The Twelfth Amendment
Electing the President and Vice President
Created separate electoral votes for President and Vice President and set the rules if no one wins a majority.
Ratified 1804 · 3 minute read
Published by Quasi-Legal Institute · Report an error
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; … 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. … if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President. …
In plain language
Separate ballots
Electors cast one vote for President and a distinct vote for Vice President. Before this amendment, each elector cast two votes for President, and the runner-up became Vice President.
The problem it fixed
The original Constitution gave each elector two votes for President, and the runner-up became Vice President. That system was designed before political parties existed. In 1796, it produced a President (John Adams) and a Vice President (Thomas Jefferson) from opposing sides.
In 1800, Jefferson and his running mate Aaron Burr each received 73 electoral votes because supporters had cast both votes for the party’s ticket. The tie went to the House, which took 36 ballots to choose Jefferson. Congress proposed the Twelfth Amendment in 1803, and it was ratified in 1804.
What the amendment does not say
The text never mentions voters. States decide how their electors are chosen, and every state now awards them through a popular vote. In McPherson v. Blacker (1892), the Court held that this power belongs to each state’s legislature.
The Court has also held that states can require electors to vote for the candidate who won their state’s popular vote. In Chiafalo v. Washington (2020), it upheld penalties for “faithless” electors who break that pledge.
The contingent election in 1824
The only time the House has chosen a President under the amendment was after the election of 1824. Andrew Jackson received the most electoral votes, but no one had a majority. The House selected John Quincy Adams, who had finished second.