At The New Reform Club, Seth Barrett Tillman: How the Constitution’s Original (or pre-1801) Electoral College Worked. From the introduction:
Under the original design of the Constitution, members of the Electoral College would each cast two votes for President for two distinct candidates, and, at least, one of the two votes cast by each elector could not be an inhabitant of the same state as the elector. There was no separate ballot for Vice President. Generally, the candidate with the most electoral votes would become President, and the runner-up in the Electoral College, who might very well be a political rival of the prevailing candidate, would become Vice President. This scenario is what happened in the 1796 presidential election. Incumbent Vice President John Adams, a Federalist, had 71 electoral votes, and 70 electoral votes was a majority of the electors. Former Secretary of State Thomas Jefferson, the runner up, was a Democratic-Republican, had 68 electoral votes, which was less than a majority of the electors. Adams became President, and Thomas Jefferson became Vice President. (There were 138 authorized electors, and, on this occasion, all the authorized electors voted.)
By modern U.S. elections standards it was an odd system, particularly because it was possible for more than one candidate to carry a majority of the electors. This is how that system worked….
It really was a terrible system. Among other things, the Framers should have anticipated that (once George Washington left the scene) the top two candidates would be rivals (as promptly happened with Adams and Jefferson).
And a followup post from Professor Tillman: What the Twelfth Amendment Did and Did Not Do. Key takeaway: the Twelfth Amendment improved the process, but still had its problems. For example:
Under the pre-12th Amendment constitution, the House could choose among the top five candidates; after the 12th Amendment, the House was limited to the top three candidates. The problem is that the Constitution does not identity what should happen if there are not three candidates which can be readily identified as the top three. This could happen in a number of ways.
Presidential Ties
There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 4; or,
There can be a 2-way tie for first place (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2; or,
There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 3; or,
There can be a first place candidate (carrying less than a majority of the electors), with a second place candidate, and an q-way tie for third place, where q is greater than or equal to 2.
In each of these scenarios, it could be plausibly argued that the House has a power to choose the President among the top three candidates and among anyone (else) who ties among the top three. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the House is entirely disabled from holding a contingent election for President.
UPDATE: A third post in the series: Other 12th Amendment Innovations. Final conclusion:
It was and it remains an odd system.
Indeed.
Posted at 1:08 AM