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.