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The mode of the selection of the president was one of the most difficult and contentious issues in the 1787 Convention. Some delegates urged that the president be selected by the legislature. Other delegates, favoring direct election, argued that selection by the legislature would mean--at least if presidents could serve more than one term--that the president would be continually trying to please the legislators and would not be truly independent. Delegates opposed to direct election expressed the concern that presidents would always come from more populous states and wondered whether the public would have the knowledge of various candidates necessary to make a wise selection. The final decision of the delegates, to have electors chosen by the various state legislatures elect the president, was the result of a compromise worked out by a committee comprised of one delegate from each of the states and presented to the Convention on September 4, 1787. Several elections have tested the Electoral College system. The first contested election was that of 1800 when both Thomas Jefferson and his running mate, Aaron Burr, received 73 electoral votes, throwing the election into the House of Representatives. (After 36 ballots, the House chose Jefferson.) The consequence of the 1800 election was the 12th Amendment, providing that electors vote separately for president and vice-president. The 1824 election saw a four-way split of electoral votes, with the House eventually choosing John Quincy Adams as president even though Andrew Jackson had received more electoral votes. The 1876 election was a true mess, with disputes over which slates of electors had won in four different states. The final determination as to which slates of electors had in fact been elected was made on an 8-7 vote by a congressional commission. The commission's decision gave Rutherford Hayes 185 electoral votes and the presidency. The winner of the popular vote, Samuel Tilden, finished with 184 electoral votes. (One cost of the 1876 election was the end of Reconstruction: to win Democrats' acceptance of the commission's decision, Republicans agreed to withdraw troops from the South, effectively trading the presidency for the disenfranchisement of blacks.) In 1888, Republican Benjamin Harrison lost the popular vote to Grover Cleveland, but won narrowly in the Electoral College. Then, in 2000, trouble brewed again when electoral victory hinged upon a terribly close and challenged fight for Florida's 25 electoral votes. The
fight for Florida's votes went twice to the U. S.
Supreme Court. In the first case, Bush v
Palm Beach, the Court vacated and remanded a
Florida Supreme Court decision extending the
deadline for certification. The Court wanted
to know whether the Florida Court had reached its
decision by interpreting legislative intent
(permissible, the Court said) or instead had
relied on its interpretation of the Florida
Constitution (which would be a violation of
Article II, which delegates to State Legislatures
the power to determine how electors are
selected.) In the second case, Bush v Gore,
the Supreme Court effectively determined the
outcome of the presidential race by reversing a
Florida Supreme Court decision ordering a
statewide recount of undervotes. The Court
majority found that the recount scheme violated
the Equal Protection Clause. Five justices
went on to interpret Florida law as preferring a
final certification by December 12 (the deadline
for falling within the so-called "safe harbor"
protection) to a more accurate recount by December
18 (the date that electors actually vote).
That interpretation of Florida law by the five
most conservative members of the Court handed the
presidency to Gov. Bush, since the opinion was
released at 10 pm on December 11 and no recount by
the 12th was possible. In the 2020 case of Chiafalo v Washington, the Court considered the constitutionality of a state law that punished an elector for not voting for the presidential candidate who won the state's popular vote. (Clinton carried Washington, but the elector voted for Colin Powell in the hopes of starting a movement by other electors that could result in a candidate other than Donald Trump being elected president.) The Court ruled unanimously that nothing in the Constitution prohibits states from taking away the voting discretion of electors and punishing so-called "faithless electors."
Questions 2. Given the way that the Electoral College has evolved, does the College still serve the purpose that was envisioned for it by the founding fathers? 3. What states are winners and what states are losers under the Electoral College system? 4. Is the Electoral College likely to produce more--or fewer--recount disputes such as that witnessed in the 2000 election? 5. If a dispute concerning the validity of a particular slate of electors were to reach the U. S. Supreme Court, how would the Court likely handle the issue? Why? 6. Do you think that the Electoral College discourages third parties? If so, is this good? 7. Does one or the other of our two major parties benefit more from the Electoral College? If so, which party and why? 8. Is there any reason to think that the Electoral College produces better (or worse) presidents than would be produced by direct election? 9. Is there even a snowball's chance in hell that the Electoral College system will be replaced by direct election of the president? Why is a constitutional amendment changing our system of electing presidents so unlikely? 10. Do you favor replacing the Electoral College with direct popular election of the president? Why or why not? 5 Arguments for the Electoral College 2. The Electoral College encourages more person-to-person campaigning by candidates, as they spend time in both the big cities and smaller cities in battleground states. 3. In close, contested elections, recounts will usually be confined to a state or two, rather than an across-the-country recount that might be required if we had direct election of the president. 4. The Electoral College, with its typical winner-take-all allocation of votes, often turns a small percentage margin of victory into one that appears much larger, thus making the victory seem more conclusive and adding to the winner's perceived legitimacy. 5. It's fun on election nights to watch states light up in different colors on television network maps of the U. S. 5 Arguments for Direct Popular Vote 2. Most Americans believe that the person who receives the most votes should become president. Direct election is seen as more consistent with democratic principles than is the Electoral College system. 3. The Electoral College gives disproportionate weight to the votes of citizens of small states. For example, a vote by a resident of Wyoming counts about four times more--electorally--than a vote by a California resident. 4. If presidents were elected by direct popular vote, they would wage a campaign and advertise all across the nation, rather than (as they do in the Electoral College system) concentrating almost all of their time and effort in a handful of battleground states. The Electoral College system encourages candidates to pander to the interests of voters in a few closely contested states. 5. The Electoral College system, especially in a close election, is subject to the mischief that might be caused by disloyal--or even bribed--electors.
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Bush
v.
Palm Beach County (2000)
Questions Concerning the Supreme Court Decisions of 2000 2. Did the Framers intend in Article II to restrict the normal deference that is extended to state court interpretations of state election law by the federal courts? Or did the Framers mean to say only that state legislatures may--as was the early practice--actually select the electors? 3. If state court interpretations of election law are to be extended less deference in the single context of selecting electors, what standard should apply? Should state court interpretations of election law be overturned whenever they are unreasonable (as Bush lawyers argued), or only when they are a sham--an attempt to subvert legislative will and not a use of the normal tools of statutory construction (as Gore lawyers argued)? 4. Did Bush have standing to assert the equal protection claims of Florida voters? 5. How serious in the injury suffered by some Florida voters that was the basis for the Court's conclusion that the recount scheme violated the Equal Protection Clause? Does it compare to the injury suffered in the "one person, one vote" cases involving apportionment? 6. Malapportionment distorts the political processes in a way making a legislative remedy of the problem unlikely, thus providing an argument for strict judicial scrutiny. Can the same be said about the problem identified in Bush--that it is the sort of invidious discrimination that will never be corrected without judicial intervention? 7. How do you explain the fact that the five most conservative members of the Court--the five most likely to take states' rights stances in most cases-- were the five most willing to find a violation of federal law in Bush v Gore? 8. Do you agree with the assertion that Bush v Gore was "pure politics" and not a reflection of judicial principles? Why or why not? 9. Judge Richard Posner, in his Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, offers an interesting argument in support of the Court's decision in Bush v Gore. Posner supports the decision because it avoided the chaos of a prolonged unresolved deadlock. Do you agree that that reason is enough to justify the decision? Relevant Provisions of the Constitution Article II 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. Twelfth Amendment Twentieth
Amendment
Section
1. The terms of the President and Vice President
shall end at noon on the 20th day of January, and
the terms of Senators and Representatives at noon
on the 3d day of January, of the years in which
such terms would have ended if this article had
not been ratified; and the terms of their
successors shall then begin. Twenty-Third Amendment
Section
1. The District constituting the seat of
Government of the United States shall appoint in
such manner as the Congress may direct: A number
of electors of President and Vice President equal
to the whole number of Senators and
Representatives in Congress to which the District
would be entitled if it were a State, but in no
event more than the least populous State; they
shall be in addition to those appointed by the
States, but they shall be considered, for the
purposes of the election of President and Vice
President, to be electors appointed by a State;
and they shall meet in the District and perform
such duties as provided by the twelfth article of
amendment. Relevant Provisions in the U. S. Code The Framers' Debate Concerning Methods for Selecting the President Links
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