Presidential Electors

[The President] shall...together with the Vice President, chosen for the same Term, be elected, as follows: 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.

Article II, Section 1, Clause 2

After struggling with numerous proposals on the election of the President, the delegates to the Constitutional Convention settled on establishing a college of electors and apportioning the number according to the total of Representatives and Senators from each state. This method permitted the smaller states to have a somewhat greater proportionate share in the choosing of the President, though not as large an advantage as they had in the Senate. The Framers not only rejected the direct popular election of the President, but also left it to the state legislatures to determine how the states' electors were to be appointed.

This language in fact paralleled the provisions for state legislative appointment of congressional delegates in the Articles of Confederation, and of U.S. Senators under Article I of the Constitution. With political parties widely disdained, this process was designed to pick not the candidate from the most popular political faction, but the wisest and most virtuous leader. The Framers rejected direct popular election of the President (and of Senators), both because they believed that the populace would be ill-informed about national figures and because the Framers wanted to avoid interfering with state authority and underweighing small states. The Framers also rejected having Congress select the President because they feared that would make the President dependent on Congress. They hoped that the Electoral College would obviate these problems and would form a truly deliberative body on this single issue. The delegates to the Convention disagreed about whether electors should be popularly elected or appointed by state legislatures. They resolved that question by leaving the matter up to each state legislature.

Developments since then have changed much of the expected practice, but cases have confirmed the original understanding regarding electoral powers absent constitutional alteration. Our democratic ethos increasingly embraced popular elections, leading all state legislatures by 1880 to provide for popular election of presidential electors, and the Sixteenth Amendment in 1913 mandated the same for Senators. This development, and the growing view that political party politics reflected rather than undermined democratic choice, made the notion of electors exercising their own independent judgment seem dubious by the early 1800s. Current case law such as Ray v. Blair (1952) allows the states to present voters with ballots that list only the presidential candidates (even though the votes for a candidate are really for his party's slate of electors), and also permits the states to pass laws requiring electors to pledge that, if chosen, they will vote for their party's candidate. Electors rarely do otherwise, though the enforceability of those pledges against a wayward elector remains unsettled.

Because the above ballot and pledge requirements were directed by state legislatures, they came within those legislatures' federal constitutional power to direct the manner of selecting presidential electors. Although the Framers appear not to have considered whether this state legislative power could be constricted by state constitutions, subsequent cases adjudicating the question held that it could not because the federal Constitution's text vests this authority directly in the state legislatures rather than in the states. Indeed, notwithstanding the fact that what a state legislature "is" might reasonably be thought to be determined by state constitutional procedures, McPherson v. Blacker (1892) stated that state legislatures need not (though they usually did) even follow normal state constitutional procedural requirements that legislatures vote bicamerally or present their decisions to the executive for possible veto. The Supreme Court's initial unanimous decision in the 2000 election dispute vacated the Florida Supreme Court's first decision for failing to take into account this doctrine prohibiting state constitutions from constricting state legislative directions about the appointment of presidential electors. Bush v. Palm Beach County Canvassing Board (2000).

State legislatures must, however, exercise their federal constitutional power to direct the manner of selecting presidential electors consistent with other provisions of the federal Constitution, including the First and Fourteenth Amendments. So have held a series of cases, from McPherson, Williams v. Rhodes (1968), and Anderson v. Celebrezze (1983), to the Bush v. Gore (2000) decision that invalidated a manual recount process for unconstitutionally giving election officials standardless discretion over how to count certain ballots. McPherson and Williams explicitly rejected the argument, sometimes cited by critics of Bush v. Gore, that the selection of presidential electors is a political question beyond any judicial review to assure compliance with the federal Constitution.

An unresolved question is whether a state legislature's determination that a state court deviated from state legislative directions would be judicially reviewable. This issue would have arisen had the Supreme Court not decided Bush v. Gore on December 12, 2000, because the Florida legislature was poised to complete its direct appointment of electors on December 13, citing its concern that the state supreme court had deviated from the state legislature's preelection directions and allowed the contest to exceed the federal statutory deadline for making contest determinations binding when Congress counted electoral votes. Had the Florida legislature proceeded with such a direct appointment, the courts might have concluded that such a state legislative decision was an unreviewable political question (as are state legislative ratifications of constitutional amendments) or that only Congress (when exercising its Twelfth Amendment counting powers) could review the validity of such state legislative action.

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Einer R. Elhauge
Carroll and Milton Petrie Professor of Law
Harvard Law School