If not for the 12th Amendment to the US Constitution, Donald Trump could now be president and Hillary Clinton could now be vice president. Talk about an unworkable state of affairs!
The ratification of an amendment to the US Constitution deserves a blog post on its anniversary. Unfortunately, the 12th Amendment gets into the Electoral College – something that has always baffled me. I’m probably the last person who should be trying to explain the 12th Amendment to you, but I’m going to plow my way through it.
As soon as I started doing the necessary research so I could write today’s blog post, I ran into conflicting dates. I’m going with June 15, 1804 as the date the 12th Amendment to the United States Constitution was ratified. I’ll address the conflicting date later in this post
What is the 12th Amendment about?
The 12th Amendment to the US Constitution determined how every US President and Vice President have been elected since 1804. It mandates that electors in the Electoral College vote for president on one ballot and for vice president on a separate ballot.
Presidential Elections Prior to the 12th Amendment
Under Article II, Section 1 of the US Constitution, each state was entitled to appoint a slate of electors equal to the number of US Senators and US House Representatives the state had. Each state had (and still has) two Senators. The number of Representatives a state has is based on population.
Every four years those electors, now known as the Electoral College, chose the president and vice president. Each of them could vote for two people; however, they couldn’t vote for someone from their state of residency.
The highest vote getter became president and the one with the second highest number of votes became vice president, as long as their total votes exceeded one-half the number of appointed electors. Therefore, the president and the vice president weren’t necessarily from the same political party.
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If no one got a majority of votes, or if two candidates received the same number of votes, the House of Representatives chose the president and the person with the second highest number of votes became vice president.
In the 1790s, differences of opinion on domestic and foreign policies became pronounced enough that two political parties formed. The founders of the United States had not anticipated the formation of strong political organizations/parties. The two parties were known as the Federalists and the Democratic-Republicans.
Yes, it’s very confusing to us in 2020 when there are two major political parties in the US: Democrat and Republican.
The Federalists wanted a strong central government that was friendly to Great Britain. The Democratic-Republicans wanted strong local governments and were more in line with the French Revolution.
The Early US Presidents
Without opposition, George Washington was elected the first US president in 1788 and again in 1792. He announced he would not seek a third term. He became increasingly aligned with the Federalists, although he saw the dangers inherent in factionalism. John Adams was Washington’s vice president. He identified himself with the Federalists. Thomas Jefferson was Washington’s Secretary of State until 1793. Jefferson became the leader of the Democratic-Republicans.
The 1796 election was the first time candidates for president ran from two political parties. John Adams and Charles C. Pinckney were the foremost Federalists running against Thomas Jefferson. John Adams won a majority of votes, but Thomas Jefferson was elected vice president. Remember, they were from opposing political parties and ideologies. Such a situation is difficult for modern Americans to imagine.
Moving on the 1800 election, John Adams ran for reelection and Thomas Jefferson ran for president again. The political parties had gotten stronger and electors divided their votes between “only” five candidates. John Adams received 65 votes. In order to avoid a tie vote between Adams and Pinckney, one of the electors from Rhode Island voted for John Jay so Adams would have a one vote advantage over Pinckney.
But Democratic-Republicans Thomas Jefferson and Aaron Burr each received 73 votes. The Federalists thought they had an edge in the House of Representatives that would result in the election of the more conservative Aaron Burr, so they weren’t worried. They thought they could work better with a President Aaron Burr than a President Thomas Jefferson.
In order to be elected president, a candidate had to receive nine votes from the 16 states. Eight states favored Jefferson, six aligned with Burr, and two states were divided in how to cast their votes. Voting on the floor of the House of Representatives continued for six days and 35 ballots!
Although he personally favored Burr, Delaware elector James A. Bayard let it be known that he would vote for Jefferson after Senator Samuel Smith assured him that Jefferson would not undo the accomplishments of the Washington and Adams administrations. In the end, 10 states voted for Jefferson, electing him the third US president.
The 1800 election proved to the Federalists and the Democratic-Republicans that the electoral system was deeply flawed.
On December 9, 1803 Congress proposed a 12th Amendment to the Constitution.
What the 12th Amendment did
The 12th Amendment didn’t change the structure of the Electoral College but, in order to understand the purpose of the amendment, one needs to have some knowledge of the Electoral College.
Whereas the Constitution had required each elector to vote for two people for president (yes, you heard me right!), the 12th Amendment required each elector to cast one vote for president and one vote for vice president.
If no one receives a majority of votes for president, the House of Representatives will choose the president under the rules of the original procedure as set forth in the Constitution, except they will choose between no more than three candidates instead of five, as was stipulated in Article II, Section 1 of the Constitution.
In case no candidate receives a majority of votes for vice president in the Electoral College, the US Senate chooses the winner from the top two vote getters. However, if there is a tie between multiple candidates, the Senate will choose from all those in the tie.
Additionally, the 12th Amendment requires a two-thirds quorum for balloting procedures. It also provided for a remedy should a president not be chosen by March 4. That remedy was that the newly-elected vice president would act as president until the election of the president could be settled. (March 4 was the first day of a presidential term until the ratification of the 20th Amendment in 1933 which established January 20 as the first day of a presidential term.)
Under the 12th Amendment, if no president or vice president have been elected by January 20, Congress will appoint a president. We almost got into that situation in the 2000 election, but that’s a whole other story, #HangingChads.
The Pros and Cons of the Electoral College
I’ve read various reasons and speculations about why the framers of the US Constitution provided the Electoral College as a way to elect the president. I’ve read that it was to ensure that people who had wisdom (in other words, that knew about politics, had some education, and understood this new form of government) would have enough sense to elect a president.
I’ve read that they didn’t want people living in the population centers of the nation to have an advantage over the citizens in the backcountry because the people in the cities would be more likely to know the candidates. (They obviously didn’t foresee the advent of the radio or television.)
There is much confusion over the Electoral College. As a political science college student, I was more interested in the administration of government than its political aspect. I made a conscious decision not to take the senior-level Political Science course called “The Electoral Process.” Looking back, perhaps I should have taken that class.
With practically every presidential election, pro-Electoral College and anti-Electoral College opinions rise to the surface. There are people who would prefer the candidate receiving the majority of the popular vote (the votes of all citizens) to be president, while people who like the idea of the popular vote in each state being sifted through the Electoral College electors of their state want us to keep the Electoral College.
I’m going to go out on a limb today and say that I would like to see the Electoral College ended. I think each American’s vote should count equally to every other American’s vote. The people in favor of the Electoral College typically fear a populous state such as California or New York could influence an election by the sheer number of voters who live there.
Americans stand in line to cast their votes for president on the first Tuesday in November every four years, and then the electors who make up the Electoral College meet in their states on the first Monday after the second Wednesday in December and cast their votes.
Since we elect the president and vice president via the Electoral College, in 2016, Donald Trump became president even though Hillary Clinton had some three million more popular votes than Trump. There are other elections in which the top popular vote getter lost the election, but I think that one example suffices.
I think it’s time to rethink the electoral process, but I’m not impassioned enough about it to lead the campaign to amend the 12th Amendment.
Ratification of the 12th Amendment
On June 15, 1804, 189 days after the 12th Amendment had been proposed by Congress, it was ratified by 14 or the 16 states. North Carolina was the first state to ratify it, doing so on December 21, 1803. By the end of February 1804, it had been ratified by nine states.
By mid-May 1804, Delaware, Massachusetts, and Connecticut had rejected the amendment. New Hampshire ratified the 12th Amendment on June 15, 1804, meeting the requirement that in order to be adopted, a US Constitutional amendment must be ratified by three-fourths of the states.
What about the conflicting dates I found?
Technically, when three-fourths of the states have ratified a US Constitutional amendment, it is officially ratified and becomes law. That’s what happened on June 15, 1804 with the 12th Amendment. That’s why I went with today being the anniversary of the amendment’s ratification.
Secretary of State James Madison sent a letter to the state governors on September 25, 1804, declaring the 12th Amendment as ratified. Some history books use September 25, 1804 as the date of ratification.
Since my last blog post
I opened my blog with some trepidation last Monday. I didn’t know how my blog post that morning would be received. I was very pleased with the response the post got. As of last night at 10:00 pm, last Monday’s post, “I can’t breathe!”, has had 147 visitors from 15 countries. That’s a record for my blog. It has received more comments than any of my other blog posts. My thanks to each reader!
Until my next blog post
If you still have questions about the 12th Amendment and the Electoral College, please research them. I’ve said all I know about the subject, and I’m still a bit confused. Perhaps I should have gone with the September 25 date. That date doesn’t fall on a Monday (the day I blog) until 2023. After more than a little frustration, I wish I’d postponed today’s post until then!
I hope you have a good book to read. I’m reading The Book of Lost Friends, by Lisa Wingate.
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