April 15, 2011 – Article II, Section 1, Clause 2 of the United States Constitution – Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Article II, Section 1, 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.

 

Each State shall appoint . . . a Number of Electors . . . .

 

On November 4, 2008, Americans went to the polls and expressed their preferences among Barack Obama, John McCain, or other candidates. Many Americans probably thought that they were actually casting ballots for one of these men: We have gotten used to thinking of presidential elections as ones in which we vote directly for the candidates. Yet that is not really how American elections work. In reality, the only people elected on Election Day are representatives, called electors, whose sole duty is to represent their states in a subsequent election among states. This latter election—the real presidential election—determines the identity of the President of the United States.

Article II, Section 1, Clause 2 provides the boundaries for the appointment of these electors.

The Constitution provides that each state is to decide, for itself, how its electors will be chosen. During the first presidential election, states relied upon a wide range of methods. Several state legislatures appointed electors directly, on behalf of their citizens. No presidential election, as we think of it, was ever held in those states. Other states relied upon popular votes, but in different ways. For instance, Maryland directed that certain numbers of electors were to be elected from designated parts of the state. Virginia created 12 districts specifically for the election of electors; these districts were separate from the ten districts created for the election of Congressmen.

Today, every state relies upon a popular election among its own citizens. Most states then allocate their electors in a winner-take-all fashion based upon the outcome of these elections. So, for instance, when a majority of Californians expressed their preference for Obama in 2008, these votes were translated into votes for a slate of 55 Democratic electors. If McCain had won the election, an alternate slate of 55 Republican electors, committed to McCain, would have been appointed to represent California instead.

 

The state’s authority to choose its own method for appointing electors is not in doubt. However, a few other issues remain unresolved:

 

First, may Congress step in if there is controversy regarding which of two slates of electors rightfully represents a state? Congress has taken such action in the past, and it claimed authority to act in the Electoral Count Act of 1887 and subsequent measures. However, some scholars argue that such federal laws impinge on the states’ authority, as outlined in Article II, Section 1, Clause 2.

Second, is a state’s discretion truly unlimited? An anti-Electoral College movement (National Popular Vote) hopes so. This group asks states to change their manner of elector allocation: Instead of allocating electors to the winner of state popular votes, participating states would allocate their electors to the winner of the national popular vote. These states would sign an interstate compact (a contract) to this effect. If enough states sign, the Electoral College would be effectively eliminated. NPV supporters reject the claim that their compact is an end run around the Constitution, but the question will ultimately be tested in court: NPV could be enacted with as few as 11 states, whereas 38 states are required for a constitutional amendment. Such a process seems questionable, to say the least. Justice Thomas once observed, “States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions.” NPV may not satisfy this test.

 

In such Manner as the Legislature thereof may direct. . . .


Another open legal question exists regarding the meaning of the word “Legislature” in Article II, Section 1, Clause 2. Does this use of “Legislature” refer specifically to the lawmaking body or does it refer to a state’s entire lawmaking process? In the latter case, the legislature and governor must act together to determine the manner for appointing electors. Also, voter referendums would be able to trump the legislature in some circumstances. The Supreme Court has not directly addressed the question, but it has come down on both sides of the issue in other contexts.

The question may seem purely academic, but it has particular importance today because of NPV. In three states, NPV’s legislation has been approved by the legislature, only to be vetoed by the state’s governor. Will these vetoes stand or will they be deemed irrelevant?

 

Equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .

 

States are allocated one elector for each of their representatives in Congress—both Senators and Congressmen. Each state therefore automatically receives a minimum of three votes, as it is entitled to at least two Senators and one Congressman in the Congress, regardless of population. Puerto Rico and the Island Areas are not given electors, as they are not states. The District of Columbia did not initially receive votes because it is not a state; however, adoption of the 23rd Amendment in 1961 provided it with at least three electoral votes.

This method of allocation is consistent with the rest of the Constitution and echoes the states’ representation in Congress. A portion of a state’s congressional representation is based on population (the House of Representatives; one person, one vote), and a portion is based on a one state, one vote philosophy (the Senate).

 

But no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.


Some scholars believe that electors were meant to independently deliberate: The Founders wanted a body of wise men, entrusted with the power to select the President at a time when communication was slow and unreliable. Other scholars maintain that the role of elector was created only because the delegates to the Constitutional Convention left it to states to determine how their electors were to be chosen. Either way, creation of an independent electoral body was thought to provide special benefits in the presidential selection process.

In Federalist No. 68, Alexander Hamilton wrote that the election process should minimize the opportunity for “cabal, intrigue, and corruption” in the selection of the President. Article II, he believed, accomplished this. Electors could not be bribed or corrupted because their identities would not be known in advance. Presidents would not be indebted to (potentially biased) legislators for their elections, thus reinforcing the separation among the branches of government. Separating the meetings of the electors (one in each state) would make these individuals less susceptible to a mob mentality. Finally, the selection of electors was tied to the people of a state, reminding the President that he owed his office and his duty to the people themselves.

Some of Hamilton’s logic has perhaps become less applicable, given the advent of mass communication and decreasing expectations that electors are to independently deliberate. But the state-by-state presidential election system created by Article II continues to provide many benefits for a country as large and diverse as America. The White House can only be won by a candidate who wins simultaneous victories across many states; thus, candidates must appeal to a broad range of voters in order to succeed. Successful candidates bring a diverse citizenry together, building national coalitions that span regional and state lines. Such a system is as healthy now as it was in 1787.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College

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7 Responses to “April 15, 2011 – Article II, Section 1, Clause 2 of the United States Constitution – Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College”

  1. Ralph T. Howarth, Jr. says:

    I would rather Electors be chosen by the congressional districts within each state, and that the entire state’s turn out would affect the remaining two Electors who are apportioned according to the Senator representation. The Electoral College was intended to prevent regionalism to where the epicenters of populous states become a block that determines the outcome for the whole country. The NPV compact really gets around the intents of the Electoral College law by essentially bringing regionalism into the fore to where the voice of states become moot; and it also will tend to disenfranchise the electors of those states who, a majority of that state may have cast for one candidate; but their voice was overturned by the rest of the country. Such a predicament is a recipe to discourage participation at the polls as well as candidate behaviour of catering to high population areas and ignoring rural ones. Another bad effect is the increased likely hood of calling for more recount of votes. For candidates will be driven to even gain more votes in areas where they had a landslide victory; but to gain more votes on the national theatre, implore that they have more support than initial votes counted in places they won 2:1. NPV is bad news.

    Julie Shaw’s essay on Article I Section 10 Clause 3 draws attention to whether or not States are free to at least draft a Compact with other States rather than expecting Congress to both DRAFT and APPROVE such Compacts: http://www.constitutingamerica.org/blog/blog/2011/04/13/april-13-2011-%e2%80%93-article-i-section-10-clause-3-of-the-united-states-constitution-%e2%80%93-guest-essayist-julia-shaw-research-associate-and-program-manager-at-the-b-kenneth-simon-center-f/

    I expressed the view that states are free to draft Compacts; but they do not have force until Congress approves it. So even if States make an NPV Compact it really only has the force of a Resolution and not law until Congress approves it. Until then, if a state that is a signatory to a NPV compact rescinds or acts counter to the compact, the other states have no recourse because Congress had not approved it. There is no legal standing in federal court because the states are autonomous. In addition, the intent of the Electoral College was made in lieu of the Senate electing the President. The Senate represented the states and the vote for the President was that of the states and not popular vote. Such was the case in the original draft of the Constitution. The NPV, though technically constitutional, circumvents that the Manner of election was intended to be that of internal state methods of election whether by districts, by secret ballot, by legislature, by popular vote, et.al., not according to how OTHER states do their Manner of elections. NPV is rather an unintended consequences of the Constitution like how political party conventions and congressional committe elections are done that affects the outcome of representation in government.

  2. Ralph T. Howarth, Jr. says:

    One positive outcome of Electors chosen by congressional districts is that a state may very well favor one candidate overall; but certain rural districts may very well favor another candidate and afford a “cross hatch” voting block of districts across rural states. This would give rural areas more voice and ultimately diffuse regionalism behaviors.

    My view on whenever the Constitution speaks to any measure by states using terms as “direct”, “consent”, or “approval” in giving a federal measure with affect, then no state law is being required to be passed. It is really up to the state laws whether to pass anything that is federal in nature to be requisite for the governor or executive to sign.

    If a Legislature so relagates to using a method of resolution in the absence of any state law to give consent to a federal measure, then no governor is involved because it is simply internal house rules of procedure. After all, when the states ratify an amendment, the President is not required to sign that bill. Neither should a governor be required to sign such measures unless that state’s own laws require it. All federal measures determined by states essentially are a confederated form of govenment determined by state houses rather than a federal one. So it really is up to the state to determine how they vote; but any measure that is done by a measure of conventions by all means is completely out of the purview of the executive body other than the secretary of state recording the facts of the convention; not the giving consent to the outcome of the conventions. In this, if a state so chooses, they could even have their Electors chosen by a state-wide convention if they wanted to. In rebulican forms of government, convention presidents, and not state executives, sign.

    Last, Horace Cooper’s essay on Article 1 Section 2 Clause 1 happens to skirt on the Electors issue as well: http://www.constitutingamerica.org/blog/category/analyzing-the-constitution-in-90-days-2011-project/article-1-section-2-clause-1-2/

    A1S2C1 says: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”

    I pointed a question over there that I always interpreted Qualification requisite for Electors to be confired on Electoral College Electors; but Mr. Cooper takes on a broader interpretation there to be qualifications for all state agents elected to a federal office based on the state’s own qualifications for the most numerous branch of the state legislature there. So in effect, Mr. Coopers view does indeed determine how Electors are qualified for the office of Electoral College Electors as another kind of state agents to a federal office; but in a more broader, inclusive sense. I simply was not aware of such a broader take on “Electors” in that passage of the Constitution.

  3. Tara Ross says:

    Ralph,

    I appreciate your thoughtful comments.

    One of the great things about our current system is that every state is free to choose any method of elector allocation that it desires. I think the congressional district plan may be a good decision for some states, and they should switch if they are ready to do so. Others will decide that it does not work for them. I love that each state can decide for itself.

    In my own home state of Texas, I would probably oppose a congressional district method of elector allocation. One problem with awarding electors by congressional district is that district lines are not permanent. We already have pretty bad gerrymandering problems in Texas when only a few congressional seats hinge on the outcome of our redistricting process. I shudder to think how bad it could get if the outcome of the presidential election also hung in the balance.

    You’ve mentioned several legal issues surrounding the NPV compact. I’ve written a more detailed piece on many of these issues. It appears here: http://www.fed-soc.org/doclib/20100910_RossEngage11.2.pdf. The NPV compact will generate a whole host of legal and logistical problems. It would be a terrible decision to eliminate the Electoral College, in my view, but if we are to do it, then we should do it through a constitutional amendment. The roundabout manner proposed by NPV will generate more problems than it solves.

    Thank you again for your comments!

  4. Robert Lehnert says:

    We must have the Electoral College. If we didn’t have them the West coast and the East coast would be electing our president and the Middle America wouldn’t ever have a say in the election.The population on the coasts could have a very strong control on the elections.Both coasts have a strong liberal base which could effect the election out comes. With the Electoral college all the people of the United States have a say who gets elected.

  5. Barb Zakszewski says:

    thank you, Tara for a very detailed, thoughtful analysis of the Electoral College.. It has been many years since I was in high school, but I remember being SHOCKED!! that the President was not elected directly by the people.. Even back then, instruction on the Constitution was very limited, and we certainly did not learn the historical contexts. In fact, I wrote a paper arguing for the elimination of the electoral college, of course I did not understand what the Founders and Framers had in mind for doing Presidential elections this way. Of course, Tara you are right, ANY change to the Presidential election process MUST be done via a Constitutional Amendment. Our nation, after all, is a Representative Democracy!!.

    • Santa Claus says:

      Our nation was founded as a constitutionally limited republic, not as a democracy. I would like to see a Constitutional amendment end the Electoral College.

  6. Tara Ross says:

    Thanks Robert and Barb for your comments. Yes, I agree: By and large, schools do a terrible job of teaching their students about the Electoral College. I never realized how important it was until I got older and started doing research on it myself. Now I consider it one of our most important constitutional institutions. (But, sadly, also one of the most misunderstood.)

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