Hypothetical: The US never ratifies the 12th amendment

Great Debates
1

The thread about Kaiser Wilhelm becoming king of England got me thinking about whether a similar sort of situation could have happened in our own nation’s history. The 12th amendment popped to mind.

Under the Constitution as originally drafted, the runner-up in the presidential race got to be Vice President. After the disastrous pairings of Adams/Jefferson and Jefferson/Burr, the 12th amendment scrapped this idea and replaced it with separate tickets for both offices. When one looks at the presidents who died in office, it becomes evident that quite a few things would have worked out differently, and i’ve thought of a number of things that would have worked out different;

1841 - Martin van Buren re-assumes the presidency after the death of Harrison.

1865 - George McClellan succeeds Lincoln.

1881 - Winfield Scott Hancock becomes president after Garfield is shot.

1901 - William Jennings Bryan succeeds McKinley. Very interesting.

1921 - James M. Cox succeeds Harding. In the real world, Cox’s running mate was a young FDR; the AU President Cox may well have worked him into his administration.

1945 - Thomas Dewey becomes president when FDR dies. So a “Dewey defeats Truman” headline is still possible in '48.

1960 - Richard Nixon succeeds JFK.

1972 - Nixon can’t run for reelection because he’s already served two full terms by now, so a different Republican would have to run against McGovern. The two other candidates in the real-world '72 GOP primary were anti-war liberal Pete McClosky and anti-detente conservative John Ashbrook - either one of them would have made for an interesting candidacy. This means a Ford presidency is also highly unlikely.

1981 - The assassination attempt on Reagan briefly leaves Jimmy Carter as Acting President.

2001 - Al Gore, remaining as Vice President under the Bush administration, casts the tie-breaking vote in the Senate delivering a Democratic majority for the entirety of the 107th Congress.

Any other interesting could-have-beens anyone can think of?

2

Could you elaborate on this? I had read that in the beginning the ticket had both names but without saying which would be which if that ticket won the election. And that caused almost a Coup d’Etat. Could you tell me more about this?

3

The Consitution as originally written (Article II, Section 1) says;

In other words, you cast two votes for president, for two separate candidates, and whoever came in 2nd got to be vice president.

The 12th amendment changed this to…

…which is the system we use today - you vote for a ticket of one president and one vice president.

4

I think the OP is based on a misconception. Had the 12th amendment not passed, then in every election (except the stolen one in 1876) one elector would have been charged with voting for someone else for VP and then the actual presidential candidate would have been elected president and the person who finished behind by one vote would have been chosen VP. The losing presidential candidate would have finished third, usually a distant third.

In 1876, even after the stolen southern votes, Tilden was still only one EV behind Hayes and had one elector not voted for Hayes’s VP choice, that would have left him tied with Tilden, the tie to be broken in the senate. So whichever party controlled the senate would have elected the VP. Since Hayes survived his term, this would have made no practical difference. Of course, there was the election of 1824 in which no party had a majority and it was decided in the House. The complications of that are too much to guess. I suppose that then Clay (or was it Calhoun?) would have been eliminated and the House would have chosen among Jackson, Jackson’s running mate and Q.

5

Given that this is a hypothetical, it’s better suited to GD than GQ.

Colibri
General Questions Moderator

6

If I recall correctly, Nixon would have been eligible to run in '68, as he would have had to complete less than two years of Kennedy’s term. The rules say that less than half a term doesn’t count (OK, it says that more formally, but that’s the effect).

7

Coup d’Etat is maybe too strong. What happened was, by the 1790s, the US had split into two parties/factions: the Democratic Republicans, who were pro-French revolution, agrarian and supported a weak national government and strong state governments, and the Federalists, who were anti-French revolution, mercantalist, and supported a strong national government and weak state governments.

So in 1800, you had four people who were getting electoral votes for president: Thomas Jefferson, who was the current Vice President, Aaron Burr, Senator from New York, who were both Democratic Republicans, John Adams, current president and Charles Pinckney, a lawyer from Charleston who had been one of South Carolina’s delegates to the Constitutional Convention and ambassador to France, who were both Federalists.

There was the understanding going in that Jefferson and Adams were contending for the presidential spot, and Burr and Pinckney for Vice President, so a deal had been worked out where one of the electors who was supporting Jefferson and Burr would cast his vice presidential vote for somebody else and thereby make sure Jefferson got the election.

For whatever reason, this didn’t happen, and so both Jefferson and Burr got the same number of electoral votes. As was the procedure, the matter was turned over to the House of Representatives, where each state was entitled to cast one vote based on a vote of each state’s delegations. This led to a situation where both Jefferson and Burr were each getting tied votes there…the states with Democratic-Republican delegations were voting for Jefferson, while the states with Federalist delegations were voting for Burr, because Jefferson was the most famous opponent of the Federalists.

Enter Alexander Hamilton, the former Secretary of the Treasury and the country’s leading Federalist. Hamilton and Burr were both from New York, and they had a long running political feud that had started when Burr defeated Hamilton’s father-in-law for Senate. (The feud would have tragic consequences for Hamilton a few years later, when Burr would kill him in a duel). Hamilton, who hated Burr, convinced some of the Federalist delegations to abstain from voting, and so Jefferson became President.

8

The election of 1824 featured an unusual situation in which four candidates ran against each other as individuals for President, but all factions agreed on John Calhoun as Vice-President. This would have been impossible pre-12th Amendment.

If one processes the actual 1824 votes through the pre-12th model, Calhoun would have been elected President. Jackson would have been elected VP, since being VP didn’t require a majority. John Quincy Adams would have been frozen out altogether.

9

Agreed. Even under the original system, you wouldn’t have the loser of the race be VP. For example, McCain would not now be VP under Obama. That happened in 1796, but as you pointed out, after that election, the parties came up with the “lets have one elector vote for a different VP” trick so as to make the Presidential candidate come in first.

When that backfired in 1800, all the 12th amendment did was put in place a system that acknowledged party tickets.

10

Note how the 1796 and 1800 elections revealed opposite problems when the pre-12th model collided with party tickets.

In 1796, too many Federalist electors withheld their votes from Pinckney, so that the opposite party’s candidate (Jefferson) came in second. In 1800, zero Republican electors withheld their votes from Burr, so that Jefferson and Burr tied.

The solution was to have x electors withhold votes from the presidential candidate, where x was >0 but < the margin of victory over the next leading ticket. But this was difficult to coordinate when interstate communication took weeks, and obviously impossible if and when the margin of victory was a single vote.

11

Ha thanks Captain Amazing, it seems I was confusing the election with the latter Burr Conspiracy.

12

I beg to differ. Let me quote the original clause:

In 1824, no candidate had a majority and the election would have been thrown into the House with all four (Clay, Calhoun, Jackson, and Q) in the running with very likely the same result.

13

But see, there was no separate vote for President and Vice-President. To run the 1824 votes through the pre-12th model, you have to tally the President and VP votes together. You get:

Number of electors = 261
Number of votes (two per elector) = 522
Majority of whole number of electors = 131

Calhoun, 182
Jackson, 112 - *
Adams, 84
Crawford, 41
Clay, 39 - **
Sanford, 30
Macon, 24
Van Buren, 9
blank, 1

    • Jackson received 99 votes for Pres and 13 for VP
      ** - Clay received 37 votes for Pres and 2 for VP

Calhoun would have been elected President and Jackson Vice-President.

14

You would also have to watch out for tricks from the other side. Let’s assume 2012 was operating under the pre-12th amendment rules and the race is razor thin. The electors from each party coordinate the “1 elector votes for a different VP” and the results, after election day, are projected to be.

Obama 278
Biden 277
Romney 260
Pawlenty 259
Barney Frank 1
Sarah Palin 1

Meanwhile, at GOP headquarters, the elector who was supposed to vote for Palin as the throwaway vote decides to be hard to get along with ( since the GOP ticket won’t win anyways) and casts his vote for Biden.

The election is now thrown in the House with the possibility of a Joe Biden as President. Party politics needed the 12th amendment.