Constitutional Amendments on Presidential Elections, [1800?] [document added in digital edition]
Constitutional Amendments on Presidential Elections
1800?
I. Resolved by the Senate & H. of R. of the US. of A. in Congress assembled, two thirds of both houses concurring, that the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the US.; which when ratified by three fourths of the said legislatures, shall be a part of the said constitution, towit, the appointment of electors of President & V. President of the US. shall be made for each state by the legislature thereof, voting by persons and by balot.
II. Resolved by the Senate & H. of R. of the US. of America in Congress assembled, two thirds of both houses concurring, that the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the US. which when ratified by three fourths of the said legislatures shall be a part of the said constitution, to wit;
On proof that any elector of President or Vice President of the United States was at the time of his appointment or of giving his vote a Senator or Representative of the US.
or held an office of trust or profit under the US.
or that he has voted for two persons inhabitants of the same state with himself
or for a person who is not a natural born citizen of the US.
or who was not a citizen thereof at the time of the adoption of the constitution
or who will not be 35. years age, or 14. years residence within the US. at the time of entering into office
the Senators & Representatives of the US. assembled together & voting by persons, & by balot, are to declare his vote invalid. whereupon the Senators & representatives of the sd state, either in the presence of the two houses, or separate & withdrawn from them, at their own option, shall decide, by their own votes, which vote shall be invalid, where two were given for two persons of the same state with the elector, and to what other person constitutionally qualified the invalid vote in every case shall be given: for which purpose they shall be allowed so much time not less than one hour,1 as shall be prescribed by law, or by the vote of the Senators & Representatives of the US. to be pronounced on the spot by persons; during which time no other certificate shall be opened or proceeded on.
III. Resolved by the Senators and Representatives of the US. of America in Congress assembled two thirds of both houses concurring, that the following article be proposed to the legislatures of the several states, as an amendment to the Constitution of the US. which when ratified by three fourths of the said legislatures, shall be a part of the said constitution towit:
When the choice of a President of the US. shall by the constitution devolve on the House of Representatives voting by states, he who has the greatest number of such votes shall be the President: and if two or more have equally the highest number of votes,2 the Senators & Representatives assembled together & voting by persons & by balot shall decide which of the persons thus equal in votes3 shall be the President:4 but when more than two having equal numbers are voted for at the same time by the Senate and Representatives, that vote shall only decide that he who has the smallest number thereon shall be withdrawn from the competition, and so on, until two only remain; on which two the last vote shall be given: and if such last vote be equal, then he of the two who had the greatest number of electoral votes shall be the President; and if those also were equal, then the oldest person on whom such equal divisions have been, shall be the President.
[but if the choice by a plurality of the votes by the states, be not approved, then the 3d5 amendment may be in the following form]
When the choice of a President of the US. shall by the constitution devolve on the H. of Representatives, voting by states, and on the vote, no choice shall be made,6 the Senators & Representatives assembled together and voting by persons and by balot, shall decide which of the two persons having the highest numbers of such votes, shall be the President: but if two or more persons shall equally have the highest number of votes, or if, one alone having the highest number, two or more others shall equally have the next highest number, then they shall decide in like manner which of those having such equal numbers of votes shall be withdrawn from the competition;7 until the candidates be reduced to two, between which two they shall finally decide in the same way which shall be the President: and whensoever the Senators & Representatives voting by persons8 shall be equally divided, if on a vote for withdrawing a candidate, he who had the smallest number of electoral votes shall be withdrawn, and if those also were equal, then the youngest person on whom such equal divisions have been shall be withdrawn; and if such equal division of the Senators and Representatives were on a vote for a President, he of the two who had the greatest number of electoral votes shall be the President; and if those also were equal, then the oldest person on whom such equal divisions have been shall be the President.
MS (CSmH); undated; entirely in TJ’s hand, including brackets; a fair copy with emendations, including revision of two passages on slips attached to the sheet (see notes 4 and 8 below).
No reference to this set of proposed constitutional amendments has been found in TJ’s correspondence. The reasons for disqualification of electors or their votes listed in the second section are similar to what TJ included in a draft bill to establish a process for resolving disputed presidential elections (Vol. 32:377-9). Although that draft is also undated, Wilson Cary Nicholas used portions of it in an amendment he put forward in the Senate on 25 Mch. 1800 in his effort to stop the bill introduced by James Ross in February for the resolution of elections by means of a “grand committee.” The bill in TJ’s hand, the measure that Nicholas introduced in the Senate, and the document transcribed above all gave importance to disqualification and named the criteria similarly. Drawing on requirements in Article 2 of the Constitution, all three texts reiterated that an elector could not be a Senator or Representative, hold an office of trust or profit under the United States, or vote for two inhabitants of his own state; and no electoral vote would be counted that was cast for anyone who did not meet the citizenship requirements specified by the Constitution (, 3:57-8; Vol. 31:381-2, 455-6, 547-8). TJ and Nicholas revealed nothing about TJ’s role in the effort to forestall Ross’s bill and said nothing about considering a constitutional remedy. Presidential elections came to the forefront again late in 1800 and early in 1801, when the tied electoral vote gave the House of Representatives the selection of the president. The contents of the amendments transcribed above, however, relate more closely to the contestations of February-March 1800 over mechanisms for resolving potentially disputed elections than to issues arising from the tied electoral vote some months later. Whenever TJ wrote them, these draft amendments predated the Twelfth Amendment, which passed Congress in December 1803 and was ratified the following year.
1. Preceding five words interlined.
2. TJ first wrote “and if two or more of the highest numbers be equal” before altering the text to read as above.
3. Preceding four words interlined in place of “for whom they have been given.”
4. The remainder of the paragraph is an insertion on an attached slip in place of “and if they be equally divided the oldest of the persons on whom they are divided, shall be the President,” which TJ altered to “and if the votes of the Senators and Representatives be equally divided the oldest of the persons on whom they are divided, shall be the President.”
5. Word interlined.
6. Preceding nine words interlined.
7. Preceding four words interlined in place of “rejected.”
8. The remainder of the paragraph is an insertion on an attached slip in place of: “shall be equally divided, if on a vote of withdrawing, the youngest person on whom <they are divided> shall be withdrawn, and if such equal division were on a vote who shall be President, <the oldest person on whom they are divided shall be the President> he who had the greatest number of electoral votes shall be the President or if they also were equal, then the oldest person on whom such equal divisions have been shall be the President,” which he altered in stages before substituting the passage on the slip.