The Twelfth 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 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.

—Michael T. Morley

Introduction

The Twelfth Amendment changed the way presidential electors cast their votes for President and Vice President. Under the original procedure set forth in Article II, Section 1, Clause 3, each elector cast two undifferentiated electoral votes for President, at least one of which had to be for a candidate from a state different from the elector’s. The candidate with the most electoral votes became President as long as that total reflected votes from a majority of electors appointed. For example, if 100 electors each cast two valid electoral votes, the leading candidate became President if he received at least 51 of the 200 votes cast.

The Constitution anticipated two possible contingencies. First, if the leading candidates in the electoral college tied, the House of Representatives would choose the President from between (or among) them. Second, if no candidate received the requisite majority in the Electoral College, then the House chose the President from among the five candidates with the most electoral votes. In either type of contingent election, each state’s House delegation collectively cast a single vote. A candidate needed votes from a majority of states to win the Presidency. After the President was chosen, the remaining candidate with the most electoral votes became Vice President, regardless of whether he had received a majority. If two or more candidates tied for Vice President, the Senate chose the winner with each Senator casting a single vote. The mechanics of the Vote Counting Clause were discussed in Essay No. 94.

Under the Twelfth Amendment, electors cast separate electoral votes specifically designated for President and Vice President, respectively. This change makes it easier for presidential and vice presidential candidates to run together on a ticket. The provision has also been interpreted to give Congress the authority to resolve disputes over electoral votes.

Presidential Elections Before the Twelfth Amendment

The Electoral College process worked well following the presidential elections of 1788 and 1792. In each case, George Washington was the clear favorite and secured a majority of votes.¹ Problems arose soon afterwards, however, because the Electoral College had not been designed to accommodate the rise of political parties. In the 1796 election, the two leading candidates were Federalist John Adams and Democratic-Republican Thomas Jefferson. Adams, who received the most electoral votes, became President, and Jefferson, the runner-up, became Vice President.² Following that election, proposals were introduced in Congress to require electors to separately designate their votes for President and Vice President.³ Several states, including New York, Massachusetts, and Vermont, adopted resolutions supporting such measures.⁴ Congress did not pass any of these proposed amendments.

The election of 1800 was calamitous. Thomas Jefferson and his ostensible running mate, Aaron Burr, received the same number of electoral votes,⁵ triggering a contingent election for President in the House. In that year’s congressional elections, the Federalist Party had suffered tremendous losses but retained its majority during the lame-duck session. Many of those Federalist Representatives threw their support to Aaron Burr to hinder Jefferson’s election. As a result, neither Jefferson nor Burr received votes from a majority of states throughout the first thirty-five rounds of voting.

After nearly a week, some Federalists abstained to allow Jefferson to secure a majority and win the presidency. Historians have suggested many possible reasons why those Representatives changed their votes. Some of Jefferson’s critics, including Alexander Hamilton, determined that he was the lesser of two evils.⁶ Others may have been persuaded by promises of political patronage.⁷ Lurking in the background was the potential for violence; at least two states had begun to mobilize their militias to march on Washington, D.C., to resolve the impasse and secure Jefferson’s election.⁸

Overview of the Twelfth Amendment

The Twelfth Amendment was adopted in large part to prevent a recurrence of the uncertainty and political intrigue that followed the 1800 election.⁹ It was designed to ensure that the candidate who presidential electors—and, through them, the people—intended to choose as President was actually able to assume that office rather than potentially being relegated to the vice presidency.¹⁰ The amendment made seven principal changes to the Constitution’s original presidential election process:

Each elector still casts two electoral votes, but one is now designated for President and the other for Vice President. A candidate must receive a majority of electoral votes for President to be elected to that office. The amendment retains the original constitutional requirement that each elector must cast at least one of his electoral votes for a candidate from a state other than his own. The amendment changed the procedures for reporting electoral votes by requiring each state’s electors to separately tally the number of electoral votes each candidate for President and Vice President receives. This is primarily a formatting requirement and is most relevant when a state splits its electoral votes for a particular office between multiple candidates. Whenever a contingent election occurs, the House may elect the President from among the candidates who received the three highest numbers of electoral votes for that office. Under the original Constitution, the number of candidates eligible to participate in a contingent election differed based on the circumstances. When two or more candidates received votes from a majority of electors and tied, the House had to choose between (or among) them. Conversely, if no candidate received votes from a majority of electors, the House could choose from among the five candidates with the most electoral votes. The Constitution’s original drafting left it unclear how many candidates could be considered by the House when no one received a majority of electoral votes and multiple candidates tied for fifth place in the Electoral College. It stated only that “from the five highest on the List the said House shall . . . chuse the President.”⁰ The Twelfth Amendment resolved this vagueness by specifying that the House must choose from among “the persons having the highest numbers not exceeding three on the list of those voted for as President.” The consensus in Congress appeared to be that this revised language authorized the House to choose from among any candidates receiving “the highest three numbers” of votes in the Electoral College—even if multiple candidates tied for any of those positions—instead of “tying down the House to a choice from five persons.”⁰ Senator John Quincy Adams and a few other members of both chambers believed that the provision was ambiguous.⁰ Representatives Henry Clay⁰ and John Clopton⁰ each proposed amendments containing even more specific language concerning ties in the Electoral College. Neither chamber of Congress found such additional specificity necessary, however, and those proposals went nowhere. When a contingent election is held but the House fails to choose a President by Inauguration Day, the Vice President “shall act as President, as in the case of the death or other constitutional disability of the President.” The original Constitution failed to address these circumstances. The Twentieth Amendment would later modify and expand this provision. A candidate now must receive a majority of electoral votes for Vice President to win that office. If no one receives a majority, then the Senate holds a contingent election in which it elects the Vice President by majority vote from between (or among) the candidates with the two highest numbers of electoral votes. The amendment extended the Constitution’s qualifications for President to the office of Vice President.

The Twelfth Amendment makes it easier for a political party’s presidential and vice presidential candidates to run together on the same ticket. It further ensures that both the President and Vice President typically will be from the same party, although a contingent election still may cause political rivals to be elected to those offices.

The amendment also reduces the likelihood of contingent elections in the House because it is now mathematically impossible for two or more candidates to receive votes from a majority of appointed electors. A contingent election may occur only under three circumstances:

Only two candidates receive electoral votes and they tie, each receiving votes from exactly 50 percent of electors appointed. Since neither candidate has a majority, a contingent election between them is necessary. Three or more candidates receive electoral votes, and none of them wins a majority. Congress rejects electoral votes from one or more validly appointed electors, thereby precluding any candidate from receiving votes from a majority of electors.

Drafting the Twelfth Amendment

In May 1802, near the end of the Seventh Congress, the House approved a constitutional amendment directing electors to cast separate electoral votes for President and Vice President. Insufficient time remained in the legislative session, however, for the Senate to consider the issue.¹¹

On October 28, 1803, the House adopted another proposed draft of the Twelfth Amendment by a vote of 88 to 31.¹² The Senate passed its own version on December 2.¹³ Though generally similar, they contained some important differences. One major distinction concerned the number of presidential candidates who would be eligible to participate in a contingent election in the House. After debating the issue,¹⁴ a House committee¹⁵ and the Committee of the Whole¹⁶ suggested allowing candidates with the three highest vote tallies in the electoral college to participate. The Committee of the Whole rejected proposals to limit contingent elections to the top two candidates in the electoral college¹⁷ or allow the House to choose from among all candidates who received electoral votes for President.¹⁸ The full House amended the Committee of the Whole’s proposal to include candidates with the five highest electoral vote tallies on the grounds that figure was more consistent with the Constitution’s original limit.¹⁹ The Senate version, like the Committee of the Whole’s initial proposal, set the number at three.²⁰ The House ultimately approved the Senate’s language,²¹ rebuffing attempts to change the Senate’s figure back to five.²²

Members who advocated reducing the number of candidates in contingent elections sought to limit the House’s discretion. They wanted to ensure that the outcomes of presidential elections reflect the will of the people rather than leaving the House flexibility to choose someone with minimal support in the electoral college.²³ Those defending broader choice for the House maintained that Representatives in the House also express the will of the people and should not be distrusted.²⁴

Another substantial difference between the House and Senate proposals concerned the consequences of a deadlock in a contingent election. The Senate proposed allowing the Vice President to exercise the powers of President if the House failed to elect a President by Inauguration Day.²⁵ Supporters explained that temporarily granting authority to the Vice President would eliminate the possibility of “anarchy” if the House failed to choose a President.²⁶ The Senate had rejected other proposals that would have empowered Congress to specify by law how the President would be selected if neither a President nor a Vice President are chosen.²⁷

The House version did not contain any analogous language addressing incomplete or unsuccessful contingent elections. Opponents of the Senate’s proposal argued that the Constitution should not contain such a fallback option because the risk of an “interregnum” without a designated President “must operate as the most powerful inducement [to the House] to make an election.”²⁸ They also claimed that the House might interpret this default provision as authorization to refrain from choosing a President.²⁹ Moreover, enabling the Vice President to assume power would create an incentive for people—including the Vice President himself—to engage in corruption or intrigue to prevent the House from selecting a President.³⁰ Critics further warned that the Senate’s approach contradicted the rest of the Twelfth Amendment by allowing the person the electors designated as Vice President to serve as President whenever the House failed to make a choice.³¹

On December 8, 1803, the House agreed to the Senate’s version of the Twelfth Amendment, including its provision concerning failed contingent elections, by a vote of 83 to 42 and transmitted it to the states for ratification.³² The amendment was ratified in September 1804, shortly before the 1804 presidential election.³³

Debating the Twelfth Amendment

The Twelfth Amendment’s supporters in Congress argued that allowing electors to designate a President would help to ensure that election results more accurately reflected the will of the people and prevent a recurrence of the election of 1800. Representative John Clopton of Virginia, for example, explained that an election is not a “complete expression of the public will” if it can end with the “appointment of a different person to an office, than the one originally intended for it by a majority of the Electors.”³⁴ Representative James Holland of North Carolina complained that the original constitutional procedure “takes more of the nature of a lottery than an election” because an elector “must leave the event to blind fate, chance, or what is worse, to intrigue to give him a President.”³⁵

Senators John Quincy Adams of Massachusetts and John Taylor of Virginia also emphasized that both state legislatures and the general public strongly supported such reforms.³⁶ Additionally, numerous speakers such as Senator William Cocke of Tennessee contended that requiring electors to cast separate electoral votes for President and Vice President would make contingent elections in the House less likely.³⁷

Opponents maintained that reducing the likelihood of contingent elections, in which each state casts a single vote regardless of population, would harm smaller states.³⁸ Under the Constitution’s original system, small states could join forces to choose the President in a contingent election when larger states cast most or all of their electoral votes for the same two candidates (such as Jefferson and Burr).³⁹ The Constitution’s original presidential election process also preserved a voice for members of a minority party by enabling them to choose which of the majority party’s top two candidates should be President.⁴⁰ Critics further contended that the amendment would promote corruption. States could exchange their votes for Vice President for support for their preferred presidential candidate.⁴¹ Opponents even alleged that the amendment would make it easier for corrupt individuals to bribe their way into the presidency.⁴²

Resolving Electoral College Disputes

The Twelfth Amendment did not alter the Constitution’s original language governing the process for counting electoral votes. It specifies that 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 . . . .”⁴³ Congress has frequently construed this language as granting it the constitutional authority to resolve disputes over the validity of electors’ appointments as well as the validity of their electoral votes.⁴⁴ For example, in 1857, Wisconsin’s presidential electors cast their votes a day late because of a snowstorm.⁴⁵ The Constitution requires all electors to cast their votes on the same day, which Congress has the power to specify.⁴⁶ The validity of Wisconsin’s votes was questioned during the joint session in which Congress counted electoral votes. The Vice President, as presiding officer, declared that the Senate and House were the “properly-constituted authorities of the country” to determine whether those electoral votes were valid.⁴⁷ Both chambers debated the issue, but neither voted to reject the votes and they did not affect the election’s outcome.

In 1865, Congress adopted Joint Rule 22, which would govern electoral counts through 1875. This rule gave the chambers of Congress authority to resolve “any question” that arose “in regard to the counting of [electoral] votes” submitted by a state’s electors.⁴⁸ To bolster Congress’s exclusive authority over disputes concerning presidential elections, the Enforcement Act of 1870 denied federal courts jurisdiction over election contests concerning presidential electors based on alleged Fifteenth Amendment violations.⁴⁹

Following the presidential election of 1872, Congress invoked Joint Rule 22 to reject electoral votes from several states. It rejected three votes for President from Georgia because they had been cast after the candidate, Horace Greeley, had died; six votes from Arkansas on the grounds that the people certified as electors had not actually won the election; and eight votes from Louisiana because of the state’s failure to choose its electors in accordance with state law.⁵⁰

In the 1876 election between Rutherford B. Hayes and Samuel Tilden, disputes again arose over several states’ electoral votes. Congress established an electoral commission with power to decide whether to accept states’ officially certified slates of electors, resolve disputes between competing slates of electors, and determine the validity of challenged electoral votes.⁵¹ In 1887, Congress enacted the Electoral Count Act. This law created a permanent framework for resolving disputes concerning presidential elections and generally empowered Congress to reject a state’s electoral votes when both chambers determined that a state’s electors had not been “lawfully certified.” Such review was precluded if the state qualified for “safe harbor” status. The law also empowered Congress to reject a state’s electoral votes if they had not been “regularly given.”57 Crucially, however, the statute failed to define the terms “lawfully certified” and “regularly given.”

Following the 2020 presidential election, objections were raised during the joint session as to whether certain votes were “regularly given,”⁵² but neither was sustained. In 2022, Congress passed the Electoral Count Reform Act (ECRA) to reduce the scope of its statutory authority over certain kinds of disputes concerning presidential elections. Under that statute, the joint session must accept as conclusive a state’s certification of its presidential electors’ appointments, as modified by any court orders.⁵³ Congress retains its authority to reject states’ electoral votes if both chambers conclude they were not “regularly given”—a term that the law still fails to define.

Constitutionality of the ECRA

The ECRA purports to limit Congress’s authority to reject electoral votes.⁵⁴ The Supreme Court has never determined the constitutionality of either the ECRA or its predecessor, the Electoral Count Act. Some scholars have suggested that the statute may be unconstitutional because it purports to impose substantive restrictions on the power that Article I grants to each chamber of Congress to determine its rules of procedure, or that the Twelfth Amendment confers on Congress to determine the validity of states’ electoral votes as an inherent part of the counting process.⁵⁵ A variation of this argument is that an earlier Congress lacks the authority to entrench restrictions limiting the constitutional power of subsequent Congresses.⁵⁶ Other critics maintain that using a statute to regulate the conduct of the joint session is unconstitutional because it allows the President, through his veto power, to interfere with the power of Congress’s chambers to determine their rules of procedure.⁵⁷ Still others maintain that the Twelfth Amendment does not permit Congress to “reject electoral votes contained in authentic electoral certificates—even when those electoral votes are unconstitutional.”⁵⁸ It has even been argued that ECRA provisions allowing Congress to reject electoral votes without giving the President the opportunity to veto its actions violates the Presentment Clause⁵⁹ as construed in INS v. Chadha (1983).⁶⁰

Congress generally avoids having to rely solely on the rules set forth in federal statutes governing the electoral count such as the ECRA by adopting a concurrent resolution reiterating many of the statute’s key provisions in advance of its joint session.⁶¹ The concurrent resolution avoids many of these potential objections to the ECRA because it is adopted by the same Congress that will be counting the electoral votes in that election rather than by a past Congress. Furthermore, because concurrent resolutions are not subject to presidential signature or veto,⁶² there is no question of improper executive infringement on Congress’s constitutional prerogatives.

In any event, long-standing practice also supports the ECRA. Several other laws regulate congressional procedure and limit Congress’s discretion concerning its proceedings,⁶³ and Congress has passed rules and statutes specifically regulating the electoral count for nearly two centuries. Additionally, as a prudential matter, congressional refusal to follow the ECRA’s rules in a way that effectively changes the outcome of a presidential election would likely trigger tremendous public backlash, undermine the legitimacy of the ultimate victor, and create a constitutional crisis of the sort narrowly averted following the election of 1876.

Open Questions

• Even accepting the ECRA as a valid limit on Congress’s power to count electoral votes under the Twelfth Amendment, the statute fails to identify the circumstances under which the joint session may—or even must—reject electoral votes on the grounds they were not “regularly given.”⁶⁴ For example, the Constitution requires electors to cast their votes on the same day.⁶⁵ It is unclear whether Congress should reject votes that are cast late. On the one occasion when a state’s electors cast their votes one day late due to a snowstorm, Congress counted them, but they were not dispositive to determining the election’s outcome.⁶⁶ Similarly, the Twelfth Amendment itself prohibits an elector from casting his votes for both President and Vice President for candidates from the elector’s own state. It is unclear whether Congress may accept either of those votes. On the one occasion when this occurred following the Twelfth Amendment’s ratification, the objection was ruled out of order because it was untimely.⁶⁷
• Uncertainty also exists over whether Congress may reject votes from “faithless electors,” which are cast for someone other than the candidate who won the popular vote in an elector’s jurisdiction. The answer may depend at least in part on whether the relevant state’s law binds its electors to vote in a particular manner.
• Electoral votes for candidates who die before the congressional joint session raise serious issues. Following the 1872 election, Congress rejected three electoral votes from Georgia that had been cast for presidential candidate Horace Greeley after he had died on the grounds that the votes were invalid because a deceased person is constitutionally ineligible to serve as President.⁶⁸ Congress’s decision did not impact the election’s outcome because Greeley’s opponent, Ulysses S. Grant, received votes from a majority of electors. If Congress rejects the electoral votes of a deceased candidate who wins such a majority, however, then the only person who receives any electoral votes in that election will generally be the losing candidate from the other major political party. Since that person mathematically cannot have received the constitutionally required majority of votes, a contingent election in the House must occur.

The Twelfth Amendment specifies that Congress must choose the President from among candidates with the three highest numbers of electoral votes. Under these circumstances, only one person—the ostensibly losing presidential candidate—will generally have received any electoral votes for President that Congress recognized as valid and counted. Accordingly, the ostensibly losing candidate would win the contingent election and be declared President. The far preferable outcome would be for Congress to count the votes for the deceased candidate. On Inauguration Day, the Vice President Elect—the deceased candidate’s running mate, presumably from that candidate’s political party—would be sworn in as President pursuant to the Twentieth Amendment.⁰

1. S. Jour., 2d Cong., 2d Sess. 485–86 (Feb. 13, 1793); H.R. Jour., 2d Cong., 2d Sess. 701–02 (Feb. 13, 1793); S. Jour., 1st Cong., 1st Sess. 8 (Apr. 6, 1789); H.R. Jour., 1st Cong., 1st Sess. 7–8 (Apr. 6, 1789). ↩︎
2. S. Jour., 4th Cong., 2d Sess. 320 (Feb. 8, 1797); H.R. Jour., 4th Cong., 2d Sess. 685–86 (Feb. 8, 1797). ↩︎
3. Annals of Cong., 4th Cong., 2d Sess. 1824 (1797); Annals of Cong., 5th Cong., 2d Sess. 493–94 (1798); Annals of Cong., 5th Cong., 3d Sess. 2919 (1799); Annals of Cong., 6th Cong., 1st Sess. 510 (1800). ↩︎
4. Annals of Cong., 8th Cong., 1st Sess. 95–96, 537, 542–44 (1803); Annals of Cong., 7th Cong., 1st Sess. 509 (1802). ↩︎
5. H.R. Jour., 6th Cong., 2d Sess. 799–801 (Feb. 11, 1801); S. Jour., 6th Cong., 2d Sess. 124–25 (Feb. 11, 1801); id. at 127–28 (Feb. 18, 1801). ↩︎
6. Letter from Alexander Hamilton to Gouverneur Morris (Dec. 26, 1800), https://perma.cc/MB3S-64WP. ↩︎
7. Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 106 (2005); Ron Chernow, Alexander Hamilton 638–39 (2004). ↩︎
8. Joanne B. Freeman, The Election of 1800: A Study in the Logic of Political Change, 108 Yale L.J. 1959, 1963 (1999). ↩︎
9. Annals of Cong., 8th Cong., 1st Sess. 22, 104, 157–58, 201, 420, 493, 701, 727 (1803). ↩︎
10. Id. at 134, 201, 490–91, 685, 735–36. ↩︎
11. Annals of Cong., 7th Cong., 1st Sess. 303, 1293 (1802). ↩︎
12. Annals of Cong., 8th Cong., 1st Sess. 515–16, 544–45 (1803); H.R. Jour., 8th Cong., 1st Sess. 422 (Oct. 28, 1803). ↩︎
13. Annals of Cong., 8th Cong., 1st Sess. 209–10 (1803); S. Jour., 8th Cong., 1st Sess. 319–20 (Dec. 2, 1803). ↩︎
14. Annals of Cong., 8th Cong., 1st Sess. 375–77, 420–31, 490–95 (1803); id. at 528. ↩︎
15. Id. at 380–81, 420. ↩︎
16. Id. at 495; H.R. Jour., 8th Cong., 1st Sess. 420 (Oct. 26, 1803). ↩︎
17. Annals of Cong., 8th Cong., 1st Sess., 377, 420–21, 424 (1803). ↩︎
18. Id. at 426, 429. ↩︎
19. Id. at 496–97 (1803); id. at 515–16, 544–45; H.R. Jour., 8th Cong., 1st Sess. 421–22 (Oct. 27, 1803). ↩︎
20. Annals of Cong., 8th Cong., 1st Sess. 203–04, 209–10 (1803); S. Jour., 8th Cong., 1st Sess. 319–20 (1803); Annals of Cong., 8th Cong., 1st Sess. 84–85, 97, 106, 124, 126–27 (1803); S. Jour., 8th Cong., 1st Sess. 314–15 (Nov. 23, 1803); id. at 315 (Nov. 24, 1803); id. at 317 (Nov. 29, 1803); Annals of Cong., 8th Cong., 1st Sess. 87–88, 97–124 (1803). ↩︎
21. Annals of Cong., 8th Cong., 1st Sess. 775–76 (1803); H.R. Jour., 8th Cong., 1st Sess. 480–81 (Dec. 7, 1803). ↩︎
22. Annals of Cong., 8th Cong., 1st Sess. 675, 681, 683 (1803); H.R. Jour., 8th Cong., 1st Sess. 476 (Dec. 7, 1803). ↩︎
23. Annals of Cong., 8th Cong., 1st Sess. 101, 103, 107, 112–115, 120, 122, 426–29, 702 (1803). ↩︎
24. Id. at 426–27. ↩︎
25. Id. at 134, 136–37; S. Jour. 8th Cong., 1st Sess. 319 (Dec. 2, 1803). ↩︎
26. Annals of Cong., 8th Cong., 1st Sess. 696, 768 (1803). ↩︎
27. Id. at 128, 132, 137, 139; S. Jour., 8th Cong., 1st Sess. 317–18 (Nov. 30, 1803). ↩︎
28. Annals of Cong., 8th Cong., 1st Sess. 174, 671, 739 (1803). ↩︎
29. Id. at 669, 693, 706, 764, 772–73; id. at 132. ↩︎
30. Id. at 670, 671, 710, 732, 739, 754; id. at 174. ↩︎
31. Id. at 668–69, 686, 693, 773, 754, 766. ↩︎
32. Id. at 775–76; H.R. Jour., 8th Cong., 1st Sess. 482 (Dec. 9, 1803). ↩︎
33. Secretary of State James Madison, Circular Letter to the Governors (Sept. 24, 1804), https://perma.cc/WAC5-CM7C. ↩︎
34. Annals of Cong., 8th Cong., 1st Sess., 490–91 (1803). ↩︎
35. Id. at 736; id. at 131, 760. ↩︎
36. Id. at 132, 188–89. ↩︎
37. Id. at 151; id. at 120, 186. ↩︎
38. Id. at 162–64, 516–17, 527–28, 537, 539, 747–48. ↩︎
39. Id. at 528–29. ↩︎
40. Id. at 536, 537; id. at 90, 171. ↩︎
41. Id. at 91, 94, 95, 155, 173, 692. ↩︎
42. Id. at 164, 170, 518, 539–40, 708–09, 715–16, 750. ↩︎
43. Amend. XII. ↩︎
44. Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Miami L. Rev. 475, 524 (2010). ↩︎
45. Cong. Globe, 34th Cong., 3d Sess. 660 (1857). ↩︎
46. Art. II, § 1, cl. 4. ↩︎
47. Cong. Globe, 34th Cong., 3d Sess. 652 (1857). ↩︎
48. Cong. Globe, 38th Cong., 2d Sess. 505 (1865). ↩︎
49. Michael T. Morley, The Enforcement Act of 1870, Federal Jurisdiction Over Election Contests, and the Political Question Doctrine, 72 Fla. L. Rev. 1153, 1163–72 (2020) (citing An Act to Enforce the Right of Citizens of the United States to Vote in the Several States of the Union, and for Other Purposes, ch. 114, § 23, 16 Stat. 140, 146 (May 31, 1870) [“Enforcement Act of 1870”] (codified as amended at 28 U.S.C. § 1344)). ↩︎
50. Cong. Globe, 42d Cong., 3d Sess., 505, 1291–94 (1873). ↩︎
51. Electoral Commission Act, ch. 37, § 2, 19 Stat. 227, 228–29 (Jan. 29, 1877). ↩︎
52. Cong. Rec. H77, H98 (Jan. 6, 2021). ↩︎
53. Pub. L. No. 117-238, Div. P, § 109(a), 136 Stat. 4459, 5238 (Dec. 29, 2022) (codified at 3 U.S.C. § 15). ↩︎
54. Id. ↩︎
55. Nelson Lund, The Unbearable Rightness of Bush v. Gore, 23 Cardozo L. Rev. 1219, 1271 n.162 (2002); Chris Land & David Schultz, On the Unenforceability of the Electoral Count Act, 13 Rutgers J.L. & Pub. Pol’y 340, 376 (2016); Vasan Kesavan, Is the Electoral Count Act Unconstitutional, 80 N.C. L. Rev. 1653, 1784 (2002). ↩︎
56. Id. at 1780; Colvin & Foley, supra at 477, 518–19; Laurence Tribe, Erog v. Hsub and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 Harv. L. Rev. 170, 267 & n.388 (2001). ↩︎
57. Colvin & Foley, supra at 518; Art. I, § 5, cl. 1. ↩︎
58. Kesavan, supra at 1779; Jack Beermann & Gary Lawson, The Electoral Count Act Mess: The Electoral Count Act Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) About Counting Electoral Votes, 16 FIU L. Rev. 297, 305–06, 309, 317–18 (2022). ↩︎
59. Kesavan, supra at 1792; Tribe, supra at 278. ↩︎
60. 462 U.S. 919, 923–29 (1983). ↩︎
61. 167 Cong. Rec. H10, S7 (daily ed. Jan. 3, 2021) (corrected version). ↩︎
62. Harold Hongju Koh, The War Powers and Humanitarian Intervention, 53 Hous. L. Rev. 971, 1021 (2016). ↩︎
63. Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L. & Pol. 345, 347–48 (2003). ↩︎
64. 3 U.S.C. § 15(d)(2)(B)(ii)(II). ↩︎
65. Art. II, § 1, cl. 4. ↩︎
66. Kesavan, supra at 1686. ↩︎
67. Cong. Globe, 42d Cong., 3d Sess. 1299–1300 (1873). ↩︎
68. Id. at 505. ↩︎