The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List 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 shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
At the Constitutional Convention in 1787, delegates had expressed concern that a meeting of a single body in the nation’s capital to elect a president opened the door to intrigue and undue influence by special interests, foreign governments, and political factions. Meeting in their home states, electors would find it difficult to collude or buy and sell votes.
A more difficult problem was how to structure the voting within the Electoral College. During the debates at the Constitutional Convention, some delegates argued that the diversity and dispersal of the people over an expansive territory militated against direct popular election, for voters would be unable to form a majority behind any one candidate. In response, James Madison proposed that every individual voter cast three votes for president, at least two for persons from a state other than his own. Madison’s idea later resurfaced, and the convention applied it in modified form to the presidential electors of the Electoral College. Requiring each elector to cast two votes for president increased the chances that electors could form a majority. Indeed, under the arithmetic, it was possible that as many as three candidates could have a majority of the votes of the electors. The provision did not prevent a New York elector from voting for two Virginians, but prohibited a Virginia elector from doing so. The Framers also accepted Madison’s small but significant amendment to add the word “appointed” after the original text requiring a “Majority of the whole Number of Electors” for election. Thus the basis of what constitutes a majority changes if a state fails to appoint electors. As it turned out, in the first presidential election, New York failed to appoint electors, and George Washington won by the unanimous vote of the electors appointed.
If two or three persons received a majority vote and an equal vote, the House of Representatives must choose one of them for president. In deference to a suggestion by George Washington, the convention gave this responsibility to the popularly elected House, not the Senate, but representatives had to vote as state delegations, each state having one vote. If no candidate received a majority of the electoral vote, the House would choose from among the top five candidates. Because each state had one vote, regardless of population, the procedure gave proportionately more influence to the smaller states. The choice of five also gave to smaller states a greater chance of having one of their residents elected by the House, a concession to them that balanced the advantage that large states had in the electoral vote. The contingency election process also reassured delegates who had favored congressional election of the president in the first instance. The Twelfth Amendment modified these provisions, following a crisis in 1800, when Thomas Jefferson and Aaron Burr each received an equal number of electoral votes.
The creation of the office of vice president appears to have been directly related to the mode of choosing the president. The Constitution gives to the vice president only two specific constitutional responsibilities: to act as president of the Senate and to receive and open the electoral votes. In 1789, the Senate elected John Langdon as president of the Senate “for the sole purpose of opening and counting the votes for President of the United States” (there being no sitting vice president). In 1793, the vice president, John Adams, “opened, read, and delivered” the certificates and votes of the electors to the tellers appointed by the respective houses. The tellers “ascertained the votes.” By 1797, Vice President Adams only opened and delivered the certificates and reports of the electors to the tellers who counted the votes. Practice has generally followed that precedent. The issue of who counts the votes was particularly sensitive in 1876, during the contested election between Rutherford B. Hayes and Samuel Tilden. There were disputes in South Carolina, Louisiana, and Florida about which electors had been appointed (and one elector from Oregon was disqualified for being a government employee). The president of the Senate, Thomas W. Ferry, was a Republican; the Democratic Party controlled the House and the Republicans controlled the Senate. The Congress invented a novel solution to the problem of who would count the votes by creating an electoral commission, composed of five senators, five representatives, and five Supreme Court justices, to determine the results.
Finally, under this clause, whoever was runner-up in the electoral vote, with or without a majority vote, presumably a national figure competent to serve as president, became vice president. Clearly, the Founders did not anticipate rival national political parties whose top candidates could be the top two vote recipients. In the 1796 election, Federalist John Adams became president and Republican Thomas Jefferson (Adams’s bitter political opponent) became vice president. Four years later, both Jefferson and his vice-presidential running mate, Aaron Burr, received an equal number of votes. The House ultimately voted in favor of Jefferson, but only after thirty-six ballots. Hence, the Twelfth Amendment, ratified in 1804, also changed this method of choosing the vice president. In the contingency election for vice president, the Senate makes the choice. Senators do not vote as state delegations; thus, disagreements between the two senators from a state do not lead to a stalemate. Only one time in U.S. history, in the 1836 election, did the Senate choose the vice president, Richard M. Johnson, who served under Martin Van Buren.
JOSEPH JACKSON, SURVEY OF THE ELECTORAL COLLEGE IN THE POLITICAL SYSTEM OF THE UNITED STATES (1945)
TADAHISA KURODA, THE ORIGINS OF THE TWELFTH AMENDMENT: THE ELECTORAL COLLEGE IN THE EARLY REPUBLIC, 1787–1804 (1994)
DAVID A. MCKNIGHT, THE ELECTORAL SYSTEM OF THE UNITED STATES (1878)
JACK N. RAKOVE, ORIGINAL MEANINGS, POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996)
Shlomo Slonim, The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President, 73 J. Am. Hist. 35 (1986)