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November 6:
The Appointment of
Presidential Electors

The Authority Governing the Appointment

Although the more than 80 million citizens who vote on November 6 will rightly think that they are deciding who shall be president, only 538 persons are, under Article II and Amendment XXIII of the Constitution, entitled to vote directly for president and vice president (see appendix A, pp. 22, 24). Under prevailing state laws, these 538 electors will be chosen by popular vote of the people of the states and of the District of Columbia. Except in Maine, they will, under these state laws, be chosen on a general-ticket (or winner-take-all) basis. The winning electors (or slate of electors) need capture only a plurality of the popular votes within each state.' : How states choose their electors is, under Article II, section 1, paragraph 2 of the Constitution, determined by state legislatures (see appendix A, p. 22). Congress may, by legislation, oversee the conduct of presidential elections, and the Constitution (whose rules may be enforced by the judiciary) has a good deal to say about voter eligibility in those elections. The Constitution does not, however, require presidential elections—or, more precisely, it does not require that electors be chosen by popular vote of the people. The authority of the states to appoint electors was recognized by the Supreme Court in 1892.2 To repeat: by state law, electors in all the states are chosen by popular vote, and (except in Maine) these popular votes are aggregated on a state-wide basis. This means that the states are authorized to change this system of choosing electors. They may, following the example of Maine, divide themselves into presidentialelector districts and aggregate the votes within each district (thus making it possible for the electoral vote of a state to be cast for more than one presidential and vice presidential candidate); they may empower the governor to appoint electors; or they may authorize the legislature to appoint them.

As pointed out above, national law permits a state to change its method of selecting electors as late as the day before regularly scheduled presidential elections. There is no reason, however, except in the case of an extraordinary emergency, for any state legislature to assume the power to appoint the electors or to grant it to the governor or any other person or group. Electors have been popularly elected since the Civil War. In fact, South Carolina was the only state after 1824 whose legislature chose the electors, which it did through 1860. Like Maine, states may adopt the once popular practice of selecting all but two electors from congressional districts. States making such a change, however, would have to do so early enough to allow the parties to nominate a potential elector in congressional districts. The prospects of this in 1984 are remote.

Who Resolves Disputed Elections?

Any disputes concerning the appointment of electors-for example, disputes about which slate of electors has received a plurality of the popular votes cast on November 6, 1984—will be resolved by the states themselves. A federal statute provides that the persons designated as electors by the states will be acknowledged by the Congress to be electors and eligible to vote on December 17, 1984, for president and vice president under the following conditions:

• if a state has a law governing the "determination of any controversy or contest" concerning the election of any or all of its presidential electors

• if that law had been enacted "prior to the day fixed for the appointment of the electors” (November 6 in 1984)

• if the determination of that controversy or contest was made at least six days "before the time fixed for the meeting of the electors” (six days before December 17, 1984, or December 11) This means that the votes cast on November 6 are counted by state election officials and that any controversies about the casting or counting of these votes are resolved by state officials operating under state laws. (See provision for "Determination of controversy as to appointment of electors," appendix B, pp. 25–26.)

The federal law authorizing the states to resolve election disputes, enacted in 1887, was intended to prevent a recurrence of the events that followed the disputed Hayes-Tilden election of 1876. When Congress met to "count" the electoral votes after that election, it was confronted with two sets of electors—one set voting for Hayes and the other for Tilden—from each of four states. The choice of a president turned on the issue of which votes were to be accepted and counted. Unable to agree, Congress, by an act approved by the president on January 29, 1877, almost three months after the election of electors, appointed a fifteen-member Electoral Commission. In due course and by a strictly partisan vote of 8–7, the commission decided in favor of the Hayes electors, thus enabling Hayes to be elected president by a margin of one electoral vote.” By enacting the law of 1887, Congress decided that in the future any such "controversy or contest” would be resolved by the states and that the determinations made by the states “shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution."

The Nomination and Binding of Presidential Electors

As pointed out earlier, the presidential electors of each state are selected by procedures stipulated by its legislature. This section will examine three aspects of these procedures: (1) how candidates for presidential electors are nominated, (2) whether the names of the individual elector candidates are printed on the ballots in November, and (3) whether the persons elected as presidential electors are bound by law to vote in the electoral college for the national nominees of their parties.

The procedures in each of the states are summarized in the table in appendix C (pp. 33–34). This table shows considerable variation among the states in their manner of nominating candidates for presidential electors. Twenty-eight states stipulate that each party's candidates for electors be chosen by state party conventions; five states and the District of Columbia require nomination by state or district party central committees; two require nomination by direct primaries; and twelve let the parties use whatever methods they wish.

In addition, there is a smattering of other methods: in California the Democrats choose their elector candidates by having each Democratic nominee for the U.S. House of Representatives designate one elector candidate and each of the two most recent Democratic nominees for the U.S. Senate designate one elector candidate. For California Republicans, the party's most recent nominees for the state constitutional offices and for the U.S. Senate, the party's leaders in each house of the state legislature, and various leaders of the state party organization select the elector candidates. In Pennsylvania the national presidential nominee of each party names the elector candidates on his party's ticket. In Wisconsin each party's holdover members of both houses of the legislature together with its candidates for the contested legislative seats constitute the convention that chooses the elector candidates.

Forty states and the District of Columbia use the presidential short ballot, on which the names of the elector candidates do not appear. The ballot shows each national party's presidential and vice presidential candidates. The voter votes directly for one pair, and that vote is taken as a vote for all the elector candidates on that party's slate.

Finally, are the presidential electors bound by law to vote in the electoral college for the presidential and vice presidential nominees who headed the slates on which the electors were elected? Thirty states have no such requirement; fifteen states and the District of Columbia say that the electors are bound to vote for the national noininees heading their slate but provide no penalty for electors who do not; and only five states—New Mexico, North Carolina, Oklahoma, South Carolina, and Washington-stipulate penalties for electors who violate their pledges. Three types of voting behavior are possible for electors: (1) the "faithful elector” is pledged by state law or by state party resolution to vote for his party's presidential and vice presidential candidates and casts his electoral vote accordingly; (2) the "faithless elector” is pledged in the same way but casts his electoral vote for others; and (3) the "unpledged elector," who is not pledged by law or party resolution to vote for any particular candidates, and is free to vote for anyone he chooses.

The likelihood that a significant number of electors will violate their pledges is very small. From 1789 through 1980 only fourteen unpledged electors have been chosen, and only eight electors have violated their pledges (one each in 1796, 1820, 1948, 1956, 1960, 1968, 1972, and 1976). None of the eight faithless electors were legally penalized for violating their pledges, though some suffered damage to their political reputations and careers. Because only eight of the more than 16,000 electors chosen since the first election have not honored their pledges, the faithless elector phenomenon is an occasional curiosity rather than a perennial problem.

Procedures for nominating candidates for presidential electors or for slates headed by independent or minor party presidential candidates also vary by state. Statutes pertaining to independent candidates generally require the names of the electors to be included on the nomination petition, thus giving that candidate considerable discretion in the choice of presidential elector nominees.

Whether an independent candidate is therefore in a better position than a major party candidate to dictate how his electors

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vote is not at all clear. In 1968 it was reported that George Wallace had obtained affidavits from all of his electors, in which they promised to vote for Wallace "or whomsoever he may direct" in the electoral college. Since Richard Nixon won a majority in the electoral college, the Wallace pledges were never put to a test.

The Supreme Court in Ray v. Blair upheld the legality of pledges required by a political party from candidates for the office of presidential elector. The Court did not, however, directly address the constitutional status of presidential elector pledges. It remains to be seen whether the courts will uphold the contractual relationship between presidential candidates and their electors. At present the electors retain their constitutional status of free agents, meaning that presidential candidates may advise their electors but may not compel them to vote in a specified manner.

Notes

1. In Maine, each of the two congressional districts chooses one elector, and two are elected at large; this means that the state's four electoral votes will be cast for one candidate or three will be cast for one candidate and one for another candidate.

2. The case, McPherson v. Blacker, 146 U.S. 1; 13 S. Ct. 3 (1892), dealt with the various methods of choosing electors that the states so far had adopted. On state authority respecting the methods of choosing presidential electors, see also Burroughs v. United States, 290 U.S. 534, 544; 54 S. Ct. 287, 289 (1934). On congressional authority to regulate voting in presidential elections—if there are presidential elections—see, for example, Oregon v. Mitchell, 400 U.S. 112; 91 S. Ct. 260 (1970), and Williams v. Rhodes, 393 U.S. 23; 89 S. Ct. 5 (1968). Only Justice Douglas has cast doubt on the unrestricted authority of the states to determine how electors shall be chosen. Speaking for himself alone in Williams v. Rhodes (393 U.S. at 38; 89 S. Ct. at 14), he said: “It is unnecessary in this case to decide ... whether states may select [electors) through appointment rather than by popular vote, or whether there is a constitutional right to vote for them."

3. In Wichita Falls, Texas, between Grant and Garfield streets, and running parallel with them, there is both a Tilden Street and a Hayes Street, which suggests a fine sense of historical propriety, or a sharply and equally divided city council at the time this section of the city was being planned, or a doubt as to how the Electoral Commission would decide.

4. Ray v. Blair, 343 U.S. 214 (1952).

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