November 16, 2017 | Supreme Court Decides Kernan v Cuero
|Presidential Elections Under the Original Constitution||Important Cases|
|The 12th Amendment is one of the more obscure provisions of the Constitution. However, it did have the practical effect of modifying the structure of presidential elections from how they were established under the original provision, Article II, Section 1, Clause 3. There, every elector in the Electoral College (the body set up to vote for the President based on their respective states’ choices for the winner) cast two votes for President. Whoever received a majority of the vote, won the presidency. Whoever came in second, became Vice-President. In the event no single person won a majority, the House of Representatives would choose the President from the top five contenders.|
|The Election of 1800||Important Cases|
|The original system worked well enough in 1796, when John Adams beat Thomas Jefferson and became the second President. Both men ran for President; but Mr. Adams received a majority of the vote.|
However, in 1800, something went awry. Again, both John Adams and Thomas Jefferson ran for President. But (as in the previous election) so did several others. Aaron Burr, for example, of the same party allegiances as Thomas Jefferson, may have only wanted to run for Vice-President. But the system did not acknowledge a separate campaign. Everyone running ran for President, and the second-place finisher was awarded the silver medal of the vice-presidency. This time, however, no majority contender arose after the Electoral College voted. Somewhat oddly, Aaron Burr and Thomas Jefferson were tied. The electors had towed their party lines so well, that each cast both of their votes for both Mr. Jefferson and Mr. Burr.
So, as was required by Article II, Section 1, Clause 3, the House of Representatives voted for the President from among the top five finishers in the election. But again, no clear winner emerged. So the House voted again,again, and again. It took 36 votes for a winner to finally be elected President: Thomas Jefferson. Though the election is gracefully known as the “Revolution of 1800,” in praise of the peaceful transfer of power from one party to another, the election was still tinged with the knowledge that the system had produced such intractable results.
|Changes to Elections Under the 12th Amendment||Important Cases|
|The Election of 1800 (see above) revealed several problems: it was too easy for no candidate to receive a majority of the vote; it was too complicated for individuals from the same party to win both the office of President and Vice-President (the original founders had, somewhat naively, tried to ignore the rising tide of party politics); and it was too embarrassing for the election to require so many rounds of voting.|
Thus, the 12th Amendment was promulgated and ratified. It changed several things about the original structure of presidential elections (including establishing a date by which the House would need to choose a President – which, itself, was modified by the 20th Amendment). But, most significantly, it did the following:
First, electors in the Electoral College still cast two votes – but now, one vote was for President and another vote was for Vice-President. There no longer had to be the awkward potential for the party representative desiring the presidency and the party representative desiring the vice-presidency to wind up tied (or worse, switched). A party could now put forth what, today, is known as a “ticket,” where one person runs as the presidential candidate, and the other, as the vice-presidential running mate.
Second, instead of the House having choose from among five candidates in the event no person wins a majority, the House now chooses from among three candidates – drastically increasing the likelihood of one winning over 50% (and decreasing the likelihood of requiring multiple House votes).
|Practical Relevance||Important Cases|
|Arguably, the reason why the 12th Amendment is so seldom referenced is because only once since its ratification has the House of Representatives had to choose the President (see above). In the Election of 1824, Andrew Jackson won a plurality of the vote – but not a majority. Therefore, as was required by the 12th Amendment, the top three candidates were referred to the House of Representatives to choose the President.|
In the House, however, Mr. Jackson lost (though he would go on to win the Election of 1828) to John Quincy Adams, who had come in second in both the popular vote and the Electoral College. Since that election, however, the House has not had to get involved.
A footnote to the 12th Amendment took place during the fairly recent Election of 2000. That contested election – between Al Gore and George W. Bush – is famous for several reasons related to the Constitution and the courts. Among those reasons, the 12th Amendment is not usually found.
However, a provision of the 12th Amendment (and an essentially identical provision in the original Constitution) known as the “Habitation Clause,” was used in at least one of the court cases surrounding that election. According to the Habitation Clause, the electors must case two votes (now, one for the President and the other for the Vice-President), “one of whom, at least, shall not be an inhabitant of the same state with themselves.” Meaning, an elector cannot vote for a President and Vice-President that both come from the same state as that elector. Arguably, this provision was designed to prevent state and local politics from too-harshly impacting this national election.
In the Election of 2000, however, George W. Bush and Dick Cheney were accused of transgressing the clause. Mr. Bush’s ‘habitation’ was certainly in Texas: he had been governor. But while Mr. Cheney had lived in Texas in the years leading up to the election, and was CEO of Halliburton, a large company headquartered in Dallas, he was a representative in Congress for the state of Wyoming, and had switched his license and voter registration – and put his house in Texas up for sale – some months before the election. Had the courts invalidated the Texas electors’ votes for Bush and Cheney, the already close election would have swung to the other side.
However, the court decided in favor of Bush and Cheney – as was the appeal. But still, for a brief moment, the 12th Amendment did have its day in court.