NOMINATION AND ELECTION OF PRESIDENT AND VICE PRESDENT AND QUALIFICATIONS FOR VOTING APPENDIX DUTIES AND POWERS OF PRESIDENTIAL ELECTORS (By Mollie Z. Margolin, legislative attorney, American Law Division, OUTLINE OF CONTENTS Duties and powers under United States Constitution. Article II, section 1, clause 2. Twelfth amendment. Duties enumerated. Right to pledge their vote. Must an elector keep his pledge. Historical background. State law. Nomination. Pledge of electors. Special instructions to electors. Table-Nomination and election of Presidential electors-State law. DUTIES AND POWERS UNDER UNITED STATES CONSTITUTION Article II, section 1, clause 2 Article II of the United States Constitution provides : "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." Twelfth amendment The twelfth amendment to the Constitution of the United States provides: "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 the 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 ***" Duties enumerated The duties imposed upon the Presidential electors are clearly outlined in the twelfth amendment to the United States Constitution, supra: (a) To meet in their respective States; (b) to vote by ballot for President and Vice President of the United States (one of whom, at least, shall not be an inhabitant of the same State with themselves); (c) to name in their ballots the person voted for as President; (d) to use seperate ballots for President and for Vice President; (e) to make lists of persons voted for as President; (f) to make separate lists for President and for Vice President; (g) to enter number of votes on such lists; (h) to sign, certify, and transmit sealed such lists to Washington, D.C., addressed to the President of the Senate. Right to pledge their votes, as interpreted by U.S. Supreme Court "*** We consider the argument that the twelfth amendment demands absolute freedom for the elector to vote his own choice, uninhibited by a pledge. It is true that the amendment says the electors shall vote by ballot. But it is also true that the amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors-contemporaries of the Founders-would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the long standing practice. Indeed more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary. "***Surely one may voluntarily assume obligations to vote for a certain candidate *** "We conclude that the twelfth amendment does not bar a political party from requiring the pledge to support the nominees of the national convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge" (Ray v. Blair, 1951, 343 U. S. 214, 228-231). As far back as 1892, in the case of McPherson v. Blacker (146 U. S. 1, 36), the Court stated: "*** Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general tickets or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors the original expectation may be said to have been frustrated. Miller on Const. Law, 149; Rawle on Const. 55; Story Const. § 1473; The Federalist, No. 68. But we can perceive no reason for holding that the power confided to the States by the Constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created ***." Must an elector keep his pledge Does an elector who is pledged to one Presidential candidate, either by having filed papers so pledging himself or by having his name associated with such Presidential candidate on the general election ballot, have the power to cast his vote for another Presidential candidate in the electoral college? In the election of 1796, although two Federalist electors were elected in Pennsylvania, one of these electors voted for Thomas Jefferson who was a Republican. Nevertheless, such a vote was legal, was uncontested, and was counted for Jefferson. A description of the incident is contained in "A History of the Presidency from 1788 to 1897" (1916), by Edward Stanwood, at pp. 50–51: "One vote for Jefferson in Pennsylvania deserves notice, since it is believed to have been given by the only elector in the history of the country who has ever betrayed the trust reposed in him by those who supported him. The closeness of the vote in Pennsylvania already has been recorded, and the fact that two Federalist electors slipped in. One of the two voted for Jefferson and Pinckney. The treachery of this elector was the subject of an exceedingly plain spoken communication in the 'United States Gazette' from an exasperated Federalist. 'What!' he exclaimed. 'Do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chuse him to act, not to think.' *** 'At the election of 1796 the people had enjoyed the privilege of choosing the electors by popular vote' " (id., p. 60). Again in 1820, William Plumer, an elector from New Hampshire cast his vote for John Quincy Adams for President, instead of for James Monroe as was expected. (See "The Electoral Vote For John Quincy Adams in 1820," by C. O. Paullin, Amer. Hist. Rev., vol. 21, p. 318 (January 1916).) This vote was considered valid and was counted for Adams. For a history of the different methods used for appointing electors from 1788 to 1892, see McPherson v. Blacker (146 U. S. 29, 36). Although no case on this point has ever reached the courts, the Supreme Court of the United States did make a statement on the subject in Ray v. Blair (343 U. S. 214, 230 (1951)): "However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional ***.” From this statement we may conclude that although a pledge by an elector would be unenforceable, such a pledge is not unconstitutional. HISTORICAL BACKGROUND The following excerpts from weighty documents may serve to portray how the electoral system worked from its inception : "Under the Constitution electors are to vote for two persons, one of whom does not reside in the State of the electors; but it does not require a designation of the persons voted for. Wise and virtuous as were the members of the Convention, experience has shown that the mode therein adopted cannot be carried into operation; for the people do not elect a person for an elector, who, they know does not intend to vote for a particular person as President. There fore, practically, the very thing is adopted, intended by this amendment" (11 Annals of Congress 1289-1290, 7th Cong., 1st Sess. (1802)). "In the first election held under the constitution, the people looked beyond these agents [electors], fixed upon their own 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 faithful, and dangerous, if he is not. See 2 Story on the Constitution (5th ed., 1891) § 1463" (S. Rept. No. 22, 19th Cong., 1st sess. (1826), p. 4). "In the three elections of 1788-89, 1792 and 1796 there was a liberal scattering of votes, 13 persons receiving votes in 1796; but in 1800 there were only five names voted on. As early as 1792 an understanding was established between the electors in some of the different States that they should combine on the same man; and from 1796 on there were always, with the exception of the two elections of 1820 and 1824, regular party candidates. In practice most of the members of the electoral colleges belonged to a party, and expected to support it; and after 1824 it became a fixed principle that the electors offered themselves for the choice of the voters or legislatures upon a pledge to vote for a predesignated candidate" (III Cyclopedia of American Government (Appleton, 1914), "Presidential Elections," by Albert Bushnell Hart, p. 8). In 1876, James Russell Lowell declined to cast his electoral vote for Tilden instead of for Hayes as he had pledged he would. He wrote to Leslie Stephen as follows: "In my own judgment I have no choice, and am bound in honor to vote for Hayes, as the people who chose me expected me to do. They did not choose me because they had confidence in my judgment, but because they thought they knew what that judgment would be. If I had told them that I should vote for Tilden, they would never have nominated me. It is a plain question of trust" (Horace Elisha Scudder, "James Russell Lowell" (Boston, 1901), II, 216–217). Nomination STATE LAW The methods of nominating Presidential electors differ in the various States. Conventions. Of the 50 States studied, in the following States electors are |