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.