The 12th Amendment

by Gerard Magliocca · November 12, 2015

While we’re on the subject of the Presidency and Vice Presidency, here’s another thought that recently occurred to me. We commonly say that presidential electors are free to vote their conscience. It is only a custom, though a well-established one, that they instead vote as state law dictates (with the occasional quirky exception).

But what about this thought. The Twelfth Amendment substantially changed the Electoral College. By 1804 (when the amendment was ratified) it was already clearly understood that electors would not vote their conscience and would vote as state law dictated. Could you say, therefore, that the Twelfth Amendment actually removed the discretion of electors and that they are acting unconstitutionally if they vote in a non-ministerial way?

Brett Bellmore says:

November 12, 2015 at 12:57 pm

In a word, no, because the 12th amendment is utterly silent on the question of how electors decide who they vote for. How can it change a legal rule it is silent on?
Joe says:

November 12, 2015 at 1:29 pm

Granting the premise (not sure if it was universally understood), are you suggesting that the 12A ratified the current understanding of ministerial votes? Is this some sort of originalism statement? For instance, the 14A doesn’t explicitly “say” that equal protection doesn’t cover sexual orientation but some say that since that was the current understanding at the point of ratification. Not my view of constitutional analysis but the view of some.
Gerard Magliocca says:

November 12, 2015 at 2:19 pm

Arguably the text about electors voting is glossed by the original understanding of what that meant in 1804 (as opposed to 1787-88).
Joe says:

November 12, 2015 at 2:37 pm

Okay — yeah, caught that after a moment. Someone can argue that but it seems to me a dubious way to approach the question. It is not compelled by the text & it’s something that as a matter of good constitutional policy should and could be applied per current understanding. But, again, if one is an originalist, I assume they might say that — depending on their particular brand.
Brett Bellmore says:

November 12, 2015 at 3:58 pm

To be clear, the Constitution had only been in force for 16 years when the 12th amendment was ratified. Doesn’t that put electors not having a choice about who they vote for, more into the “passing fad” category, than “well established rule”? To change something entirely a matter of state law, and render it a matter of federal constitutional law, (And thus no longer subject to alteration by state law!) on the basis of an amendment which doesn’t even mention it in passing, seems a bit of a stretch.
Mike Stern says:

November 15, 2015 at 10:11 am

What do you mean by “dictated by state law”? It is my understanding that only recently have states passed laws that require electors to vote in accordance with their pledges.
- Brett Bellmore says:
  
  November 15, 2015 at 11:21 am
  
  Something doesn’t become a matter of state law when the law gets passed. It’s a matter of state law when it’s a topic suitable for state law, even if states haven’t decided to pass the laws.
  
  It was a state level decision whether or not to try to obligate electors. If you were going argue for a constitutional standard, it would be that the electors DID have a choice, not that they didn’t.
- Joe says:
  
  November 15, 2015 at 12:13 pm
  
  I’m not sure how you are using the term “recently” — there was a case that reached the Supreme Court over fifty years ago on electors and it wasn’t a novelty then. But, the “faithless elector” rule isn’t even on the books in many states even today so the general policy in 1804 would warrant a citation — https://en.wikipedia.org/wiki/Faithless_elector
  
  Reference was made separately that not much time passed to assume that the policy in effect was “constitutionalized.” There is something to that though I’m not sure what the rules are there. Judicial review was only beginning to be practiced in the 1780s but the principle was seen as basic to many as noted in Marbury v. Madison. The “passing fad” rule sounds like one more way to find a way to be flexible when it suits. The 12A leaves the issue open from what I can tell.
Gerard N. Magliocca says:

November 15, 2015 at 1:17 pm

Mike,

I just meant the convention that electors should vote the way state law dictates (winner-take-all, winner of each congressional district).