Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

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.

Amendment XII: A Tie in the Electoral College

Anti-Electoral College activists sometimes worry that the presidential election could end in a tie. Such a scenario, they might grouse, would create a “stalemate” and could even lead to “The Apocalypse.”

But an electoral tie has occurred already. This election did not result in the Apocalypse, but, as yesterday’s post discussed, there were a few days of congressional stalemate before a President was elected. The then-new nation did not devolve into chaos and rioting. Instead, the biggest consequence of the electoral tie was the Twelfth Amendment. These provisions replaced Article II, Section I, Clause 3 of the Constitution and make it harder (but not impossible) for a presidential election to end in a tie.

The Twelfth Amendment works hand-in-hand with the still operative Article II, Section I, Clause 2: This clause makes each state responsible for deciding how to appoint its own electors. In early elections, state legislatures employed a wide variety of methods—sometimes even selecting electors on their own. Today, all states conduct statewide popular elections for this purpose.

In short, when you go to the polls on Election Day, you are not voting for presidential candidates, even if it seems that way. In reality, you are voting for a slate of individuals, called electors. Most states award their electors in a “winner-take-all” fashion, so the winner of the state receives the state’s entire slate of electors. As an example, Barack Obama “won” the State of Rhode Island in 2008. But what that really meant is that four Democratic electors—not Obama himself—were elected by Rhode Islanders on that day.

The Twelfth Amendment dictates the constitutional responsibilities of electors. The primary responsibility of these Rhode Island electors, along with other electors from the remaining states, was to represent their states in a second election—the real presidential election.

This election among states’ electors occurs on a congressionally designated day in December. The Twelfth Amendment requires that each elector cast two ballots: one for a presidential candidate and one for a vice-presidential candidate. This requirement was a change from the Article II provision, which did not allow electors to distinguish between their votes for President and Vice-President. Both Article II and the Twelfth Amendment require that electors cast at least one ballot for someone who is not “an inhabitant of the same state with themselves.”

In practice, this means that a political party will handicap itself if it nominates presidential and vice-presidential candidates from the same state, because it automatically loses some votes from the home state of one candidate. In 2000, this provision caused Dick Cheney to make a point of establishing his residence in Wyoming. Had both Cheney and George W. Bush hailed from Texas, those electors would have been unable to vote for Cheney and Bush simultaneously.

After electors cast their ballots, their votes are recorded on “Certificates of Vote,” one of which goes to the President of the Senate, as required by the Twelfth Amendment. The President of the Senate presides over a joint session of Congress on January 6, and the votes are counted publicly at that time.

To be elected President, a candidate needs a majority of electoral votes. At this time, 270 votes constitute a majority of the Electoral College and will win the presidency for a candidate. If no candidate wins a majority, the Twelfth Amendment provides a back-up method for presidential selection. In this secondary election, the election of the President is sent to the House and the election of the Vice-President is sent to the Senate.

In the House vote, the Twelfth Amendment provides that each state delegation is granted one vote. (This remains unchanged from the original Article II procedure.) California, with its current delegation of fifty-three Congressmen, would cast one vote, as would South Dakota, with its single Congressman. A President is elected when one candidate wins a majority of states. Article II had allowed the House to choose from the top five presidential candidates (or two in the event of certain ties), but the Twelfth Amendment now requires the House to choose from only the top three presidential candidates.

The Twelfth Amendment also added a new procedure for election of the Vice-President: In the event that no candidate receives a majority, the Senate chooses from the top two vice-presidential candidates. Each Senator has one vote; Senators may vote for either of the top two vice- presidential contenders.

This system exists largely as it was originally proposed by the Constitutional Convention. The Twelfth Amendment tweaked the process, but substantively left the original procedure in place. Unfortunately, this system is now under attack.

The National Popular Vote movement seeks to convince a critical mass of states to award its electors to the winner of the national popular vote, instead of the winner of each state’s popular vote. NPV asks states to sign an interstate compact—basically, a contract—promising to take such action if enough other states sign on. If the movement succeeds, the constitutional election processes described in the Twelfth Amendment will remain only in theory. In practice, they will be gone. Instead, Presidents will be selected through a direct election system.

Surely the Founders would be disappointed in such a result. The Electoral College was a compromise between large and small state delegates at the Constitutional Convention. The delegates wanted the voice of the people to be reflected in the presidential election process, but they also recognized the need to protect minority groups—especially the small states—from the tyranny of the majority. Just as the composition of Congress reflected compromises between the large and small states, so did the presidential election procedure. Even the House contingent election, so disparaged by Electoral College opponents, was an important part of this compromise because of the advantage that it gave to small states.

The delegates would view efforts to abandon the Electoral College as unwise. Max Farrand reports on the delegates’ views in The Framing of the Constitution of the United States: “[F]or of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

Yes, the Electoral College is the solution for any country and any decade. The system that has served Americans so well for so long will continue to do so. If we let it.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at or on Facebook or Twitter.

April 19, 2012 – Essay #44

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Article II, Section 1, Clause 2

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:  but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.


Each State shall appoint . . . a Number of Electors . . . .


On November 4, 2008, Americans went to the polls and expressed their preferences among Barack Obama, John McCain, or other candidates. Many Americans probably thought that they were actually casting ballots for one of these men: We have gotten used to thinking of presidential elections as ones in which we vote directly for the candidates. Yet that is not really how American elections work. In reality, the only people elected on Election Day are representatives, called electors, whose sole duty is to represent their states in a subsequent election among states. This latter election—the real presidential election—determines the identity of the President of the United States.

Article II, Section 1, Clause 2 provides the boundaries for the appointment of these electors.

The Constitution provides that each state is to decide, for itself, how its electors will be chosen. During the first presidential election, states relied upon a wide range of methods. Several state legislatures appointed electors directly, on behalf of their citizens. No presidential election, as we think of it, was ever held in those states. Other states relied upon popular votes, but in different ways. For instance, Maryland directed that certain numbers of electors were to be elected from designated parts of the state. Virginia created 12 districts specifically for the election of electors; these districts were separate from the ten districts created for the election of Congressmen.

Today, every state relies upon a popular election among its own citizens. Most states then allocate their electors in a winner-take-all fashion based upon the outcome of these elections. So, for instance, when a majority of Californians expressed their preference for Obama in 2008, these votes were translated into votes for a slate of 55 Democratic electors. If McCain had won the election, an alternate slate of 55 Republican electors, committed to McCain, would have been appointed to represent California instead.


The state’s authority to choose its own method for appointing electors is not in doubt. However, a few other issues remain unresolved:


First, may Congress step in if there is controversy regarding which of two slates of electors rightfully represents a state? Congress has taken such action in the past, and it claimed authority to act in the Electoral Count Act of 1887 and subsequent measures. However, some scholars argue that such federal laws impinge on the states’ authority, as outlined in Article II, Section 1, Clause 2.

Second, is a state’s discretion truly unlimited? An anti-Electoral College movement (National Popular Vote) hopes so. This group asks states to change their manner of elector allocation: Instead of allocating electors to the winner of state popular votes, participating states would allocate their electors to the winner of the national popular vote. These states would sign an interstate compact (a contract) to this effect. If enough states sign, the Electoral College would be effectively eliminated. NPV supporters reject the claim that their compact is an end run around the Constitution, but the question will ultimately be tested in court: NPV could be enacted with as few as 11 states, whereas 38 states are required for a constitutional amendment. Such a process seems questionable, to say the least. Justice Thomas once observed, “States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions.” NPV may not satisfy this test.


In such Manner as the Legislature thereof may direct. . . .



Another open legal question exists regarding the meaning of the word “Legislature” in Article II, Section 1, Clause 2. Does this use of “Legislature” refer specifically to the lawmaking body or does it refer to a state’s entire lawmaking process? In the latter case, the legislature and governor must act together to determine the manner for appointing electors. Also, voter referendums would be able to trump the legislature in some circumstances. The Supreme Court has not directly addressed the question, but it has come down on both sides of the issue in other contexts.

The question may seem purely academic, but it has particular importance today because of NPV. In three states, NPV’s legislation has been approved by the legislature, only to be vetoed by the state’s governor. Will these vetoes stand or will they be deemed irrelevant?


Equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .


States are allocated one elector for each of their representatives in Congress—both Senators and Congressmen. Each state therefore automatically receives a minimum of three votes, as it is entitled to at least two Senators and one Congressman in the Congress, regardless of population. Puerto Rico and the Island Areas are not given electors, as they are not states. The District of Columbia did not initially receive votes because it is not a state; however, adoption of the 23rd Amendment in 1961 provided it with at least three electoral votes.

This method of allocation is consistent with the rest of the Constitution and echoes the states’ representation in Congress. A portion of a state’s congressional representation is based on population (the House of Representatives; one person, one vote), and a portion is based on a one state, one vote philosophy (the Senate).


But no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.


Some scholars believe that electors were meant to independently deliberate: The Founders wanted a body of wise men, entrusted with the power to select the President at a time when communication was slow and unreliable. Other scholars maintain that the role of elector was created only because the delegates to the Constitutional Convention left it to states to determine how their electors were to be chosen. Either way, creation of an independent electoral body was thought to provide special benefits in the presidential selection process.

In Federalist No. 68, Alexander Hamilton wrote that the election process should minimize the opportunity for “cabal, intrigue, and corruption” in the selection of the President. Article II, he believed, accomplished this. Electors could not be bribed or corrupted because their identities would not be known in advance. Presidents would not be indebted to (potentially biased) legislators for their elections, thus reinforcing the separation among the branches of government. Separating the meetings of the electors (one in each state) would make these individuals less susceptible to a mob mentality. Finally, the selection of electors was tied to the people of a state, reminding the President that he owed his office and his duty to the people themselves.

Some of Hamilton’s logic has perhaps become less applicable, given the advent of mass communication and decreasing expectations that electors are to independently deliberate. But the state-by-state presidential election system created by Article II continues to provide many benefits for a country as large and diverse as America. The White House can only be won by a candidate who wins simultaneous victories across many states; thus, candidates must appeal to a broad range of voters in order to succeed. Successful candidates bring a diverse citizenry together, building national coalitions that span regional and state lines. Such a system is as healthy now as it was in 1787.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College