The Election of 1800 Broke the Electoral College and the 12th Amendment Fixed It

Picture a party that wins the presidential election, celebrates, and then discovers that its candidate for president is tied with its candidate for vice president. Not tied with the opponent. Tied with his own running mate. And the running mate, instead of stepping aside graciously, declines to say plainly that he will not take the top job, while the defeated party gets to decide which of the two winners becomes president.

That is not a satire of modern politics. It is what happened in the winter of 1800 and 1801, and it nearly broke the Constitution twelve years after its ratification. The flaw was built into the original Article II. The fix was the Twelfth Amendment. Understanding both tells you exactly how the Electoral College works today, and why the system the Founders built proved sturdy enough to be repaired rather than replaced.

How the original Article II worked

The original text of Article II, Section 1, Clause 3 gave every elector two votes and no way to say which was for president:

"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 rest of the clause set out the counting rules, which are worth laying out step by step:

1. The person with the greatest number of votes would be president, if that number was a majority of the whole number of electors appointed.
2. If more than one person had such a majority and they were tied, the House of Representatives would immediately choose one of them by ballot.
3. If no one had a majority, the House would choose from the five highest.
4. In the House, votes were taken by states, each state's delegation having one vote, and a majority of all the states was needed to win.
5. After the president was chosen, the person with the next greatest number of electoral votes would be vice president. A tie for second place would be broken by the Senate.

This system was designed, as the history of the Committee of Eleven shows in The Committee of Eleven Invented the Electoral College in the Final Weeks, for a world without political parties. The Framers expected each elector to cast two votes for the two most distinguished men he knew, at least one from outside his own state, and the best man to rise to the top. The second-best would be vice president. It was an honors system for statesmen. It was not built for teams.

The warning shot of 1796

Parties arrived almost immediately. By the time George Washington retired in 1796, the country had split into Federalists, led by John Adams and Alexander Hamilton, and Democratic-Republicans, led by Thomas Jefferson and James Madison.

The election of 1796 showed what happens when a two-vote system meets two parties. The Federalists backed Adams and Thomas Pinckney of South Carolina. The Republicans backed Jefferson and Aaron Burr of New York. But electors did not all vote the party line. Some Federalist electors withheld their second votes from Pinckney, partly to make sure he did not finish ahead of Adams.

The result: Adams 71, Jefferson 68, Pinckney 59, Burr 30. Adams became president, and his chief opponent, Jefferson, became vice president. For four years the president and vice president belonged to rival parties and opposed each other on nearly every great question of the day, including the Alien and Sedition Acts of 1798, which Jefferson secretly opposed in the Kentucky Resolutions while serving as Adams's vice president.

Imagine the modern version: a president whose vice president runs the opposition from the office down the hall. It was a structural absurdity, and everyone could see it. But nobody fixed it in time.

The tie of 1800

In 1800 the parties tried to avoid a repeat. This time party discipline was much tighter. The Republicans ran Jefferson for president and Burr for vice president, and their electors were careful to cast both votes for the ticket. The plan was for one Republican elector somewhere to drop a vote for Burr, so that Jefferson would finish first. Nobody did.

The electoral votes were counted in Congress on February 11, 1801. The result was:

There were 138 electors, so a majority was 70. Jefferson and Burr both had 73, a majority each, and they were tied. Under the original Article II, the House would choose between them.

Everyone knew the voters had meant Jefferson for president. That was the whole point of the Republican ticket. But the Constitution did not care what the voters meant. It cared what the ballots said, and the ballots said tie.

Thirty-six ballots in the House

Now the trap closed. The House that would decide was not the newly elected House, in which Republicans had won control. It was the outgoing House, elected in 1798, with a Federalist majority. And the Federalists, who had just lost, now held the power to choose which Republican would be president.

Many Federalists preferred Burr. Some thought him more pliable, or hoped he would owe them favors. Others simply wanted to frustrate Jefferson, whom they regarded as a dangerous radical. Burr, for his part, did not publicly withdraw. He did not openly campaign for the presidency in the House, but once the tie was known he never clearly said the obvious thing either: that he had run for vice president and would not accept the top office.

The balloting began on February 11. There were sixteen states, so a majority required nine. On the first ballot Jefferson carried eight states, Burr six, and two states, Vermont and Maryland, were divided and so cast no vote. The House voted again. And again. Ballot after ballot produced the same result.

Meanwhile, the date for the new president to take office, March 4, was approaching. There was talk that if the deadlock continued, the Federalists might try to pass a law placing the presidency in the hands of a Federalist officer until a new election. Republican leaders, including the governors of Pennsylvania and Virginia, let it be known they would resist any such usurpation. The young Republic had never transferred power from one party to another, and it was coming dangerously close to failing its first test.

Hamilton's role

The man who did the most to break the deadlock was the Republicans' fiercest enemy. Alexander Hamilton disagreed with Jefferson on nearly everything: the national bank, the Constitution's meaning, foreign policy, the French Revolution. But he regarded Burr as something far worse, an unprincipled man without fixed convictions who would use the presidency for his own ambition. Hamilton wrote letter after letter to Federalist members of Congress urging them to choose Jefferson. A man with wrong principles, he argued in substance, was preferable to a man with none.

The deciding figure was James Bayard of Delaware, who as his state's sole representative controlled its entire vote. Bayard, a Federalist, concluded that the deadlock had to end. On February 17, 1801, on the thirty-sixth ballot, the Federalist members from Vermont and Maryland arranged to abstain or cast blank ballots, which allowed those states to vote for Jefferson. Bayard and the South Carolina Federalists cast blank ballots rather than vote for Burr. The final tally was Jefferson ten states, Burr four, and two blank. Jefferson became the third president on March 4, 1801.

Jefferson called his victory a revolution in the principles of government, and it was at least a revolution in one respect: it was the first peaceful transfer of power from one party to its opponents under the Constitution. That deserves to be remembered with pride. The Federalists lost, and they let go. But it should not have taken thirty-six ballots and a week of brinkmanship.

The Twelfth Amendment

Congress moved to fix the problem. The solution was simple in concept: make electors cast separate votes for president and vice president. Congress proposed the Twelfth Amendment in December 1803, and it was ratified in June 1804, in time for that year's election. Its key text reads:

"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"

Here is how the amended system works, step by step, and it is the system we still use:

1. Separate ballots. Each elector casts one vote for president and one, distinct, for vice president. A tie between running mates is now impossible.
2. A majority still required. The person with the most votes for president wins if that number is a majority of the whole number of electors appointed. Today, with 538 electors, that is 270.
3. The House chooses if no one has a majority, but from the top three, not five. The text says the House shall choose "from the persons having the highest numbers not exceeding three on the list of those voted for as President."
4. Voting in the House is still by states. "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." With fifty states, that means 26 states.
5. The Senate chooses the vice president if no one has a majority, from the two highest, with each senator voting individually and a majority of the whole Senate required.
6. The same eligibility applies to both offices. "No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

The original amendment also provided that if the House failed to choose by March 4, the vice president would act as president. That provision was later replaced by Section 3 of the Twentieth Amendment, ratified in 1933, which moved inauguration day to January 20 and set new rules for a failure to choose.

Notice what the amendment kept. It kept electors appointed by the states. It kept the allocation by congressional representation. It kept the House contingency voting by states, preserving the federal character of the final round. The repair was surgical. The Twelfth Amendment did not abolish the Electoral College. It made it work with the party system that had grown up around it.

The "inhabitant of the same state" rule still matters, by the way. It means that the presidential and vice-presidential candidates should come from different states, or a state's electors cannot vote for both. In 2000, Dick Cheney, who had been living in Texas, changed his voter registration back to Wyoming before joining a ticket with Texas Governor George W. Bush, so that Texas's electors could vote for both men.

Has the contingent election been used since?

Yes, once for each office. In 1824 four candidates split the electoral vote and none had a majority. Under the Twelfth Amendment's top-three rule, Henry Clay, who finished fourth, was excluded. On February 9, 1825, the House chose John Quincy Adams over Andrew Jackson, who had more electoral and popular votes. Jackson's supporters denounced a "corrupt bargain" when Adams named Clay secretary of state, and Jackson won in a landslide four years later. In 1837 Virginia's electors refused to vote for the Democratic vice-presidential nominee, Richard Mentor Johnson, leaving him one vote short of a majority, and the Senate elected him.

The rarity of these episodes is a sign of the system's health. The amendment has worked for more than two centuries with only two contingent elections, both in the early Republic.

The objection, and the answer

Critics argue that the 1800 crisis proves the Electoral College was a failure from the start, a jerry-built device that needed repair within a dozen years and still contains the House contingency, which gives Wyoming the same vote as California. Better, they say, to replace the whole thing with a national popular vote.

Here is the answer.

1. A flaw repaired is not a failure. The Framers built Article V precisely so that defects revealed by experience could be fixed. The Twelfth Amendment is that process working as designed, within four years of the crisis.
2. The flaw was specific, not fundamental. The problem in 1800 was the two undifferentiated votes, not the use of electors, the role of states or the allocation by representation. Congress fixed the specific problem and kept the rest, because the rest was working.
3. The contingency by states is deliberate federalism. When the people's choice is unclear, the decision passes to the House voting as states, the same principle of state equality that governs the Senate. It has been used once in two centuries. It is a backstop, not a method.
4. The 1800 crisis was solved by the institutions, not around them. The deadlock ended through constitutional means: ballots in the House, persuasion, and statesmen putting the Republic ahead of party. That is the system's strength, and a reason to trust it.

The myths about the Electoral College are taken apart in Seven Myths About the Electoral College That Fall Apart Against the Record, and the Founders' reasons in Federalist 68 Read Closely, Hamilton's Defense of How America Picks a President. The longer story of amending the Constitution, which this episode illustrates well, is covered in Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers.

The case in brief

1. Under the original Article II each elector cast two votes without naming a president, a design for a world without parties.
2. The 1796 election produced a president and vice president from rival parties, and the 1800 election produced a tie between Jefferson and his own running mate, Burr.
3. The outgoing Federalist House needed 36 ballots, ending February 17, 1801, to choose Jefferson, with Hamilton urging Federalists to prefer Jefferson over Burr.
4. The Twelfth Amendment, ratified in 1804, required separate ballots for president and vice president and narrowed the House contingency to the top three, voting by states.
5. The repair kept the Electoral College's federal structure and has worked for more than two centuries.

What you can do: read the Twelfth Amendment on our Constitution page, then look up how your state's House delegation divides, since in a contingent election that delegation would cast your state's single vote.