Annotation 2 - Article II


Clauses 2, 3 and 4. Election


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.'' 64 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. 65 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. 66 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 Clause 3 has, of course, been superseded by the Twelfth Amendment.

''Appoint'' .--The word ''appoint'' is used in Clause 2 ''as conveying the broadest power of determination.'' 67 This power has been used. ''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 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.'' 68  

State Discretion in Choosing Electors .--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. 69 Its power to protect the choice of electors from fraud or corruption was sustained. 70 ''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.'' 71  

More recently, substantial curbs on state discretion have been instituted by both the Court and the Congress. In Williams v. Rhodes, 72 the Court struck down a complex state system which 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. 73 Then, in Oregon v. Mitchell, 74 the Court upheld the power of Congress to reduce the voting age in presidential elections 75 and to set a thirty-day durational residency period as a qualification for voting in presidential elections. 76 Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes, 77 is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment 78 may override state practices which violate that Amendment and substitute standards of its own.

Constitutional 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 times 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.'' 79 The truth of the matter is that the electors are not ''officers'' at all, by the usual tests of office. 80 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,'' 81 their capacity to perform which results from no power which was originally resident in the States but which springs directly from the Constitution of the United States. 82  

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. 83 But in Ray v. Blair, 84 the Court reasserted the conception of electors as state officers with some significant consequences.

Electors as Free Agents .--''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.'' 85 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.'' 86  

Electors constitutionally remain free to cast their ballots for any person they wish and occasionally they have done so. 87 A recent instance occurred when a 1968 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. 88  

The power of either Congress 89 or of the States to enact legislation binding electors to vote for the candidate of the party on the ticket of which they run has been the subject of much argument. 90 It remains unsettled and the Supreme Court has touched on the issue only once and then tangentially. In Ray v. Blair, 91 the Court upheld, against a challenge of invalidity under the Twelfth Amendment, a rule of the Democratic Party of Alabama, acting under delegated power of the legislature, which required each candidate for the office of presidential elector to take a pledge to support the nominees of the party's convention for President and Vice President. The state court had determined that the Twelfth Amendment, following language of Clause 3, required that electors be absolutely free to vote for anyone of their choice. Said Justice Reed for the Court:

''It is true that the Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors-- contemporaries of the Founders--would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.

''However, 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, Art. II, Sec. 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 unconsti tutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. Ala. Code, Tit. 17, Sec. 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice.

''We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.'' 92 Justice Jackson, with Justice Douglas, dissented: ''It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.'' 93  


Clause 2. 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.

[Footnote 64] 2 M. Farrand, op. cit., n.4, 501.

[Footnote 65] 1 id., 21, 68-69, 80-81, 175-176, 230, 244; 2 id., 29-32, 57-59, 63-64, 95, 99-106, 108-115, 118-121, 196-197, 401-404, 497, 499- 502, 511-515, 522-529.

[Footnote 66] See J. Ceaser, Presidential Selection: Theory and Development (Princeton: 1979); N. Pierce, The People's President: The Electoral College in American History and the Direct-Vote Alternative (New York: 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.

[Footnote 67] McPherson v. Blacker, 146 U.S. 1, 27 (1892).

[Footnote 68] Id., 28-29.

[Footnote 69] Ex parte Yarbrough, 110 U.S. 651 (1884).

[Footnote 70] Burroughs and Cannon v. United States, 290 U.S. 534 (1934).

[Footnote 71] Ex parte Yarbrough, 110 U.S. 651, 657 -658 (1884) (quoted in Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).

[Footnote 72]   393 U.S. 23 (1968).

[Footnote 73] ''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, Sec. 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions.'' Id., 29.

[Footnote 74]   400 U.S. 112 (1970).

[Footnote 75] The Court divided five-to-four on this issue. Of the majority, four relied on Congress' power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. Id., 119-124 (Justice Black announcing opinion of the Court).

[Footnote 76] The Court divided eight-to-one on this issue. Of the majority, seven relied on Congress' power to enforce the Fourteenth Amendment, and Justice Black on implied and inherent powers.

[Footnote 77]   393 U.S. 23 (1968).

[Footnote 78] Cf. Fourteenth Amendment, Sec. 5.

[Footnote 79] In re Green, 134 U.S. 377, 379 -380 (1890).

[Footnote 80] United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).

[Footnote 81] Hawke v. Smith, 253 U.S. 221 (1920).

[Footnote 82] Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934).

[Footnote 83] Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United States, 290 U.S. 534 (1934).

[Footnote 84]   343 U.S. 214 (1952).

[Footnote 85] Id., 232 (Justice Jackson dissenting). See The Federalist, No. 68 (J. Cooke ed. 1961), 458 (Hamilton); 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1457.

[Footnote 86] S. Rept. No. 22, 19th Congress, 1st sess. (1826), 4.

[Footnote 87] All but the most recent instances are summarized in N. Peirce, op. cit., n. 66, 122-124.

[Footnote 88] 115 Cong. Rec. 9-11, 145-171, 197-246 (1969).

[Footnote 89] Congress has so provided in the case of electors of the District of Columbia, 75 Stat. 818 (1961), D.C. Code Sec. 1-1108(g), but the reference in the text is to the power of Congress to bind the electors of the States.

[Footnote 90] At least thirteen States do have statutes binding their electors, but none has been tested in the courts.

[Footnote 91]   343 U.S. 214 (1952).

[Footnote 92] Id., 228-231.

[Footnote 93] Id., 232-233.

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