Constitution

The Twelfth Amendment: Electing the President and Vice President

The Twelfth Amendment has electors cast separate ballots for President and Vice President and sets the contingent procedures when no one has a majority.

4Conservative Editors · Published November 8, 2026

The text

Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

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.

Note: The bracketed sentence was superseded by section 3 of the 20th amendment.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

In plain English

The Amendment revised the Electoral College.

Separate ballots. Electors now vote for President and Vice President in distinct ballots. Under the original Article II, each elector cast two votes for President; the runner-up became Vice President.

Majority needed. A candidate for President needs a majority of electors appointed. If no one has a majority, the House of Representatives chooses among the top three, with each state delegation casting one vote, and a majority of states required.

Vice President. If no one has a majority for Vice President, the Senate chooses between the top two. A quorum is two-thirds of senators, and a majority of the whole Senate is needed.

Eligibility. No one constitutionally ineligible to be President may serve as Vice President.

The bracketed sentence about the Vice President acting as President if the House fails to choose was superseded by the 20th Amendment, which moved Inauguration Day to January 20.

What the Founders said

The Amendment was a response to the election of 1800. Under the original rules, Thomas Jefferson and Aaron Burr, running as a ticket, received the same number of electoral votes. The tie threw the election into the House, where it took thirty-six ballots to choose Jefferson, in February 1801.

Hamilton's Federalist No. 68 had praised the original design. The 1800 deadlock revealed a flaw that the Framers had not foreseen: the rise of national political parties, which the Constitution does not mention and which Madison and Washington both disliked. Parties made ticket voting the norm, and the two-vote system did not fit it.

Congress proposed the Amendment in December 1803 and it was ratified in June 1804, in time for that year's election.

How the courts have read it

  • Ray v. Blair (1952): a state may require presidential electors to pledge to support the party's nominee.
  • Bush v. Gore (2000): the Court halted the Florida recount on equal protection grounds.
  • Chiafalo v. Washington (2020) and Colorado Department of State v. Baca (2020): states may enforce an elector's pledge to vote for the state's popular-vote winner and may remove or penalize "faithless" electors.

Disputes about the Twelfth Amendment have mostly been resolved by Congress, through the Electoral Count Act of 1887 and the Electoral Count Reform Act of 2022.

Why it matters now

The Twelfth Amendment is a good example of a constitutional repair that worked. When the original system proved unsuited to political reality, the states fixed it through Article V and not through improvisation. It also settled a design question that remains important: no single election can produce a President and a Vice President who are rivals.

The contingent-election rules remain on the books. If no ticket wins 270 electoral votes, the House chooses the President with one vote per state, so the smallest state counts as much as the largest. That feature reflects the federal character of the electoral system and the Founders' intention that the choice remain with the states in a deadlock.

Debates over the Electoral College generally turn to the Twelfth Amendment's provisions. Whatever one thinks of the system, reform should proceed by the amendment route described in Article V. A compact among states to award electoral votes to the national popular vote winner raises its own constitutional questions, because Article II assigns electors' appointment to each state's legislature.

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