THE TWELFTH AMENDMENT: A TIME BOMB

By SANFORD LEVINSON
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How An Obscure Constitutional Provision Put Dick Cheney On An Airplane: Reflections On The Meaning Of The Twelfth Amendment

parts of our Constitution. Because the original Constitution did not require electors to vote for president and vice-president separately, the electoral college in 1800 left Thomas Jefferson and Aaron Burr -- both members of the Democratic-Republican Party -- in a tie vote for first, even though it was clear to everyone that Jefferson was the party's candidate for president and Burr was to be his vice-president. Because the electors could reach no firm decision, the final decision was made by the House of Representatives.

The Twelfth Amendment attempted to solve this problem by differentiating the candidates for the two offices and then calling on the electors to indicate their favorite for each. Thus, the party system was, in effect, constitutionally recognized by the Amendment, whereas the original scheme of 1787 had been predicated on the Framers' loathing of the very idea of party politics.

Dick Cheney And The Twelfth Amendment's Inhabitant Clause

The Twelfth Amendment provides, among other things, that "Electors shall . . . vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves." This clearly doesn't prohibit all-Virginia or all-New York tickets; it simply generates a significant disincentive for such tickets inasmuch as the Virginia or New York electors are barred from voting for both of their party's candidates.

Interestingly, the Inhabitant Clause may well apply to the Republicans' Bush-Cheney ticket. Dick Cheney -- though originally from Wyoming and, indeed, a former Representative from that State -- has, for the past several years, been living and voting in Texas while serving as chief executive of a Dallas oil company. That is, Cheney is a former inhabitant of Wyoming who, like millions of other mobile Americans, has chosen new pastures, in which he indeed prospered. But then new opportunity beckoned via the possibility of serving as his Governor's running mate. The solution to the Twelfth Amendment problem, Republican lawyers suggest, was simple: Cheney flew back to Wyoming and registered to vote.

But not so fast. This opportunistic change is scarcely enough to establish that Cheney is now an "inhabitant" of Wyoming and, far more importantly, that he is not an inhabitant of the Lone Star State. His home remains in Texas; one would also have to be gullible indeed to believe, for example, that Cheney will, if unsuccessful in his aspiration to move back to Washington, move back to Wyoming. As a result, relatively few lawyers are satisfied that Cheney has complied with the letter and purpose of the Twelfth Amendment.

One might well ask, though, who cares? Precisely because we have become such a mobile population, few people really believe that state identity is particularly important anymore (save, perhaps, for Texans!). One might well feel that an anachronism like the Inhabitant Clause should either be ignored or, if that is impossible, solved by allowing inhabitancy to follow voter registration -- which would solve Cheney's problem and, possibly, that of any future similar ticket.

Why The Twelfth Amendment Matters: The Electoral College Time Bomb

One may agree to smile at (and ignore) the Inhabitant Clause. Far more ominous, though, is the Twelfth Amendment's provision laying out the procedure by which deadlocks in the Electoral College would be resolved. The House of Representatives selects the new president from the top three candidates. But the vote is by State, not by representative. So Vermont, Wyoming and North Dakota collectively outweigh, say, California and Texas.

This is a time bomb within the American political system, for it seems unimaginable that the public at large would accept as legitimate the House's choice of the person who came in second (or even third) in the popular vote because of a coalition of small states (perhaps from the Mountain West) representing a distinct minority of the population.

Is this a real problem? After all, the House has not been called on to choose a president since 1824. And one might argue that the two-party system is thoroughly hard-wired into the American system, thus removing the possibility of deadlock in the Electoral College. But no one should be so confident. Things might change.

Indeed, most educated Americans believed until very recently that the Impeachment Clause was of no real importance any longer -- because it had been invoked only once, in 1868, with regard to Andrew Johnson. But former Independent Counsel Ken Starr, together with the House, ensured that this supposed dead-letter clause was actually a live wire for President Clinton.

Moreover, taking the long view, the two-party system may turn out to be less of a permanent feature of our politics than one might think. Strom Thurmond received 39 electoral votes in 1948 as a Dixiecrat, and George Wallace gained 46 votes in 1968. The current two-party structure could conceivably have all the staying power of the Union of Soviet Socialist Republics -- the demise of which was unpredicted by most even in 1988. A mature polity might contemplate the consequences of adherence to the Twelfth Amendment if (and when) a new third (or even fourth) party emerges that makes it impossible for the Electoral College to produce a winner.

If the House tie-breaking procedure -- giving the states equal weight and, therefore, giving small states a grotesquely disproportionate role in choosing the president -- is triggered, the result may well be unacceptable to the majority of the American public (as it should be). If this is so, their representatives should work to change that procedure now, through a corrective constitutional amendment that would (assuming we wished to retain the electoral college) give each representative (and not simply each state) one vote. We've just seen the impeachment that could never happen come true. Let's not wait to see the electoral deadlock -- and ensuing chaos -- that we also naively believe could never happen, come true, as well.

Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government at the University of Texas (Austin). He is author of Constitutional Faith (Princeton, 1988) and Written in Stone (Duke, 1998).

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