12th/20th Amendment Procedures

[jimrtex]

The original Constitution does not specify any dates for terms of office.   The Continental Congress was given the authority to bring the Constitution into effect when 9 States had ratified the Constitution.   When this occured in 1788, the CC set the first Wednesday of January, February, and March 1789 for the selection of presidential electors, the casting of electoral votes, and the meeting of the Congress.  The first Wednesday in 1789 happened to be March 5 (originally the date would have been in February, but the 3 dates were pushed back a month because the CC could not get a majority for a meeting place, being split between NYC and somewhere further south).

When the two houses of Congress met in 1789, neither had a quorum, and took a month or so to get one.   Once both houses had a quorum, they counted the electoral votes and determined that Washington and Adams had been  elected.

The 1st Congress determined that since the Constitution specified terms of office of 2, 4, and 6 years, and their term began on March 5, that subsequent terms would begin on March 5, and be coincident for the Congress and the Presidency.  To ensure election of the President before the start of his term, they set the date of counting in the end of the previous Congressional term.

Though the congressional term began in March, it was customary for the sessions to begin in the late fall or winter.  This would less interfere with agriculture, the roads would be less likely to be bogged, and the risk of malaria and yellow fever in Washington less.  The second session would begin late in the even year, often after the next Congress had been elected, and some representatives had been defeated.

In 1801, when Jefferson and Burr were tied in EV the Congress met in February for the HoR to choose the President.  It was the outgoing Federalist-controlled HoR that contemplated electing Burr rather than the more despised Jefferson.  The 1801 election resulted in passage of the 12th amendment.   The 12th amendment changed the method of counting EV, but it did not change the schedule, and the 1801 election had confirmed that it was the outgoing Congress that counted the vote and chose the winner in case of a non-majority.

It was the outgoing HoR in 1825 that chose John Q Adams as President, and the Senate in 1837 that chose Johnson as Vice President.

The 20th Amendment was intended to eliminate the lame duck session of Congress by making the beginning of the session conform with the start of the term.  It also provided a short overlap (January 3 to January 20) for Congressional terms to begin before the Presidential term.   It was understood that the counting of electoral votes and possible selection of the President or Vice President by the HoR or Senate would be performed by the incoming Congress.

The actual dates for the election of Congress, the selection of presidential electors, the casting of electoral votes by the electors, and the counting of the electoral votes by Congress is legislated by Congress.  Curiously this follows the roughly monthly schedule used in 1789, election in the beginning of November, casting of electoral votes in the beginning of December, and the counting of electoral votes in the beginning of January.  Like Washington, the new president takes office somewhat after the new Congress.