vote, a runoff election would be held.
In addition to these proposals, some have argued for the direct election of the president by eligible voters nationwide, while others have suggested eliminating the Electoral College entirely and moving to a direct popular vote system. However, any change to the Electoral College would require a constitutional amendment, which has not yet been successful.
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The future of the Electoral College
The Electoral College was established by the Founding Fathers as a compromise between electing the President by a vote in Congress and by a popular vote of qualified citizens. The 12th Amendment, ratified in 1804, changed the process and provided a more detailed procedure for electing the President and Vice President. It addressed issues that arose in the 1800 election, such as ties and political rivals becoming running mates.
Despite the 12th Amendment's tweaks, the Electoral College has faced persistent criticism and calls for reform. The American Bar Association, for example, has criticised the system as "archaic" and "ambiguous". In addition, various controversial elections have renewed calls for change.
To amend the Constitution and reform the Electoral College, a proposal must be passed by a two-thirds majority in both houses of Congress and then ratified by three-fourths of the states. While there have been numerous proposals, none have surpassed this legislative hurdle.
The Electoral College's future is subject to ongoing debate and attempts at reform. Its persistence despite criticism highlights the complexity of the issue and the challenges of implementing alternative systems.
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Frequently asked questions
The Electoral College is a body of electors that cast their votes for the presidential candidate who won the popular vote in each state. The Founding Fathers established the Electoral College in the Constitution as a compromise between the election of the President by a vote in Congress and the election of the President by a popular vote of qualified citizens.
The Twelfth Amendment (Amendment XII) to the United States Constitution provides the procedure for electing the president and vice president. It replaced the procedure in Article II, Section 1, Clause 3, under which the Electoral College originally functioned. The Twelfth Amendment changed the process for contingent elections in Congress held in the event of a tie vote.
Yes, there have been several attempts to abolish the Electoral College. The closest the United States came to abolishing it was during the 91st Congress (1969-1971). Representative Emanuel Celler (D-New York) introduced House Joint Resolution 681, a proposed constitutional amendment to abolish the Electoral College and provide for the direct popular election of the President and Vice President.
