By Michael L. Rosin*
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In his notorious two- and six-page memoranda, John Eastman interpreted the Twelfth Amendment[1] to the U.S. Constitution as giving the president of the Senate, the Senate’s presiding officer,[2] the unilateral power to accept or reject electoral votes.[3]
The Eighth Congress crafted the Twelfth Amendment in 1803 so that presidential electors could designate their two electoral votes: one for president and the other for vice president.[4] This would avoid the fiasco that occurred in the election of 1800 when Thomas Jefferson and his running mate, Aaron Burr, each received seventy-three undesignated electoral votes for president, throwing the election to the House of Representatives, which almost elected Burr as president.[5]
The Congress that crafted the Twelfth Amendment also crafted a statute that directed which set of electoral vote certificates, undesignated or designated, the president of the Senate should open and count in case there was any doubt whether the amendment had been ratified by the day the electors met.[6] One would assume that if Congress had intended for the president of the Senate to have the awesome power Eastman claimed he had under the Twelfth Amendment, there would have been no need or authority to instruct the president of the Senate on which set of certificates to open. Yet, the same Congress did just that. This brief Article reviews the history of and motivation for creating this statute.
Several months after Congress approved the Twelfth Amendment in December 1803,[7] members of Congress must have realized that in order for the vote designation system to be implemented by Wednesday, December 5, 1804, the day on which the electors would meet in their respective states to cast their votes,[8] (1) the Twelfth Amendment would need to be ratified by the legislatures of thirteen of the seventeen states, and (2) the electors would need to cast their votes in conformance with the terms of the amendment.[9]
This issue may sound trivial to modern-day individuals who live in an age of instantaneous information transmission. However, in the geographically dispersed, ultra-low bandwidth, high latency early republic, it was not.[10]
December 15, 1791, is the date commonly cited for the ratification of the U.S. Bill of Rights.[11] However, Secretary of State Thomas Jefferson did not transmit a circular letter to the state governors notifying them until March 1, 1792.[12]
Notification of ratification of the Eleventh Amendment was even more delayed. Donald Kyvig, a leading Article V scholar, wrote, “[T]he process of notifying federal officials proved slow and slipshod.”[13] The Senate passed the resolution on January 14, 794, and the House followed on March 4, 1794,[14] and modern scholarship suggests that the states ratified it in February 1795.[15] However, some ratifying states failed to notify the State Department of their ratification in a timely manner.[16]
As the Fourth Congress expired in early March 1797, it adopted a resolution asking the president of the United States to obtain information from the eight states that had not yet ratified the Eleventh Amendment.[17] On January 8, 1798, President John Adams informed the two houses of Congress that the requisite number of states had indeed ratified the amendment.[18]
On March 26, 1804, President Thomas Jefferson signed into law a bill titled “An Act supplementary to the act intituled ‘An act relative to the election of a President and Vice President of the United States, and declaring the officer who shall act as President, in case of vacancies in the offices both of President and Vice President.’”[19] This bill originated in the Senate on February 21 of that year,[20] and it passed that chamber on March 16.[21] The bill passed the House on March 23.[22] Unfortunately, the Annals of Congress do not include any debate on the bill, only journal-like procedural entries relating to it.[23]
Section 1 of the Act sought to eliminate any unnecessary delay between receipt of the requisite number of ratification notices in the nation’s capital and transmission of that information to the states. It began:
That whenever the amendment proposed during the present session of Congress, to the constitution of the United States, respecting the manner of voting for President and Vice President of the United States, shall have been ratified by the legislatures of three fourths of the several states, the Secretary of State shall forthwith cause a notification thereof to be made to the executive of every state[.][24]
Section 1 continued:
The executive authority of each state shall cause a transcript of the said notification to be delivered to the electors appointed for that purpose, who shall first thereafter meet in such state, for the election of a President and Vice President of the United States[.][25]
The electors would then cast their ballots and create electoral vote certificates in conformance with the Twelfth Amendment.[26]
But Section 1 noted a potential timing issue:
And whereas, the above-mentioned amendment may be ratified by the legislatures of three fourths of the states, and thereupon become immediately valid, to all intents and purposes, as part of the constitution, on a day so near the day fixed by law for the meeting of the electors in the several states, that the electors shall not in every state be apprised of the said ratification, and may vote in a manner no longer conformable with the constitution, as amended, whereby several states might be deprived of their vote in the election of a President and Vice President: for remedy whereof[.][27]
With this language, Congress declared by law that electoral vote certificates not conforming to the new amendment would be considered constitutionally invalid. No decision about the validity of any certificates was to be left to the president of the Senate—expected to be Aaron Burr, the incumbent vice president.
Congress made sure not to leave electors in a twilight zone. Section 2 of the Act began:
That the electors . . . shall at every such election, unless they shall have received a transcript of the notification of the ratification of the abovementioned amendment to the constitution, or unless they shall meet more than five days subsequent to the publication of the said ratification by the Secretary of State, in one of the newspapers of the state, vote for President and Vice President of the United States, in the following manner, that is to say: they shall vote for two persons as President and Vice President, in conformity with the first section of the second article of the constitution. And in other respects act in conformity with the provisions of the act to which this act is a supplement; and they shall likewise vote for one person as President, and for one person as Vice President, in conformity with the above-mentioned amendment of the constitution; and in other respects act in conformity with the provisions of the first section of this act.[28]
In the absence of notification from the secretary of state, conforming state electoral colleges would transmit two certificates to the president of the Senate, one supposing that the Twelfth Amendment had not been ratified and the other supposing that the amendment had been ratified.[29] What would the president of the Senate do if he received two such certificates from a state?
One would think that if the Congress that proposed the Twelfth Amendment understood the president of the Senate to have the unilateral power to decide which of multiple competing certificates to accept from a state (and which to reject), as Eastman asserted in his memoranda,[30] then that Congress would have simply let the president of the Senate decide which certificates to open. In fact, Congress did no such thing. Section 2 of the Act concluded:
But those certificates only, of votes given for President and Vice President of the United States, shall be opened by the president of the Senate, for the purpose of being counted, which shall contain the list or lists of votes given in conformity with the constitution, as in force on the day fixed by law for the meeting of the electors, by whom the said votes shall have been given.[31]
Hence, Congress instructed the president of the Senate on which certificates to open.
In 2022, Robert Delahunty and John Yoo argued:
Congress has no constitutional power to dictate to other constitutional actors—here, most relevantly, the Vice President—how they are to discharge the functions that the Constitution assigns to them. The ECA itself cannot constitutionally dictate how the Vice President, in the presence of the House and Senate, chooses to perform his duty under the Twelfth Amendment.[32]
If the Constitution—either Article II, Section 1, Clause 3, or the Twelfth Amendment—bestowed upon the president of the Senate the unilateral power to decide which electoral vote certificates to accept and which to reject, then he could be trusted to implement the Constitution he had sworn to defend. More to the point, Congress could not mandate that he do that. But the Congress that proposed the Twelfth Amendment dictated just such a mandate on the president of the Senate when it instructed him which electoral vote certificates to open. Therefore, this Congress could not have understood the president of the Senate to have the much greater unilateral power to decide which electoral vote certificates to accept and which to reject, as Eastman contended.[33]
The twilight zone did not come to be. On September 24, 1804, Secretary of State James Madison transmitted a circular letter to the governors informing them of the ratification of the Twelfth Amendment.[34] Seventy-two days later, the electors met on December 5, 1804, the first Wednesday in December, as required by law.[35] That interval gave the electors more than enough time to know how to cast their electoral votes in conformance with the Constitution as it was on the day they met. Consequently, the electors in each state would only transmit certificates with electoral votes cast with designation as required by the recently ratified Twelfth Amendment: one set of votes for president and another set for vice president. When the two houses of Congress assembled concurrently on February 13, 1805, there was only one set of certificates for Vice President Aaron Burr, the president of the Senate, to open.[36]
In the end, there was no need for Congress to instruct the president of the Senate on which certificates to open. But there might have been a need if the states had taken a bit longer to ratify the Twelfth Amendment.
* Michael L. Rosin is an independent scholar whose work focuses on the Electoral College and everything on which it is built. M.A., University of Pittsburgh, 1976; M.Sc. (Econ.), London School of Economics, 1975; A.B. University of Chicago, 1973. He can be reached at mlrosin@att.net.
[1]. U.S. Const., amend. 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[.]”).
[2]. When present, the Vice President is the President of the Senate. Otherwise, the President pro tempore of the Senate presides over the body. See U.S. Const., art. I, § 3, cl. 4 (“The Vice President of the United States shall be President of the Senate . . . .” id. § 3, cl. 5 (“The Senate shall ch[oose] . . . a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.”). For a detailed analysis of how the Vice President came to be the person most likely to preside over the counting of the electoral votes, see Michael L. Rosin, How Did the Vice President Come to Be the Presiding Officer of the Electoral Vote Count? The Evolution of the Original Electoral College Clauses at the Convention, 63 Duq. L. Rev. (forthcoming 2025) (on file with author).
[3]. Memorandum from John Eastman, Esq., to Donald Trump, 45th Pres., U.S., on Jan. 6 Scenario 1 (Sept. 21, 2021), https://cdn.cnn.com/cnn/2021/images/09/20/eastman.memo.pdf [https://perma.cc/7E2F-3QLZ] (two-page version); Memorandum from John Eastman, Esq., to Donald Trump, 45th Pres., U.S., on Jan. 6 Scenario 2–3 (Sept. 21, 2021), https://s3.documentcloud.org/documents/21066947/jan-3-memo-on-jan-6-scenario.pdf [https://perma.cc/Z7HN-PD4F] (six-page version).
[4]. Compare U.S. Const., art. II, § 1, cl. 3 (“The Electors shall meet in their respective States, and vote by ballot for two persons . . . .”), with id. amend. XII (“The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . . ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President . . . [.]”). Tadahisa Kuroda has provided the most detailed account of the history leading to the Twelfth Amendment. See Tadahisa Kuroda, The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787-1804 (Greenwood Press 1994).
[5]. There is a voluminous literature on the election of 1800. For two accounts see, for example, Edward J. Larson, A Magnificent Catastrophe: The Tumultuous Election of 1800, America’s First Presidential Campaign (Free Press 2007); James Rogers Sharp, The Deadlocked Election of 1800: Jefferson, Burr, and the Union in the Balance (Univ. Press of Kan. 2010).
[7]. For the final votes see 13 Annals of Cong. 209 (1803) (Senate); id. at 776 (House).
[8]. A 1792 statute set the first Wednesday in December as the day for the electors to meet in their respective states. See 1 Stat. 239 (1792).
[9]. “Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring, That [sic], in lieu of the third paragraph of the first section of the second article of the Constitution of the United States, the following be proposed as an amendment to the Constitution of the United States, which, when ratified by three-fourths of the Legislatures of the several States, shall be valid, to all intents and purposes, as part of the said Constitution . . . [.]” 13 Annals of Cong. 209 (1803) (second emphasis added). For the list of the thirteen ratifying states, see James Madison, Circular Letter to the Governors, 24 September 1804, in 8 The Papers of James Madison, Secretary of State Series 84 (Mary A. Hackett et al. eds., 2007).
[10]. For example, in 1800, it took about two weeks to travel from New York City to Savannah, Georgia, the most distant state capital. See Clifford L. Lord & Elizabeth H. Lord, Historical Atlas of the United States 79 (N.Y. Henry Holt & Co. rev. ed. 1953).
[11]. Helen E. Veit, Kenneth R. Bowling, Charlene Bangs Bickford, Creating the Bill of Rights: The Documentary Record from the First Federal Congress xvi (1991).
[12]. Thomas Jefferson, Circular to the Governors of the States, 1 March 1792, in 27 The Papers of Thomas Jefferson 815 (John Catanzariti ed., 1997). Jefferson’s editors have written:
TJ dispatched this circular after receiving letters from Tobias Lear of 30 Dec. 1791 transmitting Virginia’s ratification of the Bill of Rights with a covering letter from Governor Henry Lee to the President and of 18 Jan. 1792 transmitting Vermont’s ratification with a covering letter from Governor Thomas Chittenden to the President. Vermont’s action provided the three-fourths majority required for amendments to the Constitution.
Id. (citations omitted).
[13]. David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution 1776-1995, at 113 (Univ. Press of Kan. 1996).
[14]. 1 Stat. 402 (1794). For congressional approval of the Eleventh Amendment, see 4 Annals of Cong. 30–31 (1794) (Senate); id. at 477–78 (House).
[15]. Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817, 1893 (2010). For the notices of ratification, see 2 U.S. Dep’t of State, Documentary History of the Constitution of the United States of America, 1786-1870, at 391–407 (1894).
[18]. S. Journal, 5th Cong., 2d Sess. 420 (1798); H.R. Journal, 5th Cong., 2d Sess. 126 (1798).
[20]. 13 Annals of Cong. 259 (1804).
[23]. See also id. at 268–69, 1194.
[27]. Id. (emphasis added and omitted).
[29]. Section 3 of the Act required the state executives to provide the electors with six lists of the names of the electors for the state: three for old-style certificates and three for new-style certificates. Id. at 296.
[30]. See supra text accompanying note 3.
[31]. 2 Stat. 295 (1804). After reciting this sentence from the 1804 Act, Colorado Republican Henry Teller made the following comment to the Senate that would approve the Electoral Count Act of 1887:
The fathers of the Republic assumed in the Constitution and in the subsequent legislation that there would be but one set of returns, that the officer who had the duty imposed upon him of opening and counting, if it is to be insisted upon that he was to count, had only to tabulate the vote.
17 Cong. Rec. 1060 (1886) (statement of Henry Teller) (emphasis added).
[32]. Robert J. Delahunty & John Yoo, Who Counts?: The Twelfth Amendment, the Vice President, and the Electoral Count, 73 Case W. Rsrv. L. Rev. 27, 82 (2022). The acronym “ECA” refers to the Electoral Vote Act of 1887, 241 Stat. 373, which was superseded by the Electoral Count Reform Act of 2022, 136 Stat. 5233 (codified as 3 U.S.C. §§ 1–22). Delahunty and Yoo argue for a much narrower power to reject electoral votes than Eastman had asserted. Delahunty & Yoo, supra, at 33 (“The Vice President cannot reject electoral votes on the grounds that the electors’ appointments were invalid, nor can the Vice President remand disputed electoral votes to their respective states.”).