Electors – Constitution Article 2 §1.2

Welcome to Article 2 of the Constitution, which deals with the Executive branch of government. Last week I started with establishing the presidency in Section 1, Clause 1. This week, naturally, is about Article 2 §1.2. When I was a kid, this was a boring clause. I remember a middle school teacher saying, “Well, technically we don’t elect the president, the Electoral College does, but it works out the same.”

How times can change. Article 2 §1.2 establishes the Electoral College. It was a matter of logistics (and some snobbery) at the time. Some people would claim that it threatens the very existence of democratic representation today.

Article 2 §1.2

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.

Then and Now

Electoral College haters will at least be pleased to hear that this method of electing the president was not embraced by all, even when it was adopted. It was an uncomfortable compromise on a topic the Framers just couldn’t seem to get right. During the course of the Constitutional Convention, they voted against direct election twice, for appointment by Congress four times, and finally settled on this.

As Designed

Not only was the Electoral College not really what anyone wanted, but it never even worked as designed. The Framers never foresaw the formation of political parties. (This seems like a huge oversight; I’m pretty sure there was already something resembling political parties in England in their day.) But political parties began to form almost immediately after the adoption of the Constitution, ironically, over differences of opinion over the election of presidents.

Here’s what the Annotated Constitution says:

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.

Last week I mentioned Joseph Ellis’ biographies of the first presidents. I highly recommend those books for more insight into the rise of political parties in the American landscape.

“Appoint”

The clause is pretty clear about how many electors each state gets, and it’s clear that no one currently serving a federal, elected position can be an elector. But beyond that:

in such Manner as the Legislature thereof may direct

The states have a lot of leeway in appointing their electors, and they have made full use of it. Depending on your state, electors have been appointed by:

• the legislature itself on joint ballot;
• the legislature through a concurrent vote of the two houses;
• vote of the people for a general ticket;
• vote of the people in districts;
• choice partly by the people voting in districts and partly by the legislature;
• choice by the legislature from candidates voted for by the people in districts;
• and in other ways

In the last century the Supreme Court has limited state discretion. Williams v. Rhodes struck down a complex state system that effectively limited access to the ballot to the electors of the two major parties based on the Equal Protection Clause of the Fourteenth Amendment. Now states can do whatever they want as long as the federal government thinks it’s fair.

Outstanding Issues

From the Annotated Constitution:

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.

Three Justices elaborated on this view in Bush v. Gore but the Court ended the litigation—and the recount—on the basis of an equal protection interpretation, without ruling on the Article II argument.

Um, I think they should have answered the question.