Ratified in 1804, the Twelfth Amendment superseded Article II, Section 1, Clause 3 of the Constitution. Under Article II as originally ratified, the Electoral College did not vote separately for President and Vice President. Instead, each elector voted for two candidates for President. If one candidate received votes from a majority of the electors, he became President, while the candidate with the second-highest number of votes became Vice President.1 However, if two candidates received votes from a majority of electors, or if no candidate received a majority, the House of Representatives was to choose the President. Problems arose under the original system in the election of 1800, when Thomas Jefferson and Aaron Burr received the same number of votes in the Electoral College, sending the selection of a President to the House of Representatives, despite the fact that the electors had intended Jefferson to be President and Burr to be Vice President.2

The Twelfth Amendment was designed to avoid a repetition of the events of 1800 by having the electors vote separately for President and Vice President, with each elector casting one vote for each office. The Constitution’s original system at times could result, as it did in the election of 1796, in the selection of a President and Vice President with different political alignments, while the Twelfth Amendment simplified the process for selecting a President and Vice President from the same political party. The Supreme Court has thus stated that the Amendment “both acknowledg[ed] and facilitat[ed] the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting.” 3

Since the Twelfth Amendment was ratified, Congress and the states have made other changes to presidential elections. Following the disputed election of 1876, Congress enacted a statute providing that if a state’s vote is not certified by the governor under seal, it shall not be counted unless both Houses of Congress concur.4 In addition, in 1933, the Twentieth Amendment superseded some provisions of the Twelfth Amendment.5

Footnotes

1

U.S. Const. art. II, § 1, cl. 3.

2

Cunningham, Election of 1800, in 1 History of American Presidential Elections 101 (A. Schlesinger ed., 1971).

3

Chiafalo v. Washington, 140 S. Ct. 2316, 2327 (2020).

4

3 U.S.C. § 15.

5

U.S. Const. amend. XX; see also Amendment XX.