Twelfth Amendment

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Twelfth Amendment

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 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.

Though the Twelfth Amendment may seem uninteresting on its surface, it was created in response to one of the most dramatic presidential elections in American history—an episode that helped spark a deadly feud between two of the nation’s most prominent politicians (see “The Hamilton-Burr Duel” box).

Ratification Facts

Proposed:

Congress proposed the twelfth amendment to the states on December 9, 1803, to replace the rules for electing the president and vice president that were set out in the original third paragraph of Article II, section one of the Constitution.

Ratification:

The amendment was ratified on June 15, 1804, when New Hampshire became the twelfth of the seventeen states to ratify. Eventually thirteen states ratified the amendment. The amendment was rejected by the remaining four states.

Ratifying States:

North Carolina, December 21, 1803; Maryland, December 24, 1803; Kentucky; December 27, 1803; Ohio, December 30, 1803; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; Virginia, February 3, 1804; New York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island, March 12, 1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New Hampshire, June 15, 1804. The amendment was later ratified by Tennessee on July 27, 1804.

Ratified on June 15, 1804, the Twelfth Amendment changed the way the president and vice president of the United States are elected. Before the Twelfth Amendment was passed, both the president and vice president were picked from the same group of candidates, all of whom were running for president. Generally, the candidate who won the most votes became president and the second place finisher became vice president.

With the growth of political parties (organized groups of people with similar political interests) the system led to some unexpected outcomes, including the election of a president and vice president from different parties and a tie between two candidates from the same party.

The Twelfth Amendment was designed to prevent such confusing results by providing separate selection processes for president and vice president. Throughout its history, however, the election process described by the Constitution and the Twelfth Amendment has been the subject of debate and controversy.

The Electoral College Explained

To understand the Twelfth Amendment, it is necessary to understand how the president and vice president of the United States are elected.

In the summer of 1787, delegates from twelve of the thirteen United States (all but Rhode Island) gathered to create a new form of government for the young country. Among the many issues discussed at this Constitutional Convention (see chapter one) was the question of how the president of the country should be elected.

The delegates, sometimes referred to as the framers of the Constitution, worried that a president who was elected directly by the people might become too popular and powerful, becoming a sort of elected king. This may seem strange to people in the twenty-first century, but Americans had only recently won their independence from Britain’s king in the Revolutionary War (1775–83), and the framers were in no hurry to replace one monarch (a king or queen) with another.

They were also concerned that ordinary citizens might not know enough about the various candidates to make an informed decision, largely because in those days far less information was available to most people. The media consisted mainly of local newspapers, and, of course, there was no television or radio news.

Some delegates wanted Congress (the legislative body made up of the Senate and the House of Representatives) to elect the president. But an essential element of the emerging Constitution was the idea of a separation of powers (see chapter one) among the executive branch (headed by the president), the legislative branch (Congress), and the judicial branch (the federal courts).

The framers felt that allowing Congress to select the president would undermine this separation, since the president would owe his job to the legislators.

An indirect election

The delegates settled on a system of indirect election, known as the electoral college, which did not give Congress or the people all of the power to elect the president. Under the system, described in Article II of the Constitution, every state is given a number of representatives to the electoral college equal to the number of senators and representatives it has in Congress. Since every state is entitled to two senators and at least one representative in the House of Representatives (see chapter one), each state has at least three of these special electors.

Each state’s legislature (the elected body that passes laws) is allowed to decide how the electors in that state are appointed. Once the electors are chosen, they gather in their states to cast votes for president. Their votes are then sent to Congress, where they are counted and the winner is announced.

In other words, it is the electors who actually vote for the president of the United States.

The framers envisioned a system by which these electors, selected by the state legislatures, would use their best judgment to select the two most qualified candidates to become the president and vice president.

Electoral majority

Originally, each elector voted for two presidential candidates. In the early days of U.S. independence, many people were very loyal to the states from which they came. To keep electors from voting only for candidates from their own state, the Constitution required each elector to vote for at least one candidate from a different state.

The candidate with the most votes in the electoral college was declared the president, as long as that candidate received votes from more than half of the electors. This is known as an electoral majority.

If, for example, there were one hundred total electors in the electoral college, each with two votes, then two hundred votes would be cast for president. In order to win the presidency, a candidate would need votes from at least fifty-one—one more than half—of the electors.

The person receiving the second largest number of votes for president would then be named vice president. This part of the process was fairly simple.

Electing a president without a majority

However, several situations could complicate the matter. For example, if no candidate won an electoral majority, the House of Representatives was required to select the president from the top five candidates.

In these special elections, each state’s group of representatives was given one vote, so large states like New York and small states like New Hampshire would have the same say in selecting the president. The House was to vote until one of the five candidates won a clear majority.

The remaining candidate with the highest number of votes in the original electoral college vote became the vice president. (The Senate had the power to break any tie for the vice presidency.)

Deciding a tie vote

It is possible for two candidates to tie and still win votes from a majority of the electors. In the example above fifty-one votes are necessary to win. Since each of the one hundred electors has two votes, two candidates could receive votes from fifty-one or more of the electors.

If two candidates tied while winning electoral majorities, the House of Representatives voted between the two candidates until one received a majority of the states’ votes and was named president. The runner-up became vice president.

While such ties might seem unlikely, it was just such a case that led to the adoption of the Twelfth Amendment.

Early Elections and Flaws in Article II

In the first and second presidential elections under the new U.S. Constitution, George Washington (1732–1799) received votes from all of the electors. No other candidate has ever duplicated this feat in the electoral college. Washington had led the country’s army during the Revolutionary War and was the young nation’s most widely respected hero.

The framers of the Constitution, including Washington, had not counted on the growth of political parties. In fact, many of them frowned on the idea of parties, fearing that they would lead to unnecessary battles for power within the government.

Washington made efforts to include people with differing views in his first cabinet (a group of high government officials appointed by the president). But it was members of that same cabinet that eventually led the first powerful political parties in the United States.

Political opponents serve together grudgingly

When Washington decided not to seek a third term, the 1796 presidential election became a contest between two groups. Washington’s vice president, John Adams (1735–1826), and his secretary of the treasury, Alexander (1755–1804), led the Federalist Party. Meanwhile, Washington’s secretary of state, Thomas Jefferson (1743–1826), was at the head of the opposing Republican Party (which later became the Democratic Party; for more information, see “A Brief History of U.S. Political Parties” box). Generally, the Federalists favored a strong central government, while the Republicans favored strong state governments.

In that year’s electoral college, Adams won seventy-one electoral votes out of 138 to become the second U.S. president. The Federalists had hoped South Carolina politician Thomas Pinckney (1750–1828) would be elected vice president. But not all electors who had voted for Adams cast their second vote for Pinckney, and Jefferson, who received sixty-eight votes, became the new vice president.

As a result, the country’s president and vice president were political opponents from different parties, a situation the framers could not have foreseen. Observers worried that this situation would make the executive branch less effective. Indeed, Vice President Jefferson often did campaign against President Adams’s policies. For example, the two clashed over the unpopular Alien and Sedition Acts, passed by a Federalist-dominated Congress to silence political opposition from the Democratic-Republicans. Adams supported the measure, while Jefferson adamantly opposed it. In fact, Jefferson commuted the sentences of all convicted under the Sedition Act after he became president.

Over the next three years, Congress proposed several amendments to change the way the electoral college worked, but none were adopted. In 1800, the presidential election followed the same rules.

The Jefferson-Burr deadlock

Both parties were eager not to have a repetition of the 1796 election. Federalists and Republicans introduced national tickets. These tickets specified the two candidates that the party endorsed, one for president and one for vice president. Party leaders then worked to ensure that their electors voted for both of the party’s candidates. This worked a little too well.

The Federalists nominated Adams for president and Thomas Pinckney’s brother, Charles Pinckney (1757–1824), for vice president. The Republicans chose Jefferson as their presidential candidate and Aaron Burr (1756–1836) as their vice-presidential candidate.

The Republicans won a majority in the electoral college, but something unexpected happened. No one made sure that one Republican elector voted for someone other than Burr, and when the votes were counted, Jefferson and Burr each received seventy-three electoral votes.

Breaking a tie vote

Everyone involved knew the Republicans wanted Jefferson to be president, but the Constitution clearly left it up to the House of Representatives to break the tie. Jefferson wrote to his friend James Madison (1751–1836; fourth president of the United States) that the tie “has produced great dismay and gloom on the Republican gentlemen here, and equal exultation on the Federalists.”

The Federalists were so happy because they still controlled the House of Representatives. The recent election had given the Republicans a majority in the new Congress, but the new congressional terms did not begin until December 1801. Adams’s presidential term, though, was due to end in March. Therefore, the current Federalist-dominated House of Representatives would choose the next president.

The Hamilton-Burr Duel

On July 11, 1804, Alexander Hamilton and Aaron Burr faced each other from twenty paces, pistols in hand and moments from ruin. Burr killed Hamilton in the duel. Four years earlier, the election of 1800 had led to the creation of the Twelfth Amendment. It also led these two prominent Americans down a path of destruction.

Hamilton and Burr actually had quite a bit in common. Both had been officers in the Continental Army during the Revolutionary War; both were successful lawyers in New York; and both served in the national government. Hamilton had been George Washington’s secretary of the treasury from 1787 until 1795, and Burr had served in the Senate before becoming vice president in 1800.

Hamilton, however, was a leader of the Federalist Party while Burr was an influential member of the Republican Party. Ironically, it was Hamilton’s actions to help the Republican Party that agitated the feud between them.

When Thomas Jefferson and Burr tied in the 1800 electoral college vote, it fell to the Federalist-dominated House of Representatives to choose one of them as the new president. Hamilton urged Federalists to support Jefferson, the Republican Party’s official candidate, even though Burr seemed willing to work with the Federalists. Hamilton was not campaigning for Jefferson as much as he was campaigning against Burr, whom he publicly declared untrustworthy.

The ill will between Burr and Hamilton continued. Fearing competition from Burr, Jefferson pushed the vice president to the sidelines of the Republican Party. Looking for other opportunities, Burr ran for governor of New York in 1804, even though he had over a year of his term as vice president left to serve. Burr ran as an Independent Republican, hoping to gain the support of New York Federalists against the main Republican candidate, Morgan Lewis.

Hamilton, however, again urged Federalists not to support the vice president, while publicly insulting Burr. And once again, Burr lost an election to a Republican rival, thanks largely to the Federalist Hamilton.

His political hopes dashed, Burr sought revenge on his longtime foe, challenging Hamilton to a duel. Hamilton agreed, assuming both men would fire harmlessly over each other’s heads and then leave, having both defended their honor. This was not to be. On July 11, 1804, the rivals met on the New Jersey side of the Hudson River, across from New York. When the word was given to fire, Burr raised his pistol and shot Hamilton in the stomach.

Hamilton’s own gun went off harmlessly in the air. Hamilton’s friends helped him back to his home in New York, but on July 12, Hamilton, one of the Founding Fathers of the United States, died at the age of forty-seven—shot by the vice president of the nation he helped create.

As public anger over the shooting grew, the vice president fled New York, where he was charged with murder. Burr wandered through the country before returning to Washington to serve out his term as vice president, despite being a wanted man. The charges against Burr were eventually dropped.

Burr would later be implicated in a plot against the U.S. government. Those charges were also dropped, and he lived to be eighty years old. But the man who had once been one of the most powerful politicians in the United States had permanently lost the respect and admiration of his countrymen.

Some Federalists hoped to work out a deal with Burr, giving him the presidency in exchange for his loyalty to their party. Burr publicly pledged his loyalty to Jefferson, but many believed he was secretly campaigning for votes.

Ironically, the Republican Party got its way thanks partly to one of their most prominent opponents. The dedicated Federalist Hamilton was no friend of Jefferson. But he did not like or trust Burr at all. He urged Federalists in the House to support Jefferson, calling Burr a man who “has no plan but that of getting power by any means.”

Hamilton’s campaign against Burr earned him an enemy for life, but it helped Jefferson win the election. After voting thirty-five times without giving Jefferson or Burr a majority, the House finally selected Jefferson on the thirty-sixth vote—just two weeks before Adams’s term as president was officially over.

A Time for Change

At this point most observers agreed the electoral college needed an overhaul. Hamilton, a Federalist, proposed requiring electors to specifically designate which of their votes was for the president and which was for the vice president.

In 1802 Congress introduced a similar proposal, nicknamed the “discrimination amendment” because electors were to discriminate, or differentiate, between presidential and vice presidential candidates. The amendment failed to pass through Congress.

But the Republicans reintroduced the amendment in 1803, hoping the states would ratify it in time for the 1804 fall elections. Congress passed the amendment on December 9, and just months later, on June 15, 1804, the states ratified the Twelfth Amendment—in plenty of time for the presidential elections that fall.

Picking the president and vice president under the Twelfth Amendment

Under the terms of the Twelfth Amendment electors no longer cast two votes for president. Instead, each elector casts one vote for president and one for vice president. The amendment still requires electors to cast at least one of their votes for a candidate from a state other than their own, which explains why parties never nominate candidates for president and vice president who are from the same state.

The candidate with a majority of the votes for president becomes the president. The person with a majority of the votes for vice president (rather than the person with the second most votes for president) becomes vice president.

If no presidential candidate wins a majority, the House of Representatives selects the president from the top three (rather than five) presidential vote-getters. Just as they did under the old rules, each state casts a single vote until one candidate wins a clear majority.

If the House of Representatives does not select a president in time for the new term, the vice president acts as president until the House selects a president. If there is a tie in the voting for the vice president, the Senate chooses the vice president from the top two vote-getters.

The Legacy of the Twelfth Amendment

With these small changes, the Twelfth Amendment solved a number of problems. The separate ballots for president and vice president made it easy for the party with the most electors to organize and win the votes for both the presidency and the vice presidency.

Of course, this was not what the framers had in mind. They imagined the vice president being picked from a pool of candidates deemed fit for the presidency, rather than from a group of contenders specifically chosen as vice-presidential candidates. But the Twelfth Amendment reflects the reality of U.S. party politics. Neither of the parties wanted a situation such as the one in which President Adams was forced to serve with an uncooperative vice president (Jefferson) from another party.

The new system also limited the role of the House of Representatives in selecting the president. Under the old system, it was possible for two candidates to tie while winning an electoral majority and therefore to turn the selection over to the House. But because electors now have only one vote for president, only one candidate can win an electoral majority, which means the House only selects the president when no candidate has won a majority in the electoral college.

Critics speak out against the electoral college

Despite the changes made by the Twelfth Amendment, critics of the electoral college put forth a number of arguments for changing or even abolishing the system.

When the electoral college was first established, voters had very little say in the election of the president. Voters elected their state legislature. But members of the legislature appointed the electors who voted for president.

Over time, states changed their rules, allowing eligible voters to vote for the electors. Now, each party runs candidates who pledge, or promise, to vote for that party’s ticket. Voters then choose electors from the party they support, and the winning party’s electors then vote in the electoral college.

Some people believe this system should be replaced with one in which the people vote directly for the president. They argue that under the current system, a candidate who receives the most direct votes from the people (popular votes) could lose the election in the electoral college. In fact, such “wrong-winner” results have occurred.

The “corrupt bargain” of 1824.

By 1824 most electors were voted in by the people. Jefferson’s Republican Party had split its support between Treasury Secretary William Crawford (1772–1834) and Secretary of State John Quincy Adams (1767–1848), John Adams’s grandson. Another faction (or group), calling itself the Democratic Republicans, supported General Andrew Jackson (1767–1845). Finally, Republican Speaker of the House Henry Clay (1777–1852)—the so-called Great Compromiser—declared himself a candidate for president.

Jackson, Adams, and Crawford finished first, second, and third, in that order. Not surprisingly, none of the candidates in this four-way race received a majority in the electoral college. Therefore, according to the Twelfth Amendment, the House of Representatives was to break the deadlock between the top three finishers.

Clay finished fourth and was out of the running. But he urged his supporters in the House to back Adams, who then easily won the presidency. When Adams later appointed Clay as his secretary of state, people suggested the two men had struck a “corrupt bargain.”

A Brief History of U.S. Political Parties

The Founding Fathers of the United States were not fans of political parties. George Washington, James Madison, and other framers of the Constitution spoke openly against partisan divisions. Nonetheless, parties were a part of U.S. politics from the very beginning, and the very first parties actually formed around members of Washington’s own cabinet.

Federalists and Republicans

Washington’s vice president John Adams (1735–1826) and secretary of the treasury Alexander Hamilton (1755–1804) were the leaders of the Federalist Party, while the first president’s secretary of state, Thomas Jefferson (1743–1826), was at the center of the opposing Republican Party.

Adams and the Federalists won the first contest between the parties in 1796. But Jefferson won the next election in 1800, beginning a period of Republican control that lasted twenty-eight years. The Federalists disappeared from national politics by the 1820s, but just as the first parties grew out Washington’s non-partisan administration, new parties sprung from splits within the Republican Party.

Democrats, Whigs, and Know-Nothings

In 1824 Republican supporters of John Quincy Adams (1767–1848), calling themselves the National Republicans, fought off a challenge by Andrew Jackson (1767–1845) and his group of Democratic-Republicans. By the time Jackson defeated Adams in 1828, his group of Republicans was known simply as the Democratic Party.

Jackson’s opponents, led by former Republican Henry Clay (1777–1852), regrouped, creating the Whig Party in the 1830s, and for the next twenty-five years, the Democrats and Whigs dominated national politics.

The Know-Nothings, a party that opposed new immigration into the United States, also cropped up during this period. Renamed the American Party, the party ran former Whig president Millard Fillmore (1800–1874) as its presidential candidate in 1856, but won just one state.

New Republican Party

A new Republican Party, unrelated to Jefferson’s party, was created in 1854. Dominated by anti-slavery interests, the Republicans became popular in the northern states just before the Civil War. In 1860 Republican candidate Abraham Lincoln won a four-way presidential race over the divided southern and northern Democrats. Since the Civil War (1861–65), a Republican or Democrat has won every presidential election, and the two parties have dominated politics at every level of government.

Third-party candidates

The U.S. electoral college system requires vast organization at the state and national levels, making it hard for new parties to run a candidate for president. Some third party candidates, though, have affected presidential elections.

After Republicans nominated William Howard Taft (1857–1930) for president in 1912, former Republican president Theodore Roosevelt (1858–1919) left the party and ran as the Progressive Party candidate. The Republican split helped Democratic candidate Woodrow Wilson (1856–1924) win the election. By finishing second, though, Roosevelt became the most successful third-party candidate ever.

Alabama governor George Wallace (1919–1998) ran as an American Independent Party candidate in 1968, and John Anderson ran on the Liberal Party ticket in 1980; both of these third-party candidates hurt Democratic candidates in those elections. But Reform Party candidate H. Ross Perot (1930–) stands, as of 2007, as the most successful third-party candidate since Theodore Roosevelt. The Texas businessman won nearly 19 percent of the popular vote in the 1992 election. Despite his strong showing, Perot did not receive a single electoral vote, highlighting the difficulty new parties have in cracking the U.S. electoral system.

The fact that Adams won the presidency with the support of a candidate who finished fourth, while winning fewer popular or electoral votes than Jackson, led to numerous proposals to revise or replace the electoral college. Nothing came of these proposals, but four years later Jackson and his Democrats swept Adams out of office—in part because of lingering public anger over the outcome of the 1824 election.

Lincoln’s plurality in 1864

In elections in which there are more than two strong candidates, a candidate may win more votes than any other candidate, without winning a majority (more than half) of the popular vote, as Jackson did in 1824. For example, one hundred voters might split their votes among three candidates, giving one candidate forty votes and the other two only thirty. A candidate who wins the most votes without winning a majority is said to have a plurality.

Under the right circumstances, the winner of a plurality in the popular election can win a clear majority in the electoral college and avoid having the House of Representatives break the deadlock.

Such a situation has occurred a number of times in U.S. history. Presidents such as Woodrow Wilson (in 1920) and Bill Clinton (in 1992) won majorities in the electoral college, despite winning only a plurality of the popular vote. But because the winners of such elections have beaten their opponents, the results are not usually controversial.

But timing is everything. Abraham Lincoln (1809–1865) won such an election in 1860, on the eve of the American Civil War (1861–65), in which northern and southern states fought over several issues, including states’ rights and slavery. In a four-way election, Lincoln (whom people in the southern states did not support) won a majority in the electoral college with only 40 percent of the popular vote.

Though Lincoln had finished ahead of his opponents, the southern states used his lack of a popular majority as an excuse to question the results. The southern states refused to accept Lincoln’s win, an act that contributed to the onset of the Civil War.

Cleveland loses with a majority! The unit rule strikes

In 1888 incumbent president Grover Cleveland (1837–1908) won a majority of the popular vote and still lost the election to Benjamin Harrison (1833–1901) in the electoral college.

To understand how this might happen people need to remember that the Constitution allows the states to determine how their electors are chosen. By 1888 most of the states had established the unit rule. This “winner-take-all” system grants all of a state’s electors to the party that wins the popular election in that state.

An example may help explain this process. Consider two states—one with one thousand voters who choose ten electors to the electoral college and another with only three hundred voters and three electors. Let us say Candidate A wins all three hundred popular votes in the small state, winning three electoral votes. Now assume Candidate B barely defeats Candidate A in the larger state, 501 to 499. Because of the unit rule, Candidate B would receive all ten of the big state’s electors and would lead in the electoral college ten to three, even though Candidate A had nearly three hundred more popular votes overall.

This situation occurred in 1888. The Democrat Cleveland won lopsided victories in some states while Harrison, a Republican, won very close elections in states that had more electoral votes. The controversial result raised questions about the fairness of the electoral college and the unit rule, but once again no changes were made to the system.

Defeating Harrison four years later, Cleveland became the only president as of 2007 to serve non-consecutive terms (terms that were not back-to-back).

Other close elections have raised concerns that the electoral college might again elect a candidate who lost the popular vote. Most memorably, in the 2000 presidential election between Democratic Albert Gore Jr. and Republican George H. W. Bush, Gore narrowly captured the popular vote, but Bush managed to win the electoral college vote after capturing the disputed electoral votes from the state of Florida. Gore and the Democrats demanded a recount and lawsuits were filed in both state and federal court. The issue eventually reached the U.S. Supreme Court, which ruled that the recounting must end, effectively awarding the presidency to Bush.

In his dissenting opinion, Justice Stephen Breyer cited the Twelfth Amendment, writing that the Court should stay out of deciding presidential elections. “To the contrary, the Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes,” Breyer wrote.

The Electoral Count Act and the overturned election of 1876.

A different sort of problem arose in the 1876 presidential elections when New York Democrat Samuel J. Tilden (1814–1886) appeared to have defeated Republican Rutherford B. Hayes (1822–1893) of Ohio. Republicans charged that the electoral votes in three southern states had been swayed by corruption.

The Twelfth Amendment makes no provision for dealing with such a problem, so Congress put the issue before a fifteen-member commission made up of eight Republicans and seven Democrats. The commission voted 8 to 7 along party lines to award the disputed votes to the Republican. With the votes switched, Hayes defeated Tilden by a single vote.

There is still disagreement about who was right in this dispute. Though no change was made to the Constitution, Congress did enact the Electoral Count Act ten years later, declaring that each state is to be the final judge of its own electoral votes.

The Faithless Elector Argument

Another aspect of the electoral college that nags at its critics is the concept of the faithless elector. In many states voters mark a box on their ballot by the names of the candidates for president and vice president they support. Of course, this vote really goes to a group of potential electors (whose names are often not on the ballot) who have pledged to support those candidates in the electoral college.

Nothing in the Constitution or the Twelfth Amendment, however, requires electors to honor that pledge. The framers wanted electors to use their own judgment in selecting the president and vice president.

But almost from the beginning, electors were expected to vote for the candidates they had pledged to support. Nonetheless, in each of the 1796, 1820, 1948, 1956, 1960, 1968, 1972, and 1976 elections, one elector refused to vote for the candidate to whom he or she was pledged.

Some people fear that someday a large group of electors might break their pledges to alter an election’s outcome. While many states require electors to honor their pledges, the penalties for not doing so are often slight or nonexistent. Only North Carolina replaces a so-called faithless elector with one who must vote in accordance with the popular vote.

Defenders of the system point out that despite the lack of rules prohibiting such changes, only eight of the more than sixteen thousand electors chosen since 1789 have broken their pledge.

Debate Over the Fairness of the Electoral College

Still, critics argue that the current system has problems. Many suggest, for example, that the unit rule is unfair, because the losing candidate in a state receives no electoral votes, even in very close elections.

Beginning with Alexander Hamilton, people have suggested dividing states into electoral districts and granting the winning candidate in each district an electoral vote, rather than awarding all of the state’s electors to one candidate. By the late twentieth century, Maine and Nebraska did not use a unit rule. Instead, they distributed their electoral votes among candidates, based on the outcome of the popular vote.

Defenders of the unit rule argue that it allows for democratic elections in each state, while giving individual states more power in the electoral process. For example, if candidates in a very close race split a state’s electoral votes evenly, the state has less overall impact on the outcome of the national election than if the winner receives all of the state’s votes. Knowing how much is at stake in an all-or-nothing election, candidates are less likely to take any state race for granted.

Direct vote

Close elections often raise public fears that the electoral college will deadlock or select the wrong winner and encourage support for a direct election of the president.

But defenders of the electoral college respond that such direct elections might actually prove to be less democratic. Since the electoral college rewards candidates who win a large number of votes in many states, it tends to eliminate candidates who appeal to only a small part of the population. But in a direct-vote system, it is possible that many candidates—each appealing to small groups of voters—might divide the popular vote into small parts. In an election among many candidates, a candidate receiving a small share of the popular vote, say 10 percent, could become president—even though 90 percent of the public had voted for other candidates.

Over the years debate has continued regarding the electoral college, though the arguments for and against it have changed very little. Moreover, though Congress has considered more than five hundred proposed amendments to abolish or reform the electoral college, the basic system defined by the Constitution and modified by the Twelfth Amendment remains in place as of the early 2000s.

FOR MORE INFORMATION

Books

Ambrose, Douglas. The Many Faces of Alexander Hamilton: The Life and Legacy of America’s Most Elusive Founding Father. New York: New York University Press, 2006.

Fleming, Thomas J.Duel: Alexander Hamilton, Aaron Burr, and the Future of America. New York: Basic Books, 2000.

Fortier, John C., ed. After the People Vote: A Guide to the Electoral College. 3rd ed. Washington, DC: AEI Press, 2004.

Isenberg, Nancy. Fallen Founder: The Life of Aaron Burr. New York: Viking, 2007.

Kyvig, David E., ed. Unintended Consequences of Constitutional Amendment. Athens: University of Georgia Press, 2000.

Ross, Tara. Enlightened Democracy: The Case for the Electoral College. Dallas, TX: Colonial Press, 2004.

Schumaker, Paul, and Burdett A. Lomis, eds. Choosing a President: The Electoral College and Beyond. New York: Seven Bridges Press, 2002.

Periodicals

Levinson, Sanford. “The Twelfth Amendment: A Time Bomb.” Findlaw.com, (accessed August 7, 2007).

Web Sites

Department of Government and Economics Houston Community College Central. Electoral College Internet Activities and Links. (accessed August 7, 2007).

National Archives and Records Administration. The Electoral College Home Page. (accessed August 7, 2007).

Politics1.com. Directory of Political Parties. (accessed August 7, 2007).