Amendment XII-Electoral College

“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;”

The Twelfth Amendment sets out the procedures for the election of the President and Vice President: Electors cast one vote for each office in their respective states, and the candidate having the majority of votes cast for a particular office is elected. If no person has a majority for President, the House of Representatives votes from among the top three candidates, with each state delegation casting one vote. In the case of a failure of any vice presidential candidate to gain a majority of electoral votes, the Senate chooses between the top two candidates. The procedure for choosing the President and Vice President is set out in Article II, Section 1, Clauses 2–6, of the Constitution. This amendment replaces the third clause of that section, which had called for only a single set of votes for President and Vice President, so that the vice presidency would go to the presidential runner-up. In the unamended Constitution, the choice in the case of a nonmajority in the Electoral College fell to the House of Representatives, as it does under the amendment, and the runner-up there would be chosen as Vice President.

The Twelfth Amendment, the last to be proposed by the Founding generation, was proposed for ratification in December 1803 and was ratified in 1804, in time for the presidential election that year. The previous system had yielded, in the election of 1796, Federalist John Adams’s election as President, while his bitter rival and sometimes-close friend, Republican Thomas Jefferson, was elected Vice President. In the election of 1800, Republican, (the precursor of today’s Democrats), electors, though they clearly preferred Jefferson, sought to guarantee that Republicans won both offices, and cast seventy-three electoral votes for both Thomas Jefferson and Aaron Burr. This threw the election into the House of Representatives, where it was only resolved (in Jefferson’s favor) on the thirty-sixth ballot. The hardening of party lines and concomitant voting by party slates (which the Framers had not contemplated) and some dissatisfaction with the way in which electors were chosen in the states led to proposals for change, including a proposal that electors be chosen in separate electoral districts in each state. However, the only change successfully accomplished was that of separate voting for President and Vice President.

Electors in all but two states (Maine and Nebraska) do vote as a bloc, effectively ensuring a two-party system.

Most presidential elections have not generated Twelfth Amendment controversy. However, the provisions of the Amendment have surfaced from time to time, most commonly when a third-party candidate threatens to take a substantial percentage of the vote. In 1824, the failure of either Andrew Jackson or John Quincy Adams to garner a majority of electoral votes threw the election into the House of Representatives, where Adams won the presidency despite having fewer electoral votes than Jackson. In 1876, similar circumstances were resolved differently, when neither Rutherford B. Hayes nor Samuel Tilden received a majority of electoral votes, due to disputed votes in three Southern states. In that instance, Hayes won the presidency when a congressional commission awarded him all disputed electoral votes (and thus a one-vote majority).

The Electoral College was created for two reasons.

The first purpose was to create a buffer between population and the selection of a President.

The second as part of the structure of the government that gave extra power to the smaller states.

The first reason that the founders created the Electoral College is that the founding fathers were afraid of direct election to the Presidency. They feared a tyrant could manipulate public opinion and come to power.

History has proven this fear to be justified by the creation of the “Imperial Presidency” first under Franklin Delano Roosevelt and later by Lyndon Baines Johnson; Richard Milhous Nixon and lately by Barack Hussein Obama. A charismatic and/or politically powerful leader combined with a complacent or complicit media can, very easily become a demagogue.

Hamilton and the other founders believed, wrongly, that the electors would be able to insure that only a qualified person becomes President. They believed that with the Electoral College no one would be able to manipulate the citizenry. It would act as check on an electorate that might be duped. Hamilton and the other founders did not trust the population to make the right choice.Their reasoning failed to take the rise in power of political parties into account.

The electoral college is also part of compromises made at the convention to satisfy the small states. Under the system of the Electoral College each state had the same number of electoral votes as they have representative in Congress, thus no state could have less then 3.

One aspect of the electoral system that is not mandated in the constitution is the fact that the winner takes all the votes in the state. While this tends to negate the power of the electorate, with the evolution of powerful political parties it concentrates great power in the hands of the “leaders” of those parties.

While there are clear problems with the Electoral College and there are some advantages to it, changing it is very unlikely. It would take a constitutional amendment ratified by 3/4 of states to change the system. It is hard to imagine the smaller states agreeing. One way of modifying the system is to eliminate the winner take all part of it. The method that the states vote for the electoral college is not mandated by the constitution but is decided by the states. Two states do not use the winner take all system, Maine and Nebraska. It would be difficult but not impossible to get other states to change their systems, unfortunately the party that has the advantage in the state is unlikely to agree to a unilateral change.

Although “Power to the People” was a slogan much bandied about starting in the upheaval of the 1960’s, the truth of the matter is much closer to a quote attributed to Josef Stalin: