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.

2 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.

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