Constitution of the United States/Art. II/Sec. 1/Clause 2 Electors

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Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment Fundamental Freedoms
Second Amendment Right to Bear Arms
Third Amendment Quartering Soldiers
Fourth Amendment Searches and Seizures
Fifth Amendment Rights of Persons
Sixth Amendment Rights in Criminal Prosecutions
Seventh Amendment Civil Trial Rights
Eighth Amendment Cruel and Unusual Punishment
Ninth Amendment Unenumerated Rights
Tenth Amendment Rights Reserved to the States and the People
Eleventh Amendment Suits Against States
Twelfth Amendment Election of President
Thirteenth Amendment Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment Income Tax
Seventeenth Amendment Popular Election of Senators
Eighteenth Amendment Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment Women's Suffrage
Twentieth Amendment Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment Congressional Compensation

Article II Executive Branch

Section 1 Function and Selection

Clause 2 Electors

Clause Text
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.

Overview of Electors Appointment Clause[edit | edit source]

Article II, Section 1, Clause 2, also known as the Electors Appointment Clause, provides for states to select electors to vote for the President and establishes that the number of each state's electors will equal the number of its Senators and Representatives.[1] The Framers adopted the Electors Appointment Clause as a compromise between the direct election of the President and his selection by Congress. Among the Framers' objectives was to provide for the President's selection by persons whose "sole purpose" would be choosing the best candidate for the President rather than by persons "selected for the general purposes of legislation."[2] Notwithstanding this electoral system, divorcing selection of the President from partisan politics proved elusive.[3]

Historical Background on Electors Appointments Clause[edit | edit source]

One of the key compromises of the Constitutional Convention was the appointment of electors to elect the President and Vice President. The delegates adopted the plan late in the Convention, having voted on four previous occasions for Congress to select the Executive and twice defeating proposals for direct election by the people.[4] As such, the Electors Appointment clause effected a compromise between selecting the President pursuant to a popular election or leaving Congress to determine the President. In his Commentaries on the Constitution of the United States, Justice Joseph Story explained that the Framers viewed having an electoral college select the President rather than Congress would commit the decision "to persons, selected for that sole purpose . . . instead of persons, selected for the general purposes of legislation"[5] and would avoid "those intrigues and cabals, which would be promoted in the legislative body by artful and designing men, long before the period of the choice, with a view to accomplish their own selfish purposes."[6]

While Justice Story noted that the Framers had viewed the electoral college as preserving the President from becoming "the mere tool of the dominant part in congress,"[7] the development of political parties during the early years of the Republic and their role in nominating presidential candidates and designating electors meant that electors, as a practical matter, were subject to partisan politics.[8] In 1826, Senator Thomas Hart Benton observed that, while the Framers had intended electors to be men of "superior discernment, virtue, and information," who would select the President free from partisan influence, "this invention has failed of its objective in every election . . . ." Senator Benton further explained: "That it ought to have failed is equally uncontestable; for such independence in the electors was wholly incompatible with the safety of the people. [It] was, in fact, a chimerical and impractical idea in any community."[9]

By 1832, almost all states had adopted popular presidential elections, and "[b]y the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors."[10] Instead, parties chose slates of electors, and states then appointed the electors proposed by the party whose presidential nominee won the popular vote statewide.[11]

State Discretion Over Selection of Electors[edit | edit source]

The Supreme Court has reasoned that the word "appoint" in Article II, Section 1, Clause 2, confers on state legislatures "the broadest power of determination."[12] In McPherson v. Blacker, the Supreme Court upheld a state law providing for electors to be selected by popular vote from districts rather than statewide.[13] Noting that states could choose from among a variety of permissible methods in selecting electors, the Supreme Court stated:

[V]arious modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by the legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways . . . .Id. at 28-29.

Although the Electoral College Clause seemingly vests complete discretion over how electors are appointed, the Court has recognized a federal interest in protecting the integrity of the electoral college process. Thus, in Ex parte Yarbrough, the Court upheld Congress's power to protect the right of all citizens as to the selection of any legally qualified person as a presidential elector.[14] In Yarbrough, the Court stated: "If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption."[15] In Burroughs & Cannon v. United States, the Supreme Court sustained Congress's power to protect the choice of electors from fraud or corruption.[16]

The Court and Congress have imposed limits on state discretion in appointing electors. In Williams v. Rhodes,[17] the Court struck down a complex state system that effectively limited access to the ballot to the electors of the two major parties. In the Court's view, the system violated the Equal Protection Clause of the Fourteenth Amendment because it favored certain individuals and burdened the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice. The Court denied that the Electoral College Clause immunized such state practices from judicial scrutiny.[18]

Whether state enactments implementing the authority to appoint electors are subject to the ordinary processes of judicial review within a state, or whether placement of the appointment authority in state legislatures somehow limits the role of state judicial review, became an issue during the controversy over the Florida recount and the outcome of the 2000 presidential election. The Supreme Court did not resolve this issue, but in a remand to the Florida Supreme Court, suggested that the role of state courts in applying state constitutions may be constrained under Article II, Section 1, Clause 2.[19] Three Justices elaborated on this view in Bush v. Gore,[20] but the Court ended the litigation--and the recount--on the basis of an equal protection interpretation, without ruling on the Article II argument.

Legal Status of Electors[edit | edit source]

Electors are not "officers" by the usual tests of office.[21] In 1890, the Supreme Court addressed the constitutional status of electors, stating:

The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress.In re Green, 134 U.S. 377, 379-80 (1890).

Electors have neither tenure nor salary and having performed their single function they cease to exist as electors. This function is, moreover, "a federal function,"[22] because electors' capacity to perform results from no power which was originally resident in the states, but instead springs directly from the Constitution of the United States.[23]

In the face of the proposition that electors are state officers, the Court has upheld the power of Congress to act to protect the integrity of the process by which they are chosen.[24] But, in Ray v. Blair, the Court clarified that although electors "exercise a federal function[,] . . . they are not federal officers or agents."[25] Instead, the Constitution provides that they act under state authority.[26]

Discretion of Electors to Choose a President[edit | edit source]

The Constitution does not prohibit electors from casting their ballots as they wish and occasionally electors have done so.[27] In 1968, for example, a Republican elector in North Carolina chose to cast his vote for George Wallace, the independent candidate who had won the second greatest number of votes rather than for Richard M. Nixon, who had won a plurality in the state. Members of the House of Representatives and the Senate objected to counting that vote for Mr. Wallace, insisting that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast.[28] More recently, the 2016 election saw a historic number of faithless electors, with seven electors recorded voting for someone other than their party's nominee.[29]

To prevent so-called "faithless electors" from departing from the preferences expressed by voters, most states require electors to pledge to support their parties' nominees.[30] In Ray v. Blair, the Supreme Court rejected a constitutional challenge to a party rule requiring elector candidates to pledge that they would support the nominees elected in the primary in the general election.[31] The Court first concluded that excluding electors who refuse to pledge their support for the party's nominees was "an exercise of the state's right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose."[32]

The Court also concluded that the pledge requirement did not violate the Twelfth Amendment, rejecting the argument that "the Twelfth Amendment demands absolute freedom for the elector to vote his own choice, uninhibited by a pledge."[33] Noting the long-standing practice supporting the expectation that electors will support party nominees, the Court said that "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, Article II, Section 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."[34]

Ray left open the question of whether states could enforce these pledge requirements through sanctions--a question later considered in Chiafalo v. Washington.[35] In Chiafalo, the Court considered a Washington law that provided that electors who failed to comply with a pledge to vote for their party nominees would face a civil fine.[36] Three electors who were fined after breaking their pledge in the 2016 presidential election challenged the law.[37] The Supreme Court confirmed that a state's power to appoint an elector includes the "power to condition his appointment,"[38] and further clarified that as long as no other constitutional provision prohibits it, the state's appointment power also "enables the enforcement of a pledge" through a law such as Washington's.[39] The Court emphasized that the "barebones" text of Article II and the Twelfth Amendment provide only for "[a]ppointments and procedures" and do not "expressly prohibit[ ] States from taking away presidential electors' voting discretion."[40] Finally, the Court recognized that historical practice supported Washington's law, as electors "have only rarely exercised discretion in casting their ballots for President" and "[s]tate election laws evolved to reinforce" this practice.[41]

  1. See McPherson v. Blacker, 146 U.S. 1, 35 (1892) (holding that this clause confers "plenary power to the state legislatures in the matter of the appointment of electors"); see also Fitzgerald v. Green, 134 U.S. 377, 379 (1890) ("By the constitution of the United States, the electors for president and vice president in each state are appointed by the state in such manner as its legislature may direct.").
  2. 3 Joseph Story, Commentaries on the Constitution of the United States § 1450 (1833).
  3. See Art. II, Sec. 1, Cl. 2: Historical Background on Electors Appointments Clause.
  4. 1 The Records of the Federal Convention of 1787, at 21, 68-69, 80-81, 175-76, 230, 244 (Max Farrand ed., 1911); 2 id. at 29-32, 57-59, 63-64, 95, 99-106, 108-15, 118-21, 196-97, 401-04, 497, 499-502, 511-15, 522-29. See also 3 Joseph Story, Commentaries on the Constitution of the United States § 1449 (1833).
  5. Id., at § 1450.
  6. Id.
  7. Id.
  8. See James Ceaser, Presidential Selection: Theory and Development (1979); Neal Pierce, The Peoples President: The Electoral College in American History and the Direct-Vote Alternative (1968).
  9. S. Rep. No. 22, at 4 (1826).
  10. Chiafalo v. Washington, No. 19-465, slip op. at 4 (U.S. July 6, 2020).
  11. Id.
  12. McPherson v. Blacker, 146 U.S. 1, 27 (1892).
  13. Id.
  14. Ex parte Yarbrough, 110 U.S. 651 (1884).
  15. Ex parte Yarbrough, 110 U.S. 651, 657-58 (1884) (quoted in Burroughs & Cannon v. United States, 290 U.S. 534, 546 (1934)).
  16. Id.
  17. 393 U.S. 23 (1968).
  18. The Court stated: "There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution . . . . [It cannot be] thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws . . . . Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions." Id., at 29.
  19. Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 78 (2000) (per curiam) (remanding for clarification as to whether the Florida Supreme Court "saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2").
  20. Bush v. Gore, 531 U.S. 98, 111 (2000) (Rehnquist, CJ., Scalia & Thomas, JJ.). Relying in part on dictum in McPherson v. Blacker, 146 U.S. 1, 27 (1892), the three Justices reasoned that, because Article II confers the authority on a particular branch of state government (the legislature) rather than on a state generally, the customary rule requiring deference to state court interpretations of state law is not fully operative, and the Supreme Court "must ensure that postelection state-court actions do not frustrate" the legislature's policy as expressed in the applicable statute. 531 U.S. at 113.
  21. United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).
  22. Hawke v. Smith, 253 U.S. 221 (1920).
  23. Burroughs & Cannon v. United States, 290 U.S. 534, 535 (1934).
  24. Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs, 290 U.S. 534.
  25. 343 U.S. 214, 224 (1952).
  26. Id. at 224-25.
  27. See Neal Pierce, The Peoples President: The Electoral College in American History and the Direct-Vote Alternative 122-24 (1968).
  28. 115 Cong. Rec. 9-11, 145-71, 197-246 (1969).
  29. See, e.g., Alexander Gouzoules, The "Faithless Elector" and 2016: Constitutional Uncertainty after the Election of Donald Trump, 28 U. Fla. J.L.& Pus. Pol'y 215, 217 (2017).
  30. Chiafalo v. Washington, No. 19-465, slip op. (U.S. July 6, 2020).
  31. Ray v. Blair, 343 U.S. 214, 222, 231 (1952). The party rule was adopted under the authority of an Alabama law authorizing parties to determine the qualifications of primary candidates and voters. Id. at 222.
  32. Id. at 227.
  33. Id. at 228.
  34. Id. at 230.
  35. Chiafalo, No. 19-465. In a companion case, the Supreme Court summarily reversed a Tenth Circuit decision ruling a Colorado faithless-elector law unconstitutional. Colo. Dep't of State v. Baca, No. 19-518, slip op. (U.S. July 6, 2020) (per curiam). The penalties in the Colorado case were different from a fine: after failing to honor his pledge, an elector's vote was vacated and he was removed as an elector. Baca v. Colo. Dep't of State, 935 F.3d 887, 904 (10th Cir. 2019).
  36. Chiafalo, No. 19-465
  37. Id.
  38. See id. at 9. See also id. at 9 n.4 ("A State, for example, cannot select its electors in a way that violates the Equal Protection Clause. And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause, see Art. II, Sec. 1, Clause 5 Qualifications.").
  39. Id. at 10.
  40. Id.
  41. Id. at 13, 16.