CHAPTER XXIX.

ELECTION OF PRESIDENT AND VICE-PRESIDENT. 1

ARTICLE II.

1

Section 1, Clause 2.—Each 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; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector.

451. Mode of Election.-A far more troublesome question than that of a single or plural executive was, How shall the Executive be chosen? It is said to have occupied more than one-seventh of all the time of the Convention. The question may be stated in this more definite form: How the Executive could be chosen and at the same time be independent of the power that chose him. Many different plans were proposed as, election by the Houses of Congress, by the Senate, by the people voting en masse, by the people voting in districts; election by electors chosen by the Governors of the States, by electors chosen by the people, by electors chosen by the State Legislatures, by electors chosen by lot from Congress, by secondary electors chosen by primary electors, and electors appointed as the State Legislatures should direct.

452.

The Convention's First Decision.-The Virginia plan proposed that the Executive should be chosen by Congress, and this mode of election was the decided preference of the Convention until near the end of its session. Many times it declared in favor of this mode by decided votes. And yet, September 4, the Committee of Detail recommended election by electors, and two days later this 1 See references to Chapter XXX.

plan was adopted by a vote as decided as the votes that had previously approved the Virginia plan. The electoral plan appears to have been borrowed from Maryland, in which State it was used for the election of State senators.

453. Objections to Election by Congress. - The Convention finally concluded that the independence of the President could not be secured if Congress elected him. It was admitted that a re-election by Congress, or the possibility of a re-election, would lead to serious evils. The President would be little more than a creature of Congress. Limiting him to a single term, it was finally concluded, would not meet the difficulty; and so the electoral plan was adopted because it would, as was thought, absolutely exclude the National Legislature from any share in the election of the President. This jealousy of Congress, as well as of all official influence in respect to the election, appears in the prohibition: "No Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector."

454. Objections to Popular Election.—On the other hand, it was thought impolitic to adopt any of the plans of popular election that were proposed. It was thought as necessary to avoid the "heats and ferments" of a popular contest as the intrigue and corruption of a Congressional contest. That calmness of mind, consideration, and superiority to temporary feeling which were essential, could not thu? be secured,‚—so the Convention argued.

455. The Electoral Plan.-So the Convention very deliberately adopted one of the electoral plans that had been proposed. The President should be chosen by State Electors, appointed in such manner as the Legislatures might determine. It was believed that State Colleges of Electors, chosen for their fitness, would elect better Presidents than either Congress or the people. To prevent the excitement and maneuvering that might attend a single meeting of all the Electors in one place, (as well, probably, as to save expense) it was provided, in the next clause, that they should meet in their respective States to give their ballots.

The Electors of a State collectively are commonly called an Electoral College; the groups of Electors of all the States, the Electoral Colleges. The name is found in a law of 1845 that empowers each State to fill vacancies that may arise in the number of its Electors. It had been used informally since 1821.

456. Plans of Appointing Electors.-It is left to the State Legislatures to decide the manner in which Electors shall be appointed. In the early years of the Republic, as many as four different methods were used: appointment by the houses of the Legislature voting jointly, by the houses voting concurrently, by the people of the States voting State tickets, and by the people voting in districts. Evidently the last gives the freest scope to public opinion, and is also the farthest removed from the ideas of 1787. In 1842 Congress adopted the district plan for the election of Representatives, but the States have abandoned it as a mode of appointing Electors. In 1891 the Legislature of Michigan passed a law enacting that the Representative Electors of that State should be elected in and by the same districts as the Representatives, and the Senatorial Electors in and by two Senatorial electoral districts, which districts the Legislature also duly constituted; but two years later the law was repealed.

457. First Mode of Procedure.-Four Presidents were chosen according to the method that the Convention incorporated in clause 3 of this section. It read as follows:

Section 1, Clause 3.—The Electors shall meet in their respective States and vote by ballot for two persons, of whom one, at least, shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. 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; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list, the said House shall, in like manner, choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and

a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.

458. Three First Presidential Elections. Ten States participated in the election of 1789; there were 69 Electors, and 12 persons voted for. Washington received 69 votes, John Adams 34, and all others 35. In 1792 there were 15 States, 132 Electors, and 5 persons voted for. Washington had 132 votes, Adams 77, and the three other persons 55. In 1796 there were 16 States, 132 Electors, and 13 persons voted for. John Adams had 71 vɔtes, and Thomas Jefferson 68.

459. Election of 1800.-At this election there were 16 States, 138 Electors, and 5 persons voted for. Thomas Jefferson and Aaron Burr, the Democratic-Republican candidates, had each a majority of the Electors appointed, but they also had the same number, 73. The party intended Jefferson for the first place and Burr for the second; but in their eagerness to elect the Vice-President as well as the President, every Elector who voted for Jefferson had also voted for Burr. Hence there was no election, and the House of Representatives had to choose between the two men. For 35 ballots occupying 7 days, during which the House was in continuous session, the vote stood: Jefferson 8 States, Burr 6, divided 2. This result was brought about by the Federalists voting for Burr. The country was filled with excitement, and threats of disunion were heard. But on the thirty-sixth ballot, one Federalist from Vermont and 4 from Maryland declined to vote, which gave those States to Jefferson, while Delaware and South Carolina cast blank votes; so the final vote stood: Jefferson 10, Burr 4, blank 2.

465. Amendment XII.—It was now evident that the electoral plan was not working as its authors expected it to

work. It was plain that it might lead to the election of a President whom no citizen or Elector intended for that office, and so wholly defeat the National will. To prevent this result, as well as the recurrence of a contest like that of 1800, Amendment XII. of the Constitution was proposed and ratified. It took effect in 1804, and is as follows:

ARTICLE XII. OF AMENDMENTS.

The Electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. 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; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The 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, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no per