The ongoing debate concerning the presidential election has
raised many important legal and constitutional questions, including
several relating to Congress's constitutional duties under the
original language of Article II and the Twelfth Amendment. In
response to numerous requests, we provided our initial legal view
two weeks ago on one matter that we did not think was subject to
serious controversy: how many electoral votes it takes to become
President of the United States.
While we still believe it is unlikely that this issue will need
to be resolved by Congress, and note that all the parties involved
have expressed concern about meeting deadlines to prevent a default
of Florida's electoral votes, we nevertheless believe that it is
important-if only for the sake of argument-to clarify: it takes 270
electoral votes to be elected President by the electoral college. A
simple majority of electoral votes from states other than Florida
is not sufficient.
Because we continue to hear some fanciful arguments to the
contrary, we obtained the attached legal memorandum on the subject.
The authors are distinguished constitutional scholars who have
previously served in high government posts including the White
House Counsel's Office, the Department of Justice's Office of Legal
Counsel, and as Chief Counsel to Senate Majority Leaders Trent Lott
and Bob Dole. We are further convinced of our initial view by this
thorough examination of the constitutional text, the debates
surrounding the drafting and ratification of the Constitution, the
unbroken historical practice, and the governing statutory law.
We find four arguments particularly persuasive:
- Textual Analysis and the Framers' Intent - The
Constitutional Convention considered and rejected (on September 5,
1787) language that would have allowed a simple majority of those
voting to elect the President. The Convention then chose to amend
the language of Article II to use the words "a Majority of the
whole Number of Electors appointed" to emphasize that
an absolute majority of possible electors was necessary. In the
same section of the Constitution, the appointment of electors by
each state was made mandatory, whether or not the electors actually
Joseph Story's Commentaries on the Constitution of the United
States (1833), which remains one of the foremost authorities on
the Constitution, supports this conclusion: "The number of electors
is equal to the number of senators and representatives of each
state . . . . The person, having a majority of the whole
number of votes, is to be president."
Federal Statute Law - The
provision of the United States Code (3 U.S.C. § 3) governing
presidential selection makes the point clear, providing that "the
number of electors shall be equal to the number of Senators and
Representatives to which the several States are by law
Historical Practice - No
president, even during the Civil War, has ever been elected by the
Electoral College with less than an absolute majority of the whole
number of possible electors.
- Common Sense - Mainstream popular and academic opinion
outside of the Washington beltway, based on longstanding tradition
and widespread acceptance, regards the correct number to be a
majority of all the states' votes.
Even if these constitutional arguments were not dispositive, the
primary argument of those advancing the contrary position was
mooted on November 27, 2000 when Florida's governor signed the
"final ascertainment" of Florida's electors and sent it to the
Archivist of the United States. Florida has, therefore, "appointed"
its 25 electors and they must be included in the denominator of any
electoral tabulation. This is true regardless of whether another
slate of electors for Florida might be designated or whether the
previously appointed electors are prevented from meeting and
casting their votes on December 18. Nothing can now change the fact
that Florida's electors have been appointed pursuant to the United
States Constitution. If serious questions about Florida's electoral
votes still exist on December 12, the Florida legislature could
intervene to ratify the state's official electoral slate or it
could attempt to designate a new slate, but the official
certification showing the appointment of at least one slate will be
delivered by the Archivist to Congress.
If no one candidate receives an absolute majority of the
electoral votes because a state's electors were prevented from
casting their votes (or for some other reason) then, under the
process of contingent election set forth in the Constitution, the
President would be elected by the House of Representatives and the
Vice President would be elected by the Senate.
In short, the argument that it takes only a simple majority of
electors voting to elect the President, as opposed to a majority of
the whole number, does not withstand constitutional scrutiny.
We hope you find the attached Legal Memorandum
by Messrs. Lee Casey, David Rivkin, Darin Bartram, and Kyle
McSlarrow to be informative and useful.
Edwin Meese III
Ronald Reagan Distinguished Fellow in Public Policy and
Director, Center for Legal and Judicial Studies
Senior Fellow in Legal Studies
Director, B. Kenneth Simon Center for American Studies
Nothing written here is to be
construed as legal advice on any matter, as an attempt to create an
attorney-client relationship, or as an attempt to aid or hinder the
passage of any matter pending before Congress.