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.
Clause 3. 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 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 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. 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.
Clause 4. 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.
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.”89 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.90 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.91 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 superceded by the Twelfth Amendment.
The word “appoint” as used in Clause 2 confers on state legislatures “the broadest power of determination.”92 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.”93
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.94 Its power to protect the choice of electors from fraud or corruption was sustained.95 “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.”96
More recently, substantial curbs on state discretion have been instituted by both the Court and the Congress. In Williams v. Rhodes,97 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.98 Then, in Oregon v. Mitchell,99 the Court upheld the power of Congress to reduce the voting age in presidential elections100 and to set a thirty-day durational residency period as a qualification for voting in presidential elections.101 Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes,102 is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment103 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 2.104 Three Justices elaborated on this view in Bush v. Gore,105 but the Court ended the litigation—and the recount—on the basis of an equal protection interpretation, without ruling on the Article II argument.
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 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.”106 The truth of the matter is that the electors are not “officers” at all, by the usual tests of office.107 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,”108 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.109
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.110 But, in Ray v. Blair,111 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.”112 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.”113
Electors constitutionally remain free to cast their ballots for any person they wish and occasionally they have done so.114 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.115
The power either of Congress116 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 debate.117 It remains unsettled and the Supreme Court has touched on the issue only once and then tangentially. In Ray v. Blair,118 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, that 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. Justice Reed wrote 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, § 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. 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, § 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.”119 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.”120
89 2 M. Farrand, supra, p. 501.
90 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.
91 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.
92 McPherson v. Blacker, 146 U.S. 1, 27 (1892).
93 146 U.S. at 28–29.
94 Ex parte Yarbrough, 110 U.S. 651 (1884).
95 Burroughs & Cannon v. United States, 290 U.S. 534 (1934).
96 Ex parte Yarbrough, 110 U.S. 651, 657–58 (1884) (quoted in Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).
97 393 U.S. 23 (1968).
98 “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.
99 400 U.S. 112 (1970).
100 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).
101 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.
102 393 U.S. 23 (1968).
103 Cf. Fourteenth Amendment, § 5.
104 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”).
105 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.
106 In re Green, 134 U.S. 377, 379–80 (1890).
107 United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).
108 Hawke v. Smith, 253 U.S. 221 (1920).
109 Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934).
110 Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United States, 290 U.S. 534 (1934).
111 343 U.S. 214 (1952).
112 343 U.S. at 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 1457 (1833).
113 S. Rep. No. 22, 19th Cong., 1st Sess. 4 (1826).
114 All but the most recent instances are summarized in N. Pierce, supra, 122– 124.
115 115 Cong. Rec. 9–11, 145–171, 197–246 (1969).
116 Congress has so provided in the case of electors of the District of Columbia, 75 Stat. 818 (1961), D.C. Code § 1–1108(g), but the reference in the text is to the power of Congress to bind the electors of the states.
117 At least thirteen states have statutes binding their electors, but none has been tested in the courts.
118 343 U.S. 214 (1952).
119 343 U.S. at 228–31.
120 343 U.S. at 233.