Happy Monday FRians! I hope everyone had a nice weekend.
As usual, Monday’s post is brought to us be Stephen Hall. Thank you so much for your posts every week, Stephen!
As my post last week touched, however briefly, upon the 11th Amendment, and a number of my previous posts have discussed most of the first 10, and several later ones, I thought it would be an amusing exercise to just look at the 12th Amendment to take note of the concerns of the nation so recently after its formation.
Amendment 12 – Election of President
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 the 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.
Rather verbose isn’t it? Did you actually read it, or did you just skim past it? It is what government is so often about and why political rhetoric and philosophy are so much more interesting than actual legislation. It is mind-numbingly detailed procedure, not the broad statement of simple and clear principles which uplifts the human spirit and inspires people to want to create a better world.
It is the type of language which just makes normal people want to pound their heads against a wall or table until they lose consciousness. Part of it supersedes Article 2 Section 1 Clause 3, though with what appears to be rather minor modifications; while a part of this amendment is subsequently superseded itself through a portion of Amendment 20.
Mostly these three section simply outline some of the voting procedures of the Electoral college and thus reflect the political dynamics and circumstances of the times in which they were written holding open or closed the real likelihood of their being multiple candidates for President and Vice-President, as well as the potential, and actual historical occurrence, of the President and Vice-President being from different political parties.
In fact, the Twelfth Amendment makes it far more likely that the Vice-President will be from the same political party as the President, though not technically an absolute certainty. https://www.reference.com/government-politics/12th-amendment-passed-b877b9d1c5fe46e
There is a common misconception that the President and Vice-President must be from different states because of the phrasing of the language that the votes of the electors must either for President or for Vice President be for a candidate from a state different from the electors themselves. https://www.snopes.com/fact-check/favorite-sons/
All of which is mildly amusing in how easily it confuses the average, and even the well-educated, citizen, but that was not what struck me as odd when I chose to read the amendment for the post this day.
Rather, I was struck by the particular language of the first sentence: “The Electors shall meet in their respective states, and vote by ballot for . . . they shall name in their ballots the person voted for . . . .” Not interesting you say?
If the electors must (as required by the mandatory language of the word “shall”) vote by ballot, and that in said ballot shall name the person for whom they vote; then where does the Constitutionality of state laws which require that all electors must vote for that candidate who received the most votes in their particular state?
Federal law supersedes the states’ laws, and in this particular instance, it is written into the Constitution itself.
Of course, there is nothing in the electoral college procedures which prohibits the states from selecting electors by party affiliation upon the basis of majority rule within those respective states, and those of a certain party affiliation would reasonably be expected to vote in accordance with their party affiliation, which generally makes it a moot point.
However, there are certain state laws which purport to prohibit an elector from voting differently than he had designated his intention to vote prior to being elected elector. There have been instances where electors have chosen to alter their votes in protest to one thing or another, however, no state has chosen to test these laws by enforcing them against those protesting electors.
In part, that is because those protests had no real effect on the election itself, it did not turn the tide of any election. However, I’m left to wonder if another reason no state has attempted to ever punish electors for violating this rule is because it would be painfully obvious that such laws were unconstitutional.
Shortly after the last Presidential election there was even a push to have states pass such laws requiring that the electors be forced to cast their votes for whichever candidates won the national popular vote, regardless of how their own state voted in the election.
Is a vote really a vote if the person casting the vote is forced to vote in a certain way, regardless of what way that is? Clearly not. Such a law would violate the very definition of the word “vote”.
However, because those laws which mandate that electors cast their electoral ballots the way that the popular votes in their states were case by the citizens have never been challenged, many people presume that such laws are legal, i.e. constitutional. Of course, they have never been challenged simply because they have never been enforced, despite the fact that they have been invoked by the abrogation thereof.
It seems clear that any state which attempts to dictate to its electors how they must vote is in clear violation of the 12th Amendment, and any law asserting such authority is unconstitutional, that is to say void ab initio.
Yet I remain wary that much of the American citizenry remains ignorant of this potential Constitutional crisis that leftist have been attempting to foist upon the state legislatures. Thus, merely because something is unconstitutional does not mean that people will not go along with the idea due to their own lack of legal acumen.
As I said, the perusal of the Twelfth Amendment raises some interesting hypothetical conundrum, but it is highly unlikely to be an issue anytime again soon. So this is a mere thought exercise for your entertainment.
