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The 12th Amendment of the United States Constitution details the procedure that the Electoral College uses to elect both the President and Vice President. It was ratified on 15 June 1804, and this procedure has been used in every presidential election since 1804. Prior to the 12th Amendment, the Electoral College used the process defined in Article II, Section 1, Clause 3 of the U.S. Constitution. The constitutional amendment was the result of potential problems with the electoral process. After the elections of 1796 and 1800, it became apparent that designating the candidate with the second highest votes as Vice President could put a rival to the President in that position.
Under the process defined in Article II, each of the Electoral College electors had two votes for President. As long as one person received a majority of votes, that person became President, while the candidate receiving the second highest number of votes became Vice President. In the election of 1796, candidates from different parties became President and Vice President. In the 1800 election, a tie occurred, resulting in a difficult decision by the House of Representatives for President. The 12th Amendment called for each elector to have one vote for President and one for Vice President, rather than two for President to remedy these problems.
If no candidate receives a majority of the electors’ votes, the top candidates are then put to a vote in the House of Representatives. Each state is granted one vote and a quorum of the states must be represented as designated in Article II. Prior to the 12th Amendment, the House of Representatives could vote on the top five names. With the amendment, no more than three could be considered. A majority vote based on all the states, not just the quorum, is required for electing the President.
The election of the Vice President goes to the Senate when no candidate receives the majority of votes in the Electoral College. Unless there is a tie for second place in the electoral vote, the Senate votes on the top two candidates for Vice President. In this case, all the tied candidates are considered. The amendment states that no person ineligible to become President can become Vice President.
If no candidate for President can be decided upon by the House of Representatives by inauguration day, the Vice President elect then acts as President until one is elected. At the time the 12th Amendment was ratified, the date of the inauguration was the 4th of March. The 20th Amendment, ratified in 1933, changed this to the 20th of January. This amendment also states that Congress may decide how to select an acting President if neither a President nor Vice President are chosen by inauguration day.
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