As part of the National Constitution Center’s Interactive Constitution project, leading scholars across the legal and philosophical spectrum find common ground on the Constitution’s articles, amendments and provisions. In this essay, Sanford V. Levinson from the University of Texas examines the Electoral College’s origins, its evolution, and reform measures related to it. This essay was first published in September 2015.
The Twelfth Amendment cannot be understood outside of the Electoral College, which was set out in the 1787 Constitution as the mechanism by which Americans select their presidents.
There were four crucial aspects of that mechanism. The first was that the electors would vote for two persons (at least one of whom had to be from outside the elector’s home state). The second was that the electors did not differentiate between the two persons as potential presidents or vice presidents. Electors should simply vote for the two persons they viewed as most qualified to become president. The person gaining the most votes (if a majority) would become president. The runner-up (presumably the second-most-qualified person) would become vice president. The third assumption was that the electors—at least following the completely predictable (and unanimous) election of George Washington as our first president—would quite often fail to reach majority approval of a specific candidate; in that case, according to the original Constitution, the decision would be made by the House of Representatives, with each state’s delegation having one vote. The Constitution also provided that the House would choose in case of a tie vote between two candidates each of whom had received a majority of votes. Finally, because the Constitution, until amended in 1933, provided that newly elected representatives would meet for the first time only a full year after election, the choice would be made by a House that would likely include a number of “lame-ducks,” including representatives who had been defeated in the recent elections. All of these features were on display in 1801.
The election of 1800 was one of the most important in American history and, arguably, even in world history, for it represented the first time that an incumbent leader was defeated in an election. The incumbent was John Adams, who had been Washington’s Vice President for two terms and was then elected in his own right in 1796. His Vice President was Thomas Jefferson. This result reflects the desire of the Framers of 1787 to avoid development of political parties and focus indeed on some notion of “best men.” Any such hopes were quickly frustrated, however. Even by 1796, Adams was associated with the Federalist Party, while Jefferson was supported by the Democratic-Republican Party. They ran against each other again in 1800, and both Adams and Jefferson had “running mates,” Charles Cotesworth Pinckney from South Carolina in the case of Adams (and the Federalist Party) and Aaron Burr of New York, for Jefferson. The Federalist Party electors figured out that it was important not to cast both of their votes for Adams and Pinckney, for that would create a tie and, if both got a majority of the vote, throw the election into the House; the Democratic-Republican electors were not so sagacious. They dutifully cast both of their votes for their party’s champions, creating a tie majority vote that forced the House to choose between Jefferson and Burr.
The tie vote exposed deep problems in the 1787 system. The one-state/one-vote rule had the practical effect of giving Delaware’s sole Representative Bayard, an ardent Federalist, the same voting power as Virginia, then the largest state (and home, of course, of Jefferson). And what if a state had an even number of representatives who split evening on their choice? In that case, the state’s vote was not cast at all. Given that there were 16 states in the Union in 1801, nine delegations had to agree on their choice. Only on the 36th ballot did Bayard agree to vote for Jefferson and to break the deadlock (by which time at least two Jeffersonian governors, from Pennsylvania and Virginia, were threatening to call out their state militias and order them to march on the new national capitol in Washington, D.C.). Jefferson was peacefully inaugurated on March 4, and the all-important precedent was set for peaceful transfer of power. Yet the original electoral college system was exposed as problematic, and there was widespread agreement that something had to be done. But what?
One possibility, obviously, was to adopt the suggestion of Pennsylvania’s James Wilson at the Philadelphia Convention that presidents be elected by a national popular vote. That was rejected in 1787 and did not become a serious possibility in the early 19th century (nor, of course, has it been adopted since then). Still, it had become clear that political parties had become a feature of American politics and that the electoral college system should be modified to reflect this. How was this accomplished?
The answer is quite simple: electors would in the future continue to cast two votes (and one of them, as before, would have to be for a non-native of the elector’s home state), but, crucially, one of the two votes would explicitly be to fill the presidency, while the other designated who should become vice president. Never again could presidential candidates and their running mates face the embarrassing kind of tie vote that forced the House to choose between Jefferson and Burr. The Twelfth Amendment was proposed by the Eighth Congress on December 9, 1803 and submitted to the states three days later. There being seventeen states in the Union at that time, thirteen had to ratify it. Secretary of State James Madison declared that the Amendment had been added to the Constitution on September 25, 1804, at which time fourteen of the seventeen states had ratified it. Delaware, Connecticut, and Massachusetts had rejected it (though Massachusetts in fact ratified it in 1961!). The election of 1804 and all subsequent elections were carried out under the terms of the Twelfth Amendment.
This splitting of the presidency and vice-presidency did not go uncontested. At least two senators expressed their reservations about the quality of vice presidential candidates. Rather than asking of a candidate “Is he capable? Is he honest?”, Delaware’s Senator White suggested that the question instead would be “Can he by his name, by his connections, by his wealth, by his local situation, by his influence, or his intrigues, best promote the election of a President?” Senator Tracy of Connecticut agreed: “Will the ambitious, aspiring candidate for the Presidency, will his friends and favorites promote the election of a man of talents, probity and popularity for Vice President, and who may prove his rival? No! They will seek a man of moderate talents.” One might well ask how often such fears have been realized in our history.
In addition to its implicit recognition of the existence of political parties, the Amendment made another important change: The original Constitution provided that the failure of any candidate to achieve a majority would require the House to choose as president one of the five top-ranking candidates, with the person coming in second to serve as vice-president unless there was tie for second place, in which case the Senate would choose between them. Now, however, the House would choose only the President from the top three choices of the electors; the Senate would now choose the Vice President from the top two choices of the electors for that specific office. Among other things, this guaranteed, in effect, that there would always be a vice president, who could presumably take the reins of the presidency should the House be hopelessly divided among the top three candidates for the presidency.
This aspect of the Twelfth Amendment became crucial in 1824, the only time since 1800 that the House in fact selected the president as the result of the inability of any of the presidential candidates to achieve a majority of electoral votes. Andrew Jackson had won 99, John Quincy Adams 84, William Crawford 41, and Henry Clay 37. Under the original Constitution, the House would have been able to choose among all four, and one might plausibly believe that Clay might have prevailed. Under the Twelfth Amendment, however, Clay was out of the running, and the choice was reduced to Jackson, Adams, and Crawford.
Although no election since 1824 has been decided in the House of Representatives, a shift of relatively few votes in a small number of key states might well have led to that result in 1948, 1968, and 2000. What this means, practically speaking, is that in contemporary America, Wyoming, the smallest state with under 600,000 people, would have the same say in choosing a new president as California, with a population nearly 70 times that of Wyoming. As much to the point, perhaps, it is quite easy to imagine the popular vote winner losing to the runner-up in part because gerrymandered delegations in the House of Representatives voted for their party’s favorite rather than the person who actually received a majority of their state’s popular vote.
Because of the potential disconnect between the popular vote and the result of the electoral vote (or potential vote in the House), there have been recurrent proposals simply to elect the president by popular vote. If, though, one shares any of White’s or Tracy’s concerns about the vice presidency, popular election would not necessarily assuage them if one were forced to vote for the president and vice-president as a single ticket. (Political scientists have determined that voters rarely cast their vote on the basis of the vice presidential candidate.)
One possible reform is to adopt the practice in many states and “unbundle” the election of our two top executive branch officials. That is, just as in many states candidates for governor and lieutenant governor run entirely separate campaigns, meaning that sometimes the governor is from one party and the lieutenant governor from another, one could imagine separate elections for the president and vice president. Even within the electoral college, we could imagine voting for two slates of electors, one charged with choosing the president, the other picking the vice president. Most of the time, of course, voters would pick the slates of the same political party. But one can imagine that at least on occasion voters might be so put off by the vice presidential candidate that they would “split” their ticket. That very possibility might serve to discipline presidential candidates more than is now the case, especially because candidates who win the presidential nomination today basically exercise unlimited discretion in choosing their running mates. This was not the case before the 20th century, when political conventions often exercised real choice in picking both candidates.
In any event, the Twelfth Amendment, though probably unknown to most Americans, has not only a fascinating history but, much more importantly, has the capacity to play a key role should we ever become a multi-party system (as was the case in 1948 and 1968) in which enough candidates get electoral votes to deprive anyone of a majority and thus force election by the House. Perhaps this helps to explain why a popular television program, “Veep,” concluded its fourth season by setting up a tie vote between the title figure, who had succeeded to the presidency and was now running for election, and the other party’s candidate. Among other possibilities explored in the last five minutes as the final show concluded, was that her vice-presidential running mate (who could be chosen by the Senate) might in fact end up as President should the House be unable to decide between the two somewhat unpopular and flawed presidential candidates! (Had the scriptwriters really wished to teach a civics lesson, they could have introduced a distinguished “independent” candidate who received millions of popular votes and, crucially, the electoral vote of at least one state. That would have allowed the House to choose among the top three.) So one of the most esoteric features of the Constitution made its own contribution to popular culture—and deservedly so.
Sanford V. Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas Law School and Professor of Government, University of Texas.
