Most democratic nations on earth elect their presidents by direct popular vote, but that was never the American system and still is not. We use the so-called “Electoral College” system to choose our president, which today means that 538 Electors drawn from the states and the District of Columbia speak for the rest of us. This is a complex and non-uniform state-based process, designed—like the U.S. Senate, which was originally composed of Members chosen by state legislatures, not the people—to filter public opinion through a “deliberative” intermediate institution. But the Electoral College has produced recurring political controversy over the centuries and also experienced significant constitutional, legislative, and political upheaval and revision. Today few people would consider the Electoral College to be a “deliberative” body as it was once imagined because the Electors are appointed mechanistically to winners according to vote totals in the states. Although the Electors meet in their state capitals at a December date set by Congress to cast their ballots, in practice they simply follow the election returns and never conduct substantive discussion or debate about who should be president. Still, the Electors do possess the legal prerogative to vote as they wish, and under extraordinary circumstances they might exercise that prerogative to change the expected outcome dictated by popular election returns.
The colloquially-named Electoral College arises from Article II, Section 1, Clauses 2 and 3, which state that:
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.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Under the further original provisions of Article II, Electors cast ballots not for one candidate for president but for two, with the second-place finisher becoming vice-president. No one originally expected that there would be national parties that nominated candidates and slated a ticket for president and vice-president. The strange two-vote feature nevertheless led almost immediately to a serious political crisis in the election of 1800 when Democratic-Republican Thomas Jefferson defeated Federalist John Adams 73-65 in the Electoral College but then tied his own nominal running mate, Aaron Burr, 73-73. The mischievous Burr refused to stand down in the face of this embarrassing constitutional glitch, thus throwing the process into the U.S. House of Representatives under the so-called “contingent election” procedures in which each state’s U.S. House of Representatives delegation casts a single vote for president and the winner of the majority becomes president. The resulting contingent election in the House became a nightmare of its own when the lame-duck Federalist-controlled Congress took an exhausting six days and 36 ballots to choose Jefferson, who the Federalists ultimately considered the lesser of two evils.
The most glaring early bugs in the system—the real possibility of ties, the fact that the president and vice-president could represent different political parties as had happened when Adams and Jefferson served together in 1796—were ironed out by the Twelfth Amendment in 1804. But our unique Electoral College system has continued to shape the country’s politics in fundamental ways that both supporters and critics would agree depart from democratic norms.
Under Article II, the states are allotted a number of Electors equal to their Congressional delegation, which is the number of Representatives plus two for the Senators, but the actual Electors are appointed according to rules set exclusively by the state legislatures themselves. Today, 48 states appoint all of their Electors on a “winner take all” basis from slates provided by the top vote-getter in their statewide popular election for president. But two states—Maine and Nebraska—award the Electors by Congressional District and give their remaining two electoral votes to the statewide winner. Historically, there has been an even more dizzying variety in the systems developed in each state. In the first presidential election, five state legislatures—in Connecticut, Delaware, Georgia, New Jersey, and South Carolina—themselves simply designated presidential Electors without having any popular election at all. In four states, the voters elected all of the Electors. In Virginia, which had ten congressional districts, the General Assembly divided the Commonwealth into twelve presidential districts and conducted a popular election. In subsequent elections, there have been statewide elections, elections of Electors from single-member districts that mirror Congressional districts, elections of Electors from specially designed multi-member districts, elections in which only the Electors’ names appear on the ballot but not the names of the presidential candidates, elections in which the presidential candidates’ names appear on the ballot but not the names of the Electors, and even elections where the state legislatures have chosen not to appoint any Electors.
All of these variations are allowable under the constitutional design. As the Supreme Court wrote in McPherson v. Blacker (1892), which rejected a constitutional challenge to a Michigan law providing for selection of Electors by a district system, “the appointment and mode of appointment of Electors belong exclusively to the states under the constitution of the United States.” We have no uniform national system for appointing Electors, which means the legislatures do not have to consult the public at all. When members of the Florida legislature in 2000 threatened to abandon the results of the statewide popular contest and appoint Electors for a particular candidate, the Supreme Court in Bush v. Gore (2000) appeared to endorse their power to do so by denying that citizens have a constitutional right to vote in presidential elections. As the majority put it, “The individual citizen has no federal constitutional right to vote for Electors for the President of the United States. . .” When it comes to presidential elections, the voters are at the mercy of the state legislatures.
Although this lack of procedural uniformity has not proven especially controversial, this fact has: the Electoral College has periodically produced winners who clearly lost the national popular vote to an opponent. In at least five presidential elections—1824, 1876, 1888, 2000, and 2016—the presidential candidate who prevailed in the popular vote lost in the Electoral College. For example, in the disputed election of 2000, Vice President Al Gore received over 500,000 more votes than Governor George W. Bush did nationally, but lost to Bush in the Electoral College by a vote of 266 to 271, after the Supreme Court intervened, on equal protection claims, to halt a Florida Supreme Court order to recount ballots in some counties. Many people believe that the ability to carry the whole election by capturing this or that state—in our time it has been Florida and Ohio—increases the likelihood of strategic mischief and corruption in the electoral process.
Supporters of the Electoral College credit it with preserving an important dimension of state-based federalism in our presidential elections and argue that it works to guarantee that our Presidents will have nationwide support. Critics argue under current circumstances that it actually consigns most states in the Union to “spectator” status in presidential elections and drags down voter turnout in these states, reduces the real field of play to fewer than a dozen “swing states,” and dramatically polarizes the nation’s politics while reducing voter turnout. Proposed constitutional amendments for different plans for a direct popular election—some with a run-off provision in the event no candidate receives 40 percent in the first round—have to date made little headway.
A recent and unusual plan to work around the amendment process and address the problems of the Electoral College is the National Popular Vote Plan, which began in Maryland in 2007 and has since won support from a dozen other states. The idea is to form an interstate agreement for states to appoint their Electors for the winner of the national popular vote rather than the winner in each state. Champions of this plan assert that it would guarantee that there would be no more “wrong winners” and that every part of the Union would attract political investment and campaigning by the parties which today quickly abandon large parts of the country to their opponents while taking many other states for granted. Opponents say that the National Popular Vote plan actually defeats the state-based design of the Electoral College, could never be enforced if a state reneged on its promise, and is unconstitutional. Given the continuing polarization of American politics and background unhappiness with the Electoral College, it seems certain that the National Popular Vote plan and other reform proposals will continue to attract public attention and debate.
The creation of the office of the presidency at the Constitutional Convention in 1787 was one of greatest changes from the prevailing government under the Articles of Confederation. The Articles had no president or Supreme Court, only a Congress. The clauses of the Constitution under consideration for this essay outline four measures that were designed to promote an independent and responsible executive: the presidential selection system, presidential eligibility, compensation, and the oath of office.
The Presidential Selection System—The Electoral College:
The Electoral College established in Article II, Section I remains in effect, although it operates in a substantially different manner from what was originally envisaged. Much can nevertheless be learned from examining the Founders’ intentions, as there can be no doubt of just how important the selection of the president was to their design of the new government. It is seldom observed that the Electoral College is the fourth national institution created by the Constitution, going along with the Congress, the presidency, and the Court. Its aim was to govern the entirety of the process of selecting the president and vice president, from the initial function of identifying and winnowing the candidates to the final stage of electing these officers (except when, for lack of a majority, the decision of choosing the president is given to the House of Representatives and the vice president to the Senate). The initial function of winnowing the candidates effectively escaped constitutional governance with the formation of political parties in the early nineteenth century. This task, known now as nomination, is performed by the parties and by state laws and primaries.
The Founders had four main objectives for the Electoral College. First, the Electoral College was created to provide the presidency with its own base of support. The plan was the alternative to another method proposed at the Convention, the selection of the president by Congress, which would have risked making the executive subservient to the legislature.
Second, the Founders sought to supply a basis of popular legitimacy for the president. The Electoral College, under which the Electors would be chosen either by the people or the state legislatures, was under the circumstances of the day a quite popular process. The system, it was thought, would ordinarily hear the public voice.
Third, even with this popular input, the Electors were still representatives having the discretion to choose among the most fit of the candidates. The Founders were especially concerned about the dangers involved in the selection of the president, and they counted on the Electors to block the election of a demagogue. No threat was graver than this to the survival of the constitutional system.
Finally, the Electoral College system was meant to channel the energies of the major political figures who had thoughts of achieving the highest office. If the choice of the president was restricted to those who had a proven record of service, a signal would be sent to all the hopefuls to pursue a serious political career and avoid engaging in what Alexander Hamilton dismissively referred to as “the little arts of popularity.”
Presidential Eligibility—The Eligibility Clause:
The Eligibility Clause establishing the criteria of eligibility for the presidency reflected two concerns. The first is to avoid the possibility of divided loyalty on the part of the president. As the president is the most important single official of the government and the one with the major responsibility for conducting affairs with foreign nations, a perfect fidelity to the nation, and to no other country, becomes an essential objective. Even the public suspicion of divided loyalty can sap confidence in the presidency. The Founders accordingly required that, in the future, the president must be a natural-born citizen—that is, not an immigrant—and a resident in the United States for fourteen years before being elected—that is, someone who has not moved to live abroad. Many have questioned this one difference that is created between the status of born and naturalized citizens. It is a measure of the Founders’ concern for removing doubts about the president’s full attachment to the nation.
The second criterion of eligibility is the age requirement of 35 years, five years greater than that of a senator and 10 years of a member of the House. The higher age for the presidency was meant to increase the likelihood that the president would have acquired experience relevant to governing and, returning to the question of presidential selection, that the public and Electors would have a record for judging the candidates. In fact, the minimum age seems to have undershot considerably what the American public has preferred. The youngest person to become president was Theodore Roosevelt, who ascended at age 42 to the presidency from the vice-presidency following the death of William McKinley. John Kennedy was the youngest elected to be president at 43.
These two requirements for eligibility are the only ones in the original Constitution and naturally lead one to think of the many possibilities that do not apply: ethnicity, race, gender, religious affiliation (explicitly excluded in Article VI, Clause 3), and property qualifications. This Clause is also the one that resolved—silently—the question of the number of terms a president can serve. The Founders placed no limits on the length of service. This was changed by the Twenty-Second Amendment, ratified in 1951, which bars eligibility to a person elected to two terms (or one term and service as president for more than two years of the term of another person).
Presidential Compensation—The Compensation Clause:
The Compensation Cause likewise has two objectives. First, while the Constitution does not set a salary, it does say that the president shall be paid, obviating a proposal at the Convention that the president might serve without compensation, which would have restricted the presidency to persons of wealth or favorites of the wealthy. Second, once the Congress sets the compensation, it can neither be increased nor reduced during the time the president serves. Designed to protect the separation of powers and the president’s independence, this provision, in the colorful language of Alexander Hamilton in The Federalist No. 73, would prevent the legislature from attempts to “either reduce [the president] by famine or tempt him by largesses.”
This essay is part of a discussion about Article II, Section I with Jamin Raskin, U.S. Representative for Maryland's 8th Congressional District, Professor of Law at the American University Washington College of Law. Read the full discussion here.
The Presidential Oath of Office:
Section 1 of Article II concludes with the oath of office. Oaths are mentioned for other officers elsewhere in the Constitution (see Article VI), but only in the case of the presidency is the text of the oath spelled out. This fact, together with the president’s pledge to “the best of my ability to preserve, protect and defend the Constitution,” suggests a special connection between the president and the Constitution.
So the oath was understood by President Lincoln. In one of the most widely discussed texts ever written on the nature of presidential powers, Lincoln in a letter to Albert Hodges offered a commentary on the oath, which he understood to be both a limitation on the president’s authority and a kind of extraordinary grant of discretion. On the first count, Lincoln explained that notwithstanding his personal views of slavery, he felt bound by the oath to restrict his actions on this great matter only to what was permitted under the Constitution. “I understood,” he wrote, “that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery.” Yet he then immediately went on, in the letter’s most famous passage, to state how the oath guided him toward the broadest exercise of presidential discretion:
I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government – that nation – of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.
These four sentences raise the great question of the adequacy of following the letter of the law to achieving, under extreme circumstances, the good of the nation. Lincoln claimed to discover within the text of the Constitution, specifically in the oath, the answer to this most agonizing of dilemmas.
Abraham Lincoln, Letter to Albert G. Hodges (Apr. 4, 1864), in 7 The Collected Works of Abraham Lincoln (1953).
Article II, Section 1, Clause 2 of the U.S. Constitution opens by saying: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” This open-ended delegation of power to the states over the award of their Electoral votes creates a power in state legislatures that is “exclusive” and “plenary,” and the legislatures have exercised their power in a multiplicity of surprising ways to participate in presidential elections.
Today, there is a movement underway for a “National Popular Vote” (NPV) interstate compact, which hinges on creative and collaborative deployment of this robust state legislative power. The members of this compact coalition—Maryland (which launched the effort), along with California, Hawaii, Illinois, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington, and the District of Columbia—have all agreed to cast their state’s Electoral College votes for the winner of the national popular vote rather than the winner in their states. The Compact is activated when states representing 270 Electoral College votes agree to join. There are currently 165 Electoral votes represented in the Compact, more than half needed.
By tying the award of Electors to the results in the national popular election, the NPV would replace the current state-by-state competition with an effective national popular election, thereby (1) guaranteeing that the Electoral College winner is the popular vote winner, (2) establishing presidential elections in which every vote counts and every vote counts equally, (3) incentivizing presidential candidates to campaign all over America—even in safe-blue states like California, New York, and Hawaii, and safe-red states like Texas, Missouri, and Alaska—instead of just in the dozen or so “swing states” like Florida or New Hampshire, (4) dramatically increasing campaign activity in today’s 38 “spectator states” and driving up turnout everywhere, and (5) reducing the incentives for electoral corruption and strategic mischief in the handful of swing states, the kind of moral hazard that made the 2000 presidential election in Florida such a political debacle and international scandal.
Some critics of the National Popular Vote plan defend the way the Electoral College system is working today, with 48 states choosing to give all their Electors in presidential elections to the statewide first-place finisher in winner-take-all fashion, and two states—Maine and Nebraska—divvying up their Electors by Congressional District with the two bonus Electors going to the winner in the statewide vote. Defenders are not troubled by the fact that two of our last five presidents (George W. Bush and Donald Trump) lost the national popular vote, with President Trump losing it decisively to Hillary Clinton by more than 2.8 million votes. And some argue, somewhat dubiously, that candidates are forced to campaign all over the country under the current regime, a point that may be the opposite of the truth.
Other critics of the National Popular Vote plan make a constitutional argument, asserting that states do not have the power to enter such a compact because they are bound to cast their Electors only in accordance with how a plurality of the voters of the states prefer. This constitutional argument defies the plain language of Article 2, Section 1 and the actual history of its operation. The pervasive state-by-state winner-take-all method of awarding electoral votes is nowhere to be found in the Constitution, was never debated at the Constitutional Convention (as far as we can tell), and is not mentioned in the Federalist Papers. Furthermore, it was used by only three of our first thirteen states when our first presidential election took place in 1789—and all of them dropped it by 1800. In reality, the states have adopted a vast array of different approaches for awarding Electors, including: naming them in state law; appointing them in single-member congressional districts; assigning them by multi-member Congressional districts; giving the Governor the power to appoint them; giving the Governor and his cabinet the power to appoint them; giving the Governor and the lower house of the state legislature the power to appoint them; giving both houses of the legislature the power to appoint Electors in a concurrent resolution; or delegating the power to elect them to both houses of the legislature acting together in a joint convention. In some states the voters vote for Electors directly, and in others they vote for the presidential candidates.
This essay is part of a discussion about Article II, Section I with James W. Ceaser, Professor of Politics at the University of Virginia. Read the full discussion here.
The U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their Electors “exclusive” and “plenary.” The leading decision is McPherson v. Blacker (1892) in which the Court rejected a constitutional attack on Michigan’s plan for choosing Electors and held:
The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [the winner-take-all rule] nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. . . . In short, the appointment and mode of appointment of electors belong exclusively to the states under the Constitution of the United States.
The National Popular Vote plan unifies the states’ clear powers under Article II, Section 1 with their power to form interstate compacts with Congressional consent under Article I, Section 10. Given that the popular vote loser has prevailed in the Electoral College five times in our history—in 1824, 1876, 1888, 2000, and 2016—and given that the number of actively contested states in the general election has fallen to a tiny number in our polarized red-state-blue state nation, the National Popular Vote has both a sound constitutional basis and a compelling democratic logic.