Hello, and welcome back to the Civic Flame, a podcast where we take a deep dive into the US Constitution and look at how it is still shaping the US government today. As always, IÕm your host Amber Vayo, professor of law and policy, and IÕm excited to talk to you about the 12th Amendment today. Before we get started, I do have to remind you to direct your hate mail to the Constitutional Founder not me. Why? Because this episode talks about the Electoral College. And if history is any indication, in the next 20 months, youÕll see a lot more calls to dismantle the Electoral CollegeÑsomething people think about during presidential elections and then never again. So, grab your thinking caps, and letÕs go. (music) 00:01:02 Election Craziness: An American Tale Imagine if you will, a world where the President was the person with the most votes and the Vice President was the person with the second most votes. That would mean in our contentious elections like 2000, youÕd have Al Gore (who won the popular vote) as president and George W. Bush (who won the Electoral College) as vice president. More hilariously, it would have been Hillary Clinton in 2016 as president and Donald Trump as vice president. Then in 2020, President Biden and Vice President Trump, and so on. You can imagine this would cause some problems. Well, we did live in that world for a brief time in the 1700s. Our second president, my Massachusetts homie John Adams, became president and his opponent, Thomas Jefferson (renown human trafficker and main author of the Declaration of Independence) became Vice President. While they were serious political rivals and sometimes hated each other, I have to point out that they both died on July 4, at the 50th anniversary of the Declaration of Independence, and you just have to give it to the 19th Century for their symbolism. After JeffersonÕs election as the third president, during which Aaron Burr refused to concede defeat and the House of Representatives chose Jefferson. They also realized there were some major flaws in the system and began proposing the 12th Amendment. 00:02:32 The 12th Amendment The 12th Amendment starts by talking about what the Electoral College can do to stop this craziness. ÒThe 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;Ó This was an issue in 2000 when Dick Cheney had to last minute change his state to Wyoming so that he and Dubya werenÕt both listed as from Texas. The Twelfth Amendment goes on Òthey 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;Ó One of the interesting, and likely true, criticisms of electing the president and vice president on the same ticket was that no one would care about the Vice PresidentÕs qualifications. And since the Vice Presidency has been referred to as Ònot worth a warm bucket of piss,Ó you kinda see where their coming from. Or you can just look at Sarah PalinÑwhich IÕve never forgiven John McCain for. 00:04:00 January 6th and Vote Counting The next part of the 12th Amendment outlines the process: Òthe 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.Ó Federal law sets the date for this counting as January 6th. This is why Donald Trump planned his coup and directed his insurrection for that day specifically in 2021, it was to stop the counting of votes or to force the counting of the fake slates of electors that Trump allies had sent in. Out of the January 6th coup, there also came some dubious legal theories by folks at Harvard and other selective institutions (including some folks associated with the Epstein Files, in case youÕre wondering whether they have your best interest at heart) who said that if there were a big fight like TrumpÕs insurrection, then there was Legislative Supremacy and Congress could basically choose the president. 00:05:15 Legislative Supremacy? TheyÕre relying on the next part of the 12th Amendment that says, Òand 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.Ó This has technically happened twice in US history, in 1800 with our boy Jefferson we mentioned above and in 1824 with John Quincy Adams, son of President John Adams. Realizing that this was a terrible idea, the government has mainly been against it. After the theory was floated again in 2021, Congress promised to draft legislation clarifying that issue and promising not to steal the next election. That legislation, I am sure, is still forthcoming. 00:07:14 When does the Legislature Weigh in on Elections? The next part: ÒAnd 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,Ó was actually changed by the 20th Amendment which sets inauguration day for January 20th. It also gives us a way to say that if there is not a president for some reason at that point, the Vice-president elect gets to act as the president until there is a president chosen. Because this has (knock on wood) never really happened, we have no idea how it works in practice, but IÕm willing to not find out if you are. Interestingly, while the House theoretically gets to decide on who gets to be the president if no candidate has a majority of Electoral votes, the Senate gets to do the same thing regarding the Vice President. Note that the House votes with one vote per state, and the Senate votes with each person voting. That part of the Amendment says, ÒThe 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.Ó 00:08:58 Qualifications Clause And finally, we get a nice reasonable conclusion: ÒBut no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.Ó Remember, those requirements from the qualifications clause in Article II mean the president has to be at least 35 years old, a natural born citizen of the US, and a resident of the US for the previous 14 years from when they run. (music) 00:09:15 YouÕre Smarter now! (No Really, you know more about the Constitution than most people, statistically speaking.) So, thatÕs the 12th Amendment. Do you feel smarter yet? You should. And when people start complaining about the Electoral College, youÕll be able to tell them why itÕs not as easy as just chucking it out. While it seems like a big technical piece, thereÕs a lot of interesting history behind it. Sanford Levinson writes a great, and easy to read deep dive into the Election of 1800 and how that shaped this Amendment and modern US history. For that, you can go to my favorite resource The National Constitution Center and go to the 12th Amendment. Up Next: 16th Amendment Now that weÕve looked at the presidency, we already hit our civil war amendments (13-15), weÕre going to pick up with another non-fave, the 16th Amendment and income taxes next time. In the meantime, take care out there, and keep the civic flame burning bright. (outro) The Civic Flame is a Mother of Democracy Podcast with writer Amber Vayo and Sound Producer Matt Munyon. Thanks for listening.