United States Constitution, Amendment XII | Revamping the Electoral College

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United States Constitution, Amendment XII

Official clerical copy of the Twelfth Amendment to the Constitution. [Washington, D. C., 9 December 1803]

Manuscript document, 4 pages bifolium (248 x 203 mm), [Washington, D. C., 9 December 1803], being the official clerical copy of the Twelfth Amendment to the Constitution establishing the Electoral College, attested by Nathaniel Macon, Speaker of the House of Representatives, Vice-President and President of the Senate Aaron Burr, attested and signed by John Beckley (Clerk of the House of Representatives) and Samuel A. Otis (Secretary of the Senate); second leaf inlaid. Blue cloth folding-case, blue morocco spine, red morocco labels; spine lightly sunned.

Revamping the Electoral College. During this period, proposed constitutional amendments were circulated to the states in officially certified, handwritten copies for review and ratification, as is the case with the present document.

The Constitution of 1787 established a complex, muiltistage process for choosing the president. Article II, section 1, assigned the selection of the two highest executive officers to an electoral college composed of one member for each of a state's senators and representatives, to be chosen "in such Manner as the Legislature thereof may direct." On a day designated by Congress, the electors would meet in their own states and cast their votes for two persons, at least one of whom could not be a resident of their state. The lists of votes in each state would be sent to the national capital, where the president of the Senate would tally the votes in the presence of the Senate and House of Representatives. The candidate with the most votes would become president. In the case of a tie, the House would "immediately chuse by Ballot." Consequently, the House would vote as states, not as individuals, with a majority of states required to elect the president. The vice-president would be whoever had the most electoral votes "after the Choice of the President."

Assuming there were four candidates, this system would produce twenty-four results being twelve combinations of president and vice-president. As originally devised, the electoral system could not accommodate a two-party system or distinct presidential and vice-presidential candidates. In the three presidential elections before 1800, the impact of deepening party divisions on the electoral process became more and more salient. (see James E. Lewis Jr., "What Is to Become of Our Government?" in The Revolution of 1800. Democracy, Race, & the New Republic, pp. 5–6). The election of 1796 placed two men with diametrically opposed views, Adams and Jefferson, in the two offices. In the election of 1800, with the incumbent Adams out of favor, "more Democratic-Republican electors were chosen. These electors were expected to cast ballots for Jefferson and Burr, but it was assumed that at least one elector would intentionally not vote for Burr, thus guaranteeing Jefferson the presidency and Burr the vice-presidency" (CCC, p. 91). The election created a controversial stalemate with Jefferson and Burr both carrying seventy-three votes, Adams sixty-five, Pinckney sixty-three, and John Jay with one. "To Jefferson's mortification, the ambitious Burr did not gracefully step aside but instead tried to become president himself. Only Burr's reputation as outrageously untrustworthy and unfit for the nation's highest office convinced the Federalists to support Jefferson, who was finally elected after thirty-six ballots" (CCC, p. 91).

The Twelfth Amendment came about largely as a result of the 1800 election fiasco. It was proposed by the 8th Congress (the Democratic-Republican party having the majority in both houses) on 9 December 1803, when it was approved by the House of Representatives by a vote of 84–42, having previously been passed by the Senate 22–10 on 2 December. The amendment was officially submitted to the states on 12 December 1803 and ratified 15 June 1804 by the legislatures of three-fourths of the several states (thirteen of seventeen), in time for the next presidential election. It provided primarily that presidential electors shall make a separate designation in their choice of president and vice-president. "[B]y making the election a winner-take-all affair, the new system further encouraged partisan organization" (CCC, p. 91) rather than discourage the development of political parties as the Framers had intended.


Colonists, Citizens, Constitutions 16; Sanford V. Levinson, A Common Interpretation: The 12th Amendment and the Electoral College (https://constitutioncenter.org/blog/a-common-interpretation-the-12th-amendment-and-the-electoral-college)