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Twelfth Amendment

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Amendment XII

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.

*The bracketed text has been superseded by Section 3 of the Twentieth Amendment.

Supreme Court Cases:

  • Ray v. Blair, 343 U.S. 214 (1952)
    • In Ray v. Blair, the Supreme Court held that the Twelfth Amendment does not prohibit a party to require its Presidential Elector from pledging political conformity, nor does it prohibit an elector to announce their vote or pledge of support for a particular candidate before voting. Furthermore, the Court concluded that while presidential electors perform a federal function, they are not federal officers or agents but act by the authority of the state, which derives its power from the federal Constitution. 
  • Buckley v. Valeo, 424 U.S. 1 (1976).
    • In Buckley v. Valeo, the Supreme  Court held that powers given Congress under the Twelfth Amendment to regulate practices in connection with presidential elections do not permit it to create a federal commission to regulate such elections in a manner violative of the appointments clause.
  • Chiafalo v. Washington, 591 U.S. 578 (2020)
    • In Chiafalo v. Washington, the U.S. Supreme Court held that states could penalize electors who violated their pledges to vote for the presidential candidate who won the state's popular vote. The Court found that the Twelfth Amendment and Article II of the Constitution gave states broad power over electors, who themselves had no rights to vote independently.
  • Colorado Dept. of State v. Baca, 591 U.S. 655 (2020)
    • In Colorado Dept. of State v. Baca the Court upheld, on the grounds of  Chiafalo v. Washington,  Colorado’s policy of replacing electors who attempt to cast a ballot for a person who did not win the state’s popular vote. 

Circuit Court Cases:

  • Baca v. Hickenlooper, No. 16-1482, 2016 U.S. App. LEXIS 23391 (10th Cir. Dec. 16, 2016).
    • In Baca v. Hickenlooper, the Tenth Circuit Court of Appeals upheld the denial of a preliminary injunction sought by electors challenging a Colorado statute that required them to vote for the candidates who won the state's popular vote. The court found that the statute did not violate the Twelfth Amendment or Article II of the Constitution.
  • Trump v. Thompson, 20 F.4th 10. (D.C. Cir. 2021).
    • In Trump v. Thompson, the D.C. Circuit Court of Appeals emphasized Congress's constitutional role under the Twelfth Amendment in verifying the Electoral College vote.

 

District Court Cases:

  • United States v. Nordean, No. 21-175 (TJK), 2022 U.S. Dist. LEXIS 222712 (D.D.C. Dec. 11, 2022).
    • In United States v. Nordean, the U.S. District Court for the District of Columbia found that Congress “executes” the Twelfth Amendment and the Electoral Count Act as opposed to “complies with” these laws.
  • United States v. Puma, 596 F. Supp. 3d 90 (D.D.C. 2022).
    • In United States v. Puma, the U.S. District Court for the District of Columbia concluded that Congress's certification of the Electoral College vote was an "official proceeding" under 18 U.S.C. § 1512(c)(2). The court rejected arguments that the Twelfth Amendment nor the Electoral Count Act state that the certification is merely “ministerial” or “ceremonial”.
  • Castro v. N.H. Sec'y of State, 701 F. Supp. 3d 176 (D.N.H. 2023).
    • In Castro v. N.H. Sec'y of State, the U.S. District Court for the District of New Hampshire held that the Twelfth Amendment allocates the responsibility of determining whether a presidential candidate is qualified to serve as President to Congress and the electors, not the courts.


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