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Why the 12th Amendment?

One possible outcome of this historic election could be an Electoral College impasse that would then move the choosing of the president to the US legislature.

As this potential reality continues to grow, a review of the 12th Amendment is necessary to avoid insecurity of the citizenry. Here is the process:

Step One – On the Tuesday after the first Monday of November, registered state citizens vote for political party to represent the state.

Step Two – Before December 14, State government certifies the votes and selects Electors of the Electoral College to represent the state based on the will of the people as demonstrated by the popular vote.

Step Three – On December 14, Electors cast two votes each, one for president and one for vice president.

Step Four – Electoral College creates list of all candidates voted for by Electors and number of votes for each and sends it to the President of the Senate.

Step Five – Before both houses of congress, the President of the Senate opens and reads the votes cast for president and vice president. The candidates with the majority of votes (270 or greater) will be the next president and vice president.

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 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.

Much of the debate over the value of the Electoral College has been fueled by the insistence that America is a “democracy” and that the popular vote is all that matters.

Remember, from the 1787 Constitutional Convention to now, the intent of the framers was that both the populace and the state governments be represented fairly. That is why originally the House of Representatives was selected by popular vote, but the Senate was appointed by the state legislatures (changes to popular vote by the 17th amendment). Simple “one vote per person” is democracy and only works in small governments as defined by James Madison: “a society consisting of a small number of citizens, who assemble and administer the government in person.” These societies, Madison contended “have ever been spectacles of turbulence and contention.” 

To decrease the frequency of these spectacles and ensure that the people and state governments were fairly represented, the system of the Electoral College was wisely adopted. I must again point out that from a perspective of “Federalism” (system established by the Constitution) states must be represented as well as population.

To wrap up, if no candidate has a clear majority of electoral votes (270), the process will devolve to the US House and Senate, and each state will have one vote in each body to answer to the question of the next president and vice president.

For better understanding I recommend these videos:

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