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The Twelfth Amendment

By Tyler Bauer

This is the twelfth of many blog posts that will be taking a deeper look at the various amendments to the United States Constitution, as well as proposed amendments to the United States Constitution which failed. The text of each amendment is taken from constitutionus.com and information on failed amendments is taken from www.lexisnexus.com.

The Twelfth Amendment

What it Says

“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.”

What it Means

Clearly, there’s a lot going on here, so let’s break it down bit by bit. (Note: The italicized portion is omitted as it is no longer effective.)

·       Electors – who are members of the Electoral College – are to cast votes for President and Vice President, respectively. Electors cannot vote for two individuals from their state.

·       Electors must count the number of votes for every candidate for each office. Once the Electors are done counting, they are to send their lists to the President of the Senate.

·       The President of the Senate is to open all of the lists in the presence of Congress. The votes will be counted at this time.

·       If a presidential candidate wins the majority of the Elector’s votes, that candidate becomes President of the United States.

·       In the event that no presidential candidate wins a majority, the House of Representatives is to choose the President of the United States by vote. The House may have no more than three choices, all of whom must be in the top three of votes received.

·       In the event that the House is voting, each state has one vote. For example, the Representatives from Indiana would all come together to cast a single vote.

·       The individual with the greatest number of Electors’ votes for Vice President will be Vice President, assuming this individual won a majority of the Electors’ votes.

·       In the event that no candidate for Vice President receives a majority of the Electors’ votes, the Senate is to choose between the two most popular choices for Vice President. Popularity in this case is determined by the number of votes received from the Electors. The individual who wins a majority of the Senate’s votes will then serve as Vice President.

·       Lastly, since the Vice President could end up as President, all Vice Presidents must be constitutionally eligible to be President.

Why it Matters

The importance of the Twelfth Amendment is pretty evident. Put simply, the Twelfth Amendment sets out the process by which Presidents are elected. Article II of the Constitution identifies the Electors and establishes their duty to vote for a President and Vice President. However, the rest of the Article is silent on the process by which this happens. Therefore, without the Twelfth Amendment, we would have no set manner in which the Electors choose the President and Vice President, respectively.

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