VI

The Electoral College in practice

Winner take all

The Constitution leaves it to the state legislatures to determine the manner by which the electors are to be selected. In the early days of the nation, electors were chosen in a variety of ways: by the legislature, either on joint ballot or by the concurrent vote of both houses; by the vote of the people in districts; by the vote of the people on a general ticket; by the legislatures from candidates voted for by the people in districts; partly by the vote of the people in districts and partly by the legislature; partly by the vote of the people in districts and partly by the vote of the people in the state at large; and by three persons designated by the legislature in each of the state's three districts.23

Voting for electors by the people in districts was thought to be the fairest method by leaders such as Thomas Jefferson, James Madison, John Quincy Adams, Martin Van Buren, Alexander Hamilton, and Daniel Webster. Madison said that this method "was mostly, if not exclusively, in view when the Constitution was framed and adopted.24

States which employed a unit vote or general ticket system were able to assign all their electoral votes to the candidate receiving the highest popular vote, with the result that these states were able to exert greater influence in presidential elections. Not surprisingly, therefore, the district system soon disappeared from the scene, and the general ticket became accepted as the method of casting the electoral votes of a state. Madison remarked that the district system "was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which

23 See generally Paullin, Political Parties and Opinions, 1788-1930, The Atlas of the Historical Geography of the United States (1932).

24 Letter from James Madison to George Hay, August 23, 1823, in 3 Farrand, supra note 15 at 458-59.

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had set the example." When Virginia changed from the district system in 1800, Jefferson wrote to James Monroe: "All agree that an election by districts would be best if it could be general but while ten states choose either by their legislatures or by a general ticket, it is folly and worse than folly for the other states not to do it.

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By 1836 every state except South Carolina had abandoned the system of having the electors appointed by the legislature. South Carolina discontinued this practice in 1860. It was used, under special circumstances, by Colorado in 1868 and Florida in 1876. In 1892 the Michigan Legislature changed from the general ticket system to a district system to divide the state's electoral votes in the presidential election to be held later in the year. This action was upheld by the Supreme Court.27

Today the general ticket system exists in every state. It credits the winner of the popular vote in the state with all of the state's electoral votes, regardless of the vote received by the other candidates or the number of people who voted.

Electors as automata

The Framers did not contemplate the development of political parties, pledged electors, or nominating conventions. They envisioned, as previously noted, an electoral system under which the most knowledgeable and capable persons in each state would be chosen as electors. The electors would examine the merits of the various candidates for President and exercise sound and independent judgment in casting their votes.

The emergence of political parties put an end to these beliefs. In short order, the electors became automata, mere agents without discretion. They were nominated by their parties as part of a slate of electors with instructions to vote automatically for their party nominees for President and Vice-President.

In the election of 1796, a Pennsylvania elector voted contrary to instruction, causing a Federalist voter to say: "Do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson is the fittest man for President of these United States? No, I choose him to act, not to think."28

25 Ibid. p. 459.

26 Jefferson, X The Writings of Thomas Jefferson 134 (Library ed. Jefferson Memorial Ass'n 1903).

27 McPherson v. Blacker, 146 U.S. 1 (1892).

28 O'Neil, American Electoral System 65 (G. P. Putnam's Sons 1889).

This unanticipated change in the role of the presidential elector led a Senate Select Committee to state in 1826:

In the first election held under the Constitution, the people looked beyond these agents, fixed upon their candidates for President and Vice President, and took pledges from the electoral candidates to obey their will. In every subsequent election the same thing has been done. Electors, therefore, have not answered the design of their institution. They are not the independent body and superior characters which they were intended to be. They are not left to the exercise of their own judgment; on the contrary, they give their vote, or bind themselves to give it, according to the will of their constituents. They have degenerated into mere agents, in a case which requires no agency, and where the agent must be useless, if he is faithful, and dangerous if he is not.""

One commentator later said:

What demoted the electoral college from a deliberative body to a puppet show was the rise of political parties. As people began taking sides on public questions, they were unwilling to leave the crucial choice of the chief executive to a sort of lottery. Instead, each party publicly announced its slate of electors and the candidate they would support. This usurpation of the electors' functions, though peaceably achieved, amounted to a coup d'etat. It was an amendment of the written Constitution by the unwritten Constitution. The electors, while retaining the legal status of independence, became henceforth hardly more than men in livery taking orders from their parties.

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Today presidential electors are chosen by popular vote in every state (plus the District of Columbia), although the state legislatures retain the power to change this practice. They are nominated by state conventions of the political parties, state committees of the political parties, state primaries, the presidential nominees, or the Governor upon the recommendation of the state executive committees of the political parties. The states have various provisions regarding electors of new parties or electors pledged to specific candidates.

29 Senate Select Committee, Resolutions Proposing Amendments to the Constitution of the United States, S. Rep. No. 22, 19th Cong., 1st Sess. 4 (1826). 30 Schlesinger, Paths to the Present 114 (The Macmillan Company 1949).

In almost three-fourths of the states, the presidential short ballot is used. This ballot does not set forth the names of the electors but merely the expression "presidential electors for," followed by the names of the candidates for President and Vice-President. Some states list the candidates for President and Vice-President and below them the names of the electors. A mark in the appropriate box designates a vote for the entire slate of electors of one party. A few states list the names of the electors but not the presidential candidates.

It can be fairly said that most voters do not know the names of the electors for whom they vote and in whose hands they place the choice of President and Vice-President.

Electors voting contrary to instructions

Although electors usually have voted for their party candidates, there have been several occasions on which they have voted contrary to expectations. The most notable cases have occurred in this century.

In 1948 a Tennessee elector running on both the Democratic and States' Rights tickets was elected as a result of the popular vote in Tennessee for the Democratic ticket. (The Democrats received 49.1 percent of the vote; the Republicans, 36.9 percent; and the States' Rights, 13.4 percent.) This elector, however, cast his electoral vote for the States' Rights candidate, as he had announced prior to the election that he would do.

In 1956 W. F. Turner of Alabama, a Democratic elector, voted for Judge Walter B. Jones of Alabama for President instead of for Adlai E. Stevenson and for Herman Talmadge of Georgia for VicePresident instead of for Estes Kefauver. Yet Stevenson and Kefauver had carried the state with 56.5 percent of the popular vote.

In 1960 Henry D. Irwin of Oklahoma, a Republican elector, voted for Democratic Senator Harry F. Byrd of Virginia for President and Republican Senator Barry H. Goldwater of Arizona for VicePresident. Yet the Republican candidates, Richard M. Nixon and Henry Cabot Lodge, had carried Oklahoma by more than 162,000 popular votes (or 59 percent of the total cast in Oklahoma).

Other cases are: In 1820 a New Hampshire elector voted against his party's candidate and for John Quincy Adams, who was not even running for office; in 1824 the electors of North Carolina were pledged to two presidential candidates, Jackson and Adams, with the understanding that they would vote for the candidate with the best chance; and in 1912 the Theodore Roosevelt slate of electors in South Dakota

declared before election that they would vote for Taft if Roosevelt could not be elected and the contest was between Taft and Wilson. In view of the possibility of elector defection, a few states have passed laws requiring electors to vote for their party nominees. The constitutionality of these laws has never been passed on by the Supreme Court.31

Unpledged electors

The laws of several states permit the election of a slate of unpledged electors if they are nominated in the party primaries. These electors can vote as they please. Thus, in 1960 six unpledged electors from Alabama and eight unpledged electors from Mississippi cast their votes for Senator Harry Byrd for President. In 1964 the Democratic electors of Alabama were unpledged. Because the names of the Democratic national candidates did not appear on the ballot, the people of Alabama had no opportunity to vote for them.

As previously indicated (p. 23), the Framers did not contemplate pledged electors. Yet unpledged electors are a serious threat to the stability of the American electoral system. The use of unpledged electors is a device which could frustrate completely the public will. If unpledged electors held the balance of power, they could dictate the outcome by voting for either major candidate, or they could throw the election into the House of Representatives by voting for a third candidate.

This peril in our system, coupled with the ability of a pledged elector to vote against his party's candidates, was underscored during the 1961 hearings before the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee." The record indicates that between the election on November 8, 1960, and the meeting of the electors on December 19 Republican elector Irwin participated in a movement that was designed to elect a President other than Kennedy or Nixon. The plan focused on getting electors of both parties, plus unpledged electors, to join together so that neither major candidate

31 See State v. Hummel, 150 Ohio St. 127, 80 N.E. 2d 899 (1948); Opinion of the Justices No. 87, 250 Ala. 399, 34 So. 2d 598 (1948), holding invalid a statute binding electors. A contrary dictum is found in Matter of Thomas v. Cohen, 146 Misc. 836, 841-42, 262 N.Y. Supp. 320, 331 (Sup. Ct. 1933). Cf. Ray v. Blair, 343 U.S. 214 (1952).

32 Hearings Before the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee on S.J. Res. 1, 2, 4, 7, 12, 16, 17, 23, 26, 28, 48, 96, 102, 113, 114, 87th Cong., 1st Sess. 596-656 (1961).