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Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

The first article in this series surveyed the problems the framers encountered in crafting a mode for choosing the president and how they addressed those problems. This installment explains in detail the Constitution’s compressed and technical language as it was understood after adoption of the Twelfth Amendment in 1804. Variations between the original understanding and modern practice are noted in this article.

The Constitution initially provided that after the choice of the president the person with the most electoral votes would become vice president. This might be the second-highest electoral vote-getter, but not necessarily: If the election was thrown into the House of Representatives because no candidate had won a majority of the electoral votes, the House could elect any of the five top vote getters. If the House did not elect the top vote getter, then that person would become vice president.

There was some sense behind this system. Many founders were concerned about the risk of a “cabal”—informally organized political intrigue—between the president and the powerful, relatively small Senate. Installing the president’s leading rival as vice president, and therefore as the Senate’s presiding officer, might check that risk.

Nevertheless, chaos during the 1800 election persuaded the founding generation to add the Twelfth Amendment, providing that electors would vote separately for president and vice president. The Constitution’s resulting structure is as follows:

* Article II, Section 1, Clause 1: term of office.
* Article II, Section 1, Clause 2: appointment, number, and qualification of electors.
* The Twelfth Amendment: manner of holding election. (This phrase is explained below.)
* Article II, Section 1, Clause 4: time of election.
* Article II, Section 1, Clause 5 & Twelfth Amendment: qualifications of president and vice president.

Rather than treat each of these in order, it is easier to follow the structure of election rules as the founding generation thought about them.

During the founding era, election rules were said to fix the manner of election (sometimes called the “mode of election”). This term embraced the following five categories:

(1) The time of election, including (a) the term of office and (b) the time for voting.
(2) The qualifications of the voters.
(3) The qualifications of the candidates.
(4) The place of election, including (a) the boundaries of election districts and (b) the location of the polls.
(5) The manner of holding elections. The framers coined this phrase to cover all the administrative details in the “manner of election” other than time, qualifications, and place. It included the required margin of victory (majority or plurality), how votes were cast, oaths, vote counting and reporting, and election-day conduct. “Manner of holding” also embraced the number of election stages—one stage for direct elections, and two or more for indirect elections.

The “manner of holding elections” did not include the kind of omnibus campaign regulation Congress presumes to impose today. Campaign regulation was a state power. The modern Supreme Court says that “manner of holding” includes campaign regulations, but the court has never adequately supported this assertion.

In both Britain and America, the manner of election was governed by statute under the general police power. However, the Constitution did not leave the entire manner of election to either the state legislatures or to Congress. The Constitution created a two-or-three stage presidential election system and then prescribed at least some rules for each stage.

Time of election. Article II, Section 1, Clause 1 specifies that the terms of the president and vice president are four years. (This was supplemented by the Twentieth Amendment, which fixed days of beginning and ending.) Otherwise, the timing of elections is left to state law, except that Congress may fix a uniform day for choice of electors (Stage #1) and for their balloting (Stage #2).

Qualifications of Voters. For Stage #1, the Constitution allows the states to set voter qualifications, although this rule has been modified by several constitutional amendments and a host of Supreme Court rulings. The agency for decision on this and other issues is the state legislature.  Founding-era practice (as well as subsequent court decision) tells us that this use of “legislature” refers to the state entire lawmaking apparatus, including any roles for the governor or popular referenda. Thus, the use of “legislature” in the case of elections is different from the use of that word in some other parts of the Constitution, such as Article V, where it means only the representative assembly itself.

The Constitution also left to the state legislatures the qualifications for presidential electors, except that they cannot be members of Congress or federal officeholders. Stage 3 is the congressional run-off, so the voter qualification at this stage is to be a member of the House (to vote for president) or the Senate (to vote for vice president).

Qualifications of Candidates. The president and vice president must be natural born citizens, residents of the U.S. for the prior 14 years, and at least 35 years old. Unlike lawmakers in most states, the framers specified no qualifications based on property, race, or gender. This was a conscious decision.

The place of election. With one exception, the place of election at Stages 1 and 2, was left to the state legislatures. (After the Constitution was ratified, the states adopted a mixture of at-large and district voting.) The exception was that presidential electors were to meet in their respective states rather than congregate together. That was to minimize the risk of mob or “stampeding” behavior. Stage 3 congressional runoffs are held in the national capital.

The manner of holding elections. State legislatures generally determine Stage 1 procedures. They may reserve the power to choose electors or delegate it to the people. They decide whether the rule of decision is a majority or a plurality. One writer has suggested that the founders expected the states to adopt a majority rule, but I have not found much evidence to support this.

Similarly, the states determine the method of voting. During the founding era, there were four in common use: (1) viva voce, (2) show of hands, (3) polling (in which voters filed past a registrar, verified their identity, and stated their preference), and (4) “ballot”—which invariably meant secret ballot.

Most Stage 2 procedures also are set by state law, but the Constitution limits state discretion more than at Stage 1. The electors’ voting must be by ballot. Each elector votes once for president and once for vice president; of those two candidates at least one must from another state. The latter rule was adopted for two reasons: (1) to prevent large states from dominating the electors and (2) the theory that the second choice after a “favorite son” was likely to be the better candidate.

The electors are supposed to count the ballots, list how many votes for each candidate, sign and certify the lists, and transmit them to the president of the Senate at the national capital. At a joint session of Congress, the president of the Senate opens the certificates and arranges for a count. The rule of victory at this level is a majority of electors appointed. If no candidate receives a majority, a congressional run-off is necessary.

The Constitution prescribes Stage 3 run-off procedures in even greater detail. If it appears that no candidate for president commands a majority of electoral votes, the House of Representatives must “choose immediately, by ballot, the President” from among the top three vote getters. (The Twelfth Amendment changed the number from five to three.) The quorum is at least one Representative present from each of two thirds of the states. Voting is by state delegations, on a one state/one vote basis. Election is by a majority of all states, not merely a  majority of states present.

If no candidate wins a majority of the electors for vice president, the Senate selects from the top two candidates, with a quorum of two thirds and the rule of victory being a majority of “the whole number of Senators.”

Each part of this intricate system was adopted for good reasons. For example, voting by states in the House prevents a few populous states from dominating the election. The quorum of two thirds and the majority-to-win requirement assures that the victor enjoys wide popular support.

Next time: The electoral college in constitutional context.

The most ‘underrated’ founder’s influence on America’s Constitution

The most ‘underrated’ founder’s influence on America’s Constitution

This article first appeared in The Hill.

This month marks the 250th anniversary of John Dickinson’s Letters from a Farmer in Pennsylvania — the landmark series of newspaper op-eds that laid out the colonial case against taxation without representation.

The letters were widely republished and made Dickinson for a time the most famous American in the world, second only to Ben Franklin.

The Farmer Letters should not, however, overshadow Dickinson’s immediate impact on the U.S. Constitution. The Constitution bears a much closer resemblance to his vision than to the pre-convention ideas of more celebrated founders.

Dickinson’s influence survives today in the structure of “the Hill” — that is, of Congress.

For example, Dickinson suggested the Great Compromise — equal representation of states in the Senate and “proportional” representation in the House — long before the convention adopted it. It also was Dickinson’s idea to moderate “proportional” representation by allotting to every state, no matter how small, at least one representative.

The House of Representatives enjoys the exclusive right of originating revenue bills only because John Dickinson, in company with Virginia’s Edmund Randolph, fought for it. They had to overcome the resistance of several skeptics, including James Madison.

Like most of the Founders, Dickinson opposed slavery. Unlike most of those convention delegates who had owned slaves, however, Dickinson already had emancipated his. Although he favored an immediate end to the international slave trade, he also recognized political reality. Thus, he helped negotiate the compromise by which Congress could abolish the slave trade, but only after 20 years.

Dickinson moved to permit, but not require, Congress to create federal courts below the Supreme Court and (despite some initial doubts) to allow Congress to impeach and remove the president.

The Constitution’s organization of the Senate largely followed Dickinson’s ideas. He suggested that Senators represent the states equally and be selected by state legislatures for long, staggered terms. He hoped the Senate would serve as a republican analogue of Britain’s upper chamber, protecting the states as the House of Lords protected the British aristocracy.

Just as important was Dickinson’s influence on American federalism. In pre-Independence writings, he outlined his ideal division of powers between the colonies and the central government in London. The division later ordained by the Constitution between the states and the federal government was remarkably similar.

On this subject of the federal-state balance of power, Dickinson’s views occupied the middle ground between “states rights” advocates such as Robert Yates of New York and centralizers such as Alexander Hamilton and (at that time) Madison. Dickinson proposed the Constitution grant the new government a generous list of powers while reserving all other authority to the states. His constitutional plans dated June 18, 1787 contain prototypes of Article I, Section 8, the constitutional provision enumerating most congressional powers. His June 18 plans also feature prototypes of the Constitution’s Necessary and Proper Clause, which recognizes Congress’s authority to pass laws to carry other powers into execution.

After the convention adjourned, Dickinson continued to further the Constitution’s cause. He penned nine op-eds known as the Letters of Fabius. They responded to the opposition charge that the Constitution would promote aristocracy. During the convention Dickinson had predicted this charge and warned other delegates to forearm themselves against it.

Modern constitutional interpreters often rely on statements by Founders who occupied the extremes of the political spectrum. Advocates of big government typically resort to Hamilton (who played only a minor role at the convention) and advocates of small government rely on Jefferson (who wasn’t even there). This practice overlooks the moderates who actually pulled the Constitution together and secured its ratification. Of these, Dickinson was the most significant.

Forrest McDonald, America’s greatest 20th century constitutional historian, characterized Dickinson as the “the most underrated of all the founders.” Indeed, it was not until Dickinson’s own convention notes were rediscovered in the early 1980s that his contributions became better understood even among scholars.

This much is clear: John Dickinson deserves much more of our national gratitude than we have given him.

Why Did the Framers Create the Electoral College?—1st in a Series

Why Did the Framers Create the Electoral College?—1st in a Series

Colorado went Democrat in the last presidential election. But three of those elected as presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this “Hamilton elector” voted, state officials voided his ballot and removed him from office. The other electors chose someone more compliant to replace him.

Litigation over the issue still continues, and is likely to reach the U.S. Supreme Court. Moreover, President Trump’s victory in the Electoral College, despite losing the popular vote, remains controversial. So it seems like a good time to explore what the Electoral College is, the reasons for it, and the Constitution’s rules governing it. This is the first of a series of posts on the subject.

The delegates to the 1787 constitutional convention found the question of how to choose the federal executive one of the most perplexing they faced. People who want to abolish the Electoral College usually are unfamiliar with how perplexing the issue was—and still is.

Here are some of the factors the framers had to consider:

* Most people never meet any candidates for president. They have very little knowledge of the candidates’ personal qualities. The framers recognized this especially would be a problem for voters considering candidates from other states. In a sense, this is less of a concern today because, unlike in 1787, we have mass media through which candidates can speak directly the voters. In other ways, however, it is more of a concern than it was in 1787. Our greater population renders it even less likely for any particular voter to be personally familiar with any of the candidates. And, as I can testify from personal experience, mass media presentations of a candidate may be 180 degrees opposite from the truth. One example: media portrayal of President Ford as a physically-clumsy oaf. In fact, Ford had been an all star athlete who remained physically active and graceful well into old age.

* Voters in large states might dominate the process by voting only for candidate from their own states.

* Generally speaking, the members of Congress would be in a much better position to assess potential candidates than the average voter. And early proposals at the convention provided that Congress would elect the president. However, it is important for the executive to remain independent of Congress—otherwise our system would evolve into something like a parliamentary one rather than a government of three equal branches. More on this below.

* Direct election would ensure presidential independence of Congress—but then you have the knowledge problem itemized above. In addition, there were (and are) all sorts of other difficulties associated with direct election. They include (1) the potential of a few urban states dictating the results, (2) greatly increased incentives to electoral corruption (because bogus or “lost” votes can swing the entire election, not just a single state), (3) the possibility of extended recounts delaying inauguration for months, and (4) various other problems, such as the tendency of such a system to punish states that responsibly enforce voter qualifications (because of their reduced voter totals) while benefiting states that drive unqualified people to the polls.

* To ensure independence from Congress, advocates of congressional election suggested choosing the president for only a single term of six or seven years. Yet this is only a partial solution. Someone elected by Congress may well feel beholden to Congress. And as some Founders pointed out, a president ineligible for re-election still might cater to Congress simply because he hopes to re-enter that assembly once he leaves leaves office. Moreover, being eligible for re-election can be a good thing because it can be an incentive to do a diligent job. Finally, if a president turns out to be ineffective it’s best to get rid of him sooner than six or seven years.

* Elbridge Gerry of Massachusetts suggested election by the state governors. Others suggested election by state legislatures. However, these proposals could make the president beholden to state officials.

* The framers also considered election of the president by electors elected by the people on a strict population basis. Unless the Electoral College were very large, however, this would require electoral districts that combined states and/or cut across state lines. In that event, state law could not effectively regulate the process. Regulation would fall to Congress, thereby empowering Congress to manipulate presidential elections.

* In addition to the foregoing, the framers had to weigh whether a candidate should need a majority of the votes to win or only a plurality. If a majority, then you have to answer the question, “What happens if no candidate wins a majority?”On the other hand, requiring only a plurality might result in election of an overwhelmingly unpopular candidate—one who could never unite the country. The prospect of winning by plurality would encourage extreme candidates to run with enthusiastic, but relatively narrow, bases of support. (Think of the possibility of a candidate winning the presidency with 23% of the vote, as has happened in the Philippines.)

The delegates wrestled with issues such as these over a period of months. Finally, the convention handed the question to a committee of eleven delegates—one delegate from each state then participating in the convention. It was chaired by David Brearly, then serving as Chief Justice of the New Jersey Supreme Court. The committee consisted of some of the most brilliant men from a brilliant convention. James Madison of Virginia was on the committee, as was John Dickinson of Delaware, Gouverneur Morris of Pennsylvania, and Roger Sherman of Connecticut, to name only four of the best known.

Justice Brearly’s “committee of eleven” (also called the “committee on postponed matters”) worked out the basics: The president would be chosen by electors appointed from each state by a method determined by the state legislature. It would take a majority to win. If no one received a majority, the Senate (later changed to the House) would resolve the election.

Next time: Rules governing the Electoral College.

Second in a Series: The Message of the Farmer Letters

Second in a Series: The Message of the Farmer Letters

This is the second of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

The Farmer letters are best understood when read in conjunction with Dickinson’s 1764 speech and his 1774 Essay on the Constitutional Power of Great-Britain Over the Colonies in America. The latter tract elaborated The Farmer’s comments about government. This discussion, although drawing principally on The Farmer, will mention all three works.

In political philosophy, Dickinson was essentially a Lockean. Government was founded on contract. It was a public trust erected to further human happiness. Necessary to human happiness was satisfaction of man’s social instinct. Any particular government was constitutional and legitimate only so far as its actions furthered human happiness. In his 1764 speech, Dickinson argued that the “liberties” (e.g., privileges) created by English law are “[f]ounded on the acknowledged rights of human nature.” In other words, the “rights of Englishmen” were positive law manifestations of natural rights.

According to Dickinson, immigrants to the colonies had effectively contracted to recognize the executive authority of the Crown and its authority over foreign affairs. Furthermore, by accepting Britain as the mother country and the moderator of the empire, colonists had impliedly agreed that Parliament could regulate trade with foreign nations and among units of the empire.

But Americans had never ceded their right to be taxed only by their consent, given individually or by their representatives: “We cannot be happy without being free,” Dickinson wrote in Farmer Letter XII. “We cannot be free without being secure in our own property … We cannot be secure in our property, if, without our consent, others may take it away.”

Parliament, where Americans were unrepresented, had imposed the Townshend duties to raise revenue rather than to restrict or regulate trade. As such, they were taxes: “A ‘TAX’ means an imposition to raise money,” Letter IV proclaimed. The Quartering Act, by which Parliament ordered colonial governments to provide lodging and other support to British troops, also was substantially a tax.

Although the “Farmer” necessarily focused on taxes, he addressed other political questions as well. One was how a free people should respond to governmental usurpation. Citizens should oppose small usurpations immediately to prevent them from acquiring the force of precedent. Letter XII proclaimed, “A perpetual jealousy regarding liberty is absolutely required in all free states … Slavery is ever preceded by sleep.”

However, opposition should proceed cautiously. Letter III contended that citizens must first petition for redress of grievances. Only if petitioning was unsuccessful should citizens proceed to peaceful civil disobedience. Only if both those steps failed, should they employ force.

Dickinson did not believe taxation was the only subject within the exclusive sphere of colonial control. Dickinson cited the court system as another example. Letter XII asserted, “The freedom of a people consists in being governed by laws, in which no alteration can be made, without their consent.” Obviously, this proclamation is not limited to taxes.

In his 1774 essay, Dickinson illustrated by example what he meant by “internal governance.” It included regulation of civil justice, criminal law, manufacturing, religion, the press, and many other activities. His list looks very much like the lists the Constitution’s advocates offered during the ratification debates when they itemized the powers the Constitution reserved exclusively to the states.

Like Dickinson’s later writings, The Farmer revealed an interest in the incentives motivating political officeholders. Letter VII observed that measures not affecting parliamentary constituents directly received less attention in the House of Commons than those of importance to constituents. Parliamentary taxation of the colonies in particular created bad incentives. Letter VIII cited as a principle of good government the maxim, Qui sentit commodum, sentire debet et onus: Who gets the benefit should bear the burden.

The “Farmer” supported his case heavily, both in the text and in footnotes. There were citations to the Bible, to political tracts, to leading classical authors, and to works of ancient and modern history. For example, to illustrate how the true incidence of a tax might fall on a person other than the nominal payer, Letter VII related an episode from the reign of the emperor Nero, drawn from the writings of the Roman historian Tacitus.

Incidentally, constitutional originalists may appreciate Dickinson’s preference for relying for on older records as legal authority rather than on recent trends or events. His 1774 essay asserted that it is best to resort to “those ‘dead but most faithful counsellors’ (as Sir Edward Coke calls them) ‘who cannot be daunted by fear, nor muzzled by affection, reward, or hope of preferment, and therefore may safely be believed.’ . . . ” This statement should be read in conjunction with Dickinson’s reason for adhering to the rule of law: “[M]iserable is the servitude when the laws are uncertain.”

Fourth in a Series: John Dickinson’s Contributions to the Constitution

Fourth in a Series: John Dickinson’s Contributions to the Constitution

This is the fourth of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

John Dickinson believed the passions could be the source of evil, but “[d]uly governed, they produce happiness.” Indeed, “[t]he due regulation of the affections [emotions] is the perfection [completion] of man’s character.” One achieved “due regulation” through well-structured societal institutions, including constitutional institutions: “The best foundations of this protection, that can be laid by men, are a constitution and government secured, as well as can be, from the undue influence of passions either in the people or their servants.” (Observe the phrase “undue influence,” a concept common in fiduciary law.)

Dickinson’s 1764 speech to the Pennsylvania assembly showed he understood the difference between constitutions and ordinary legislation. The role of a constitution was to lay down procedures for managing the rights and powers citizens contributed to the central authority: “[A] constitution is the organization of the contributed rights in society.” A good constitution featured mechanisms to maximize human advantages and minimize disadvantages. It encouraged good results and discouraged bad ones—the “cultivation of virtues and correction of errors.”

Dickinson was in Philadelphia for nearly the entire convention, although illness apparently caused him to miss some of the proceedings. Notes taken by James Madison and others, as well as Dickinson’s own notes (not recovered until 1983) reveal a significant impact on the framers’ deliberations.

Dickinson’s views were more centralizing than those of other small state delegates, such as New Jersey’s William Paterson. Yet they were more “federal” than views of nationalists such as Madison and Alexander Hamilton. Dickinson spoke for the “preservation of the States in a certain degree of agency [action],” but was willing to go much farther than those who wished merely to amend the Articles. Thus, he pressed for an enumeration of federal powers two months before the Committee of Detail adopted one. The ultimate federal/state balance was much closer to his ideals than, for example, to the ideals of Madison, the putative “father of the Constitution.”

The list of constitutional provisions impacted by Dickinson is a very long one. Consider the Great Compromise by which Senators were allocated by state and Representatives by population. As Dickinson hinted in his ratification-era Fabius letters, he had promoted a formula of this sort long before the other delegates acceded to it.

Dickinson sponsored the resolution that allocated at least one Representative to each state. In his draft plan for a constitution, he inserted the first rudimentary version of the Necessary and Proper Clause. (It would have authorized Congress to “pass Acts for enforcing” other congressional laws.) Amid debate over whether the Constitution should create a federal judiciary below the Supreme Court, he suggested the compromise whereby Congress received power to decide the issue. Despite misgivings, he made the motion to permit the president to be impeached. An opponent of the slave trade, he eventually helped broker the compromise whereby the trade was left untouched for several years, with power in Congress to abolish it thereafter.

Of course, he did not always get his way. He initially favored allocating members of the House of Representatives by wealth and tax contributions rather than by population. Eventually, he yielded to the convention’s conclusion that population generally was a fair proxy for wealth. The exception to the link between population and wealth was slavery, because of the lower productivity of slaves compared to freemen, white or black. The three-fifths compromise was the convention’s effort to quantify the difference, but Dickinson unsuccessfully opposed it.

Perhaps his most notable contributions pertained to the structure of the Senate. He suggested terms of office both staggered and long—although his initial preference was for seven years rather than six. He proposed that the Senate equally represent the states and that Senators be selected by the state legislatures. He sought to adapt British precedent to American conditions: Just as the House of Lords was necessary to protect the nobility and the royal veto to protect the Crown, the Senate would protect the states. Dickinson could look simultaneously back to the past and forward to the future.

This faculty surfaced again during the debate over the Origination Clause. In British parliamentary practice (adopted in modified form in some of the new state constitutions) all money bills originated in the Commons. The Lords could approve or disapprove them, but could not amend them. In conjunction with Virginia’s Edmund Randolph, Dickinson successfully fought for a requirement that all revenue bills, but not all money bills, arise in the House of Representatives, with the Senate enjoying power to amend.

Some delegates believed limiting revenue origination to the House was irrational, and they buttressed their opposition by reciting difficulties experienced in a few states with origination clauses in their recently-adopted constitutions. Madison in particular launched a convoluted attack against an origination rule.

Dickinson’s response to Madison was his most famous speech of the convention. This is the version reported by Madison himself:

Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them. . . . And has not experience verified the utility of restraining money bills to the immediate representatives of the people. Whence the effect may have proceeded he could not say; whether from the respect with which this privilege inspired the other branches of Govt. to the H. of Commons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted. Shall we oppose to this long experience, the short experience of 11 years which we had ourselves, on this subject. . . [A]ll the prejudices of the people would be offended by refusing this exclusive privilege to the H. of Repress. and these prejudices shd. never be disregarded by us when no essential purpose was to be served. When this plan goes forth, it will be attacked by the popular leaders. Aristocracy will be the watchword; the Shibboleth among its adversaries. Eight States have inserted in their Constitutions the exclusive right of originating money bills in favor of the popular branch of the Legislature. Most of them however allowed the other branch to amend. This . . . would be proper for us to do.

Here was a statement of Burkean conservatism three years before Burke’s Reflections on the Revolution in France.

As sometimes happened during Dickinson’s career, his colleagues rejected his proposal at the time—only to adopt it later.