Module 26: The Twelfth Amendment

How We Got Here: Philadelphia's Last Compromise

The framers settled how to choose a President late, in the second week of September 1787. The question had been sent to a Committee of Eleven, to which, in Madison's words, "sundry resolutions &c were referred on the 31st. of August." On September 4 Mr. Brearly reported for the committee. His report is the first draft of what became Article II, section 1, and it contained the electors.¹

It created electors. Each state would name as many as it had Senators and Representatives, they would meet in their own states, and each would vote for two persons, "of whom one at least shall not be an inhabitant of the same State with themselves." The person with the most votes, if a majority, became President. If nobody had a majority, "from the five highest on the list, the Senate shall choose by ballot the President." The runner-up became Vice President.¹

Gouverneur Morris, a member of the committee, gave the committee's reasons when Randolph and Pinckney asked for them. The first was "the danger of intrigue & faction if the appointmt. should be made by the Legislature."¹

The objections came the same day. Col. Mason, in Madison's notes, said the committee's plan "had removed some capital objections, particularly the danger of cabal and corruption." But it was liable to "this strong objection, that nineteen times in twenty the President would be chosen by the Senate, an improper body for the purpose."¹ Mason expected that the electors would seldom produce a majority and that the fallback would be the normal path. That expectation shaped the whole design.

From the Senate to the House, September 6

On September 6 the convention reworked the contingency. Elbridge Gerry proposed that the legislature, not the Senate, make the final choice, so that a President would not owe re-election to the Senate. Roger Sherman said that if the legislature had the eventual appointment it ought to vote "by States, in favor of the small States, as the large States would have so great an advantage in nominating the candidates." Then he moved to strike "The Senate shall immediately choose" and to insert "The House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote." Col. Mason "liked the latter mode best as lessening the aristocratic influence of the Senate." The motion carried, ten states to one, Delaware voting no.²

That vote created the contingent election in the House with one vote per state, and it created the problem that would surface in 1800. The electors cast two undifferentiated votes. Nothing in the text said which candidate was meant for President and which for Vice President. Mason's "nineteen times in twenty" shows how the framers saw it: the electors would nominate and the legislature would usually choose. A contest between two organized national tickets was not the case the text had in view.

Alexander Hamilton, defending the design in Federalist No. 68, wrote that "THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure."³

The Text

Here is the clause as drafted in 1787, from the National Archives transcription:

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. ... 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. ... 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.

U.S. Const. art. II, § 1, cl. 3 (as ratified in 1788), National Archives transcription

The amendment replaced it. The National Archives records that "A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment."⁴ The text, in full:

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; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists 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 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. But in choosing 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President; The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

U.S. Const. amend. XII (proposed December 9, 1803; ratified June 15, 1804), Founders' Constitution transcription (the dashes that follow the semicolons in the printed text are omitted here)

The Archives adds a note on the clause about March 4: it was "superseded by section 3 of the 20th amendment."⁴ That amendment moved the end of the presidential term to noon on January 20 and says what happens if a President has not been chosen by then, which is the subject of a later section.

What changed in 1804

What stayed the same matters as much. The amendment does not say how electors are chosen. That remains the power of each state's legislature under Article II, section 1, clause 2. It does not say electors may vote as they please or must vote as pledged. And it leaves Congress to set the dates, which it did by statute.

1796 and 1800: When Parties Broke the System

The first two elections ran on Washington's name. In 1796 the system met party politics for the first time. John Adams, a Federalist, got 71 electoral votes and became President. Thomas Jefferson, the Democratic-Republican leader and Adams's chief opponent, got 68 and became Vice President. The National Archives table records that "each elector was given two votes and required to cast each for a different person," so the President's chief rival became his Vice President.⁵ Two men who disagreed on almost everything now sat together at the top of the government.

In 1800 the parties tried to avoid that outcome. The Democratic-Republicans meant Jefferson for President and Aaron Burr for Vice President. Their electors voted for both. The count came out Jefferson 73, Burr 73, Adams 65, Charles C. Pinckney 64, and John Jay 1, from a total of 138 votes with 70 needed for a majority.⁶ A tie between two men on the same ticket had not been the plan. Wikipedia reports (the sentence carries a "citation needed" tag, so this lesson treats it as unconfirmed) that each party "formed a plan by which one of their respective electors would vote for a third candidate or abstain" so that its presidential candidate would get one more vote than its other nominee.⁷ The Democratic-Republican plan did not work. The Constitution had no rule for a tie between two men on the same ticket other than the House vote described in Article II.

The National Archives notes that Jefferson and Burr "tied with the highest number of electoral votes. The election was decided in the House of Representatives, with 10 State delegations voting for Jefferson, 4 voting for Burr and 2 making no choice."⁶

Why the tie happened

Madison offered one explanation in a January 1824 letter to Jefferson, in which he said: "It is a fact within my own knowledge, that the equality of votes which threatened such mischief in 1801 was the result of false assurances despatched at the critical moment to the Electors of one State, that the votes of another would be different from what they proved to be."⁸ The structural cause was plainer. The Constitution gave an elector no way to say which of his two votes was meant for which office. Every Democratic-Republican elector who voted for both men helped to tie them, and the only remedy was a deliberate throw-away vote, which had to be arranged in advance and carried out by exactly the right elector.

The House Election of 1801

The Constitution handed the choice to the House of the old Congress, in which Federalists still held many seats. Voting was by state. There were sixteen states, so nine were needed. The House voted thirty-six times. Wikipedia reports that from February 11 to 17 "the House cast a total of 35 ballots; each time eight state delegations voted for Jefferson, one short of the necessary majority of nine."⁷ The Tufts "A New Nation Votes" database records the final ballot, the thirty-sixth, showing Jefferson with ten states (Georgia, Kentucky, Maryland, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, Vermont, Virginia), Burr with four (Connecticut, Massachusetts, New Hampshire, Rhode Island), and Delaware and South Carolina casting no choice.⁹ Wikipedia gives the date as February 17, 1801.⁷

The Federalist dilemma

Eight delegations held for Jefferson and the rest would not give him a ninth. Alexander Hamilton, who distrusted both men, worked against Burr. Wikipedia describes "a frenzied letter-writing campaign to get Federalist Representatives to support Jefferson" on the ground that Jefferson was "by far not so dangerous a man" as Burr. The article cites a Hamilton letter for the phrase, and this lesson did not open that letter.⁷

The decisive member sat on a single-seat delegation. James A. Bayard of Delaware, his state's only Representative, controlled Delaware's vote. He wrote to Hamilton on March 8, 1801, after it was over. "In the origin of the business," he said, he had "contrived to lay hold of all the doubtful votes in the House," which gave him the means "to protract or terminate the controversy." He tested whether Burr would commit himself to Federalist principles, and when he concluded Burr would not, "nothing remained but to appoint a President by law, or have the government without one." He said he "came out with the most explicit & determined declaration of voting for Jefferson." The Federalist caucuses broke up "each time in confusion and discord," and Delaware and South Carolina cast blank ballots on the last round.¹⁰

Bayard's letter shows how it was done. The Constitution as written had no rule for the case in which the House failed to choose. The Twelfth Amendment later supplied one, and the Twentieth Amendment replaced it. Bayard's letter shows the alternative on the table: "nothing remained but to appoint a President by law, or have the government without one."¹⁰

Why it mattered

The election of 1800 showed that a transfer of power between rival parties could happen without violence, through a procedure that nearly failed. It also showed the weakness of the two-vote system for anyone who wanted to run a ticket. Within months the legislatures of several states began to discuss a fix.

Drafting the Amendment, 1801 to 1803

The 1801 House report

On January 22, 1801, while the Electoral College result was still in doubt, Mr. Nicholas of Virginia reported from a House committee a resolution for a constitutional amendment, printed in the Annals of Congress. It would have required states to choose electors by dividing each state into districts, "equal to the number of electors to be chosen in such State."¹¹ The proposal failed, and the idea of district electors stayed a main thread of reform thinking for years.

Hamilton's own plan

The most surprising proponent was Hamilton. On January 29, 1802 he drafted a resolution for the New York legislature that would have required Congress to divide each state into districts equal to the state's Senators and Representatives and have each district choose an elector, and that "the persons voted for shall be particularly designated by declaring which is voted for as President and which as Vice President."¹² In a letter to Gouverneur Morris on March 4, 1802 he wrote that he was "thoroughly confirmed in my first impression, that it is true Federal policy to promote the adoption of these amendments." Designation, he argued, was right "because it is in itself right that the people should know whom they are choosing," and because "the present mode gives all possible scope to intrigue and is dangerous as we have seen to the public tranquillity."¹³

The letter also shows his reason for acting. He wrote that the Federalists should adopt the reform while "personal motives induce the other party to forget their true policy."¹³

The Senate, December 1 and 2, 1803

The Eighth Congress took up the designation amendment on its first day. The Senate debated it on December 1 and 2. The Annals of Congress record the speeches. Senator James Hillhouse of Connecticut said "the complex mode provided by the Constitution was conceived in great wisdom," and warned that after the change "every demagogue would be a leader and a champion." He predicted that instead of "voting thirty-seven times before they decide, as on the last occasion, they will vote thirty hundred times," and said "Choice by lot would certainly be better than this."¹⁴ The other accounts in this lesson count thirty-six ballots; the number "thirty-seven" is what the Annals print for Hillhouse.

Senator Samuel White of Delaware argued that the Constitution had never had "a fair experiment," and said the small states would lose by the change.¹⁴ Mr. Adams of Massachusetts moved an amendment dealing with a failed election. Senator Dayton of New Jersey objected that when there is a Vice President, "in case of death or inability, he alone can exercise the powers of the Executive," and Adams conceded that "he had offered his proposition hastily."¹⁴

The Senate approved the amendment on December 2, 1803. The House followed on December 9 by a vote of 84 to 42, and the Senate vote is given as 22 to 10 in secondary sources. This lesson could not open the Annals pages for the 1803 vote tallies and treats them as reported. The Founders' Constitution confirms the dates: passed the Senate on December 2 and the House on December 9.¹⁵¹⁶ The presiding officers signed the resolution on December 12, and the amendment went to the seventeen states.¹⁵

Why the House pared the contenders to three

Under the original text, five candidates went to the House. A larger field let a minor figure win by deal. The amendment cut it to three, which had a cost nobody noticed in 1804. In 1824 the third-place finisher, William Crawford, went to the House and the fourth-place finisher, Henry Clay, did not.

Ratification, and a Governor's Veto

Seventeen states meant thirteen ratifications. The Founders' Constitution lists them. North Carolina ratified on December 22, 1803, Maryland on December 24 and Kentucky on December 27. Ohio acted between December 5 and 30, 1803. Pennsylvania ratified on January 5, 1804, Vermont on January 30, New York on February 10 and New Jersey on February 22. Virginia acted between December 20 and February 3, and Rhode Island between February 27 and March 12. South Carolina ratified on May 15, Georgia on May 19, and New Hampshire on June 15, 1804.¹⁵ The Congress Annotated record, as reproduced in the Founders' Constitution, says ratification "was probably completed on 15 June 1804, when the legislature of the thirteenth State (New Hampshire) approved the amendment."

It was not that clean. The Governor of New Hampshire vetoed the legislature's act on June 20, and the act did not pass again by the two-thirds vote the state constitution then required. The Founders' Constitution note observes that since Article V speaks of ratification by "the legislatures of three-fourths of the several States," it "has been generally believed that an approval or veto by a governor is without significance." If New Hampshire's vote were ineffective, "the amendment became operative by Tennessee's ratification on 27 July 1804." On September 25, 1804, in a circular letter to the governors, Secretary of State James Madison declared the amendment ratified by three-fourths of the states.¹⁵

Delaware rejected it on January 18, 1804, and Connecticut rejected it at its session that began May 10, 1804. Massachusetts ratified it in 1961.¹⁵ Madison's circular letter is dated September 25, 1804, which was in time for the presidential election that year.¹⁵

How the Electoral College Works Under the Twelfth Amendment

Here is the process as it runs today, with the statute that governs each step.

Choosing electors

Article II lets each state legislature decide how electors are chosen. The National Archives says that most states "have a 'winner-take-all' system that awards all electors to the Presidential candidate who wins the State's popular vote. However, Maine and Nebraska each have a variation of 'proportional representation.'"¹⁷ The Archives page for 2024 records that "Both Maine and Nebraska split their electoral votes," and describes Maine's method as two at-large electors for the statewide winners and one elector for each winner in its two congressional districts.¹⁸

The Electoral College has 538 electors, and 270 is the majority.¹⁸ A state has "the same number of electors as it does Members in its Congressional delegation: one for each Member in the House of Representatives plus two Senators." The District of Columbia "is allocated 3 electors" under the 23rd Amendment.¹⁷

Voting and certifying

The electors meet in their states "on the first Tuesday after the second Wednesday in December next following their appointment," under 3 U.S.C. § 7.¹⁹ Before that, the state executive must issue a "certificate of ascertainment of appointment of electors," not later than six days before the electors meet, under 3 U.S.C. § 5.²⁰ The electors vote for President and Vice President on separate ballots and send sealed certificates to the President of the Senate in Washington, as the amendment requires.

Counting in Congress

Under 3 U.S.C. § 15, Congress meets in joint session on January 6 "at the hour of 1 o'clock in the afternoon," with the President of the Senate presiding, and the tellers read the certificates. Since the Electoral Count Reform Act of 2022, an objection must be in writing and signed by at least one-fifth of the Senators and one-fifth of the Members of the House, and the only permitted grounds are that the state's electors "were not lawfully certified" or that a vote "has not been regularly given." The Vice President's role "shall be limited to performing solely ministerial duties," and the President of the Senate has "no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes."²¹

If nobody has a majority

If no candidate has 270 electoral votes, the House chooses among the top three, voting by state with one vote per state delegation, a quorum of members from two-thirds of the states, and a majority of all the states, which with fifty states means 26, required to elect. If no Vice Presidential candidate has a majority, the Senate chooses between the top two, each Senator voting individually, with a quorum of two-thirds of the Senators and a majority of all Senators, which today means 51, required.⁴

The vote in the House is by delegation, and the amendment does not say how a delegation decides. In 1801 two delegations, Delaware's and South Carolina's, made no choice on the last ballot.⁹

The Twentieth Amendment's backstop

Section 3 of the Twentieth Amendment, ratified in 1933, ended the March 4 deadline. The terms of the President and Vice President now end at noon on January 20. Section 3 says that if a President "shall not have been chosen before the time fixed for the beginning of his term," the Vice President elect "shall act as President until a President shall have qualified." Congress may provide by law for the case in which neither has been chosen.⁴

The House and Senate Elections That Followed: 1824 and 1836

1824: Four candidates and the House

In 1824 the Democratic-Republican Party had split and four men won electoral votes. The National Archives lists Andrew Jackson with 99, John Quincy Adams with 84, William H. Crawford with 41 and Henry Clay with 37, out of 261 with 131 needed.²² Clay, who finished fourth, was eliminated by the amendment's rule of three. The House met in 1825. Each of the 24 state delegations had one vote, so 13 were needed. The Archives records that "John Quincy Adams was elected President with 13 votes. Andrew Jackson received 7 votes and William H. Crawford received 4 votes."²² Wikipedia gives the date as February 9, 1825.²³

Clay, as Speaker of the House, had considerable influence over the outcome. Adams then named Clay Secretary of State. Jackson and his supporters accused the two of striking a "corrupt bargain," and Jackson's campaign used the charge to win in 1828.²³ The charge is still argued by historians. The point for this lesson is that the Twelfth Amendment put Clay's influence on the House floor to work, with no mechanism for the voters who had favored Jackson.

Madison, then retired, worried over the same problem and wrote to Jefferson on January 14, 1824, about proposals for electoral districts and a "joint ballot of the two Houses of Congress." He said an eventual decision "by joint ballot of the two Houses of Congress" would "be a real improvement." He also floated a plan in which "each Elector should give two votes, one naming his first choice, the other naming his next choice," and admitted it was "not probable that this modification will be relished by either of those to whom it has been suggested; both of them having in hand projects of their own."⁸

1836: The Senate chooses a Vice President

The Senate has used its Twelfth Amendment power once. In 1836 Martin Van Buren won the presidency with 170 of 294 electoral votes. His running mate, Richard M. Johnson, received 147 electoral votes, one short of a majority of 294. The Archives table shows all 23 of Virginia's electors voting for someone else for Vice President. The Senate chose between the top two, Johnson and Francis Granger, and elected Johnson with 33 votes, to Granger's 16.²⁴

Under the Twelfth Amendment, then, the House has chosen a President once, in 1825, and the Senate has chosen a Vice President once, in the 1836 election. The contingent procedures are rare. They remain the text's answer to a divided electorate.

Who Are the Electors, and Do They Have a Choice?

The state legislature's power: McPherson v. Blacker (1892)

Michigan's legislature, in an act approved May 1, 1891, provided for choosing presidential electors by district. A group of nominees for elector challenged the act in the Michigan Supreme Court in 1892.²⁵ The Supreme Court disagreed in McPherson v. Blacker, decided October 17, 1892. It wrote that "from the formation of the government until now the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors."²⁵ On that reading a state may use a statewide ticket, districts, or another method its legislature picks, which is why Maine and Nebraska may divide their votes.

Pledges: Ray v. Blair (1952)

Alabama's Democratic primary required candidates for presidential elector to pledge to "aid and support" the party's national nominees. Edmund Blair, a party member, would not include those words, and the chairman of the state executive committee, Mr. Ray, refused to certify him. The Alabama Supreme Court ordered certification. The United States Supreme Court reversed in Ray v. Blair, argued March 31 and decided April 15, 1952, writing that the State may let a party fix the qualifications of candidates and that it saw "no federal constitutional objection to the requirement of this pledge." Justice Jackson, joined by Justice Douglas, dissented. Justices Black and Frankfurter took no part.²⁶ In Chiafalo the Court later said Ray "reserved the question whether a State can enforce that requirement through legal sanctions."²⁷

Faithless electors: Chiafalo v. Washington (2020)

The question left open in 1952 was answered in 2020. Three Washington electors, Peter Chiafalo, Levi Guerra and Esther John, violated their pledges to support Hillary Clinton in the 2016 election, and the state fined each $1,000. Justice Kagan wrote for the Court, decided July 6, 2020, that "a State may enforce an elector's pledge to support his party's nominee" and the state's choice of those who will vote stands.²⁷ The Court said "Article II includes only the instruction to each State to appoint electors, and the Twelfth Amendment only sets out the electors' voting procedures," and that "Article II's use of the term 'electors' and the Twelfth Amendment's requirement that the electors 'vote,' and that they do so 'by ballot,' do not establish that electors must have discretion."²⁷ Justice Thomas filed a concurrence in the judgment.

The decision did not require states to bind their electors. It said states may. The Court noted that "32 States and the District of Columbia have such statutes on their books," and that 15 States back their pledge laws with some kind of sanction.²⁷ The Archives records that in 2016 "There were faithless votes cast for president and vice president in Hawaii, Texas, and Washington."²⁸

The independent state legislature question: Moore v. Harper (2023)

In Moore v. Harper (decided June 27, 2023) North Carolina's legislature argued that the Elections Clause (Article I, section 4) gave state legislatures power to set rules for federal elections free of state-court review. Chief Justice Roberts wrote for six Justices (Sotomayor, Kagan, Kavanaugh, Barrett and Jackson joined); Justice Thomas dissented, joined by Justices Gorsuch and, as to Part I, Alito. The Court affirmed the North Carolina court's decision. The case concerned congressional districts and not electors, though the Electors Clause of Article II uses the same words, "the Legislature thereof." The Court's rejection of the broadest version of the argument bears on how state courts may review state election law for presidential elections. This lesson did not read the decision's treatment of the Electors Clause closely and does not state how far the holding reaches.²⁹

Bush v. Gore (2000)

The Court's per curiam opinion in Bush v. Gore, issued December 12, 2000, arose from the Florida recount after the 2000 election. The Court wrote that "With respect to the equal protection question, we find a violation of the Equal Protection Clause" in the use of standardless manual recounts. The case turned on equal protection and not on the Twelfth Amendment. It belongs in this lesson because the question presented also concerned Article II and 3 U.S.C. § 5, the statute on state certification that the 2022 reform later rewrote.³⁰²⁰

Counting Disputes: 1877, 1887, 2021 and 2022

The amendment says only that 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." It does not say who counts, or what to do with competing slates. The question first mattered in the disputed election of 1876, when several states submitted competing slates and a divided Congress was unable to resolve the deadlock for weeks.³¹ Congress passed the Electoral Count Act in 1887 to supply procedures. Its text was dense and ambiguous, and for 135 years it governed the count.

Wikipedia notes that the Act in its unamended form "last governed at the time of the 2021 United States Electoral College vote count."³¹ After the 2020 election the meaning of the Act was contested in public. This lesson did not research the January 6, 2021 session in a primary source and does not describe it.

In December 2022 Congress amended the law. The Electoral Count Reform and Presidential Transition Improvement Act, enacted as Division P of the Consolidated Appropriations Act, 2023, passed the Senate on December 22, 2022 (68 to 29) and the House on December 23 (225 to 201) and was signed by President Biden on December 29, 2022.³² It amended 3 U.S.C. §§ 5, 7 and 15. The changes include an express statement that the Vice President's role is ministerial, the one-fifth threshold for objections, limits on the grounds for objection, and an expedited court procedure on state-certification disputes.²¹²⁰

The National Archives records the 2024 result as Donald J. Trump 312 and Kamala D. Harris 226, out of 538 with 270 needed, with JD Vance the Vice Presidential winner over Tim Walz.¹⁸

The unsettled parts

The statute is not a constitutional amendment, and Congress can change it by ordinary legislation. Whether any court would enforce its limits against a Congress that disregarded them is untested. The Twelfth Amendment's words give the President of the Senate the task of opening certificates and give no one an express power to resolve competing slates. The 2022 Act tries to fill the gap, and the first uses did not test it.

The Vice President: Eligibility and the Twenty-Second Amendment

The last sentence of the amendment says that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." Article II, section 1 sets the qualifications for President: a natural born citizen, thirty-five years of age, and fourteen years a resident within the United States.³³ The Fourteenth Amendment, Section 3, bars certain former officers who engaged in insurrection (Module 28). The Twenty-second Amendment limits how often a person may be elected President.

Whether the Twenty-second Amendment makes a twice-elected President "constitutionally ineligible" to be Vice President is a question the text does not answer. Wikipedia's summary states that the Twelfth Amendment applies the presidential requirements to the Vice President and that the Twenty-second bars a third election, but "it is unexplicit whether these amendments together bar any two-term president from later serving as vice president." It reports that some contend "the Twelfth Amendment concerns qualification for service, while the Twenty-second Amendment concerns qualifications for election," so that a former two-term President remains eligible. Others read the two together the other way.¹⁶

This lesson found no court decision on the question, and it did not search exhaustively. Treat it as open.

Reform Proposals and the Compact Option

People have proposed to change this system since before 1804. The proposals fall into a few families, each defended by named advocates of different persuasions.

Direct election. A constitutional amendment would replace the Electoral College with a national popular vote. It needs two-thirds of each house of Congress and three-fourths of the states. None has passed Congress since the debate began.

Districts. The plan that Hamilton drafted in 1802 and that the House committee proposed in 1801 would elect one elector per district. Maine and Nebraska today use a variation, as the National Archives notes.¹²¹⁷

The National Popular Vote Interstate Compact. States agree to give all their electoral votes to the national popular-vote winner, once states with at least 270 electoral votes have joined. Because Article II lets each legislature set the manner of appointing electors, supporters argue that no amendment is needed. An NPR report carried by KUNC on April 14, 2026 says Virginia's entry brought the total to "18, plus the District of Columbia, for a total of 222 electoral votes," and that the compact does not take effect until it reaches 270.³⁴ Wikipedia's page, showing status as of September 2026, lists 222 enacted electoral votes (41.3 percent of the Electoral College) and 28 pending.³⁵ Wikipedia reports that "Some legal observers believe states have plenary power to appoint electors as prescribed by the compact; others believe that the compact will require congressional consent under the Constitution's Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment." This lesson found no Supreme Court ruling on the question.³⁵

McPherson and Chiafalo show that the text leaves the states room. McPherson describes "plenary power" in the legislatures over appointment, and Chiafalo lets a state enforce a pledge.²⁵²⁷

Myths and Misreadings

Quick questions

What is the Twelfth Amendment for? It fixed the two-vote system that produced the tie of 1800. Electors now cast separate ballots for President and Vice President.

Does the House vote by member? No. By state delegation, one vote per state, and a majority of all states is needed.

When was the last contingent election? The House chose a President in 1825 and the Senate chose a Vice President in the 1836 election. This lesson found none since.

Landmark Cases

Each case was checked against the opinion text on Cornell LII.

This lesson did not independently confirm the U.S. Reports page numbers for Chiafalo and Moore; check them against the official reports.

The Idaho Connection

Idaho's four electors

Idaho has four electoral votes: two Representatives and two Senators. The Idaho Secretary of State presides when the electors meet. A December 2024 press release listed on his office's newsroom says Secretary of State Phil McGrane "presided over the Electoral College today in the Lincoln Auditorium of the Idaho State Capitol" and that "Idaho's four electors officially cast their votes."³⁶ This lesson could not confirm the exact release date from the listing.

Idaho Code, title 34, chapter 15

The statutes for presidential electors are short. Section 34-1502 provides that "There shall be an election held in this state for the election of such electors, at the times appointed by any law of the Congress or the Constitution of the United States." Section 34-1503 says the electors "shall, at twelve (12) o'clock noon on the day which is or may be directed by the Congress of the United States, meet at the seat of government of this state, and then and there perform the duties enjoined upon them by the Constitution and laws of the United States." Under § 34-1504 each elector gives notice to the governor, and "if any elector named therein fails to appear before nine (9) o'clock on the morning of the day of election," the electors then present "shall immediately proceed to elect, by ballot, in the presence of the governor, persons to fill such vacancies." Section 34-1505 deals with ties among those chosen to fill vacancies.^37383940

Under § 34-1501 the secretary of state prepares lists of the names of the electors, obtains the governor's signature, affixes the state seal, and delivers one certificate to each elector "on or before the second Wednesday in December next after such election."⁴¹ Federal law separately requires the state executive's certificate of ascertainment under 3 U.S.C. § 5. Under § 34-1507 an elector who attends and votes is compensated as provided by section 59-509(d), Idaho Code.⁴²

This lesson found no pledge or sanction provision in chapter 15 of title 34. It did not search the rest of the Idaho Code or the parties' rules, and it did not confirm how electors are nominated in Idaho. Check those sources before relying on this lesson for how Idaho binds, or does not bind, its electors after Chiafalo.

The county canvass

The popular vote that appoints the electors passes through Idaho's county boards. Under § 34-1205 "The county board of commissioners shall be the county board of canvassers and the county clerk shall serve as its secretary for this purpose," and the board "shall meet within nine (9) days after an election." Under § 34-1207 the county clerk "shall forward to the secretary of state the completed and signed canvass report."⁴³⁴⁴

If the House must choose

If the House ever had to choose a President, Idaho would have one vote, cast by its delegation of two Representatives. The Twelfth Amendment says only that "the representation from each state" has one vote, so how a delegation decides is left to the delegation. If Idaho's two members disagreed, the amendment does not say what happens, and Idaho might cast no vote, as Delaware and South Carolina cast none on the last ballot in 1801.⁹ A reporter covering a close national election could ask both members in advance how they would vote in that case.

Where This Shows Up for Officials, Reporters and Citizens

The county clerk and the canvass

A county clerk in a close general election completes a canvass report for the board of canvassers, which must meet within nine days. The report is the first official step in what becomes Idaho's certificate of ascertainment. Errors in a county canvass travel upward. Section 34-1202 requires the count to begin "by comparison of the ballots and the poll lists" and a correction of mistakes "until they are found to agree," so a clerk who reconciles the two protects the whole chain.⁴³⁴⁵

The reporter covering January 6

A reporter assigned to cover a joint session should read 3 U.S.C. § 15 first. An objection must be in writing, signed by one-fifth of the Senators and one-fifth of the Members, and rest on one of the grounds the statute lists. The statute says the President of the Senate has "no power to solely determine, accept, reject, or otherwise adjudicate" disputes, and a report that says otherwise should be checked against it.²¹

The elector

A person named as a presidential elector in Idaho must appear before nine o'clock on the morning of the vote or be replaced by the electors who are present. The statute pays compensation under § 59-509(d) and expects the electors to "perform the duties enjoined upon them by the Constitution and laws of the United States." A person who accepts the role in any state with a pledge law should read it, because after Chiafalo a state may enforce the pledge it demands.^38394227

The legislator weighing a change in method

Article II gives each state legislature the power to direct how electors are appointed, and McPherson describes that power as plenary. A legislator who considers a bill on the subject should read the text of the compact and the Compact Clause arguments, and should know that observers disagree about whether a compact needs congressional consent.²⁵³⁵

The voter who wants to understand a contingent election

A voter in a year with three strong candidates should know the rules. If none reaches 270, the House decides by state delegation among the top three. The Senate decides the Vice Presidency from the top two. The Twentieth Amendment fixes the start of the term at noon on January 20.⁴

Related Modules

Related lessons: Module 3, Article II: The President (the original clause and the electors); Module 5, Federalism and the States; Module 6, Amending the Constitution; Module 28, The Fourteenth Amendment (Section 3); Module 33, The Twentieth Amendment (January 20 and the succession gaps); Module 35, The Twenty-Second Amendment (term limits); Module 36, The Twenty-Third Amendment (electors for the District of Columbia); Module 38, The Twenty-Fifth Amendment (Vice Presidential vacancy).

Sources & Further Reading

Primary Sources

• Madison, notes of the Federal Convention, September 4, 1787 (Avalon Project)
• Madison, notes of the Federal Convention, September 6, 1787 (Avalon Project)
• The Federalist No. 68 (Avalon Project)
• National Archives, The Constitution: A Transcription
• National Archives, The Constitution: Amendments 11-27
• The Founders' Constitution, Amendment XII (University of Chicago Press)
• Bayard to Hamilton, March 8, 1801 (Founders' Constitution)
• Senate debate, December 1 and 2, 1803 (Founders' Constitution)
• Madison to Jefferson, January 14, 1824 (Founders' Constitution)
• National Archives, Electoral College results for 1796, 1800, 1824, 1836, 2016 and 2024
• 3 U.S.C. § 5 (Cornell LII)
• 3 U.S.C. § 7 (Cornell LII)
• 3 U.S.C. § 15 (Cornell LII)

Supreme Court Opinions

• McPherson v. Blacker, 146 U.S. 1 (1892)
• Ray v. Blair, 343 U.S. 214 (1952)
• Bush v. Gore, 531 U.S. 98 (2000)
• Chiafalo v. Washington, 591 U.S. 578 (2020)
• Moore v. Harper, 600 U.S. 1 (2023)

Idaho Law

• Idaho Code § 34-1501 (certificates of election)
• Idaho Code § 34-1502 (election for presidential electors)
• Idaho Code § 34-1503 (meeting of electors)
• Idaho Code § 34-1504 (notice; vacancies)
• Idaho Code § 34-1505 (filling vacancies; ties)
• Idaho Code § 34-1507 (compensation of electors)
• Idaho Code § 34-1202 (comparison of poll lists and ballots)
• Idaho Code § 34-1205 (county board of canvassers)
• Idaho Code § 34-1207 (county canvass report)

Secondary Sources and Further Reading

• A New Nation Votes: 1801 House election, Ballot 36 (Tufts)
• Constitution Annotated, Ineligibility to the Office of President and Vice President (Cornell LII)
• Wikipedia, Twelfth Amendment to the United States Constitution
• Wikipedia, 1800 United States presidential election
• Wikipedia, 1824 United States presidential election
• Wikipedia, Electoral Count Act
• Wikipedia, Electoral Count Reform and Presidential Transition Improvement Act of 2022
• Wikipedia, National Popular Vote Interstate Compact
• NPR via KUNC, Virginia joins a national effort (April 14, 2026)

Related Training Modules

• Module 3: Article II: The President
• Module 5: Federalism and the States
• Module 6: Amending the Constitution
• Module 28: The Fourteenth Amendment
• Module 33: The Twentieth Amendment
• Module 35: The Twenty-Second Amendment
• Module 36: The Twenty-Third Amendment
• Module 38: The Twenty-Fifth Amendment
• Course index: The United States Constitution

Footnotes

1. James Madison, notes of the Federal Convention for Tuesday, September 4, 1787, Avalon Project, Yale Law School, https://avalon.law.yale.edu/18th_century/debates_904.asp. Source for Mr. Brearly's report of the Committee of Eleven, the electors and the Senate fallback, Gouverneur Morris's statement of the committee's reasons and Col. Mason's objection that "nineteen times in twenty the President would be chosen by the Senate."
2. James Madison, notes of the Federal Convention for Thursday, September 6, 1787, Avalon Project, Yale Law School, https://avalon.law.yale.edu/18th_century/debates_906.asp. Source for the proposals of Gerry and Sherman, Col. Mason's remark and the roll call on Sherman's motion (New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia aye; Delaware no).
3. Alexander Hamilton, The Federalist No. 68 (1788), Avalon Project, Yale Law School, https://avalon.law.yale.edu/18th_century/fed68.asp.
4. National Archives, The Constitution: Amendments 11-27, https://www.archives.gov/founding-docs/amendments-11-27. Gives the text of Amendment XII, the note that a portion of Article II, section 1 "was superseded by the 12th amendment," the note that the March 4 clause was superseded by section 3 of the 20th amendment, and the text of section 3 of the Twentieth Amendment. This lesson relied on the Archives page for the amendment text and the quoted section 3 language.
5. National Archives, 1796 Electoral College Results, https://www.archives.gov/electoral-college/1796. Source for Adams 71 and Jefferson 68 and for the statement that "each elector was given two votes and required to cast each for a different person."
6. National Archives, 1800 Electoral College Results, https://www.archives.gov/electoral-college/1800. Source for the totals (Jefferson 73, Burr 73, Adams 65, Pinckney 64, Jay 1; 70 needed) and for the House outcome of 10 State delegations for Jefferson, 4 for Burr and 2 making no choice.
7. "1800 United States presidential election," Wikipedia, https://en.wikipedia.org/wiki/1800_United_States_presidential_election (secondary source, opened October 2026). Source for the February 17, 1801 date of the 36th ballot, the 35 earlier ballots with eight states for Jefferson, the description of Hamilton's letter campaign and the report that each party planned to have one elector withhold a vote. The last point carries a "citation needed" tag on the page. This lesson did not open the Hamilton letter the article cites.
8. James Madison to Thomas Jefferson, January 14, 1824 (Writings of James Madison 9:174 to 76), The Founders' Constitution, Amendment XII, Document 6, https://press-pubs.uchicago.edu/founders/documents/amendXIIs6.html.
9. "1801 President of the United States, House of Representatives, Ballot 36," A New Nation Votes, Tufts University Digital Collections and Archives, https://elections.lib.tufts.edu/catalog/gx41mj27q. Source for the state-by-state result of the 36th ballot (Jefferson ten states, Burr four, Delaware and South Carolina no choice).
10. James A. Bayard to Alexander Hamilton, March 8, 1801 (Hamilton Papers 25:344 to 45), The Founders' Constitution, Amendment XII, Document 2, https://press-pubs.uchicago.edu/founders/documents/amendXIIs2.html.
11. House of Representatives, report of Mr. Nicholas on amendments to the Constitution, January 22, 1801 (Annals of Congress 10:941 to 46), The Founders' Constitution, Amendment XII, Document 1, https://press-pubs.uchicago.edu/founders/documents/amendXIIs1.html.
12. Alexander Hamilton, draft of a resolution for the Legislature of New York, January 29, 1802 (Hamilton Papers 25:512 to 13), The Founders' Constitution, Amendment XII, Document 3, https://press-pubs.uchicago.edu/founders/documents/amendXIIs3.html.
13. Alexander Hamilton to Gouverneur Morris, March 4, 1802 (Hamilton Papers 25:558 to 59), The Founders' Constitution, Amendment XII, Document 4, https://press-pubs.uchicago.edu/founders/documents/amendXIIs4.html.
14. Senate debate on the amendment, December 1 and 2, 1803, Annals of Congress, reproduced in The Founders' Constitution, Amendment XII, Document 5, https://press-pubs.uchicago.edu/founders/documents/amendXIIs5.html. Source for the remarks of Mr. Hillhouse, Mr. White of Delaware, Mr. Dayton and Mr. Adams quoted in the text. The Annals print the name as "Mr. Adams"; this lesson did not confirm the speaker's first name from the Annals page.
15. The Founders' Constitution, Amendment XII (University of Chicago Press), https://press-pubs.uchicago.edu/founders/tocs/amendXII.html. Source for the text of the amendment as printed there, the dates of passage (Senate December 2 and House December 9, 1803; signed December 12), the state ratification dates, the account of the New Hampshire governor's veto of June 20, 1804, the Tennessee alternative of July 27, 1804, Madison's circular letter of September 25, 1804, the rejections by Delaware and Connecticut and the 1961 ratification by Massachusetts.
16. "Twelfth Amendment to the United States Constitution," Wikipedia, https://en.wikipedia.org/wiki/Twelfth_Amendment_to_the_United_States_Constitution (secondary source, opened October 2026). Source for the House and Senate vote counts commonly reported for the 1803 proposal (84 to 42 and 22 to 10), which this lesson could not confirm against the Annals of Congress, and for the discussion of the interaction with the Twenty-second Amendment.
17. National Archives, About the Electors, https://www.archives.gov/electoral-college/about. Source for the winner-take-all description, the Maine and Nebraska variation, the description of how many electors a State has and the three electors of the District of Columbia under the 23rd Amendment.
18. National Archives, 2024 Electoral College Results, https://www.archives.gov/electoral-college/2024. Source for Trump 312, Harris 226, the total and majority (538 and 270), Vance and Walz, and the Maine and Nebraska splits.
19. 3 U.S.C. § 7 (meeting and voting of electors), Cornell LII, https://www.law.cornell.edu/uscode/text/3/7.
20. 3 U.S.C. § 5 (certificate of ascertainment, judicial relief and the venue and expedited procedure in subsection (d)), Cornell LII, https://www.law.cornell.edu/uscode/text/3/5.
21. 3 U.S.C. § 15 (counting electoral votes in Congress), Cornell LII, https://www.law.cornell.edu/uscode/text/3/15.
22. National Archives, 1824 Electoral College Results, https://www.archives.gov/electoral-college/1824. Source for the electoral votes of Jackson, Adams, Crawford and Clay and for the House result of 13, 7 and 4.
23. "1824 United States presidential election," Wikipedia, https://en.wikipedia.org/wiki/1824_United_States_presidential_election (secondary source, opened October 2026). Source for the February 9, 1825 date and the account of the "corrupt bargain" charge. This lesson did not confirm the account against a primary source.
24. National Archives, 1836 Electoral College Results, https://www.archives.gov/electoral-college/1836. Source for the totals (Van Buren 170 of 294; Johnson 147) and the Senate result (Johnson 33, Granger 16).
25. McPherson v. Blacker, 146 U.S. 1 (1892), https://www.law.cornell.edu/supremecourt/text/146/1. Source for the Michigan act approved May 1, 1891, the 1892 petition and the "plenary power" language. The Court decided the case on October 17, 1892.
26. Ray v. Blair, 343 U.S. 214 (argued March 31, decided April 15, 1952) (Reed, J., for the Court; Jackson, J., dissenting, joined by Douglas, J.; Black and Frankfurter, JJ., not participating), https://www.law.cornell.edu/supremecourt/text/343/214.
27. Chiafalo v. Washington, 591 U.S. 578 (decided July 6, 2020) (Kagan, J.; Thomas, J., concurring in the judgment), https://www.law.cornell.edu/supremecourt/text/19-465. Source for the facts, the $1,000 fines, the statement that "32 States and the District of Columbia have such statutes," the 15 States with sanctions, the quoted passages about Article II and the Twelfth Amendment and the description of Ray. This lesson did not confirm the U.S. Reports page number.
28. National Archives, 2016 Electoral College Results, https://www.archives.gov/electoral-college/2016.
29. Moore v. Harper, 600 U.S. 1 (decided June 27, 2023) (Roberts, C.J., for the Court; Kavanaugh, J., concurring; Thomas, J., dissenting, joined by Gorsuch, J., and by Alito, J., as to Part I), https://www.law.cornell.edu/supremecourt/text/21-1271. This lesson read the syllabus and lineup and did not study how the opinion treats the Electors Clause.
30. Bush v. Gore, 531 U.S. 98 (per curiam, December 12, 2000), https://www.law.cornell.edu/supremecourt/text/531/98.
31. "Electoral Count Act," Wikipedia, https://en.wikipedia.org/wiki/Electoral_Count_Act (secondary source, opened October 2026). Source for the 1887 enactment, the account of 1876 and the statement that the unamended Act last governed the 2021 count.
32. "Electoral Count Reform and Presidential Transition Improvement Act of 2022," Wikipedia, https://en.wikipedia.org/wiki/Electoral_Count_Reform_and_Presidential_Transition_Improvement_Act_of_2022 (secondary source, opened October 2026). Source for the Senate and House votes and the signing date.
33. U.S. Const. art. II, § 1, National Archives, The Constitution of the United States: A Transcription, https://www.archives.gov/founding-docs/constitution-transcript. Source for the 1788 text of the electors clause and for the qualifications of the President.
34. "Virginia joins a national effort to ensure only popular vote winners become president," NPR story carried by KUNC, April 14, 2026, https://www.kunc.org/npr-news/2026-04-14/virginia-joins-a-national-effort-to-ensure-only-popular-vote-winners-become-president.
35. "National Popular Vote Interstate Compact," Wikipedia, https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact (secondary source, status shown as of September 2026, opened October 2026).
36. Idaho Secretary of State, newsroom listing (page opened at https://sos.idaho.gov/2020/12/11/idaho-presidential-electors-set-to-meet-monday/), item "Idaho Electors Cast Official Votes for President and Vice President," listed under December 2024. This lesson read the excerpt on the listing and did not open the full release or confirm its exact date.
37. Idaho Code § 34-1502 (election for presidential electors), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH15/SECT34-1502/.
38. Idaho Code § 34-1503 (meeting of electors), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH15/SECT34-1503/.
39. Idaho Code § 34-1504 (notice to governor; vacancies), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH15/SECT34-1504/.
40. Idaho Code § 34-1505 (filling vacancies; ties), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH15/SECT34-1505/. This lesson read the section but quotes only its general subject; check the text for the tie-breaking method.
41. Idaho Code § 34-1501 (certificates of election), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH15/SECT34-1501/.
42. Idaho Code § 34-1507 (compensation and mileage of electors), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH15/SECT34-1507/.
43. Idaho Code § 34-1205 (county board of canvassers; meetings), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH12/SECT34-1205/.
44. Idaho Code § 34-1207 (county canvass report), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH12/SECT34-1207/.
45. Idaho Code § 34-1202 (comparison of poll lists and ballots; void ballots), https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH12/SECT34-1202/.