Tahlequah Daily Press


May 5, 2014

Amendment fixed Electoral College problems

12th Amendment details how top U.S. leaders are selected

TAHLEQUAH — When the American experiment began in the late 18th Century, a number of monarchies and absolute rulers around the world awaited its collapse during a transition of power.

They have been disappointed for 238 years. The Civil War was certainly an existential threat, but otherwise, power transfers and procedural adjustments have been peaceful. An example of orderly adjustment is the 12th Amendment of the U.S. Constitution.

Because it is an amendment of procedure, the text is much longer than most others. It 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 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.”

As soon as Americans could no longer vote for the totally awesome George Washington because of his decision to leave public office, the U.S. Electoral College system immediately ran into trouble.

The Constitution, as first ratified, allowed each elector to vote for two candidates, provided at least one was not a resident of the elector’s home state. A candidate receiving a majority of electoral votes was named president.

Under the system, set forward by Article 2, Section 1, Clause 3 of the Constitution, it was possible for two candidates to receive a “majority.” Ties resulted in the House of Representatives choosing the president. If no candidate received a majority, the House selected from the five candidates receiving the most votes.

In 1796, John Adams won the presidency for the Federalists, but the party electors cast their second votes to an array of candidates. Consequently, Adams’ Democratic-Republican party opponent, Thomas Jefferson, was named vice president, creating an awkward situation within the administration.

The 1800 election introduced party tickets, which demonstrated a flaw in the Constitution’s Electoral College blueprint. Ticket voting meant an automatic tie between the two candidates on the winning ticket, and sending selection of the president to the House.

The House could have retained the de facto power of habitually naming the president, but the Eighth Congress offered the 12th Amendment to the states by votes of 83-42 in the House and 22-10 in the Senate. It was ratified when New Hampshire voted in favor on June 15, 1804, and Secretary of State James Madison announced ratification in a letter to the states on Sept. 25.

Since ratification of the 12th Amendment, the House has elected the president only once, in 1824. Andrew Jackson, John Quincy Adams, William H. Crawford and Henry Clay each received electoral votes. Because the House could only consider the top three recipients of votes, Clay threw his weight behind Adams, and the House listened. Though Jackson received 99 votes and Adams 84, the House named Adams president.

There have been attempts by parties or political elements – when they find their electoral situation hopeless – to fracture voting and perhaps give their candidate a more favorable hearing in a House vote. The Whig Party nominated regional candidates in 1836, but Martin Van Buren still won the electoral and popular votes.

The candidacy of Strom Thurmond, who carried four states in 1948 as a states’ rights Democrat, was a southern attempt to push the Harry S. Truman-Thomas E. Dewey election into the House, as was the independent candidacy of George Wallace in the 1968 election between Richard Nixon and Hubert Humphrey. Wallace carried five states.

The amendment’s final clause about the constitutional eligibility for the presidency and vice presidency sparks debate among academics. Some say a person who has served two terms as president is ineligible to run for vice president. Others argue the 12th Am-endment addresses qualifications for service, not election. No former president has ever run for vice president, so the clause is untested.


The series on the U.S. Constitution will be on hiatus for a couple of weeks, but will resume with an article on the 13th Amendment on Sunday, May 25.

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