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Legal Memorandum #1 on Legal Issues

December 5, 2000

The Number of Electors Necessary for the Election of a President

By , and

The very close nature of the 2000 Presidential election, along with numerous ongoing legal challenges contesting the results in the State of Florida, have created the possibility that neither Texas Governor George W. Bush nor Vice President Al Gore will receive an absolute majority of 270 (of a possible 538) electoral votes when the Electoral College casts its ballots on December 18, 2000. In anticipation of this possibility, some commentators have suggested that whichever candidate commands a simple majority of the electoral votes cast on December 18 will become the next President of the United States. Since it is only Florida's 25 electoral votes (which were awarded to Governor Bush on November 26, 2000, when Florida's Secretary of State certified the results of the November 7, 2000 election in that State) that are seriously in dispute, this would mean that Vice President Gore would become President if Florida's votes are not cast on December 18, or if they are disqualified thereafter.1 This is because there are currently 267 presidential electors pledged to vote for Vice President Gore and only 246 (excluding Florida's 25 electors) pledged to Governor Bush.

We have reviewed the Constitution's text, history, and other relevant authorities, and have concluded that a simple majority of the electoral votes that are actually cast on December 18 will not be sufficient for the Electoral College to elect either Governor Bush or Vice President Gore to the Presidency. Under the Constitution's Article II, § 1, and its Twelfth Amendment, the Electoral College may elect a President only if a candidate receives an absolute majority (270) of the maximum number of potential electoral votes (538) -- whether or not all of those electors are able to vote, and do vote, when the Electoral College meets in December. If Florida's electors, who are currently pledged to Governor Bush, are unable to cast their ballots as a result of court challenges or legislative action, or if their votes are successfully challenged when the electoral votes are tallied by Congress in January, 2001, then no candidate will have been elected by the Electoral College, since neither will have commanded an absolute majority of 270. In this case, the House of Representatives will have to choose the next President.

I. How the President is Elected.

As every school child once knew, the President of the United States is not elected directly by the voters, but by "electors" from each of the States chosen specifically for this purpose. These electors are distributed among the States based upon a formula found in Article II, § 1, of the Constitution, which provides that: "[e]ach 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." On election day, the voters actually select a slate of individuals, pledged to one presidential candidate or another, who will be electors from their respective States. About six weeks after the November election, on December 18 in the year 2000, these electors meet in their States and cast ballots for President.

The candidate who receives a majority of these "electoral votes" will become President. Because there are currently 435 members of the House of Representatives, 100 members of the Senate, and the 23rd Amendment directs the District of Columbia to select 3 electors, the number of presidential electors (members of the "Electoral College") is 538. A majority of these electors is 270.

Ordinarily, even in elections where the "popular" vote for president is close, the winning candidate commands many more than 270 electoral votes. For example, in 1960, when John F. Kennedy and Richard M. Nixon each received 49% of the popular vote, Kennedy became president with 303 votes (56%) in the Electoral College. However, if no presidential candidate receives 270 votes in the Electoral College, then the Constitution provides that the House of Representatives will choose the President, and the Senate will choose the Vice President.

This process is governed by the Constitution's Twelfth Amendment. In choosing a President, the vote in the House of Representatives is taken State-by-State, rather than by individual member as is normally the case. Each State's delegation in the House is entitled to a single vote, equaling 50 votes overall. To become President, a candidate must receive a majority (26) of these 50 votes. Similarly, in the Senate, a candidate for Vice President must command votes from a majority (51) of the whole number of Senators (100). If the House is unable to elect a President by Inauguration Day (January 20, 2001), then the person chosen by the Senate as Vice President will serve as acting President. If no candidate for Vice President receives the votes of at least 51 Senators, then the Speaker of the House of Representatives will become the acting President in accordance with federal statute.2

II. The Number of Votes Needed For Election to the Presidency.

Thus, the Constitution provides three methods whereby, depending upon the circumstances, the President can be elected: (1) by the Electoral College; (2) by the House of Representatives; and (3) by the Senate, which may choose a Vice President who would become acting President if both the Electoral College and the House of Representatives failed to elect a President. In each of these mechanisms, an absolute majority of all potential votes is required for election to the Presidency. This is what the Constitution's text provides, and this is what its Framers intended.

A. The Constitution's Text.

The President's election by the Electoral College, in the first instance, is governed by two of the Constitution's provisions: Article II, § 1, cl. 2, which provides that "[e]ach 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," and the Twelfth Amendment, which provides that "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."

Proponents of a "simple" majority requirement in the Electoral College have argued that the word "appointed" in the phrase "if such Number be a Majority of the whole Number of Electors appointed," (emphasis added) means the number of electors actually chosen on election day and properly certified by their States. Based upon this interpretation of the word "appointed," they reason that the Electoral College can elect as President whichever candidate commands a majority of the electoral votes cast, so long as that number equals a majority of the electors selected and certified, even if this does not equal a majority of all potential electors, i.e., 270 of 538. At the same time, others have claimed that the candidate with a majority of all electoral votes actually cast, regardless of the number appointed by the States, would become President. Both of these claims are incorrect.

As a practical matter, the first argument, that Vice President Gore would win the Presidency with a simple majority if Florida's electors were not "appointed" by the time the Electoral College votes in December, was mooted on November 27, 2000. On that date, Florida's governor signed a "final ascertainment" of that State's electors, based upon the Florida Secretary of State's November 26, 2000, certification of Governor Bush as the winner. Florida has, therefore, "appointed" its 25 electors. 3 Even if Vice President Gore is successful in his legal contest of that result, and the electors certified and ascertained on November 26 and 27 are unable to cast their votes in the Electoral College, the number of electors appointed in fact, as well as in law, will be 538.

However, the question remains whether a simple majority of the electors who actually cast uncontested ballots on December 18, 2000, would be sufficient for election to the Presidency. The answer here, in view of the Constitution's text and history, is clearly no.

As is always the case, the Constitution's language is the guiding star in analyzing this issue, and that language must be construed in context. See United States v. Balsys, 524 U.S. 666, 673 (1998) (it is a "cardinal rule" to construe provisions in context). The Twelfth Amendment requires that a candidate receive "a majority of the whole number of Electors appointed" to be elected to the Presidency by the Electoral College. That number is specifically defined through the use of an objective formula found in Article II, § 1, cl. 2. Here, each State is required to appoint a certain number of electors, based upon its overall representation in Congress.4 The Constitution, in short, establishes a closed system -- it provides for a discernable number of electors who comprise the Electoral College, and requires that a majority of all those electors vote for the same candidate before a President can be elected by that body.

B. The Constitution's Purpose and History.

Interpreting the Constitution's plain language to require an "absolute" majority of all potential electoral votes for election to the Presidency is fully supported by the purpose and history of the relevant provisions. In fact, the manner of electing the President was one of the most contentious issues at the Constitutional Convention in 1787. There were many reasons for this state of affairs. Some delegates (such as Virginia's George Mason) did not like the office of President to begin with, as they thought it tended towards monarchy.5 Some delegates believed that the President should be elected directly by the citizenry, while others maintained that he should be appointed by the Senate, or by the House of Representatives, or by some other method. The principal proposals were:

(1) that the President should be elected directly by the people;

(2) that the President should be selected by the Senate, or by the House of Representatives, or by some combination of the two bodies;

(3) that the President should be selected by the state legislatures; or

(4) that the President should be elected by individual "electors" selected specifically for this purpose by the several states.

Serious objections were raised to each of these methods. One very basic concern, shared by many delegates, was that either the big States, or the small States, would have too much influence over the choice of the President, depending upon which method was adopted. The Framers went back and forth on the basic means of selection throughout the entire summer of 1787, and agreement on this question eluded them until the last weeks of the Convention.

1. Adoption of the Language "whole Number of Electors appointed."

Ultimately, the Convention settled upon the Electoral College as the primary method by which the President would be chosen. As explained above, the President was to be selected by "electors" from each of the States, the number of such electors to be determined based upon the number of Senators and Members of the House of Representatives to which each State was entitled. The candidate who received the greatest number of votes was to be the President, "if such Number be a Majority of the whole Number of Electors appointed."6

The word "appointed," upon which some advocates of a simple majority requirement had placed such heavy reliance, was added to the Constitution's text immediately after the Convention had rejected a proposal that would, indeed, have permitted the Electoral College to elect a President based on a simple majority of the electors who actually voted. This proposal was made, on Wednesday, September 5, 1787, by James Madison (of Virginia) and Hugh Williamson (of North Carolina). Up until this time, the text under discussion provided that: "The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors."7 This language, while somewhat ambiguous, arguably would have permitted a President to be elected with only a simple majority in the Electoral College, i.e., a majority of the electoral votes actually cast.

Madison and Williamson proposed language that would have made this result clear beyond doubt, suggesting the addition of the qualifier "who shall have balloted" after "electors." With this revision, the Constitution's language would have read: "The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors who shall have balloted." This would clearly have adopted a simple majority rule. However, the Madison/Williamson proposal was rejected by the Convention on a vote of 7-4.8

Immediately after Madison and Williamson's simple majority proposal was rejected, Delaware's John Dickinson proposed language, "in order to remove ambiguity from the intention of the clause as explained by the vote," making it clear that a President could be elected only if he received the votes of a majority of the whole number of potential electors. This was accomplished by the addition of the word "appointed," so that the provision would read -- as it still does today -- "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." That number was to be determined by reference to the formula established in Article II, § 1, cl. 2, which established the Electoral College's size by requiring each State to select a specific number of electors based on their congressional representation.9

Thus, as used in Article II, § 1, and later in the Twelfth Amendment, the phrase "whole Number of Electors appointed" meant the number of electors fixed or established elsewhere in the Constitution (in Article II, § 1, cl. 2), offices that the States were required to fill. To interpret the word "appointed" to mean the number actually selected by the States (i.e., elected and certified), as suggested by supporters of a simple majority interpretation, or to suggest that a simple majority of those electors who actually cast uncontested ballots on December 18 is sufficient to elect a President and Vice President, would entirely defeat the purpose of the Framers in rejecting the Madison/Williamson proposal. This purpose was to avoid having the President elected by too small a number of electors, from too few States.10 Here, instead of a few electors failing to vote, and thereby reducing the number needed for election, the same effect could be achieved by one or more States failing to select electors, or by a pending challenge to the electors selected. The Constitution forbids this result.

2. The Meaning of the "whole number" of Electors Appointed.

Interpreting the Constitution to require an absolute majority of all potential electors is further supported by the Framers' use of the adjective "whole" in describing the majority necessary to elect a President in the Electoral College. Here, the critical phrase refers not merely to a majority of the electors "appointed," but to a majority of "the whole Number of Electors appointed." (Emphasis added). Elsewhere in the Constitution, the Framers consistently used the word "whole" to describe a complete or maximum potential number. Thus, for example, in describing the formula to determine the number of electors to which each State would be entitled, the Constitution provides that "[e]ach State shall appoint . . . a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."11 This clearly refers to the entire potential number of Senators and Representatives to which a State may be entitled, rather than just to the number of members a State might actually have sitting in Congress at any one time.

Similarly, in establishing the original constitutional formula for determining the apportionment of direct taxes and seats in the House of Representatives, the Constitution's Framers referred to "the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."12 The "maximum number" or "total" was, in fact, the accepted meaning of the word "whole" in the 18th Century, when the word was defined as "[a]ll; total; containing all" and "[t]he totality; no part omitted; the complex of all the parts," as it is today.13

Thus, even if the Framers intended the word "appointed" to refer to those electors actually selected by the States, the rest of the constitutional language establishing the majority necessary for a candidate to be elected President by the Electoral College makes clear that an absolute majority of the number of potential electors is needed for election as President. To construe the language otherwise would effectively deprive the word "whole" of any meaning, rendering it mere surplusage. This is a result highly disfavored in both statutory and constitutional interpretation.14

3. The Framers' Characterizations of the Electoral Majority Necessary for Election as President During the Debates Over the Constitution's Ratification . 

Interpreting the Constitution to require an absolute Electoral College majority for election to the Presidency is also correct in view of the later characterizations of the presidential election process by the Framers, where the "whole number of votes," rather than the number of votes cast, are referred to. In this regard, Hamilton explained the process in The Federalist as follows:

The people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state and vote for some fit person as president. Their votes, thus given, are to be transmitted to the seat of the national government; and the person who may happen to have a majority of the whole number of votes will be the president. But as a majority of the votes might not always happen to centre on one man and as it might be unsafe to permit less than a majority to be conclusive, it is provided, that in such a contingency, the house of representatives shall select out of the candidates . . . the man who in their opinion may be best qualified for the office.15

Similarly, James Madison -- who had originally proposed that the President be elected by a simple majority in the Electoral College -- later fully recognized that the Constitution, as adopted, required an absolute majority of all potential electors for election to the Presidency by the Electoral College. He made this clear during the debates in Virginia over whether the Old Dominion should ratify the Constitution. On June 18, 1788, a delegate named Grayson suggested that the Electoral College would rarely, if ever, elect the President, since a majority of all potential electoral ballots -- at the time 182 because each of the 91 potential electors from the thirteen States was entitled to two votes -- was required for election.

George Mason agreed with this analysis, earning a sharp reply from Madison. Noting that "none of the honorable members objecting to this have pointed out the right mode of election," Madison explained that only a majority of all 91 potential electors would be necessary:

The honorable member last up [Mason] has committed a mistake in saying there must be a majority of the whole number of electors appointed. A majority of votes, equal to a majority of the electors appointed, will be sufficient. Forty-six is a majority of ninety-one, and will suffice to elect the President.16

B. Related Constitutional Provisions.

An absolute majority requirement is also fully supported by all of the related provisions dealing with how a President is to be selected if no candidate is elected by the Electoral College. Here, it is highly significant that the Framers specifically required an absolute majority of all potential votes when the President is to be selected by the House of Representatives.

As explained above, if, because no candidate has a sufficient majority, the Electoral College cannot elect a President, the Chief Executive is to be elected by the House of Representatives. In these circumstances, the House must choose among the three (originally five) candidates who received the highest number of electoral votes. The vote is taken State-by-State, rather than by individual members, so that the maximum potential number of votes is 50. The Framers made clear beyond peradventure that an absolute majority of all potential votes was necessary for election as President here by stating that "a Majority of all the States shall be necessary to a Choice."17 

Thus, under the Constitution as originally drafted and ratified, the President could be elected only if he commanded an absolute majority of all members of the Electoral College, or of all State delegations in the House of Representatives. A simple majority of the votes actually cast in either body was to be insufficient. Moreover, this fundamental requirement was extended to the election of the Vice President when the Twelfth Amendment was adopted in 1804.

In revising the provisions for electing the President and the Vice President, the Framers of the Twelfth Amendment retained the original requirement that the President be elected only with "a majority of the whole number of Electors appointed," as well as the requirement that the House could select a President only if one candidate commanded an absolute majority of the States. In addition, they expanded these absolute majority requirements to the election of the Vice President, eliminating the original system whereby the presidential candidate who received the second most votes in the Electoral College became the Vice President. Under the Twelfth Amendment, "[t]he 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." (Emphasis added). Moreover, if no candidate for the Vice Presidency receives an absolute majority in the Electoral College, then the Twelfth Amendment provides that the Senate is to select the Vice President. Again, an absolute majority of all potential electors (i.e., Senators), is required for election: "a majority of the whole number [of Senators] shall be necessary to a choice."

C. Federal Statute and Historical Practice.

Finally, interpreting the Constitution to require an absolute majority of all potential electoral votes for election to the Presidency is supported by federal statute and historical practice. In 1792, only four years after the Constitution was ratified, Congress specifically established the number of electors, a majority of whose votes would be necessary to election as President under the Constitution. Following the Constitution's formula, the Second Congress enacted a statute providing that:

electors shall be appointed in each state for the election of a President and Vice President of the United States, within thirty-four days preceding the first Wednesday in December, one thousand seven hundred and ninety-two, and within thirty-four days preceding the first Wednesday in December in every fourth year succeeding the last election, which electors shall be equal to the number of Senators and Representatives, to which the several states may by law be entitled at the time, when the President and Vice President, thus to be chosen, should come into office.18

In interpreting the Constitution's meaning, such early congressional enactments are entitled to very great weight.19

A provision similar to that enacted in 1792 remains on the federal statute book today, codified at 3 U.S.C. § 3, which provides that "[t]he number of electors shall be equal to the number of Senators and Representatives to which the several States are by law entitled." Here, there is no room for doubt or argument. Following this formula, the number of electors 538.20 A majority of those electors is 270.

In addition, historical practice also "is relevant to what the Constitution means."21 In this regard, it should be noted that, although Congress has never followed a consistent practice in its reports of the quadrennial tally of the electoral votes, no President has ever been elected in the Electoral College without commanding an absolute majority of the maximum number of potential electors.22 This was true even in 1864, when Abraham Lincoln was reelected, and when the Southern States did not cast their 81 electoral votes. Lincoln received 212 electoral votes out of a potential total (including all of the Union's States, North and South) of 314 electoral votes. This also was true in 1868 and 1872, when a number of electoral votes from Southern States also were not counted. Nevertheless, President Grant won election with 214 of 317 electoral votes in 1868, and 286 of 366 electoral votes in 1872.

However, most instructive is the election of 1876. The presidential race between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden is the only occasion where the electoral votes of several states were in dispute, and the failure to count those votes would have actually changed the outcome of the race. Here, the votes of two separate groups of electors were submitted to Congress from three States, Louisiana, South Carolina, and Florida. This situation may, of course, be repeated with respect to Florida in the year 2000. If Vice President Gore is successful in his court challenges to Florida's certification of its 25 electors for Governor Bush, then a second set of electors could conceivably be certified for the Vice President.

In 1876, without the contested electoral votes from Louisiana, South Carolina, and Florida, neither Republican Rutherford B. Hayes, nor Democrat Samuel J. Tilden, had an absolute majority in the Electoral College. Significantly, although Tilden had received 184 uncontested electoral votes to Hayes' 166 uncontested votes, Tilden was not declared the winner based upon this simple majority. Rather, Congress (where Republicans controlled the Senate and Democrats controlled the House of Representatives) appointed a commission to determine which of the contested electoral votes would be counted. This commission recognized the Hayes electors from Louisiana, South Carolina and Florida, making Hayes President with 185 electoral votes (out of 369) to Tilden's 184.23 The absolute majority requirement for election in the Electoral College was respected.24

III. Conclusion.

In summary, the Constitution's Framers originally adopted a system whereby the President would, in all cases, be elected by an absolute majority of the number of potential electors, whether this occurred in the Electoral College or in the House of Representatives. When this system was reformed in 1804, the Twelfth Amendment preserved this fundamental requirement, and expanded it to the Vice President -- who can now only be elected in the Electoral College if he commands an absolute majority of all potential electoral votes for Vice President (also 270). Moreover, if no candidate for the Vice Presidency musters an absolute majority of electors, the Twelfth Amendment requires that the Vice President be selected by the Senate, but only if a candidate receives an absolute majority of votes from the maximum number of Senators.

As a result, no candidate may be elected as President, or as Vice President, who does not command the votes of an absolute majority of the maximum potential number of electors, whether those electors are members of the Electoral College, State delegations in the House of Representatives, or members of the Senate. The argument that a candidate can be elected to the Presidency based on a simple majority of the electors who may ultimately cast ballots for President on December 18 simply cannot withstand constitutional scrutiny.

Therefore, if neither Vice President Gore nor Governor Bush commands the allegiance of 270 electors when the Electoral College votes, then neither man can be elected President by the Electoral College. In this case, the House of Representatives will be required to elect the next President.

Lee A. Casey
David B. Rivkin, Jr.
Darin R. Bartram
Kyle McSlarrow

Messrs. Casey, Rivkin and Bartram are attorneys with Baker & Hostetler LLP, practicing in its Washington, D.C. office. Mr. McSlarrow served as Chief Counsel to both Senate Majority Leaders Bob Dole and Trent Lott.


Endnotes

1 Including Florida's 25 electoral votes, Governor Bush has a total of 271, which is sufficient to win the Presidency. Vice President Gore has challenged the results of Florida's election in the courts.

2 The Twentieth Amendment gave Congress the power to establish, by law, who will become acting President if neither a President nor a Vice President has been lawfully selected by January 20 in the year following a presidential election. U.S. Const. 20th Amend. Congress has provided that, in the first instance, the Speaker of the House of Representatives will act as President in these circumstances. 3 U.S.C. § 19.

3 See James V. DeLong, "The Dispute is Over, Maybe," Wash. Times (Nov. 30, 2000).

4 The mandatory nature of the appointment of presidential electors also may shed light on the issues brought before the Supreme Court by Governor Bush's lawyers on December 1, 2000. In this regard, Article II does not merely vest power in State legislatures to provide for the selection of electors, but rather imposes a duty on them to do so, and in a timely manner. Compliance with federal and state statutes designed to ensure that this duty is fulfilled would, therefore, appear clearly to present a federal question cognizable in the federal courts.

5 1 The Records of the Federal Convention of 1787 101 (Max Farrand ed. 1966) [hereinafter Farrand].

6 U.S. Const. Art. II, §1, cl. 3. These basic requirements were retained when, in 1804, the method of electing the President and Vice President was revised with the adoption of the Twelfth Amendment. The Twelfth Amendment was adopted after the first several presidential elections, when it had become evident that the original system, whereby the candidate with the most electoral votes would become President and the candidate with the second most votes would become Vice President, was politically unworkable. By 1804, this system had produced a Vice President (Thomas Jefferson in 1796) who was a political enemy of the President (John Adams), and a hopeless muddle (in 1800) where the presidential and vice presidential candidates received an equal number of votes.

7 2 Farrand, supra note 5, at 498.

8 Id. at 507. Significantly, Madison was one of the leading "nationalist" or "continentalist" members of the Constitutional Convention, who manifested an early desire "to deprive small states of equal voting power," which was reflected in the unanimity requirements of the Articles of Confederation. See Bruce Ackerman, We the People: Transformations 50 (1998). In fact, the ultimate resolution of the disputes over the Electoral College can be properly seen as part of the broader compromise between the large and small States that resulted in the elimination of unanimity requirements, but that also balanced the power of the large and small states in institutions like the Senate and the Electoral College.

Examination of the last minute fine-tuning of the Presidential selection procedures in mid-September, 1787, provides additional support for this thesis. At that time, the constitutional language would have provided for the President to be elected by the Senate, if the Electoral College failed to yield the required majority. A number of Framers, including "Randolph, Mason, Wilson, Rutledge, Pinckney and Williamson argued, [that] the plan would give the Senate `such an influence . . . over the election of the President in addition to its other powers, [as] to convert that body into a real & `dangerous Aristocracy.'" Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 265 (1996). Accordingly, the selection of a President, in the event the Electoral College failed to elect a Chief Executive, was ultimately vested in the House of Representatives -- a body they believed would be less likely to show aristocratic tendencies. An otherwise unprecedented State-by-State voting procedure was adopted to create a system whereby the States would have equal voting power in making this choice, ensuring that the winner would, at least, command a majority of all the States.

9 In this regard, it is also important to note the different meanings of the word "appoint" in the 18th Century. There is no doubt that, in some contexts, the Framers used the word as we do, to mean the selection of an individual for some post. At the same time, the most common 18th Century meaning of the word "appoint" was to "fix anything" or to "establish by decree." See Samuel Johnson, A Dictionary of the English Language 37 (1756) (Barnes & Noble ed. 1994).

10 During the Convention's discussions on September 6, 1787, Hamilton made clear that this was the fundamental objection to permitting the candidate with "the highest number of ballots, whether a majority or not," to be elected as President." "What was the objection to this?", he noted, "[m]erely that too small a number might appoint [the President]." See 2 Farrand, supra note 5, at 525.

11 U.S. Const. Art. I, § 1, cl. 2 (emphasis added).

12 U.S. Const. Art. I, § 2, cl. 3 (emphasis added). This formula clearly referred to the maximum number of free persons (whites) in each of the States, excluded Indians from the count, and allowed black slaves to be counted as three fifths of a person.

13 Johnson, supra note 9, at 820; Merriam-Webster's Collegiate Dictionary 1351 (10th ed. 1996) ("3a: constituting the total sum or undiminished entirety.").

14 2A Norman J. Singer, Statutes and Statutory Construction § 46.06 (5th ed. 1992).

15 The Federalist No. 68, at 460 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (emphasis added).

16 3 The Debates in the Several State Conventions the Adoption of the Federal Constitution (Va. Jun. 18, 1788) (J. Elliot ed. ) (emphasis added). Justice Joseph Story, writing in 1833, also had no doubt regarding the number of electors needed for election to the Presidency by the Electoral College: "The number of electors is equal to the number of senators and representatives of each state; thus giving each state as virtual a representation in the electoral colleges, as that, which it enjoys in Congress. . . . The person, having a majority of the whole number of votes, is to be president." See Joseph Story, Commentaries on the Constitution of the United States 532-33 (1833) (Carolina Academic Press ed. 1987).

17 U.S. Const. Art. II, § 1, cl. 3 (emphasis added). This requirement was also retained when the Twelfth Amendment was adopted in 1804. See U.S. Const. 12th Amend. Overall, the process by which the President can be elected in the House of Representatives is particularly instructive because many of the Framers clearly expected that the President would often be selected by the House of Representatives. These individuals assumed that most electors would vote for "native son" candidates from their own States, splintering the Electoral College vote. See Rakove, supra note 8, at 265.

18 Act of March 1, 1792, 2nd Cong., Sess. 1, ch. 8, 1 Stat. 239 (emphasis added).

19 See Printz v. United States, 521 U.S. 898, 905 (1997) (contemporaneous legislative construction of the Constitution is "weighty evidence" of its meaning), and cases cited therein.

20 For these purposes, the District of Columbia is considered to be a "State." 3 U.S.C. § 21.

21 See United States v. Gaudin, 515 U.S. 515 (1995) ("we do not doubt that historical practice is relevant to what the Constitution means.").

22 For example, in 1821, the three electoral votes from the State of Missouri were challenged. The Vice President read the tally twice, first including Missouri's votes in the "whole number of electors appointed" and then excluding them, noting that "in either event, James Monroe, of Virginia, has a majority of the votes of the whole number of electors for President." See H.R. Journal (Feb. 14, 1821). In 1833, two electoral votes from Maryland were not counted. In that case the Journal of the Senate reported that the "whole number of electors appointed" was 288 (including Maryland's votes) and the House of Representatives reported the whole number of electors as 286 (excluding Maryland's votes). See S. Journal (Feb. 13, 1833) & H.R. Journal (Feb. 13, 1833). In either case, Andrew Jackson commanded a majority and was declared President. Similarly, in 1872, when electoral votes from Louisiana, Arkansas and Georgia were not counted, the House reported the "whole number" as 352, excluding these States' electors, and the Senate reported a whole number of 366, including these States. See S. Journal (Feb. 12, 1873) & H.R. Journal (Feb. 12, 1873). As in 1833, the different tallies made no difference. Ulysses S. Grant commanded an absolute majority of all 366 electoral votes -- 286. (The Journals of the Senate and the House of Representatives are available, indexed by date, in the Library of Congress' Internet website at "The American Memory, U.S. Congressional Documents and Debates 1774-1873," www.loc.gov).

23 William Josephson & Beverly J. Ross, "Repairing the Electoral College," 22 J. Legis. 145, 156-57 (1996). See also Charles Fairman, Five Justices and the Electoral Commission of 1877 (1988). These authors believe that the creation of this commission was an unconstitutional delegation of congressional authority. That fact, however, does not detract from the key lesson of the Hayes-Tilden election -- that a simple majority of "uncontested" electors cannot elect a President in the Electoral College.

24Aside from the constitutional requirements for an absolute majority in the Electoral College, the same approach is supported by compelling practical imperatives. Any approach which would allow a candidate to be elected President with a simple majority of the votes cast in the Electoral College would encourage the supporters of a candidate who may have lost in a close race to contest elector certification in one or more States in an effort to reduce the winner's electoral vote tally and alter the balance in the Electoral College.

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