Amending the Electoral College: The 12th Amendment

The Electoral College is outlined in Article II, Section 1, of the U.S. Constitution. It is the formal body that elects the President and Vice President of the United States.

Back in 1787, when the delegates to the Constitutional Convention were trying to figure out how the President should be chosen, some wanted the Congress to choose, and others wanted a popular election. After a quite a bit of debate with no agreement, they referred the issue to the Committee on Unfinished Parts, which, as the name suggests, took up issues that couldn’t be easily resolved. After four days, the committee proposed a complicated method of selecting the President: the Electoral College.

Mural by Barry Faulkner from the Rotunda of the National Archives Building depicting the Constitutional Convention. (Records of the National Archives)

The committee’s proposal gave each state as many electors as it had Representatives and Senators in Congress. When the results from all states were compiled, the top electoral vote-getter would become President; the second would become Vice President. Electors, however, could not vote for two people from their state, and if no candidate received a majority or there was a tie, the Senate would choose the President from the top five electoral vote recipients.

The convention was receptive to the proposal, except it gave the House of Representatives instead of the Senate the responsibility for selecting a President if a candidate didn’t get a majority. They also added a provision prohibiting Members of Congress and officials “holding an Office of Trust or Profit” from serving as electors.

Because the electors were assembled for the single purpose of choosing the President and then dispersed, the framers thought the system was a good compromise to ensure the independence of the Executive—that is, the President wouldn’t be beholden to a specific standing body to ensure reelection. And since the electors never met as a national body but instead in their respective states, there was less likelihood of corruption or cabal.

Revised draft of the Constitution showing Article II, Section 1, September 12, 1787. (National Archives Identifier 7347094)

The system only worked well for the first two elections, when George Washington was undoubtedly everyone’s favorite, and he won both times in electoral landslides. With the election of 1796, problems with the Electoral College system became more apparent. In the election, John Adams, a Federalist, received the highest number of electoral votes, and the second highest went to his rival, Thomas Jefferson, a Democratic-Republican. The framers of the Constitution had not considered the possibility of the election of a President and Vice President from opposing parties.

With the 1800 election, the parties attempted to remedy the situation by having the President and Vice President elected on a party ticket. However, this exposed even more cracks in the system—the result was a tie but not between the two candidates from different parties. Two candidates from the same party received the same number of votes: Thomas Jefferson and Aaron Burr—both on the Democratic-Republican ticket. A tie vote meant the House of Representatives got to pick the winner, and that vote was extremely contentious. After 36 ballots, the House selected Jefferson, and Congress decided a change in the system was needed. 

Tally of electoral votes for the 1800 Presidential election, 2/11/1801. (National Archives Identifier 2668821)

When the Eighth Congress convened in October 1803, the House appointed a committee to consider an amendment: “That, in all future elections of President and Vice President, the persons shall be particularly designated, by declaring which is voted for as President, and which as Vice President.”

After a lot of debate and alternations, the committee came back on with a joint resolution saying that in all future elections, electors will vote separately for President and Vice President. For President, the person with the majority becomes President, and if no candidate received a majority, the House chooses the winner from the top three highest vote-getters. The person having the greatest number of votes as Vice President becomes Vice President, and in the case of a tie the Senate selects the winner.

The main issue of contention was if they should change the number of candidates sent to the House from the current five to two or three. Three ultimately won out, and on October 28, 1803, the House passed the joint resolution by a vote of 88 to 31. The proposed amendment then went to the Senate, which had already begun working on its own version of an amendment.

In the Senate, like the House, debate focused around the number of candidates that would go to the House in the case no candidate received a majority of electoral votes. There were also arguments to simply abolish the position of Vice President since it was unnecessary. Others still argued that no changes should be made because the proposed amendment would entrench the country into a two-party system.

Ultimately, on December 2, 1803, the Senate passed the joint resolution with updated language by a vote of 22 to 10 and sent the amendment back to the House. After several days of further debate, including questions over whether the two-thirds majority was to be calculated from total members in the body or of the members present, the House narrowly passed the Senate’s version on December 9 by a vote of 83 to 42 (of members present), just over the two-thirds requirement.

Joint Resolution Proposing the Twelfth Amendment to the United States providing separate designation by the Electors of their choices for President and Vice President. proposed 12/9/1803; ratified 6/15/1804. (National Archives Identifier 1407979)

The final text outlined an updated Electoral College system. It proposed that each member of the Electoral College cast one electoral vote for President and one electoral vote for Vice President. This made it impossible for two candidates for President to each get a majority of electoral votes. Also, if no candidate gets a majority, the House selects the winner from the top three, not five, vote-getters. 

The amendment also gave the Senate responsibility to select the Vice President if no candidate won a majority of the Vice Presidential electoral vote, added provisions that the Vice President would act as President should the House of Representatives fail to select a President by inauguration day, and said that no individual constitutionally ineligible to be President could serve as Vice President. 

States were quick to take up the amendment, and on June 15, 1804, with New Hampshire’s ratification, 13 of 17 states (three-fourths) had ratified it to become the 12th Amendment to the U.S. Constitution. 

The debate on amending the Electoral College did not end there. Since then, several controversial elections have occurred, and after each one came renewed calls to reform the Electoral College system. Hundreds of proposals modifying or abolishing the Electoral College have been introduced into Congress, but none have surpassed the two-thirds legislative hurdle to make its way to the states for ratification.   

House Joint Resolution proposing a Constitutional Amendment to Elect the President by Lot, 1846. (National Archives Identifier 24200386)

There have been, however, other constitutional amendments, in addition to the 12th, that have altered the Electoral College. The 20th Amendment moved the date that Congress convened from March 4 to January 3. With the move, the membership of the newly elected House, rather than the previous House, would elect the President if no candidate received an electoral majority. Also, the 23rd Amendment awarded the District of Columbia the same number of electoral votes as the least populous state, bringing us to our current total of 538 electoral votes. 

Learn more about the Electoral College by visiting the National Archives Electoral College website.

17 thoughts on “Amending the Electoral College: The 12th Amendment

  1. Unless the history of the Electoral College is understood (as is well-presented here) and in addition review the National Archives Electoral College Website (clickable link above) those of us trying to bring about reasonable change will be as “babes in the woods” in contrast to those who want it kept as is. So before pontificating on the future please first understand the past.

  2. In the 2016 election 306 ” Electors” nullified the votes of 2.9 million voters in the popular vote. In todays political environment, that does not appear fair or ethical. I believe that after 230 years the system needs to be upgraded. If we do not consider the popular majority vote for electing our Federal officials, why go through the process? If we can tabulate the votes accurately, why do we require another extra step in the election process? It is time to elect our head of state in our country by popular vote.

    1. Popular vote wouldn’t necessarily be fair to smaller states. The electors are given by popular vote per state. If it was just by popular vote only a few states would pick the winner. Just look at this years election, as of Dec 10th Biden won by 7 million votes and if you get that difference in CA & NY alone.

    2. That won’t be fair to the states with less people. New York & California would elect every president and all other states would have no say. The founders were brilliant.

    3. Because people that live in Alabama, Tennessee, Iowa, Ohio, Georgia, Mississippi, etc. don’t want California deciding who the president will be.

  3. How does a state legislature get to decide that if the majority of the poplar vote is for a certain candidate, then that candidate gets all the electoral votes allowed to that state? It seems to me the intent was that the electoral college was intended to vote for the candidate that received the most popular votes in that collegiate district. What am I not understanding

  4. AN ALTERNATIVE TO THE PRESIDENTIAL ELECTORAL COLLEGE AND POPULAR VOTE:
    . WHEN OUR FRAMERS WROTE THE CONSTITUTION THERE WERE 13 COLONIES. THERE WERE NO COUNTIES.
    .IN 2020 WE HAVE 3,974 COUNTIES. THE REPUBLICANS WON 2,497 COUNTIES ACROSS THE U.S. AND THE DEMOCRATES WON 477 COUNTIES ACROSS THE U.S.
    .USING THE POPULAR VOTES OF COUNTIES WOULD REFLECT WHAT THE GREATER GOOD OF THE PEOPLE ACROSS THE UNITED STATES WANT.
    . AS AN EXAMPLE, DEMOCRATES WON THE STATE OF NEW YORK WITH A TOTAL OF 62 COUNTIES. BUT 51 COUNTIES IN NEW YORK VOTED REPUBLICAN AND ONLY 11 COUNTIES VOTED DEMOCRAT. YET BIDEN WON WITH THE ELECTORAL COLLEGE.
    .ANOTHER EXAMPLE, GEORGIA HAS 159 COUNTIES. 131 COUNTIES VOTED REPUBLICAN AND 28 COUNTIES VOTED DEMOCRAT. YET BIDEN WON WITH ELECTORAL COLLEGE.
    .PRESIDENT ELECT BIDEN WON 24 STATES. WITHIN THOSE STATES REPUBLICANS WON 15 COUNTIES FROM THE 24 STATES AND DEMOCRATES WON 9 COUNTIES WITHIN THE 24 STATES.
    .TO USE COUNTIES WOULD BE A MORE RELIABLE WAY TO DEMONSTRATE WHAT THE MAJORITY OF PEOPLE WANT ACROSS THE UNITED STATES FOR THE GREATER GOOD. THIS IS ONE PRACTICAL WAY TO DO AWAY WITH THE ELECTORAL COLLEGE AND ALSO THE POPULAR VOTE FOR SELECTING A PRESIDENT OF THE UNITED STATES IN THE FUTURE.

    1. I guess I didn’t explain my point. Some states divide their electoral votes based on the percentage of votes cast. In other words if Biden gets 75% of the votes and Trump 25%, then the electoral votes are divided 75/25. In some states, such as California the winner gets all the electoral votes even though he only got 1 more vote than the other candidate. It is winner gets the whole pie. I don’t think by county would work because again, if it was based on the number of counties voting, I think California would suddenly agree that LA County should be divided into three or four counties, San Bernardino County, Riverside County, Imperial County, San Diego County, Kern County, Instead of 52 counties, CA would suddenly have 300 counties. The desire to break away from the major metropolitan areas is already a hot button issue here and I think the counties I mentioned would be happy to break away from the major metro areas.

      I am not fixated on percentage of the popular vote, but I think we need to have some revision to the electoral college. I’m not counting on the Dems. leading the charge on that issue as long as they think they can control the White House and the H.R. They will of course, lead the charge if they fall out of power.

  5. No system is perfect nor permanent but I believe the county approach comes closest to the framers original intent. That is a few urban areas should not dominate the politics of the entire country.

  6. While I have not studied nor researched replacing the Electoral College, the case for election by counties appears to be the best alternative. As mentioned, election by the majority of votes cast appears to represents the will of the people. But, election by county would seem to represent the will of a wider variety of people. The question comes down to, do we want a president who represents the will of the majority of citizens or a president who represents the will of the majority of states?

  7. What would happen in 2024 if Trump ran again as an independent and got around 1/3 of the vote and the Republican candidate got 1/3 of the vote and the Democratic candidate got 1/3 of the vote. What happens if no one can get to 270 votes ???

  8. Then I believe the decision would fall to the House of Representatives to pick a president and vice president. I must admit though, I am not a constitutional scholar.

  9. I was correct. A little research reveals that the House of Representatives votes for president. Each representative gets one vote. The Senate votes for vice-president with each senator getting one vote.

    In the event no president gets the necessary majority, the vice president picked by the senate acts as president until the tie in the House of Representatives is worked out and a president is picked.

    The Twelfth Amendment to the Constitution sets for the procedure in more detail than this post

Leave a Reply

Your email address will not be published.