One interesting point is that if no candidate has a majority of the electoral votes for President, the House chooses among the top 3 candidates (voting by state); while if no candidate has a majority of the electoral votes for Vice President, the Senate chooses between the top 2 candidates. So while the House might have chosen between Nixon, Humphrey, and Wallace; the Senate would choose between Agnew and Muskie.
I am reading the debate in Congress over the 12th Amendment, but so far haven't found an answer. It appears that they may simply have tried to conform as much as possible to the original Constitution.
Under the original Constitution, electors cast two votes for President. If no candidate had a majority, the House of Representatives, voting by States, would choose from among the top 5. In case two candidates had a majority, the House of Representatives would choose between those two. In any case, after the President had been chosen, the Vice President would be the candidate with the most electoral votes (other than the President-elect). The Senate would only choose the Vice President if there was a tie.
The election of a Vice President was conditional on first electing a President. There wasn't a provision for a Vice President to be chosen in case a President was not chosent.
Neither John Adams in 1789 or Thomas Jefferson in 1796 received a majority of the electoral votes. They were simply the runner-up candidate who became Vice President.
It was the 1800 election that triggered the 12th Amendment. Thomas Jefferson and Aaron Burr tied, and both had a majority because every Democrat elector had voted for both. After Jefferson was eventually elected by the House of Representatives, Burr became Vice President because he had more electoral votes than any other candidate.
The original proposal for the 12th Amendment simply provided that electors designate their votes for a President and Vice President. It left the rest or Article II, Section 1 intact. It addressed the immediate problem of the 1800 election, since it would prevent two candidates having a majority of electoral votes for President. It didn't really provide a method for the Vice President to be chosen.
The form of the proposed amendment soon changed to be quite similar to that eventually enacted. When the proposal was first voted in the House (in the Committee of the Whole) a substitute was proposed that would have had the House of Representatives choose the President from among the top 5 candidates in case none had a majority; and the Senate choose the Vice President in case of
tie.
This introduced the concept of separate electoral votes, while preserving the original Constitution's provision for handling unresolved conditions. Having separate electoral votes eliminated the possiblity of two tied candidates with a majority of electoral votes for President, and so that case no longer had to be handled.
As far as I can tell, the fact that a Vice President could now be chosen without a President being chosen was not an intended consequence. I haven't found any debate at all about the method of choosing the Vice President.
The proposed amendment was referred to a House committee which reported a version that provided that in case no Presidential candidate had a majority, the House would choose from among the top
3 candidates.
There was debate among the House about the proper number of candidates to be considered:
- Top 2 - this would adhere closer to the wishes expressed through the electorate. When this change was proposed, it appeared to provide for election by the House, rather than State delegations in the House. This was immediately corrected.
- Top 3 - this would be the effective equivalent to the original Constitution, considering that each elector would only have one vote. Under the original Constitution for example, it would be possible for the 5 candidates to each receive votes from 40% of the electors. Under the one vote system, the top 3 could each receive a vote from 33% of the electors.
- Top 5 - similar to the original Constitution; and would preserve the idea that the House of Representatives would choose the President in cases where the electoral college was indecisive. While under the original Constitution, the 5th place candidate could receive a vote from 40% of the electors, it was quite possible that he could have had much fewer, and still be considered. For example, in 1796, John Adams had one electoral vote more than a majority. If the decision had been made by the House of Representatives they would have chosen from among (John Adams 71, Thomas Jefferson 68, Thomas Pinckney 59, Aaron Burr 30, and Samuel Adams 15. All 15 S.Adams electoral votes were from Virginia, who had for Jefferson and Adams, rather than Jefferson and Burr.
- All who received electoral votes. Since the electoral college would be indecisive, the House could choose from among all persons who had received votes. It was unlikely in any case that the House would choose a candidate who didn't have broad national support, since election required a majority of the state delegations.
The proposal to change (3) to (All) was defeated 26:77. But a proposal to change (3) to (5) was passed 59:47. There was some comments that this was supported out of concern that the whole amendment would be defeated it no change was made.
The amendment was passed by the House of Representatives 88:31 (a 2/3 majority). It provided for House election among 5 candidates; and a Senate vote in case of tie.
The Senate apparently did not consider the House resolution, and instead passed its own. I haven't read the Senate debate yet, and am just now reading the House debate of the Senate resolution.
