Amendment XII

Document 1

House of Representatives, Amendments to the Constitution

Mr. Nicholas, from the committee to whom was referred on the twenty-first of November last, a motion for amending the Constitution of the United States, made a report; which was read, and ordered to be committed to a Committee of the whole House on Monday next. The report is as follows:

Resolved by the Senate and House of Representatives of the United States, (two-thirds of both Houses concurring,) That the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States:

"1. That, after the third day of March, in the year one thousand eight hundred and one, the choice of electors of President and Vice President shall be made by dividing each State into a number of districts, equal to the number of electors to be chosen in such State, and by the persons in each of those districts, who shall have the qualifications requisite for electors of the most numerous branch of the Legislature of such State, choosing one elector in the manner which the Legislature thereof shall prescribe.

"2. That the election of Representative to Congress, who are to serve after the third day of March, in the year one thousand eight hundred and three, shall be by dividing each State into a number of districts, equal to the number of Representatives to which such State shall be entitled, and by the people within each of those districts who shall have the qualifications requisite for electors of the most numerous branch of the Legislature of such State choosing one Representative in the manner which the Legislature thereof shall prescribe."

The committee, to whom were referred the foregoing resolutions, have had the same under their consideration, and, as the result of that consideration, beg leave to make the following report:

It is conceived that it may be assumed as one of the most indisputable maxims of American policy, that no change in the Constitution of the United States be admitted without a well-grounded assurance of the attainment of some greater good under the proposed change than under the existing provisions of the Constitution.

In relation to the object of the first of the aforesaid resolutions, the existing provisions of the Constitution of the United States are expressed in the following terms:

"Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

"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; and they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit, sealed, to the seat of 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 shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such a majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, one of them for President; and if no person have a majority, then, from the five highest on the list, the said House shall, in like manner, choose 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. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them, by ballot, the Vice President.

"The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States."

Under the latitude of expression used in the foregoing provisions, considerable variety of practice has been found to prevail, not only in the different States, but at different periods in the same States. The modes adopted may be considered as capable of designation under two general descriptions: the one an appointment of electors by popular vote; the other, an appointment of electors by legislative choice.

In each mode considerable varieties have prevailed. Under the first general mode, the States have been sometimes divided into districts, in proportion to the number of electors to be appointed in each State respectively; and the inhabitants of each district, having the right of suffrage, have appointed, by vote, the elector for such district, respectively, nearly in the manner proposed by the first resolution referred to your committee. In other instances, the whole people of a State, having the right of suffrage, have appointed, by general vote, such number of electors as the State was respectively entitled to. The electors appointed under the latter modification have been sometimes taken from the body of the people at large, in other instances, they have been selected from certain districts or divisions of the State, in conformity with certain previous legislative requisitions. In cases of death, absence, or other disability of electors appointed by popular vote, provisions have been made by law, in the same States, to supply the vacancies which might be occasioned by such accidents, by means of a legislative choice.

Under the other general mode of appointment, the electors in some States have been appointed by a joint ballot of both Houses of the Legislature. In some instances, the electors appointed by legislative choice have been taken from the body of the people at large without previous limitation; in other instances, from a restricted list, nominated in certain proportions by each House of the Legislature, respectively.

In the same States one general mode of appointment has prevailed at one time, and another general mode at another time; the changes having been made as well from one general mode as from the other.

Such are the existing provisions of the Constitution of the United States, and such has been the practice under these provisions. The modes thus used are presumed to have been within the legitimate construction of the Constitution, since the votes of electors appointed under almost every variety of these modes have been admitted in former elections of President and Vice President of the United States. The latitude of expression used in those provisions, and the variety of modes practically adopted under them, seem to have been considered in the first of the resolutions referred to your committee as inconveniences which ought to be remedied.

Your committee are persuaded that the provisions of the Constitution of the United States can, in no instance, be reasonably considered as mere pleonasms or inadvertencies; and, therefore, that the particular phraseology used on the above subject, was not adopted without due consideration. Your committee are equally persuaded that the varieties which have practically taken place under the terms used, are not beyond the contemplation of those who framed the Constitution. These varieties, it is reasonable to suppose, were foreseen, and, being foreseen, were viewed not without favor, as the best means of enabling the people of the United States to combine the advantages of experience with the speculations of theory in relation to this acknowledgedly the most difficult part of their Government in the adjustment, so that they may ultimately settle down into one uniform mode within Constitutional limits, not from Constitutional restriction, but from the convictions of reason founded on experience.

The mode proposed to be exclusively established being clearly within the expressions of the Constitution, if upon experience and comparison with other modes, equally within those expressions, it shall be found to possess superior advantages, or, possessing equal advantages, to be liable to fewer or less considerable inconveniences, your committee will not distrust the good sense of the people of the United States, in ultimately selecting this mode without Constitutional restraint, as their uniform mode of electing the President and Vice President of the United States.

Your committee hold it foreign to their duty to enter into a comparative view of the merits and demerits of the various modes which have been or may be adopted under the existing provisions of the Constitution of the United States; they hold it sufficient to authorize the rejection of any proposition for the exclusive establishment of any particular mode, if such mode shall, upon candid examination, be found liable to serious abuses of most dangerous consequence to the public peace; against which abuses, under such mode, no practicable means have been, or probably can be found, for prevention or remedy.

The liability of the mode proposed to such abuses cannot be made more manifest than by a brief review of the essential details of that mode.

To carry into effect the mode proposed to be exclusively established, every State must necessarily be divided into a number of districts in proportion to the number of electors to be appointed in each State, respectively. These districts must, of necessity, be again sub-divided, for the convenient reception of the votes of the people. Authority must be delegated to one or more officers in every sub-division of every electoral district thoughout the United States for the purpose of receiving those votes.

Amidst so great a variety of officers thus to be intrusted, it would be against the calculations of all experience to suppose there would not be found some who might be reasonably suspected of a liability to the deviations of error, if not to those of a worse nature. No government upon earth has, or can have, competent knowledge of so great a variety of individuals, as to insure, through the cautiousness of appointment, against such deviations in all instances. Absolute prevention, then, is not to be expected.

The votes of some, possessing the right of suffrage, may be rejected; the votes of others, not possessing the right of suffrage, may be admitted; whether such rejection or admission proceed from error of judgment, or from design, it will equally lay the foundation of a contested or disputed election between the candidates for the electorship.

When the votes of the several sub-divisions of an electoral district have been taken, the polls, or lists of those votes, must be brought together for an addition and comparison; and a return must be made of the person appointed an elector. Whether that return be made by the officers (authorized originally to receive the votes) in a collective body, or whether it be made by some other authority, to which those officers may be directed to transmit the polls or lists of the votes taken by them, there may (amidst the conflict of passions, too likely to prevail on such occasions) too probably be found means of suppressing the polls, or lists of votes of some of the sub-divisions of a district, or of preventing or delaying the transmission thereof; so that one man might be returned in apparent conformity with law, the elector of a district, when, in reality, another may have been appointed by the people of that district.

The common experience of elective governments evinces that cases, such as those above suggested, are by no means out of the course of probable occurrence. Instances of disputed elections, contested upon similar grounds, frequently occur in ordinary legislative bodies, notwithstanding the knowledge that a remedy exists within the scope of the power of those bodies. The protracted periods of their sessions give time for investigating and deciding upon the merits of such contested elections. The knowledge of the practicability of such remedy probably tends to discourage the greater frequency of such occurrences.

But the bodies of electors in each State, respectively, from the necessarily restricted periods of their sessions, are incapacitated to collect the necessary evidence, and to pursue such other steps as are essential to the investigation of and decision upon the merits of a contested election of one of their members, were they otherwise competent thereto. Those, therefore, who may be returned electors, whether duly and really appointed or not, will, in practice, exercise the important functions of electors of the President and Vice President of the United States. No practicable remedy against such abuses appears to exist in the present stage of the proposed system; a knowledge of the defect of such remedy, moreover, it is to be feared, might act as an additional temptation to the frequency of abuse.

The votes of the electors in the several States are next to be rendered by ballot, and, when so rendered, they are to be transmitted in the form of certificates, giving the result of the ballot to certain officers of the Government of the United States. When the period arrives for opening those certificates, and counting the votes in the presence of the Senate and House of Representatives of the United States, if error or abuse shall have taken place, no means exist (in case the ballot be in favor of more than two persons as President and Vice President) for discriminating between the votes of those who shall have been duly appointed and returned, and those who shall have been defectively appointed and unduly returned as electors. To set aside votes given by persons not duly appointed, and consequently wanting the competent authority of electors, no course presents itself in such case, save that of vacating the whole ballot, of which the defective vote or votes may be a component part. Thus, to deprive a State of all participation in the election of the President and Vice President of the United States, on account of the defective appointment of one or a few of its electors, would be a serious and painful duty. To vacate such ballot, and thereby to deprive those candidates for whom the sound votes of such ballot may have been given, of the aid of that ballot, in order at the same time to destroy the effect of the unsound votes, might result in giving to others a priority, to which, if effect could be given to the really sound votes, those others might not be entitled. This also presents an embarrassing consideration.

The vacation of a ballot, composed of sound and defective votes, ought to be the result of uniform principle; it ought to take place on all occasions where a discrimination cannot be made, or on none. Not to vacate such ballot, but to permit the election of a Chief Magistrate to be carried, on any occasion, by the aid of one or more defective votes, would be to hazard, in a most eminent degree, the peace of the Union. It is of the last importance to the happiness of the people of the United States, that a complete conviction should prevail at all times that the person who may be elected Chief Magistrate of the Union has been really elected by electors duly and really appointed by those having competent authority for that purpose. It were painful to anticipate the consequences which would too probably attend a disputed election to the Presidency; those consequences might be more calamitous than can be foreseen.

A mode of electing the President and Vice President of the United States, which might at once combine the expression of the public sentiments of the people of the respective States, with a perfect assurance of the due appointment of the electors for that important purpose, is a discovery greatly to be desired; that such mode may be found, under the present provisions of the Constitution of the United States, and will be discovered by the good sense of the American people, when aided by further experience, is confidently hoped. Under such circumstances, to adopt exclusively the mode proposed by the first resolution referred to your committee, might not only preclude the advantages of further experience, and the adoption of a more eligible mode, but might tend to perpetuate, as well as to render more frequent the occurrence of those exceptionable incidents which have been before suggested, and for which it is difficult, if not impracticable, to find adequate and convenient means of prevention or remedy.

These considerations induce your committee to prefer the existing provisions of the Constitution of the United States to the change proposed by the first of the resolutions referred to them.

In relation to the second resolution referred to your committee, they report, that the objects directly contemplated therein are already within the limits of the Legislative authority of the Government of the United States. To convert a Constitutional provision for the exercise of Legislative authority, to which recurrence may be had at all times, and under which such modifications may be introduced, from time to time, as the public good or convenience may require, in the ordinary forms of legislation, into a specific Constitutional prescription, seems to be both superfluous and inconvenient.

The adoption of the change proposed in the second resolution would also, in the opinion of your committee, indirectly tend to withdraw from the Government of the United States its existing control over the appointment of one of its most essential branches, and to vest that authority exclusively in the State Governments. Such arrangement might produce consequences not contemplated, and too unpleasant to be anticipated. Your committee, therefore, conceive it to be inexpedient to adopt the proposed change on this subject, and submit the following resolutions to the consideration of the House:

Resolved, That it is inexpedient to change the Constitution of the United States, in the manner proposed by the first of the aforesaid resolutions, in relation to the election of the President and Vice President of the United States.

Resolved, That it is inexpedient to change the Constitution of the United States, in the manner proposed by the second of the aforesaid resolutions, in relation to the election of members of the House of Representatives of the United States.

The Founders' Constitution
Volume 5, Amendment XII, Document 1
http://press-pubs.uchicago.edu/founders/documents/amendXIIs1.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

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