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IV
Ratifying conventions

There appears to have been little criticism of the electoral college method during the debates at the various state ratifying conventions. As Alexander Hamilton noted in No. 68 of the Federalist:

The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.

Some of the Framers expressed to their state ratifying conventions the view that the electors were not to be completely independent but were to ascertain and consider the public will in voting for the President. 17

17 See Wilmerding, The Electoral College 19–22 (Rutgers University Press 1958).

The Electoral College

and the Constitution

The electoral college system of Article II, together with certain changes, has governed the manner of electing a President and a VicePresident of the United States for 177 years.

Amendment XII

The Twelfth Amendment was adopted in 1804 and amended Article II to provide that the electors cast two ballots, as distinguished from one with two names.18 One ballot designates the person voted for as President; the other, the person voted for as Vice-President. Distinct lists of all persons voted for as President and of all persons voted for as Vice-President, and the number of votes for each, are prepared and transmitted to the President of the Senate. If no person receives a majority of the total number of electors appointed, the House immediately chooses the President from “the persons having the highest numbers not exceeding three (reduced from five] on the list of those voted for as President.” If the House does not choose a President by the following fourth of March, the Vice-President acts “as President, as in the case of the death or other constitutional disability of the President."

The Twelfth Amendment further provides that the person having the greatest number of votes as Vice-President, if that number be a majority (changed from a plurality) of the total number of electors appointed, becomes Vice-President. If none receives a majority, the Vice-President is chosen by the Senate from those candidates having the highest two numbers. A quorum for this purpose consists of twothirds of the whole number of Senators. A majority of the Senators is necessary to a choice.

The Twelfth Amendment contemplated the old or lame-duck House of Representatives selecting the President since the new

18 The events that led to this Amendment are described on page 30, infra.

Congress did not assemble until the December following the March during which the President's term began.''

Amendment XX

The Twentieth Amendment established January 3 (unless a different date is appointed by law) as the date of the first meeting of the new Congress and January 20 as the date of the commencement of the President's term.

As a result, under present law the newly elected House would elect the President when and if an election fell into the House. This is because Congress, pursuant to its power to determine the day of selecting the electors and the day on which the electors are to cast their votes,20 has established: (1) the Tuesday after the first Monday in November of every presidential election year as the day of selecting the electors; (2) the Monday after the second Wednesday in the following December as the day the electors meet in their state capitols to cast their votes; and (3) the sixth of the following January as the day when the votes are opened, announced, and counted before a joint session of Congress.”

Section 3 of the Twentieth Amendment provides that if a President-elect dies before January 20, the Vice-President-elect becomes President. If a President is not chosen by January 20 or has failed to qualify, then the Vice-President-elect acts as President until the President has qualified. The Amendment empowers Congress to provide for the case where neither a President-elect nor a VicePresident has qualified by January 20. In such case, the person selected acts as President until a President or a Vice-President qualifies. The Succession Law of 1947 provides for this contingency.22

Section 4 of the Twentieth Amendment provides that Congress may by law provide for the case of death of any of the persons from whom the House may choose a President and the Senate a VicePresident. This provision has never been implemented by Congress.

Amendment XXIII

The Twenty-third Amendment, adopted in 1961, provides that the District of Columbia shall appoint in the manner directed by Congress "a number of electors . ... equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State. ...” The District presently has three electoral votes.

19 U.S. Const. art. I, § 4, cl. 2. 20 U.S. Const. art. II, § 1, cl. 3. 21 3 U.S.C. $ $ 1, 7, 15 (1964). 22 3 U.S.C. $ 19 (1964).

Amendment XXIV

The Twenty-fourth Amendment, adopted in 1964, outlaws the poll tax or other tax as a qualification for voting in any primary or other election for President or Vice-President, for electors for these offices, or for members of Congress.

Proposed Amendment XXV

The proposed Twenty-fifth Amendment, in addition to establishing procedures for handling a case of presidential inability, provides for the filling of a vacancy in the Vice-Presidency. The President is empowered to nominate for Vice-President a person who takes office when confirmed by a majority vote of both Houses of Congress.

VI

The Electoral College

in practice

Winner take all

The Constitution leaves it to the state legislatures to determine the manner by which the electors are to be selected. In the early days of the nation, electors were chosen in a variety of ways: by the legislature, either on joint ballot or by the concurrent vote of both houses; by the vote of the people in districts; by the vote of the people on a general ticket; by the legislatures from candidates voted for by the people in districts; partly by the vote of the people in districts and partly by the legislature; partly by the vote of the people in districts and partly by the vote of the people in the state at large; and by three persons designated by the legislature in each of the state's three districts.23

Voting for electors by the people in districts was thought to be the fairest method by leaders such as Thomas Jefferson, James Madison, John Quincy Adams, Martin Van Buren, Alexander Hamilton, and Daniel Webster. Madison said that this method “was mostly, if not exclusively, in view when the Constitution was framed and adopted.”

States which employed a unit vote or general ticket system were able to assign all their electoral votes to the candidate receiving the highest popular vote, with the result that these states were able to exert greater influence in presidential elections. Not surprisingly, therefore, the district system soon disappeared from the scene, and the general ticket became accepted as the method of casting the electoral votes of a state. Madison remarked that the district system “was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which

23 See generally Paullin, Political Parties and Opinions, 1788-1930, The Atlas of

the Historical Geography of the United States (1932). 24 Letter from James Madison to George Hay, August 23, 1823, in 3 Farrand,

supra note 15 at 458–59.

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