arrowSection 7.1 - Presidential Elections

This topic is monitored by Moritz Law Professor Peter M. Shane

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The Electoral College

The 2000 presidential election gave Americans a dramatic reminder that what happens on our quadrennial Election Day — the first Tuesday after the first Monday in November of every year divisible by four — is not the selection of the President of the United States. Instead, voters in all 50 states and in the District of Columbia go to the polls and choose slates of "electors." These are unique public officials whose sole task — occurring on the first Monday after the second Wednesday in the month of December following their appointment (December 13, this year) — is the casting of ballots for President and Vice President. Although the term is not used in the Constitution, these electors have come to be known as the Electoral College.

The Constitutional Basics

The Constitution provides that the electors assigned to each state shall be equal to the whole number of Senators and Representatives to which the State is entitled in Congress. Art. II, § 1, par. 1. The Twenty-Third Amendment to the Constitution, ratified in 1961, assigned to the District of Columbia the number of electors to which it would be entitled were the District a state, provided that the number shall not exceed the representation of the least populous state. As a result, the number of electors qualified to vote in the actual selection of the President is now 538. Each state legislature (and Congress, for the District of Columbia) sets the rules by which the electors shall be chosen in each state, provided only that no federal office holder may serve as an elector.

The Electoral College never meets as a group. Instead, the electors meet in their respective states in order to cast their presidential and vice presidential ballots. Following the Twelfth Amendment, ratified in 1804, these are separate ballots, and each elector must choose, for the two distinct offices, two candidates "one of whom, at least, shall not be an inhabitant of the same state with themselves." Amend. XII, par. 1. (It was based on the non-cohabitation requirement that a group of Texas voters sought to enjoin Texas electors from casting ballots in 2000 for George W. Bush and Dick Cheney, arguing unsuccessfully that each should be deemed an "inhabitant" of Texas. Jones v. Bush, 122 F. Supp. 2d 713 [N.D. Tex. 2002], aff'd , 244 F.3d 134 [5 th . Cir. 2000], cert. denied , 531 U.S. 1062 [2001].) These ballots are then to be signed, certified, and transmitted to the District of Columbia and directed to the President of the Senate, who is, under Art. I, § 3, par. 4, the incumbent Vice President of the United States.

On January 6, following the meetings of electors, the electoral ballots are counted by the President of the Senate with the entire Congress present. Should any presidential candidate win the votes of a majority of all those electors actually appointed, that person becomes President-elect. The same rule applies for the selection of the Vice President. If no presidential candidate has a majority, then the House of Representatives is authorized to select the President from among the three presidential candidates who received the highest number of electoral votes. Each state delegation, however, votes as a whole. The District of Columbia is excluded from this vote, and the winning candidate must have a majority of all 50 states in order to win. (A quorum consists of members from two-thirds of the states.) The same process applies to the "contingent" (that is, congressional) election of a Vice President, except that it is the Senate, not the House, that makes the selection, and Senators must choose between the two top vote-getters for vice president. The only other restriction on the Senators is that they may not choose as vice-president anyone who would be constitutionally ineligible to be president.

As the electoral system was originally designed in 1789, the electors did not cast separately designated ballots for President and Vice President. The framers had in mind that each elector would name two public figures, on a non-partisan basis, worthy of becoming President, and they determined that the President should be the individual receiving the most electoral votes, provided that this number of votes exceeded the number of appointed electors amounting to a majority. Should more than one candidate receive a majority vote, and should their respective votes be equal, the framers provided that the House would choose between them. If no one received a majority, the House would choose among the top five vote-getters. With each of the Philadelphia delegates undoubtedly certain that the electors would unanimously choose George Washington for the first presidency, this seemed an altogether plausible system.

Once nascent political parties began to emerge as caucuses in the 1790s, however, the flaws in this system became obvious. First, as the election of 1796 demonstrated, it was possible for the system to generate the selection of a politically antagonistic President and Vice President — in 1796, it was Adams and Jefferson. Second, if the electors for a particular party dutifully cast their two ballots for the party's presidential and vice presidential nominees, respectively, then there would necessarily be a tie vote, always throwing the election into the House. This is precisely what occurred in the election of 1800, in which the House required 36 ballots to break the tie between Thomas Jefferson and Aaron Burr, a debacle that led to the proposal and ratification of the Twelfth Amendment.

The Statutory Framework

The Twelfth Amendment leaves many questions unanswered with regard to presidential balloting, but Congress has filled some of the critical gaps through statute. There is, for example, a detailed process for certifying the electoral rosters received from each state. 3 U.S.C. § 6. If a set of electoral votes for a particular state has been duly certified pursuant to that section, and only one such set of votes has been certified for the state, those are the votes that must be counted. 3 U.S.C. § 15. Congress deals by statute also with a phenomenon that proved critical in the election of 1876 — namely, the submission by one or more states of different electoral counts, reflecting disputes at the state level as to who, in fact, are the duly authorized electors. In legislation adopted in 1887, Congress provides a procedure by which states may achieve some certainty in their submission of electoral votes. This provision, which came to be known as the "safe harbor" during the 2000 election, dictates that Congress may not substitute its judgment as to who are a state's duly authorized electors, if the state has provided for a final adjudication of any dispute, the dispute is resolved pursuant to state law already in place prior to the election, and the dispute is resolved at least six days prior to the casting of the electoral ballots.

When Congress gathers for the counting of the electoral votes, members of Congress may object to particular ballots, provided that the objections be lodged in writing, and signed by both a Senator and a Representative. If there is doubt as to the proper votes cast, notwithstanding the provisions just cited, then either the two Houses of Congress have to agree on the proper roster of electoral votes for a state, or "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted," notwithstanding any objection. 3 U.S.C. § 15.

Another problem addressed by statute is the potential for a deadlocked election, in which no candidate for President or Vice President receives a majority vote of the House or Senate, respectively. (A 269-269 tie vote within the Electoral College, with no dispute about the appointment of the 538 electors themselves, would simply send the presidential election to the House, where the candidate receiving the votes of 26 or more states would win.) 3 U.S.C. § 19 provides: "If, by reason of . . . failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." If the Speaker is not constitutionally qualified to be President or is otherwise unavailable, the position goes to the President Pro Tempore of the Senate, who is the leader of the majority party in the Senate. Should the Speaker or President Pro Tempore be called upon to serve as President because of the failure of both the President-elect and the Vice President-elect to qualify, then that individual holds office only until a President or Vice President does qualify.

The Unit Rule and Its Alternatives

The feature of our presidential election process that is probably most decisive to the shape of the political contest that unfolds every four years is not rooted in federal law at all. It is the decision of nearly all states to follow the so-called "unit rule," in which the candidate whose electors receive the plurality of the popular vote in the state gets all of that state's electoral votes. This is purely a determination of state law. During the nineteenth century, a number of states assigned presidential electors by district — typically, one elector per each congressional district, and two electors going to the statewide plurality winner. In an opinion that traces early state practice exhaustively, the Supreme Court unanimously upheld the right of states to opt for the districted alternative. McPherson v. Blacker, 146 U.S. 1 (1892). At present, only Maine and Nebraska follow this system.

Political scientists have long debated the impacts of the unit rule, both descriptively and normatively. It would appear to be a significant bulwark for the two-party system, given that the unit rule greatly reduces the incentive to mount any candidacy that cannot win a plurality vote in any state. Critics argue that it severely distorts the representative process by effectively disenfranchising, at a national level, those voters on the losing side at the state level; even if 49 per cent of a state's voters back Candidate A, their votes will have no influence on the presidential selection in the face of a 51 per cent state vote for Candidate B. On the other hand, defenders of the system argue that it greatly enhances the electoral relevance of minority groups who are disproportionately located in cities. Should an urban minority vote prove a decisive bloc in an otherwise closely divided state, the effect of the unit rule will be to magnify the bloc's influence on the ultimate presidential selection.

The Nature of the Elector's Office

The original vision of the presidential elector cast that official in the role of an independent judge, a thoughtful state luminary who would be able to reflect in an informed and dispassionate way on those political leaders most likely to serve honorably as President of the United States. The advent of political parties plainly changed that role, but the constitutional fact of electors' independence has occasionally raised the problem of the so-called "faithless elector." That is, what is a state to do if an elector who won appointment by pledging to support the candidate of Party X decides instead to cast his or her electoral ballot for the candidate of Party Y — or anyone else, for that matter? There were seven faithless electors in the Twentieth Century, but faithless electors have never affected the outcome of any presidential election.

In response to this problem, political parties may seek to exact from their slate of candidates for the electoral position a pledge to support the presidential and vice presidential candidates of the national party. Although hinting that such pledges may be legally unenforceable against an ultimately faithless elector, the Supreme Court has upheld the power of states to authorize parties to exact such pledges, and to exclude as electors those who fail to execute such a party pledge, when the parties so require. Ray v. Blair, 343 U.S. 214 (1952).

"No federal constitutional right to vote for electors"

In Bush v. Gore, 531 U.S. 98 (2000), the U.S. Supreme Court effectively decided the 2000 election by making it impossible for Florida to complete a judicially ordered recount of the popular vote. The Court started its legal analysis with the following proposition: "The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college." Id . at 104. This was arguably an odd place to start because Florida, at least at that moment, had not proposed to choose electors except by a vote of its citizens. Yet, it seemed a pregnant suggestion because, while the litigation was unfolding, the legislature was preparing to select a slate of electors on its own, in the event that the court proceedings did not conclude acceptably to the legislature.

As noted above, the Court's proposition is undoubtedly an accurate statement of the 1789 Constitution, and, as recounted in McPherson v. Blacker (above) many states during the early nineteenth century did choose electors through means other than popular election. If Bush v. Gore had unfolded in, say, 1848, there is no question that the Florida state legislature could have chosen electors by itself. What the Court failed to consider, however, is whether the Fourteenth Amendment should be read as requiring presidential electors to be chosen through popular voting.

By 1832, popular voting for presidential electors was universal outside the south, and exceptional even in that region. Even more tellingly, state legislatures have selected slates of electors only twice since the Civil War. Florida did so in 1868, presumably because the process was already in place prior to the ratification of the Fourteenth Amendment on July 21, 1868. Colorado's legislature did the same in 1876, perhaps because the grant of statehood that year was deemed to leave too little time to put a popular vote for electors into place.

There are at least two reasons for thinking the Fourteenth Amendment took away the states' discretion to choose presidential electors without recourse to the popular vote. The first is a complex argument based on the so-called Reduction of Representation Clause in Section Two of the Amendment, which provides that the size of a state's congressional delegation shall be reduced to the extent that state law abridges, for adult male citizens, "the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State."

The second, and more straightforward, is the possibility that the right to vote in presidential elections is guaranteed by the Privileges or Immunities Clause of Section 1 of the Fourteenth Amendment. That clause provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Court held early on that the "privileges or immunities" to which the Fourteenth Amendment refers are "privileges or immunities" of national citizenship. These include all those rights that owe "their existence to the Federal government, its National character, its Constitution, or its laws."

Should a state legislature in 2004 seek to ignore the popular vote in the selection of presidential electors, litigants will surely urge that the privileges and immunities clause, properly interpreted, is sufficient to ground an individual right to participate in the selection of presidential electors. Although chosen through processes that states design and administer, presidential electors hold a federal office that is rooted entirely in the national Constitution. This point was not lost in the Fourteenth Amendment debates. During floor discussion immediately prior to the House adoption of the Fourteenth Amendment, Representative Bingham stated, without contradiction: "The franchise of a Federal elective office is as clearly one of the privileges of a citizen of the United States as is the elective franchise for choosing Representatives in Congress or presidential electors. They are both provided for and guaranteed in your Constitution." Although the point is open to possible counterarguments, as most important questions of constitutional interpretation are, it would be sensible to interpret the Privileges or Immunities Clause as embracing a right of individual citizens to participate in the choice of presidential electors.

Bibliography and Resources

Berns, Walter, After the People Vote: A Guide to the Electoral College (American Enterprise Institute, 1992).

Best, Judith, The Case Against Direct Election of the President: A Defense of the Electoral College (Cornell, 1975).

Edwards, George C., Why the Electoral College is Bad for America (Yale, 2004).

Electoral College Web Site (maintained by the National Archives and Records Administration) - http://www.archives.gov/federal_register/electoral_college/

CRS Report RL30527, Presidential Elections in the United States: A Primer (2000) - available from http://www.senate.gov/reference/resources/pdf/RL30527.pdf

CRS Report RS20273, The Electoral College: How it Works in Contemporary Presidential Elections (2003) - available at http://fpc.state.gov/documents/organization/28090.pdf

CRS Report RS20300, Election of the President and Vice President by Congress: Contingent Election (2001) - available from http://fpc.state.gov/documents/organization/22682.pdf

Jurist Presidential Election Law Web Site - http://jurist.law.pitt.edu/election2000.htm