This may come as a surprise to many of you, but you trust me, you aren’t alone. Most Americans lack a familiarity with many of the Amendments that follow the first ten, and the 12th is probably one of the least known out of all twenty seven of them (that’s right there are actually 27 Amendments). Nonetheless, despite it’s ability to fly under the radar in terms of things on Americans’ minds, the 12th Amendment contains within it a powerful provision that essentially prevents the United States from ever having a three or more party system, where more than two parties could run viable candidates for President who would need to form coalitions in order to govern like is the case in many other countries.
Yes, you read that correctly, for all the talk of a three or four way race in November (Bernie, Hillary, Trump, Cruz for example) the real outcome of a legitimate three or four way race would be the House of Representatives picking the President. Yes, you read that right, in a truly competitive three or four way race, the election would probably be decided by none other than Paul Ryan himself. Now, as an aside, before you start breathing down my neck about Gary Johnson and Jill Stein, the 12th Amendment doesn’t prevent more than two parties from running a candidate for President, but in a hypothetical situation where all of these candidates were actually viable (and by that I mean could get more than a de minimis share of the vote, i.e. more than Johnson’s 1.2% and Stein’s 0.3% in the 2012 election) the outcome would likely be a House picked President.
The 12th Amendment is a law, and it lays the foundation for the manner in which our Presidential election is decided. The text of the 12th Amendment states (in part):
“The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” (source)
In layman’s terms, this means that if no candidate running for President amasses enough Electoral College votes (aka 270 to win), then the decision is automatically sent to the House of Representatives. In reality, what this amounts to is a situation in which the two-party system is literally ingrained into our Constitution. This is because in a hypothetical situation where there were say three or four viable candidates from three or four parties, it is unlikely that any third or fourth party candidate, or any candidate for that matter, would be able to garner enough votes to reach a majority of Electoral College votes. Michael Bloomberg even cited this provision as one reason why he wouldn’t take the risk of running for President on a third party ticket.
And, sure, I’m positive some of you reading this and scratching your head right now and thinking up a few scenarios where someone could still get enough EC votes to win even in an election with three or more viable candidates from several different parties, but the probability of any of those hypotheticals coming true is extremely small. In all likelihood, you probably have a better chance of getting struck by lightning during your lifetime (1 in 12,000) than one person in any party amassing a majority of EC votes in a competitive three or four way race, let alone a candidate from an outside party.
And that ladies and gentlemen, in a nutshell, is a big part of the reason we have a two party system. Is it undemocratic? I say yes. And, although the U.S.A. isn’t a direct democracy – it’s a republic – that doesn’t mean we can’t do anything about it. As we learned in 1933, with the passage of the 21st Amendment and the repeal of prohibition (the 18th Amendment) even Amendments can be “Amended.”
Will it be easy? Of course not, amending the Constitution is an arduous process (and arguably for good reason). Could we do it? Of course we could, but it means that first we have to work within the existing framework, no matter how much we may dislike it.
DISCLAIMER: The information in this article is provided for general informational purposes only and is not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied.