Twelfth Amendment

THE TWELFTH AMENDMENT, adopted in 1804, ensures that members of the Electoral College cast separate, specific votes for president and vice president, effectively guaranteeing party tickets. It also specifies that the House of Representatives elects the president when no candidate receives a majority of electoral votes. In that instance, the House is to choose from among the three candidates who received the most electoral votes, by state delegation (each state has an equal vote, regardless of how many representatives are in each delegation). [Page 800]The presidential election of 1800 was hotly contested. Democratic-Republicans Vice President Thomas Jefferson and Aaron Burr challenged incumbent Federalist President John Adams and Charles Pinckney. Jefferson and Burr received more popular votes than their opponents, but each party received the same number of electoral votes.

Under the applicable constitutional provision (Article II, section 1) electors were directed simply to cast two votes for president, with whoever received the most electoral votes becoming president and whoever received the second-most becoming vice president. It was unclear who would assume which office, although Jefferson was the intended presidential candidate, and Burr was the intended vice presidential candidate, Burr would not stand down. The fact that Federalists controlled the outgoing Congress further complicated matters. Many Federalists supported Burr, simply to oppose Jefferson, knowing that neither of the Federalist candidates could assume the presidency. They could at least frustrate the opposition by switching the two officeholders. Federalist Alexander Hamilton lobbied members of his party to support Jefferson, even though Hamilton disagreed with Jefferson politically, and personally liked Burr better. After tense negotiations, including alleged offers and acceptances of deals by both Jefferson and Burr, Jefferson prevailed on the 36th ballot a mere two weeks prior to inauguration.

In the 1824 presidential election, no candidate received an electoral vote majority. Four candidates, all of the Democratic-Republican Party, received electoral votes: Andrew Jackson, military hero and senator from Tennessee (99 votes), John Quincy Adams, secretary of state (84), William Crawford, secretary of the treasury (41), and Henry Clay, speaker of the house (37). Under the terms of the amendment, the House of Representatives was to choose from among Jackson, Adams, and Crawford.

Even though as the fourth candidate he was ineligible for election, Clay's position as speaker assured that he would play on important role in the House proceedings. Clay believed that Adams was the best of the available options, though he disagreed with him on several issues. Clay mistrusted Jackson based on his military service and his fear of the military threat to democratic rule, and was concerned about Crawford's failing health (he had suffered a paralytic stroke in late 1823). In large part due to Clay's support, Adams was able to win the presidency on the first ballot in the House.

In the 1876 election, an ambiguity in the amendment came to light. Although it calls for electoral votes to be counted in the presence of the House and Senate, neither the amendment nor the language it replaced specified who was to count; nor did it state what to do in the case of multiple returns. Several states submitted multiple sets of electoral ballots, and both the Democratic House and Republican Senate favored different interpretations of who had the power to count and rule on the validity of the ballots. In the end, an extra-constitutional Electoral Commission was used to award the White House to Republican Rutherford B. Hayes. A federal law adopted in 1887 further specifies the powers pertaining to counting and ruling on the validity of electoral votes.

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