article ii, section 1

Scholar Exchange: The Electoral College

Article II, Section 1…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 Constitution


The Constitution

12th Amendment 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 of 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…


The Constitution

12th Amendment …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….

…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.


The Electoral College


Electoral Votes


Electoral Votes

18 Members of the House of Representatives+2 Senators 20 Electoral Votes!

PENNSYLVANIA


Winner-Take-All

Candidate SmithPopular Vote: 8,274,473Electoral Votes: 55

Candidate JonesPopular Vote:5,011,781 Electoral Votes: 0

CALIFORNIA


Split Electoral Votes

Candidate SmithPopular Vote: 333,319Electoral Votes: 1

Candidate JonesPopular Vote: 452,979Electoral Votes: 4

NEBRASKA


Hypothetical Question:

Can a state punish an Electoral College elector when she casts her vote for a presidential candidate that differs from the one that actually won the popular vote in that state in the most recent presidential election?

Constitutional ConventionMay to September 1787, Philadelphia, PA



Four Big Issues

• How to elect the President.• How long the President’s term should

be.• Whether the President should be

allowed to run for reelection.• And the question of impeachment and

removal.


The Virginia Plan

“A National Executive should be instituted. It should be chosen by the National legislature; it should be ineligible to serve a second term; it should have a general authority to execute the National laws.”


The Debate Over the Presidency

Phase OneJune 1-6

Agreement on two major points: • Grant the “executive power” to a single

person.• That person would, in turn, have a

limited veto over legislation.



Phase TwoJuly 17-26

Framers struggled with how best to reconcile the general principle of an independent President—an official that operated outside of the control of Congress—with different options for election and length in office.



Phase ThreeSeptember 4-8

Lingering concerns about the Senate led delegates to empower the President even further.


Electing the President

Gouverneur Morris

Congressional Vote

Argument Against It: The result would eventually be the “work of intrigue, of cabal, and of faction,” producing a President who would become a mere tool of his supporters in Congress.



George Mason

Popular Vote

Argument Against It: “The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.”



James Wilson

Compromise:

The Electoral College


Election of 1796

John Adams Thomas Jefferson


Election of 1796


71 Electoral Votes 69 Electoral Votes


Election of 1796


President Vice-President


Election of 1800

John Adams

Thomas Jefferson

Aaron Burr


Election of 1800

65 Electoral Votes

73 Electoral Votes

73 Electoral Votes


Election of 1800

Alexander Hamilton


Election of 1800

President Vice-President


The 12th Amendment

• Proposed by Congress on December 9, 1803.

• Sent to the states three days later for ratification.

• Ratified in 1804, and all future election were carried out under its rules.


James Wilson

“The choice of the President is brought as

nearly home to the people as is practicable. With the approbation of the state legislatures, the

people may elect with only one remove.”


McPherson v. Blacker (1892)

Chief Justice Melville Fuller


McPherson v. Blacker (1892)

Chief Justice Melville Fuller

“The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [the winner-take-all rule] nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. . . . In short, the appointment and mode of appointment of Electors belong exclusively to the states under the constitution of the United States.”



Faithless Electors


2020 Cases:

• Chiafalo v. State of Washington• Colorado v. Department of State

Faithless Electors


Ray v. Blair (1952)

Justice Stanley Reed


Ray v. Blair (1952)


Alabama system was “an exercise of the state’s right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose.”


Ray v. Blair (1952)


Court rejected the argument that the 12th Amendment implicitly “demands absolute freedom for the elector to vote his own choice, uninhibited by pledge. . . . 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.”


Ray v. Blair (1952)

Justice Robert Jackson


Ray v. Blair (1952)

Justice Robert Jackson

Dissenting: “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.”



Faithless Electors

article ii, section 1

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