LIMITATIONS ON CHOICE OF "APPOINTMENT" PROCESS Granting the paramount authority of the respective States to choose the method of "appointment" of Presidential electors but taking into account the established impact of the equal protection clause of the fourteenth amendment as a limitation on the function of the popular election process, it is quite likely that such a clause, in the event the question ever arises, would be held to be a limitation on the State "appointment" process generally and that any discriminatory "appointment" procedure would be struck down. McPherson v. Blacker, however, is clear authority that the fourteenth amendment has not "frozen" the popular election as the only proper method of "appointment" of Presidential electors.20 22 Perhaps one question of practical concern is whether a State may set up a discriminatory districting system and "appoint" electors on the basis of popular elections on a districtwide basis. In Colegrove v. Green," on an attack of a districting system for the election of Members of the House of Representatives, the Court ruled that no justiciable contoversy was presented, that such was a political question which must be dealt with by the Congress under its authority to secure fair representation by the States and by the House itself under the power conferred upon it to be the judge of the elections and qualifications of its members.2 Apart from the substantial limits imposed upon the rule of Colegrove v. Green by Gomillion v. Lightfoot,23 a decision of the Court in its current term, it is doubtful that the absence of similar constitutional provision with respect to the elections and qualifications of Presidential electors renders State action free from limitation. Rather, it seems likely that any patently discriminatory plan would be struck down by the ubiquitous equal protection clause. There seems little doubt that this clause of the fourteenth amendment constitutes a limitation on the respective State legislatures in all of the process of "appointment" of Presidential electors. THE PRESENT SYSTEM Today, all States have chosen to "appoint" Presidential electors by means of a statewide popular election." Prior to the election, each political party certifies its slate of nominated electors to the appropriate State official. 25 20 "If because it happened, at the time of the adoption of the fourteenth amendment, that those who exercised the elective franchise in the State of Michigan were entitled to vote for all the Presidential electors, this right was rendered permanent by that amendment, then the second clause of art. II has been so amended that the States can no longer appoint in such manner as the legislatures thereof may direct; and yet no such result is indicated by the language used nor are the amendments necessarily inconsistent with that clause. There is no color for the contention that under the amendments every male inhabitant of the State being a citizen of the United States has from the time of his majority a right to vote for Presidential electors." McPherson v. Blacker, supra note 1 at 38. 21 328 U.S. 549 (1946). 22 Constitution art. I, secs. 4-5. 23 364 U.S. 339 (1960). A complaint alleging that a local act redefining the municipal boundaries of Tuskegee, Ala., had as its purpose the removal from the city of substantially all Negro voters was held to have stated a cause of action. Colegrove v. Green was distinguished as involving an alleged discriminatory apportionment resulting from legislative inaction. While the decision of the Court in Gomillion v. Lightfoot rested on the fifteenth amendment, Mr. Justice Whittaker, in concurring, felt that the "equal protection" clause of the fourteenth amendment was determinative. 24 Nebraska and New Mexico, in lieu of providing for the direct election of electors, provide for administrative appointment of electors of the party of Presidential and Vice Presidential candidates successful at the polls. Rev. Stat. Neb. § 32-4.104, § 32-546; N.M. Stat. (1953) 3-10-2. 25 In the State of Pennsylvania, the nominee for President of the national convention of each party nominates the slate of electors for his party. 25 Pa. Stat. Ann. § 2878. Within existing constitutional provisions, this would appear to be the most effective restraint on the exercise of elector discretion. 28 The artificial nature of the function of the elector is illustrated by the fact that statutes in 32 States 26 require or permit the names of the party candidates for President and Vice President to appear on the ballot in lieu of the names of the nominees for the office of elector." In 14 other States the names of the prospective electors, together with the names of the candidates, appear on the ballot. In the former States a vote for particular candidates is deemed a vote for their party's slate of electors. 29 The States of Arkansas and Georgia until recently dealt with the issue in a manner similar to the States first above referred to. However, Arkansas in 1959 and Georgia 30 in 1958 enacted legislation providing that only the names of the respective parties and nominees for electors were to appear on the ballot, specifically providing that the names of the candidates for President and Vice President were not to appear on the ballot. Although this legislation is obviously intended to limit the control of the National Democratic Party, its effect is to return a measure of importance to the office of Presidential elector. STATE CONTROL OF PRESIDENTIAL ELECTORS 32 Each State has the power to require reasonable qualifications of candidates for State office.31 Clearly, arbitrary and unreasonable qualifications, those not designed to serve a legitimate purpose, could be successfully contested as violative of the fourteenth amendment. Since it has been determined that a Presidential elector, although he performs a Federal function, is a State officer, no distinction can be imagined which would support any different treatment of State power to require qualifications of Presidential electors subject to the same limitation." And the possibility of qualifications varying from State to State would be no basis for the denial of State power. 33 Is the forfeiture of elector discretion a legitimately imposed qualification? If so, is it enforceable? In Ray v. Blair" the question arose whether the Alabama State Democratic 26 Laws of Alaska, 1960, ch. 83, secs. 3.03, 6.05; Calif. Elections Code, Ann. §§ 3804, 3805; Colo. Rev. Stat. (1953) 49-9-1; Conn. Gen. Stat. Ann. § 9-175 (optional with secretary of state); 15 Del. Code Ann. 4502, 4951, 5704; Fla. Stat. Ann. §§ 103.021, 103.11; Ill. Ann. Stat. ch. 46, § 21-1; Ind. Stat. Ann. § 29-3902; Iowa Code Ann. §§ 49.32, 54.2; Ky. Rev. Stat. Ann. § 118.170; La. Stat. Ann.-Rev. Stat. 18: 1168 (voting machine, but voter must be accorded means to split vote); Me. Rev. Stat. (1954), c. 5, §§ 77, 78; Ann. Code Md. art. 33, §§ 94, 154; Mass. Gen. Laws Ann. c. 54, §§ 43. 78; Mich. Stat. Ann. §§ 6.1706, 6.1045; Minn. Stat. Ann. § 208.04; Ann. Mo. Stat. § 111.420; Rev. Stat. Neb. $32-422; Nev. Rev. Stat. 296.175, 298.020; N.H. Rev. Stat. 5933; N.J. Stat. Ann. 19.14– 8.1 N.M. Stat. (1953) 3-10-2; Cons. Laws N.Y. Election Law § 248 (voting machine, but see § 259, where device must be furnished whereby voter may split vote or write in candidates for elector); Gen. Stat. N.C. §§ 163-108, 163-155; Ohio Rev. Code § 3505.10; 25 Pa. Stat. Ann. § 2963; Gen. Laws R.I. (1959 Supp.) § 17-19-3 (voting machine, but means must be furnished to split vote or write in candidates); Stat. Tex. Ann. Election Code, arts. 6.05. 11.02; Utah Code Ann. § 20-7-5; Rev. Code Wash. 29.71.020; W. Va. Code (1955) 97; Wis. Stat. Ann. 6.23, 11.03, 9.04. In Thomas v. Cohen, 146 Misc. 836, 262 N.Y.S. 320 (1933) and State v. Myers, 132 Ohio 18, 4 N.E. (2d)_397 (1936), the constitutionality of such a requirement was unsuccessfully contested. But re the former, see note 44. 28 Ariz. Rev. Stat. (1956) § 16-845; Idaho Code § 34-904; Kan. Gen. Stat. (1949) § 25-603; Miss. Code Ann. § 3107.5 (also permits any political party to enter slate of unpledged electors); Rev. Code Mont. (1947) § 23-2101; N.D. Rev. Code (1943) 16-1106; 26 Okla. Stat. Ann. § 513; Ore. Rev. Stat. 250: 110; Code Laws S.C. § 23-309 (names of Presidential and Vice Presidential candidates included at option of party); S.D. Code (1939) § 16.1105; Tenn. Code Ann. § 2-1210; 17 Vt. Stat. Ann. § 794 (names of Presidential and Vice Presidential candidates added at option of party); Code of Va. (1960 Supp.) § 24 § 290; Wyo. Stat. (1957) § 22-301. Where paper ballots are used in the States of Louisiana and New York, the names of the candidates for President and Vice President appear on the ballot with the names of the candidates for the office of elector; La. Stat. Ann.-Rev. Stat. 18:624: Cons. Laws N.Y. Election Law § 107 (must also provide separate column for write-in candidates). 20 Arkansas Statutes (1959 Supp.) §§ 3-325, 3-328. 30 Ga. Code Ann. §§ 34-2508 et seq. (temporary legislation expiring in 1962). 31 In a per curiam decision in Gerende v. Board of Suprs. of Elections of Baltimore, 341 U.S. 56 (1951), the court upheld a Maryland law requiring candidates for public offices in the State to take an oath that they are not engaged in an attempt to overthrow the Government by force or violence. 32 In re Green, supra, note 2; McPherson v. Blacker, supra, note 1. 33 Many States require that its electoral slate include at least one resident from each congressional district. 34 343 U.S. 214 (1952). Executive Committee might, pursuant to statutory authority, exact from candidates for nomination as Presidential electors a pledge to aid and support the nominee of the National Convention of the Democratic Party. In a 5 to 2 decision, the Court upheld the requirement of the pledge but refused to say that it would be enforceable, not refuting the contention that there existed "an assumed constitutional freedom of the elector under the Constitution, art. II, § 1 to vote as he may choose in the electoral college." However, it would seem that if the pledge were valid, but unenforceable, its only value would derive from the extent to which, by indirection, it accomplished a variance from the "assumed constitutional freedom" and this was the basis of the dissent. 36 37 38 In the States of Alaska, California, Idaho and Maryland," the electors are required by law to vote for the Presidential and Vice Presidential candidates of the party which they represent." In Virginia, the electors are by statute “ "expected" to vote for the nominees of the national convention of their party unless the State convention instructs otherwise, in which case the national convention may certify a slate of electors which is "expected" to so support its candidate. Oregon requires that each elector, prior to his nomination, must pledge to vote for the party nominees," and Alaska, in addition to the above stated requirement, requires that each party exact from its electors a pledge to vote for the party candidates.43 And there is little doubt but that the parties themselves, independent of statutory requirement, exert efforts to limit elector discretion. It would appear, however, that the overtones of Ray v. Blair cast some doubt as to the effectiveness, in the last analysis, of these State and party requirements. It has been suggested that, even absent legislative direction with respect to the vote of electors, the historical development of the function of the elector is such that he could now by law be compelled to cast his vote for the candidates of his party." Aside from the doubt raised by Ray v. Blair as to the availability of this remedy, the conclusion seems doubtful without some finding that the State legislature has so expressed its will. And where the State legislature has affirmatively indicated that a vote for a particular slate of electors is in no way to be interpreted as an endorsement of particular Presidential and Vice Presidential candidates, clearly, the elector would not be bound to so cast his vote. CONCLUSION The recent Arkansas and Georgia legislation and the closeness of the 1960 election suggest an interesting possibility. If any election were close enough so that unpledged or renegade electors could prevent either of the two major parties from obtaining a majority in the electoral college by casting their ballots for a third slate of candidates, the selection of a President would, under the twelfth amendment, be thrown into the House of Representatives. The House would then vote by State from among the three candidates receiving the highest number of electoral votes. The selection of a Vice President would be made by the Senate (voting by Members) from the two leading candidates. In both cases, election 35 Ibid. at 230. 36 Laws of Alaska, 1960, c. 83, § 6.09. 37 Calif. Elections Code Ann § 10555. 38 Idaho Code § 34-904. Ann. Code. Md., art. 33, § 156. 40 In 1951 Alabama repealed a 1945 law requiring electors to vote for the party nominees. The exacation of a pledge by the parties, which created the Ray v. Blair controversy, is apparently still authorized. Code of Alabama, tit. 17, § 345. 41 Code of Va. § 24-290.6. 42 Ore. Rev. Stat. 249.240. 43 Laws of Alaska, 1960, c. 83, § 6.04. 44 The electors are expected to choose the nominee of the party they represent, and no one else. So sacred and compelling is that obligation upon them, so long has its observance been recognized by faithful performance, so unexpected and destructive of order in our land would be its violations, that the trust that was originally conferred upon the electors by the people, to express their will by the selections they make, has, over these many years, ripened into a bounden duty as binding upon them as if it were written into the organic law. The elector who attempted to disregard that duty could, in my opinion, be required by mandamus to carry out the mandate of the voters of his State. Thomas v. Cohen, supra, note 27 at 841, 326. Compare, however, the statement of the court in State v. Hummel, 150 Ohio 127. 80 N.E. 2d 899 at 909 (1948): “Ohio is entitled to 25 Presidential electors to be elected at the 1948 general election. Each one of the 25 elected may vote as he pleases for any person eligible for the office of President or Vice President of the United States. It is only by force of a moral obligation, not a legal one, that the Presidential electors pledged to certain candidacies fulfill their pledges after election." must be by a majority. In the event the House, whether because of loss of votes due to divided State delegations or because of support for the third candidate, could not cast 26 votes for one of the candidates, the Vice President selected by the Senate would serve as President until the House could take action," which conceivably might never occur during the ensuing 4 years. Clearly, the dissent in Ray v. Blair is correct in concluding that the prevalence of pledges of Presidential electors would strip the office of all freedom of action. But this, absent these pledges, with little exception, has been, to modern memory, the history of the electoral college and perhaps the majority decision can be justified in that it takes judicial notice of the mere formalism of the electoral college and much can be said for preventing the electoral college device from frustrating the will of the people. But the dissent seems on sound grounds questioning whether this is a basis for constitutional interpretation. Perhaps the time has come for the Congress and the people, via the constitutional amendment process, to take "judicial notice" of the fiction known as the electoral college. None can deny that conditions existing at the time of the adoption of the Constitution which discouraged its framers from lodging the choice of the Executive with the people no longer exist and that the choice of a President under any new system must result from a popular election. The first solution that comes to mind its the complete abolition of the electoral system and the selection of a President and Vice President at a nationwide popular election. However, the practicalities of the situation require us to dispense with this rather summarily. The present system accords to the less populous States a disproportionately greater voice in the electoral college and it is wishful thinking to suppose that they would surrender this. What clearly could be accomplished is the death of the office of elector itself and the birth of popular participation in the selection of a President and Vice President as a constitutional right. Only very occasional support for the principle of elector discretion is observed and every State today "appoints" electors at a popular election. The President and Vice President could be chosen by electoral votes, the allocation of which would be automatically determined by the various State popular elections. Any amendment should also abandon, or at least vary to achieve a more equal representation of the popular voice, the present function of the House of Representatives and the Senate. If abandoned, the new system would necessarily entail election by a plurality of electoral votes. 46 Insofar as the distribution of electoral votes among the candidates is concerned, perhaps the suggestion with the greatest support is that the Constition be amended so that the electoral vote in each State be distributed to the candidates in proportion to their success at the polls. It is pointed out that this would eliminate the longstanding lack of attention given by candidates as well as officeholders, to the "sure" States and bring down to realistic proportions the importance of the few "pivotal" States. A few problems, however, come to mind. While it is true that under such a system a third-party candidate could not swing the entire electoral vote of a State from one to the other of the principal candidates, it is quite possible that the proportionate distribution of electoral votes feature (with its necessary concomitant, election by plurality) would nurture the development of many "third" parties. Further, only the most undesirable aspect of the Federal feature of the present system would be retained, if not accentuated. Nevada would still have a disproportionately strong voice in the selection of a President but it would not speak with one voice as the State of Nevada. Absent the latter, there is little, if any, justification for the former. And inasmuch as the "single-party" States are by and large within the smaller State group, the influence of such a group would be increased relative to that of the more populous States where a close division between the two major parties would prevent any sizable swing of electoral votes." 47 Perhaps a new constitutional scheme for the selection of a President and Vice President, representing a compromise between a completely proportionate 45 Twentieth amendment, § 3. 46 Kefauver, "Proposed Changes in the Presidential Election System," 1 Vand. L. Rev. 396 (1948); Vandenbosch, "The Need for Some Constitutional Changes," 37 Ky. L. J. 343 (1949); Wechsler, "Presidential Elections and the Constitution: A Comment on Proposed Amendment," 35 Á.B.A.J. 181 (1949). 47 See Wechsler's article, supra, note 46. 48 allocation of electoral votes and the retention of all aspects of the Federal feature, is in order. A portion of each State's electoral votes, for example, onethird, could be cast for the candidate receiving the greatest number of votes at the popular election while the balance could be allocated on a proportionate basis. To be of any significance insofar as the smaller States are concerned this would, of course, require a proportionate increase in the number of each State's electoral votes. It would seem that this solution would do less violence to established sets of relative values and at the same time be less unpalatable to those States content with the present, not wholly satisfactory, system for the distribution of electoral votes. (The following is reprinted from U.S. News & World Report, July 11, 1960, p. 100:) WILL THE SOUTH DECIDE THE '60 ELECTION?-IN DEADLOCKED ELECTION, SOUTH'S POWER "WOULD BE FORMIDABLE"-"ELECTORAL VOTE: SOUTH'S ONLY EFFECTIVE WEAPON" It isn't being talked up now, but Keep an eye on key States of the South, once the national conven- Strategy is all set, if 1960 nominees are unacceptable to the Strategy: Throw the election into the House of Representatives, Heart of the Southern plan is the use of Presidential electors. Following are excerpts from an article, “Presidential Elections ; We in the South are engaged in a great constitutional struggle to preserve our way of life, not in some trivial game. Every known stratagem is being employed against the South in this struggle, including appeals to our strong sense of loyalty to the Democratic Party. To prevail, we must be prepared, if the need is felt, to utilize any legal weapon available. To use the electoral system as a weapon, if this decision be made, would merely be calling to our aid provisions of the Constitution of the United States designed to accomplish our aim, namely, the election to the highest office in our Nation of the best qualified The Constitution of the United States provides that the person elected President of the United States must receive a majority of the whole number of electors appointed [that is, the electors chosen by voters in the general election]. Since the total number of electors to be appointed (elected) by the 50 States of the Union this November will be 537, a person to be elected President must receive the electoral vote of a minimum of 269 electors. The 11 Southern States will appoint the following number of electors: Between them, these States will appoint a total of 128 electors. What a political weapon these electors represent. 48 In the interest of preventing an undue fragmentation of the two-party system, Wechsler favors a proposal of Senator Norris to require a successful candidate to receive 35 percent support in the electoral college and, absent such support, selection by a majority of the numbers of Congress on joint ballot; supra, note 46. This would seem to be a sound feature of any amendment. |