View Full Version : Who Elects the President?
andyfox
11-11-2003, 12:47 AM
Do states have to hold presidential elections? Can't the state legislatures simply appoint electors?
Well if you read Article II of the constitution it is all spelled out in black and white. Please let me know what it means when you figure it out. But this was amended in Article X11. If you know what this means please let me know also.
If I read it correctly, we do not elect the president by a popular vote.
But in Article II, paragraph two, (the part not subject to the Article XII amendment) it does state that "Each state, shall appoint, in the manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives,….".
So, I assume that every state legislature has a "law " that says a majority popular vote for the presidential candidate is how the electors are appointed and the electors then vote for that candidate that won that state for president. But there appears to be no requirement that the electors vote the way the people do, at least not in the Constitution. Maybe it all goes by tradition and voting is part of that tradition.
Perhaps someone will clear this up. I am supposed to be doing work.
-Zeno
jstnrgrs
11-11-2003, 02:30 AM
As I understand it, the electors are chozen based on which candidate wins the state's popular vote.
All states except Maine and Nebraska opporate on a winner takes all (of the electors from that state) system.
There is no requirement that all electors vote the way the people do. In the early days of our country, there was one election in which one elector voted differently than he "should have". This was done in order to prevent James Monroe from being elected unnanomusly (sp?) (so that that honor would be reserved for George Washington alone.)
Today, the electors are party hacks, so there is no chance that a close election would be changed by an elector who changes their mind.
baggins
11-11-2003, 03:58 AM
i am familiar with the general information above. but...
how do the electors chosen?
andyfox
11-11-2003, 01:43 PM
Yeah, article II was a secrew-up. Thomas Jefferson and Aaron Burr tied in the election of 1800, when in reality Jefferson was running for President and Burr for Vice President. Jefferson schemed to get the presidency, even going so far as to threaten armed insurrection.
Very interesting new book by Garry Wills called The Negro President touches on this. Reading the book caused me to read over the relevant articles in the Constitution and I don't see anything that calls for popular election of the President.
ACPlayer
11-11-2003, 01:48 PM
It appears from the article that the legislature (i assume this is the state legislature) can decide to hold a lottery of all citizens and send the approprite numbers to the electoral college. There does not even have to be an election. Am I missing something /images/graemlins/confused.gif
MMMMMM
11-11-2003, 01:54 PM
"It appears from the article that the legislature (i assume this is the state legislature) can decide to hold a lottery of all citizens and send the approprite numbers to the electoral college. There does not even have to be an election."
I guess if that occurred it would be time to replace the state leglature come next election;-)
elwoodblues
11-11-2003, 02:11 PM
This is why some (not all) liberals were angry that the US Supreme Court heard the Bush v. Gore case...it is a decision that is supposed to be decided by the states.
Popular election is provided for the house of taxation. That should be enough. Now with popular elections, the senate is a second house of taxation with more pompousity. Indirect elections work well for a lot of things. The electoral college is great and should not be modified. We should get rid of popular elections for the senate tho, as I have argued before.
Wake up CALL
11-11-2003, 06:22 PM
[ QUOTE ]
This is why some (not all) liberals were angry that the US Supreme Court heard the Bush v. Gore case...it is a decision that is supposed to be decided by the states.
[/ QUOTE ]
This is false on it's face. I'll let others elaborate.
Dynasty
11-11-2003, 09:23 PM
[ QUOTE ]
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This is why some (not all) liberals were angry that the US Supreme Court heard the Bush v. Gore case...it is a decision that is supposed to be decided by the states.
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This is false on it's face. I'll let others elaborate.
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I'll elaborate. The demorcrats were actually upset because they feared the Supreme Court would rule in Bush's favor. If they thought the court would rule in Gore's favor, they would have been thrilled to see it go to the court.
andyfox
11-12-2003, 12:59 AM
Not quite.
It is inded true that Democrats were upset because they feared the Supreme Court would rule in favor of Bush. Especially since one of the "swing" votes had said "oh no" when she heard that Gore had won the election. Theirs was by no means a principled opposition, it was politics pure and simple.
However, democrats were upset when they heard it would go to the Supreme Court because A) there is no Constitutional provision for a presidential election to be decided by the Supreme Court; and B) they know that the current Supreme Court cares very little for democracy.
[ QUOTE ]
However, democrats were upset when they heard it would go to the Supreme Court because A) there is no Constitutional provision for a presidential election to be decided by the Supreme Court; and B) they know that the current Supreme Court cares very little for democracy.
[/ QUOTE ]
A) Was not the Supreme Court supposed to decide on vote counting and recounts and other voter procedures etc? This only indirectly "decided the election".
B) I, for one, am happy that the Supreme Court cares little for democracy. That is part of its function and it is a good one. Would desegregation of schools have come about by a vote or other important issues of freedom of speech or due process or privacy etc? Many Supreme Court decisions go against majority public opinion or the fashionable thought of the day. We must have at least one elite aristocratic institution to help keep the throbbing masses in check. The Court will abuse its power sometimes and make some bad decisions, but over the long term it has been a solid part of our government.
-Zeno
MMMMMM
11-12-2003, 01:59 AM
"I, for one, am happy that the Supreme Court cares little for democracy. That is part of its function and it is a good one."
Exactly right. The purpose of the judicial branch is to interpret our laws accurately, not make them. It is to clarify the framework of our democratic republic, not create it or alter it. Alterations are the sole province of the legislative branch (or of referendums on occasion).
jstnrgrs
11-12-2003, 02:11 AM
I'm not convinced that choosing random electors wouldn't be a better way to elect the president.
jstnrgrs
11-12-2003, 02:17 AM
As I understand it, they are usually chozen by a member of the winning candidate's party (for each state). For example, if in 2004 by some bizzare occurance, George Bush carried my home state of Massachusetts, Massachusetts' 12 electors might be chozen by our republican governor.
As is required by the constitution, each state legislature can make provisions how the electors are chozen (and I'm sure it varries from state to state.)
Wake up CALL
11-12-2003, 01:41 PM
[ QUOTE ]
Not quite.
It is inded true that Democrats were upset because they feared the Supreme Court would rule in favor of Bush. Especially since one of the "swing" votes had said "oh no" when she heard that Gore had won the election. Theirs was by no means a principled opposition, it was politics pure and simple.
However, democrats were upset when they heard it would go to the Supreme Court because A) there is no Constitutional provision for a presidential election to be decided by the Supreme Court; and B) they know that the current Supreme Court cares very little for democracy.
[/ QUOTE ]
Andy I did not see any democrats complaining about the Democratically controlled Florida State Supreme court determining the outcome of a national election. Even when they (The Florida Supreme Court) made obvious constitutional errors showing their partiality no democrats complained. Only after it was clear that an impartial decision was to be made regarding the Presidential election did the democrats cry foul. Seems a bit two faced to me.
You seem to think it should have been up the the Florida court to determine the President for the other 49 states in accordance with their prejudicial tendencies. Ok, let's allow Texas to determine our next President. How does that idea grab you? /images/graemlins/smile.gif
andyfox
11-12-2003, 01:52 PM
Maybe they didn't complain, but that's probably because there are very few democrats in leadership positions in either the Republican or Democratic party. When an election is at stake, democrats have a tendency to turn into Democrats (and Republicans). Had the Florida Supreme Court been Republican and the U.S. Supreme Court Democratic, does anybody doubt the two parties would have taken opposite arguments? Nobody was interested in democracy or the law, only in winning. Not unexpected, I think.
Only when it was clear that a partisan decision was to be made by the Supreme Court did Democrats complain. Everyone knew how the Supreme Court would rule. Ms. O'Connor has spilled the beans with her comment, and when they told Florida to stop counting before they made their decision, the cat was out of the bag. I think we're in agreement that the Democrats' arguments had very little, if anything, to do with democracy. But neither did the Republicans'.
andyfox
11-12-2003, 01:57 PM
"A) Was not the Supreme Court supposed to decide on vote counting and recounts and other voter procedures etc? This only indirectly "decided the election". "
I don't think so. I think the vote in each state is to be determined and certified in each state by the rules set up in the individual states. I think.
slamdunkpro
11-12-2003, 04:55 PM
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I don't think so. I think the vote in each state is to be determined and certified in each state by the rules set up in the individual states. I think.
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This is correct. The election law in Florida was VERY clear.
This is why the Supreme Court had to get involved. The Florida courts up to the FLA SC made a decision not based on law but on political desire. They in essence were legislating from the bench.
Some other points relevant to this thread:
In most states there is a law designating that Presidential electors shall be appointed by the head of the winning political party based on popular vote. The Electors are not bound by which party appointed them - they are free to vote as they wish. In fact one of the Electors from DC withheld her vote for Gore as a protest regarding DC statehood.
The reason that we don’t elect the president by popular vote is simple. The US is not a democracy; it’s a representative republic. The states on the other hand are a democracy. Therefore it’s the states that choose the president, not the populace.
If we elected the president by popular vote then NY, CA, and PA would always determine the president since they hold a plurality of population.
If you need an example of this look at Canada. Every election a Rich Lawyer from Quebec wins because that’s where all the people are. The Western provinces might as well not even bother to vote.
Joe Tall
11-12-2003, 05:13 PM
Ben Franklin ($100), Andrew Jackson ($20) and the rest of the the green back ol' timers do.
Everyone knows this.
Peace,
Joe Tall
M.B.E.
11-12-2003, 06:47 PM
[ QUOTE ]
Do states have to hold presidential elections? Can't the state legislatures simply appoint electors?
[/ QUOTE ]
Andy, I just skimmed the rest of this thread but it looks like no one answered your original question.
Based on the Federalist Papers, No. 68 (http://lcweb2.loc.gov/const/fed/fed_68.html), the framers intended that members of the electoral college would be chosen by popular election. However, that proviso was not expressed in the Constitution. Rather, Article II provides:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..."
The federal statute relating to the electoral college also does not say that electors must be chosen in a popular election (United States Code, Title 3, Chapter 1, § 1).
I recall reading somewhere that in the first presidential elections, at least one state did not choose its electoral-college members through popular election; rather they were selected by the state assembly.
The 24th Amendment provides:
"The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States, or any State by reason of failure to pay any poll tax or other tax."
You could argue that this requires states to select its electoral-college members through general election. The more natural construction, however, is simply that where states have general elections for electoral-college members, it cannot make payment of a tax a requirement to vote in the general election.
In any event, the 24th Amendment was just enacted in 1964; it seems odd that before then, any state could choose to (for example) have its governor choose the electoral-college members. Or it could hold a statewide poker tournament, where everyone who makes the final table becomes a member of the electoral college.
slamdunkpro
11-12-2003, 08:28 PM
The simple answer is no, well it was no. They didn't in the beginning. They could and did appoint electors.
With the improvment in long distance communications over the years, all the states have gone to a popular vote selection process for electors.
M.B.E.
11-12-2003, 09:25 PM
[ QUOTE ]
Do states have to hold presidential elections? Can't the state legislatures simply appoint electors?
[/ QUOTE ]
Some further research has confirmed that a state legislature is permitted to pass a law that the winners of a poker tournament would be that state's electoral-college members.
In Bush v. Gore (pdf) (http://a257.g.akamaitech.net/7/257/2422/14mar20010800/frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf), the U.S. Supreme Court held:
"The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28–33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.)."
This has prompted calls for a constitutional amendment guaranteeing citizens the right to vote for presidential electors (e.g. here (http://www.psqonline.org/99_article.php3?byear=2001&bmonth=spring&a=01free) and here (http://reclaimdemocracy.org/political_reform/right_to_vote.html)).
Also see Alexander Keyssar's article in the Summer 2003 issue of Political Science Quarterly, "Shoring up the Right to Vote for President: A Modest Proposal (http://www.psqonline.org/cgi-bin/99_article.cgi?byear=2003&bmonth=summer&a=01free&f ormat=view)" (pdf).
Finally, there is a short, readable essay on the history of the Electoral College here (http://www.fec.gov/pdf/eleccoll.pdf) on the FEC's web site. It is undated, but seems to antedate the 1992 election. According to the article:
"Indeed, by 1836, all States had moved to choosing their Electors by a direct statewide popular vote except South Carolina which persisted in choosing them by the State legislature until 1860."
Good stuff. I am thinking that a legislative cage match trial by combat deal would be fun. My state has 4 electoral votes so it doesn't really matter much. And the democrats can't win here and don't have any seats in the legislature. But they do have a few. So to make it all fair, I say the house and senate caucuses get together and select tag teams. One man and one woman from each party and have a UFC cage match for the electors. It would be way more fun than going to the polls, and I like to vote.
elwoodblues
11-12-2003, 11:27 PM
I will speak only for myself on this one. The reason that I wasn't upset about the Florida Supreme Court decision is because the selection of electors for any given state is a decision that is to be made by that state. Even if the state makes a bad decision (which I think they did) it is not a federal question about how the state chooses its electors.
Thanks for the great post and clarifying this sticky issue. I am happy to note that my first response to Andy was fairly close to the mark of what transpires, to wit:
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So, I assume that every state legislature has a "law " that says a majority popular vote for the presidential candidate is how the electors are appointed…..
[/ QUOTE ]
and:
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Maybe it all goes by tradition and voting is part of that tradition.
[/ QUOTE ]
As you noted:
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"Indeed, by 1836, all States had moved to choosing their Electors by a direct statewide popular vote except South Carolina which persisted in choosing them by the State legislature until 1860."
[/ QUOTE ]
I like your idea of a law for winners of a poker tournament to be the states' electors. I think we should all start a letter writing campaign to get this changed immediately.
-Zeno
How about a death brawl involving all members of the house and senate. The last representatives still alive that equal the number of electors for that state become, The Electors for that state. Then we hold elections to refill the positions of the dead members. This will clean out the majority of most state legislatures every four years and may make for better government. An enforced "Term limit" on the scumbags we elect for office.
-Zeno
andyfox
11-13-2003, 02:01 AM
Thanks. I knew I could count on your lawyers!
Regards,
Andy
Ralle
11-13-2003, 07:47 AM
It's kind of surprising that a country which you often hear praising democracy, liberty etc. has this kind of election system, where all men are not equal. Whether it's right or wrong is a different question.
adios
11-13-2003, 10:05 AM
[ QUOTE ]
It's kind of surprising that a country which you often hear praising democracy, liberty etc. has this kind of election system, where all men are not equal. Whether it's right or wrong is a different question.
[/ QUOTE ]
Not surprising at all. As I've stated several times before, the original framers of the US Constitution didn't necessarily envision a two party system in the United States. Therefore to resolve elections where multi party candidates run and no candidate receives a clear majority of the votes, the Electoral College was devised to reach a consensus when this situation developed. True in the two party system that has evolved in the USA, a candidate such as Gore can lose when they receive more than 50% of the votes but this a rare occurance and in my mind it provides for a more open system to potentially have third party candidates emerge that perhaps better represent the will of voters. Someone will surely point out that third party candidates have run like Ross Perot and no presidential candidate received 50% of the votes. However, I don't believe that Ross Perot won any one particular state and what that shows us is that any third party candidate will have to at least get enough support in at least a few individual states to deny one of the two party candidates the presidency in the general election. Not a perfect system and a complicated system but a system that in my mind is intended to allow for more than two political partys. To be fair, someone may point out that individual state election laws in some cases may make it very difficult for third party candidates to get on a ballot. That's not a problem with the US Constituion though. Also it's helpful to think of the USA as a collection of individual state governments along with the federal government. The US Constitution does have language dilineanting the dividing line between the federal government and state governments. Where that dividing line is has been the subject of many court cases and subsequent judicial decisions.
elwoodblues
11-13-2003, 10:35 AM
I disagree...but I will let others elaborate. /images/graemlins/grin.gif
andyfox
11-13-2003, 01:26 PM
You're correct: the framers didn't anticipate party politics. And the electoral college, as originally designed, was badly mangled, resultingin the tie in 1800 between Thomas Jefferson, running for President, and Aaron Burr, who was actually running for Vice President. So the 12th amendment corrected the system, and it was designed with party politics, which by that time, had become a reality, in mind.
I believe that had Perot stayed the course, that is, not pulled out and then gotten back in, with that bizarre story about his daughter, he would have won some states and possibly prohibited either major candidate from getting a majority of electoral votes. In my lifetime, George Wallace, in 1968, received quite a few electoral votes, but not enough to send the election to the house.
Here is a link to a map showing the results of the 1968 election, by states and a break down of popular votes and electorial votes. An important thing to note is that one electorial vote from North Carolina went for Georgie Wallace and 12 went for Nixon. Wallace took quite a few southern states. I remember this election very well. Of course 68 was a wopper of year all around.
1968 election results (http://teachpol.tcnj.edu/amer_pol_hist/fi/000001d5.htm)
It may take a bit to download.
-Zeno
andyfox
11-13-2003, 02:15 PM
46 electoral votes for Wallace--that's a helluva lot.
Looking at the map, it's almost hard to believe the green won. Humphrey hardly carried any geography, but it was populous geography. Oh, wait a minute, Humphrey lost. Now I remember. I remember that on election night it all came down to Illinois. I suppose Richard Daley didn't have the heart to steel an election from the same man twice.
You're right about 1968 being some kind of year. The past is indeed a foreign country.
AmericanAirlines
11-13-2003, 03:38 PM
"... not create it or alter it."
How can you say that "interpretation of a lay" does not "create or alter"?
I mean, consider the difference between, "Tightly Construed" and "Broadly Construed" (i.e "Judicial Construction").
In any event this whole thread proves something I've been saying in these forums for ages.
"We are not a Democracy."
Despite the use of the word by politicians.
Sincerely,
AA
MMMMMM
11-13-2003, 05:00 PM
Good question, and that is one reason I take issue with some of the recent U.S. Supreme Court decisions.
AmericanAirlines
11-13-2003, 10:03 PM
Hi MMMMM,
Well, you aren't alone. Even on Law School campuses there's a group or club or whatever dedicated to the idea that there shouldn't be "legislation from the bench" but that judges should only clarify what the law already is.
Sorry I can't recall what they call themselves at the minute, was in Law School almost 10 years ago.
I'll probably remember tommorrow brushing my teeth or something!
Sincerely,
AA
M.B.E.
11-14-2003, 07:19 AM
[ QUOTE ]
Even on Law School campuses there's a group or club or whatever dedicated to the idea that there shouldn't be "legislation from the bench" but that judges should only clarify what the law already is.
[/ QUOTE ]
That idea is hopelessly naïve. In many cases at the appellate level, there simply is no law on point. How can a court "clarify" something that doesn't exist? The court's job in such cases is to evaluate the conflicting arguments on what the law should be, and then render a decision based on principle, policy, and precedent.
MMMMMM
11-14-2003, 08:43 AM
Well in some cases.
In other cases there is already a law on point and it's called the U.S. Constitution.
elwoodblues
11-14-2003, 10:16 AM
It's legislating from the bench if you disagree with the decision, interpreting existing law if you agree.
[ QUOTE ]
In many cases at the appellate level, there simply is no law on point
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Not only that, but the statement ignores the fact that not all law is statutory. We don't live in a code country, we have a mix of common law (judge created) and statutory law (legislature created).
M.B.E.
11-14-2003, 02:13 PM
[ QUOTE ]
Well in some cases.
In other cases there is already a law on point and it's called the U.S. Constitution.
[/ QUOTE ]
Well, those who criticize "judicial activism" tend to get most upset when the courts apply the constitution to strike down a federal or state law.
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