Twelfth Amendment: Separate electoral votes for President and Vice President

The original Constitution had each elector cast two votes for President, with the runner-up becoming Vice President. That broke in 1800. The Twelfth Amendment fixed it by having electors vote separately for each office.

The text

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.

Source: National Archives transcription Verified1

Changed. Partly superseded. The bracketed sentence marked with an asterisk was "Superseded by section 3 of the 20th amendment," per the Archives. Verified2,1

History

"Problems arose under the original system in the election of 1800, when Thomas Jefferson and Aaron Burr received the same number of votes in the Electoral College, sending the selection of a President to the House of Representatives, despite the fact that the electors had intended Jefferson to be President and Burr to be Vice President" Verified3. The amendment "was designed to avoid a repetition of the events of 1800 by having the electors vote separately for President and Vice President" Verified3.

Clause by clause

• Electors meet in their own states and vote by ballot for President and Vice President, at least one of whom must not be from the elector's own state.
• Lists go to the President of the Senate, who opens them before both houses.
• Majority of electors appointed wins. Otherwise the House chooses from the top three, voting by state, "the representation from each state having one vote."
• Vice President. If no majority, the Senate chooses from the top two.
• Eligibility. No one ineligible to be President can be Vice President.
• Superseded part. The sentence about the House choosing "before the fourth day of March" was superseded by the Twentieth Amendment, §3 Verified1.

How courts read it

• Ray v. Blair (1952). A state party can require would-be electors to pledge to support the party's nominee (Ray v. Blair, 343 U.S. 214 (1952)) Verified4.
• Chiafalo v. Washington (2020). "A State may enforce an elector's pledge to support his party's nominee—and the state voters' choice—for President" (Chiafalo v. Washington, 591 U.S. 578 (2020)) Verified5. Washington had "fined the Electors $1,000 apiece for breaking their pledges" in 2016 Verified5.

In Williams

No direct effect on city government. Williams voters choose presidential electors through the statewide California ballot, administered locally by Colusa County Verified6. California's own election rules are in Article II.

Common misconceptions

• "Electors are free agents." States can require and enforce pledges Verified5.
• "The House votes by member in a contingent election." It votes by state delegation, one vote per state.

Check yourself

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