We may see something in November that we have never seen before, and it’s all connected to the 12th Amendment.
Before the ratification of the 12th Amendment, the presidential candidate receiving the greatest number of electoral votes was elected president and the presidential candidate receiving the second most votes was elected vice president.
However, in the presidential election of 1800, there was a tie between the top two candidates. To provide a solution if that should ever happen again, in 1804 the states ratified the 12th Amendment to the U.S. Constitution.
The 12th Amendment establishes that there must be two separate ballots in every presidential election: one for the president and one for the vice president. The Electors, casting two votes, choose the president and the vice president in two distinct ballots. If there is a tie on the presidential ballot, that tie would be broken by a vote of the House of Representatives under very specific instructions laid out in the 12th Amendment.
In those instructions, the House is to select the president after Jan. 6 but before March 4 of the same year. (Note: The new House members will be sworn in on Jan. 3, meaning the new House would select the president). Because separate elections for the president and vice president are required by the Constitution, the newly elected vice president would serve as president if the House does not settle the tie before the March 4 deadline.
In 1832, with no fanfare and no constitutional amendments, political parties began choosing presidential and vice presidential candidates to run together on a single ballot. In the election of 1844 this practice became solidified across party lines, and political parties submitted a single presidential/vice presidential ticket for that ballot; a vote for one became a vote for both.
Finally, in 1940, after winning two previous elections, FDR had a political temper tantrum and claimed he would not run for a third term unless he got to choose his own running mate. This began the tradition of presidential candidates “choosing” their running mates.
In the 2020 presidential election, some claim something could happen in our election that hasn’t happened since 1800: a tie in the Electoral College vote for president. The 12th Amendment was written to provide the constitutional procedure for such an occurrence. The 12th Amendment reads, in part:
“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. … And if the House of Representatives shall not choose a President … before the fourth day of March next following, then the Vice-President shall act as President.”
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However, since Americans have allowed political parties to ignore the Constitution for 188 years, there is no separate ballot for president and vice president as the Constitution demands. As a result, there is no vice president to act as president if the House cannot submit a tie-breaking vote on March 4. Here is where it gets interesting.
The 12th Amendment provides that in the event of a tie for the office of the president, the House gives the tie-breaking vote. If there is a tie in 2020, the House will pick the president, but the House is not authorized by the Constitution to pick the vice president. The 12th Amendment establishes that in the event of a tie for vice president, the Senate gives the tie breaking vote:
“The person having the greatest number of votes as Vice-President, shall be the Vice-President … if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President.”
With the creation of single-ticket running mates, there would be a tie between both the presidential and vice presidential candidates. This means if there is a tie in 2020, the president would be chosen by the House and the vice president would be chosen by the Senate.
For the first time in the history of America, the president and vice president would be chosen entirely by the legislative branch rather than by the Electoral College or the vote of the people.
Our long slow march away from our constitutional foundations will blur the lines of separation of powers beyond recognition.
The separation of powers doctrine ensures that one branch of government does not assume total control over another branch. James Madison remarked in Federalist 47, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”
The power to appoint is the power to control. Because we have allowed our federal government to ignore our Constitution and operate our elections based upon the needs of parties and not the rule of law, our constitutional republic is being transformed, as James Madison warned in 1798, “into an absolute, or at best a mixed monarchy.”
Having traded the rule of law for the law of rulers, we are a nation far adrift from our constitutional moorings. If we want to avoid the crash against the rocks, we best reconnect with our anchor.
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