April 20, 2012 – Essay #45 – Amendment XII: Circumstances Allowing the Senate to Choose the Vice-President – Guest Scholar: Hans Eicholz, Historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana

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Amendment XII:

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 of 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.

Circumstances allowing the Senate to choose the Vice-President

The twelfth Amendment of the U.S. Constitution was born out of the immediate political experience of the fledgling republic as it strove to apply the provisions of its written fundamental law just over a decade after ratification.

Historically the powers associated with the executive branch have been among the most dreaded of all governmental functions. In the political struggles of seventeenth century England, the friends of both English and American liberty drew lessons about the need to constrain the prerogatives of monarchs and tyrants. That understanding shaped the indictment against the King of England in the Declaration of Independence, and shaped an important part of the debate over the original Constitutional provisions respecting the election of the American President and Vice-President.

What method of appointment would best assure the selection of leaders with the temperament and virtues necessary to remain under the law? This was the essential question discussed in the Philadelphia Convention when the second Article of the Constitution respecting the selection of the presidency was originally crafted.

Initially, no distinction was to be made in casting ballots for the election of the President and the Vice-President, but each elector was to nominate two individuals. It was hoped that such a process would filter out the influences of local prejudice if each elector were required to vote for a second person not of his or her state. Some consideration, it was believed, would then likely be given to criteria beyond merely local interests. Thus Madison observed, “The second best man in this case would probably be the first in fact.” It was hoped that such a mode of selection, combined with an electoral college, would result in a process far removed from political intrigue and discourage political commotions.

In point of fact, however, that process resulted in considerable discord when the electoral vote was equally split, as happened in the election of 1800 between the two Democratic-Republican candidates of Jefferson and Burr. The equal division of electoral college votes caused the election to be thrown into the House of Representatives.

At this point, and against all expectations, Burr attempted to negotiate with the Federalist representatives in Congress, to obtain the highest office. Eventually thwarted in his machinations, Burr’s dishonorable conduct negated Madison’s initial hopes, revealing that a man of lesser character could yet hold the second position, and if the process of election was not remedied, might at some later election, even take first place through political intrigue and backroom negotiations! For this reason, the Congress set in motion the process to amend the Constitution in the selection of both President and Vice-President on the 9th of December 1803.

The primary alteration of the 12th Amendment required the explicit designation of the office for which each candidate was being designated. It preserved, however, certain aspects of the older provisions of Article II.

The process of the electoral college was maintained to ensure the independence of the executive from the legislative branch.

In matters of tied elections, it continued to send the selection of the Presidency to the House of Representatives, but with the selection of the two officers now split, the selection of a Vice-President in cases of an electoral tie, would go directly to the Senate.

In both cases, this process arose from the general principle of the Founders that in addition to the popular element reflected in the selection processes of the electoral college, regional considerations should continue to have their influence. The United States was not to be seen as simply one homogeneous national democracy, but was also a federal union of distinct state governments, a vital part of ensuring against the over concentration of power.

To this end, when breaking a Presidential tie, the House was to assemble its delegates by states and each state was to determine its votes as one: “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.”

Likewise, the Senate, being already organized on the federal principle, would break an electoral tie vote for Vice-President. Indeed, under the old system, the Senate was to perform this function in the event that the next most popular electoral candidates after the Presidential selection, were also tied. This portion of the 12th Amendment merely preserved that order of selection.

Hans Eicholz is an historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana.

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