Electing the President

Electing the President is not as straightforward as a person ticking a box in the voting booth, nor is it as simple as a candidate winning the popular vote. The Constitution established the electoral college to elect the President.

What Does the Constitution Say About Presidential Electors?

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.

The Electoral College

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The electoral college was one of the compromises by which the delegates were able to agree on the document finally produced. "This subject," said James Wilson, referring to the issue of the manner in which the President was to be selected, "has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide."¹ Adoption of the electoral college plan came late in the Convention, which had previously adopted on four occasions provisions for election of the executive by the Congress and had twice defeated proposals for election by the people directly.² Itself the product of compromise, the electoral college probably did not work as any member of the Convention could have foreseen, because the development of political parties and nomination of presidential candidates through them and designation of electors by the parties soon reduced the concept of the elector as an independent force to the vanishing point in practice if not in theory.³ But the college remains despite numerous efforts to adopt another method, a relic perhaps but still a significant one. Clause 3 has, of course, been superseded by the Twelfth Amendment.

State Discretion in Choosing Electors

The word "appoint" as used in Clause 2 confers on state legislatures "the broadest power of determination."⁴ Upholding a state law providing for selection of electors by popular vote from districts rather than statewide, the Court described the variety of permissible methods. "Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by the legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable."⁵

Although Clause 2 seemingly vests complete discretion in the states, certain older cases had recognized a federal interest in protecting the integrity of the process. Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector.⁶ Its power to protect the choice of electors from fraud or corruption was sustained.⁷ If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. "If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption."⁸

More recently, substantial curbs on state discretion have been instituted by both the Court and Congress. In Williams v. Rhodes,⁹ the Court struck down a complex state system that effectively limited access to the ballot to the electors of the two major parties. In the Court's view, the system violated the Equal Protection Clause of the Fourteenth Amendment because it favored some and disfavored others and burdened both the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice. For the Court, Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny.¹⁰ Then, in Oregon v. Mitchell,¹¹ the Court upheld the power of Congress to reduce the voting age in presidential elections¹² and to set a thirty-day durational residency period as a qualification for voting in presidential elections.¹³ Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes,¹⁴ is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment¹⁵ may override state practices that violate that Amendment and may substitute standards of its own.

Whether state enactments implementing the authority to appoint electors are subject to the ordinary processes of judicial review within a state, or whether placement of the appointment authority in state legislatures somehow limits the role of state judicial review, became an issue during the controversy over the Florida recount and the outcome of the 2000 presidential election. The Supreme Court did not resolve this issue, but in a remand to the Florida Supreme Court, suggested that the role of state courts in applying state constitutions may be constrained by operation of Clause 2.¹⁶ Three Justices elaborated on this view in Bush v. Gore,¹⁷ but the Court ended the litigation—and the recount—on the basis of an equal protection interpretation, without ruling on the Article II argument.

Legal Status of Electors

Dealing with the question of the constitutional status of the electors, the Court said in 1890: "The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. . . . In accord with the provisions of the Constitution, Congress has determined the time as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them."¹⁸ The truth of the matter is that the electors are not "officers" at all, by the usual tests of office.¹⁹ They have neither tenure nor salary, and having performed their single function they cease to exist as electors.

This function is, moreover, "a federal function,"²⁰ because electors' capacity to perform results from no power which was originally resident in the states, but instead springs directly from the Constitution of the United States.²¹

In the face of the proposition that electors are state officers, the Court has upheld the power of Congress to act to protect the integrity of the process by which they are chosen.²² But, in Ray v. Blair, the Court clarified that although electors "exercise a federal function[,] . . . they are not federal officers or agents."²³ Instead, the Constitution provides that they act under state authority.²⁴

How Much Discretion Do Presidential Electors Have?

"No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices."²⁵ Writing in 1826, Senator Thomas Hart Benton admitted that the framers had intended electors to be "men of superior discernment, virtue, and information, "who would select the President "according to their own will" and without reference to the immediate wishes of the people. "That this invention has failed of its objective in every election is a fact of such universal notoriety, that no one can dispute it. That it ought to have failed is equally uncontestable; for such independence in the electors was wholly incompatible with the safety of the people. [It] was, in fact, a chimerical and impractical idea in any community."²⁶ By 1832, almost all states used popular presidential elections, and "[b]y the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors."²⁷ Instead, parties chose slates of electors, and states then appointed the electors proposed by the party whose presidential nominee won the popular vote statewide.²⁸

The Constitution does not prohibit electors from casting their ballots for any person they wish and occasionally they have done so.²⁹ In 1968, for example, a Republican elector in North Carolina chose to cast his vote not for Richard M. Nixon, who had won a plurality in the state, but for George Wallace, the independent candidate who had won the second greatest number of votes. Members of both the House of Representatives and of the Senate objected to counting that vote for Mr. Wallace and insisted that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast.³⁰ More recently, the 2016 election saw a historic number of faithless electors, with seven electors recorded voting for someone other than their party's nominee.³¹

To prevent so-called "faithless electors" from departing from the preferences expressed by voters, today most states require electors to pledge to support their parties' nominees.³² In Ray v. Blair, the Supreme Court rejected a constitutional challenge to a party rule requiring elector candidates to pledge that they would support the nominees elected in the primary in the general election.³³ The Court first concluded that excluding electors who refuse to pledge their support for the party's nominees was "an exercise of the state's right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose."³⁴ The Court also concluded that the pledge requirement did not violate the Twelfth Amendment, rejecting the argument that "the Twelfth Amendment demands absolute freedom for the elector to vote his own choice, uninhibited by a pledge."³⁵ Noting the longstanding practice supporting the expectation that electors will support party nominees, the Court said that "even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Article II, Section 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional."³⁶

Ray left open the question of whether states could enforce these pledge requirements through sanctions—a question later considered in Chiafalo v. Washington.³⁷ Washington law provided that electors who failed to comply with a pledge to vote for their party nominees would face a civil fine.³⁸ Three electors who were fined after breaking their pledge in the 2016 presidential election challenged the law.³⁹ The Supreme Court confirmed that a state's power to appoint an elector includes the "power to condition his appointment," and further clarified that as long as no other constitutional provision prohibits it,⁴⁰ the state's appointment power also "enables the enforcement of a pledge" through a law such as Washington's.⁴¹ The Court emphasized that the "barebones" text of Article II and the Twelfth Amendment provide only for "[a]ppointments and procedures" and do not "expressly prohibit[] States from taking away presidential electors' voting discretion."⁴² Finally, the Court recognized that historical practice supported Washington's law, as electors "have only rarely exercised discretion in casting their ballots for President" and "[s]tate election laws evolved to reinforce this practice."⁴³

Related Resources:

• How Does the Electoral College Work?
• Supreme Court Upholds Penalties Levied Against "Faithless" Electors

Footnotes:

1. 2 Records of the Federal Convention of 1787, at 501 (Max Farrand ed., 1937).
2. 1 id. at 21, 68–69, 80–81, 175–76, 230, 244; 2 id. at 29–32, 57–59, 63–64, 95, 99–106, 108–15, 118–21, 196–97, 401–04, 497, 499–502, 511–15, 522–29.
3. See J. Ceaser, Presidential Selection: Theory and Development (1979); N. Pierce, The Peoples President: The Electoral College in American History and the Direct-Vote Alternative (1968). The second presidential election, in 1792, saw the first party influence on the electors, with the Federalists and the Jeffersonians organizing to control the selection of the Vice-President. Justice Jackson once noted: "As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis." Ray v. Blair, 343 U.S. 214, 232 (1952). But, of course, the electors still do actually elect the President and Vice President.
4. McPherson v. Blacker, 146 U.S. 1, 27 (1892).
5. 146 U.S. at 28–29.
6. Ex parte Yarbrough, 110 U.S. 651 (1884).
7. Burroughs & Cannon v. United States, 290 U.S. 534 (1934).
8. Ex parte Yarbrough, 110 U.S. 651, 657–58 (1884) (quoted in Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).
9. 393 U.S. 23 (1968).
10. "There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution . . . . [It cannot be] thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. [citing the Fifteenth, Nineteenth, and Twenty-fourth Amendments]. . . . Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions." 393 U.S. at 29.
11. 400 U.S. 112 (1970).
12. The Court divided five-to-four on this issue. Of the majority, four relied on Congress's power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. 400 U.S. at 119–24 (Justice Black announcing opinion of the Court).
13. The Court divided eight-to-one on this issue. Of the majority, seven relied on Congress's power to enforce the Fourteenth Amendment and Justice Black on implied and inherent powers.
14. 393 U.S. 23 (1968).
15. Cf. Fourteenth Amendment, § 5.
16. Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 78 (2000) (per curiam) (remanding for clarification as to whether the Florida Supreme Court "saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2").
17. Bush v. Gore, 531 U.S. 98, 111 (2000) (opinion of Chief Justice Rehnquist, joined by Justices Scalia and Thomas). Relying in part on dictum in McPherson v. Blacker, 146 U.S. 1, 27 (1892), the three Justices reasoned that, because Article II confers the authority on a particular branch of state government (the legislature) rather than on a state generally, the customary rule requiring deference to state court interpretations of state law is not fully operative, and the Supreme Court "must ensure that postelection state-court actions do not frustrate" the legislature's policy as expressed in the applicable statute. 531 U.S. at 113.
18. In re Green, 134 U.S. 377, 379–80 (1890).
19. United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).
20. Hawke v. Smith, 253 U.S. 221 (1920).
21. Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934).
22. Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United States, 290 U.S. 534 (1934).
23. 343 U.S. 214, 224 (1952).
24. Id. at 224–25.
25. 343 U.S. at 232 (Justice Jackson dissenting). See The Federalist No. 68, at 458 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); 3 J. Story, Commentaries on the Constitution of the United States 1457 (1833).
26. S. Rep. No. 22, 19th Cong., 1st Sess. 4 (1826).
27. Chiafalo v. Washington, 140 S. Ct. 2316, 2321 (2020).
28. Id.
29. All but the most recent instances are summarized in N. Pierce, supra, 122-124.
30. 115 Cong. Rec. 9–11, 145–171, 197–246 (1969).
31. See, e.g., Alexander Gouzoules, The Faithless Elector and 2016: Constitutional Uncertainty after the Election of Donald Trump, 28 U. Fla. J.L.& Pub. Pol'y 215, 217 (2017).
32. Chiafalo, 140 S. Ct. at 2321–22.
33. 343 U.S. 214, 222, 231 (1952). The party rule was adopted under the authority of an Alabama law authorizing parties to determine the qualifications of primary candidates and voters. Id. at 222.
34. Id. at 227.
35. Id. at 228.
36. Id. at 230.
37. Chiafalo, 140 S. Ct. at 2319–20. In a companion case, the Supreme Court summarily reversed a Tenth Circuit decision ruling a Colorado faithless-elector law unconstitutional. Colo. Dep't of State v. Baca, 140 S. Ct. 2316 (2020) (per curiam). The penalties in the Colorado case were different from a fine: after failing to honor his pledge, an elector's vote was vacated and he was removed as an elector. Baca v. Colo. Dep't of State, 935 F.3d 887, 904 (10th Cir. 2019).
38. Chiafalo, 140 S. Ct. at 2322.
39. Id. at 2322–24.
40. See id. at 2324 n.4 (A State, for example, cannot select its electors in a way that violates the Equal Protection Clause. And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause, see Art. II, §1, cl. 5.).
41. Id. at 2324–25.
42. Id.
43. Id. at 2326, 2328.