(Episode 31) Electile Dysfunction: The 12th Amendment


In Season 4, Episode 2, we're taking you back to school, listeners. Specifically, we're taking a tour of the Electoral College.

The 12th Amendment deals with the election of the President and Vice President.  You may recall that Article II, Section 1 of the Constitution sets up the body that you remember (we hope) from your basic civics class: the Electoral College ("EC" for short).  The 12th Amendment changed part of the EC's process. Rather than set forth the full text of the Amendment here, we'll give you the basics of the EC.

Under the original text of the Constitution, it's important to know four specific things:
First, state electors voted for two people (at least one of whom has to be from outside the state).
Second, the electors did not differentiate between President and Vice President in casting the votes.
Third, if the electors didn't reach a majority approval of a candidate (someone has to win a majority and not just a plurality of the votes), the House of Representatives chooses the President; the Senate chooses the Vice President.
Fourth, the House didn't officially meet until about a year after the election, so lame ducks would be doing the voting in the event of a tie.

In other words, the original Constitution called for the first-place candidate to be President and the runner-up to be Vice President, regardless of party.  It was not the system we have today where the candidates choose their own running mates and come as part of a package deal.

Why does it matter? All of these issues came into play in the election of 1800 between Thomas Jefferson and Aaron Burr because--of course--there was drama.  The 12th Amendment, which was proposed immediately after the dust from that election settled, makes it so that the electors have to specify which person is being put up for President and which as Vice.

Join us as we explore why the Founders thought the EC was such a great idea, why calls today to abolish the EC are a bad idea, and how the election of 1800 ended in one of history's most famous duels.

Some additional sources:

1. For more on the fascinating history of the 12th Amendment and the election of 1800.

2. For some problematic issues with electors in the EC, take a look at Ray v. Blair (1952), where SCOTUS permitted a state political party to require electors of the Prez and VP to pledge they will support (vote for) the party's nominees before being certified as electors.  (In a forceful dissent, Justice Jackson wrote, "no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.")

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