This is the third of twenty-five weekly articles in The Tennessee Star’s Constitution Series. Students in grades 8 through 12 can sign up here to participate in The Tennessee Star’s Constitution Bee, which will be held on September 23.
The method of selection of a President to head the executive branch for a term of four years is the most notable illustration of the foundational concept of Federalism seen in the body of the text of the Constitution of the United States that emerged from the Constitutional Convention.
Federalism, as we explained earlier in this series, “defines the relationship between the national government and each of the state governments that comprise our republic. Both entities–the national government and each state government–remain sovereign, while the powers of governance and responsibilities to the citizenry are balanced between the two.” And it was the Tenth Amendment, ratified in 1791 and part of the original constitutional “compact” or “covenant” between the states and the national government upon which our republic was organized:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows,” Article II, Section 1 of the Constitution reads.
It then explains the method to be used in the new American republic to select that President.
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector,” (emphasis added) it begins.
“This language in fact paralleled the provisions for state legislative appointment of congressional delegates in the Articles of Confederation, and of U.S. Senators under Article I of the Constitution,” the Heritage Guide to the Constitution notes.
Article II, Section 1 then describes the method of Presidential selection by these Electors:
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.
And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.
After the Electors meet in their State Capitols to sign their Certificate of Vote, that document is transmitted to the Senate of the United States, where the Electoral College votes are counted:
The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.
The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President.
So, the House of Representatives then, will select the President if no candidate has a majority of the Electoral College votes, as Article II, Section 1 continues:
But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Critics of the Electoral College system argue it is “unfair,” and that a simple majority of all the votes cast should determine the election outcome. But to do so would be a direct violation of the foundational constitutional concept of Federalism, which specifically recognizes the sovereignty of each state.
Direct election of the President by nationwide popular vote is a concept suitable with a pure democracy, but is entirely unfit for a constitutional republic like the United States of America.
Article II Section 1 recognizes the sovereignty of each state in the Presidential selection process.
Note first that is says “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress,”
Under the Constitution, then, the State Legislature of any state could choose a manner of selecting presidential Electors that differs from the popular vote within the state which has so long been the tradition among most states.
In fact, during the first ten Presidential elections between 1788-89 and 1824, electors in most states were appointed by their state legislatures. In the very first presidential election, which was conducted between December 1788 and January 1789, George Washington was unanimously elected by the ten states that selected Electors.
The legislatures of six states –Delaware, Massachusetts, Maryland, New Hampshire, Pennsylvania, and Virginia decided to select Electors based on some form of popular vote. But the legislatures of four states–Georgia, South Carolina, New Jersey, and Connecticut–chose to select Electors themselves. New York did not select any Electors that year because the State Legislature there was deadlocked. Neither North Carolina nor Rhode Island participated because they had not yet ratified the Constitution.
By 1828, when Andrew Jackson was elected, twenty of the country’s twenty-two states selected Electors by some form of popular vote. Only Delaware and South Carolina selected Electors in the state legislature. By 1840, South Carolina was the only state in which the state legislature still selected Electors. It was not until the election of 1868 that every state in the union selected Electors by some form of popular vote.
The Constitution itself offers no insight into the qualifications and duties of an Elector, it leaves that entirely to the States, who can set the rules as both the selection of the Electors and their specific duties, responsibilities, and authorities: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”
Hamilton, Madison, and Jay, however, did offer significant insight into those qualities in the Federalist Papers.
Alexander Hamilton commented extensively on this in Federalist No. 68, published in the New York Packet on March 14, 1788:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.
Under the concept of sovereignty, the states can provide detailed instructions to Electors. In other words, they can say–you are instructed to vote for the candidate for President who receives the most votes in our state.
The Founding Fathers failed to anticipate one particular piece of skullduggery by a Vice-Presidential candidate that surfaced in 1800.
Aaron Burr was running as Thomas Jefferson’s Vice-President.
When the Electoral College votes were cast, both men had an equal number of votes, 73, out of a total of 276 cast. (Remember, under the Constitution each Elector cast two votes for President, and the top vote-getter was elected President if they obtained a majority, and the second vote-getter was Vice-President).
Burr decided that he wanted to be President, not Vice-President, and a heated political battle ensued.
With Burr and Jefferson tied, the election was thrown into the House of Representatives, where it wasn’t until the 36th ballot that Jefferson was elected.
Ultimately, Burr lost out, but the Congress realized this flaw in the Constitution had to be remedied.
“By the election of 1800, the nation’s first two parties were beginning to take shape. The Presidential race was hotly contested between the Federalist President, John Adams, and the Democratic-Republican candidate, Thomas Jefferson. Because the Constitution did not distinguish between President and Vice-President in the votes cast by each state’s electors in the Electoral College, both Jefferson and his running mate Aaron Burr received 73 votes,” the National Archives notes.
According to the Article II, Section 1 of the Constitution, if two candidates each received a majority of the electoral votes but are tied, the House of Representatives would determine which one would be President. Therefore, the decision rested with the lame duck, Federalist-controlled House of Representatives. Thirty-five ballots were cast over five days but neither candidate received a majority. Many Federalists saw Jefferson as their principal foe, whose election was to be avoided at all costs. But Alexander Hamilton, a well-respected Federalist party leader, hated Burr and advised Federalists in Congress that Jefferson was the safer choice. Finally, on February 17, 1801, on the thirty-sixth ballot, the House elected Thomas Jefferson to be President.
The tie vote between Jefferson and Burr in the 1801 Electoral College pointed out problems with the electoral system. The framers of the Constitution had not anticipated such a tie nor had they considered the possibility of the election of a President or Vice President from opposing factions – which had been the case in the 1796 election. In 1804, the passage of the 12th Amendment corrected these problems by providing for separate Electoral College votes for President and Vice President.
“Passed by Congress December 9, 1803, and ratified June 15, 1804, the 12th Amendment provided for separate Electoral College votes for President and Vice President, correcting weaknesses in the earlier electoral system which were responsible for the controversial Presidential Election of 1800,” the National Archives says.
The text of the 12th Amendment reads as follows:
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
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. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
In one of the bitter ironies of history, Aaron Burr killed Alexander Hamilton in a duel on July 11, 1804 (Hamilton died the following day), less than a month after the 12th Amendment was ratified.
In recent years, a number of political figures and commentators have criticized the Electoral College and want the President selected by direct popular vote.
Four times since 1868, the first year in which all states selected Electors by some form of popular vote, the candidate who received the most popular vote did not win the Electoral College, and therefore was not elected President.
In 1876, Democrat Samuel Tilden received 50.9 percent of the popular vote to Republican Rutherford B. Hayes’ 47.9 percent. But Hayes was elected President because he won a majority of the Electoral College votes, 185 to 184.
In 1888, Democrat Grover Cleveland, the incumbent President, received 48.6 percent of the popular vote to Republican Benjamin Harrison’s 47.8 percent. But Harrison was elected President because he won a majority of the Electoral College votes, 233 to 168.
In 2000, Democrat Al Gore received 48.4 percent of the popular vote to Republican George W. Bush’s 47.9 percent. But Bush was elected President because he won the majority of the Electoral College votes, 271 to 266.
In our most recent Presidential Election of 2016, Democrat Hillary Clinton received 48 percent of the popular vote to Republican Donald Trump’s 46 percent. But Trump was elected President because he won the majority of the Electoral College votes, 304 to 227 (7 Electoral College votes were split between other candidates).
Clinton’s popular vote margin of 2.8 million was the highest of any Presidential candidate who won the popular vote but lost the Electoral College vote (though her 2 percent margin was less than Samuel Tilden’s 3 percent margin in 1876), and therefore the Presidency.
A closer look at the state by state breakdown of the 2016 Presidential Election results reveals the wisdom of the Founding Fathers in establishing an Electoral College method for selecting a President.
Hillary Clinton won the state of California resoundingly, beating Donald Trump there by more than 4.2 million votes – a 61 percent to 31 percent thumping.
Had the Founders selected direct popular vote as the means for electing a President, the residents of California would have dictated to the other 49 states who would have served as our President.
Looking at the total combined vote in the other 49 states, Donald Trump won 1.4 more million votes than Hillary Clinton, taking 58.5 million votes to her 57.1 million votes.
But because of the Electoral College, Hillary Clinton’s huge vote margin in California earned her the state’s 55 Electoral College votes, and no more.
The Founding Fathers had an idea that the Electors would be of a high personal character, wisdom, and intelligence, and would exercise those qualities in their selection.
They also hoped against the development of factions and competing political powers, a hope in retrospect was inevitably bound to be disappointed, given the foibles of human nature.
By tradition, and in many instances as a consequence of state law, Electors have followed the directions of their State Legislatures, and by extension for most of the past two hundred years, the expressed will of the voters in their states when it comes to casting their ballot for President.
“Developments since [the ratification of the Constitution and the Bill of Rights] have changed much of the expected practice, but cases have confirmed the original understanding regarding electoral powers absent constitutional alteration. Our democratic ethos increasingly embraced popular elections, leading all state legislatures by 1880 to provide for popular election of presidential electors, and the Sixteenth Amendment in 1913 mandated the same for Senators,” the Heritage Guide to the Constitution notes:
This development, and the growing view that political party politics reflected rather than undermined democratic choice, made the notion of electors exercising their own independent judgment seem dubious by the early 1800s. Current case law such as Ray v. Blair (1952) allows the states to present voters with ballots that list only the presidential candidates (even though the votes for a candidate are really for his party’s slate of electors), and also permits the states to pass laws requiring electors to pledge that, if chosen, they will vote for their party’s candidate. Electors rarely do otherwise, though the enforceability of those pledges against a wayward elector remains unsettled,” the Heritage Guide to the Constitution says.
In some cases, “Faithless Electors” have gone against that tradition in those states that have not explicitly instructed them how to cast their ballot.
Until 2016, there had been only 20 Faithless Electors in fourteen separate Presidential elections (out of the fifty-seven Presidential elections between 1788 and 2012) who cast their ballots for a Presidential candidate other than the one who had won the votes of their state, or whom they had committed to their state legislatures they would back–who was still living at the time the electoral college convened. (Sixty-three electors who were pledged to Democratic candidate Horace Greeley in 1872 did not vote for him because he died between election day and the day the Electoral College convened).
In forty-three of those fifty-seven Presidential elections, every elector was a “Faithful” Elector and voted as he or she had pledged.
2016 saw the highest number of Faithless Electors–seven–in the history of the country for any Presidential election in which both candidates were still living at the time the Electoral College convened , in part due to the increasingly polarized nature of the country.
Four Electors in the state of Washington, which Hillary Clinton won were “Faithless” electors. Three voted for Colin Powell and one voted for Faith Spotted Eagle.
One Electors in the state of Hawaii, which Hillary Clinton won, was a “Faithless” Elector who voted for Sen. Bernie Sanders (I-VT).
Two Electors in the state of Texas, which Donald Trump won, were “Faithless” Electors. One voted for Ohio Governor John Kasich, the other voted for former Congressman Ron Paul.
Most state legislatures look askance at such free lancing. A number of state legislatures which did not provide explicit guidance to Electors prior to 2016 (Texas and Washington in particular) appear to be in the process of tightening those directions for 2020 and beyond.