Symposium: Why the Constitution mandates that presidential electors exercise best judgment

Rob Natelson is a retired professor of law at The University of Montana, senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a widely published originalist scholar. He is involved in the filing of amicus briefs on behalf of the Independence Institute and Citizens for Self-Governance in support of the electors in Chiafalo v. Washington and Colorado Department of State v. Baca.

A central part of our Constitution’s intricate and carefully balanced presidential election system is the power, and duty, of presidential electors to vote for those candidates they deem most qualified. States purporting to convert electors into marionettes are trying to amend the Constitution while evading proper amendment procedures.

The Constitution created a three-tiered presidential election structure: (1) choice of electors in their respective states, (2) voting among electors for president and vice president and (3) if no candidate wins an absolute majority of electors, run-off elections in the House of Representatives for president and in the Senate for vice president. These elements were designed to work as parts of an integrated whole.

Modern writers almost invariably understate the painstaking process that produced the Constitution’s presidential election system. Some claim it was designed purely to protect slavery, or to protect small states, or because of the framers’ alleged distrust for democracy. In fact, slavery played almost no role in the deliberations. Instead, the framers balanced a long list of other factors. These included, among others, guarding against toxic regionalism, protecting federalism, ensuring that the victorious candidate enjoyed wide popular support, ensuring that the victorious candidate had the qualifications to perform in office, avoiding mob-like behavior and protecting against foreign influence. As James Wilson of Pennsylvania later remarked, creating the presidential election system was the framers’ most daunting challenge. It also was among their greatest accomplishments.

The Constitution enlists the states in presidential elections by empowering each to choose its electors in such manner as its state legislature directs. This is not a 10th Amendment power reserved for the states or the people but rather what the Supreme Court calls a “federal function” derived directly from the Constitution—much as Congress derives its authority directly from the Constitution. Once chosen, presidential electors also exercise federal functions. Like candidates for Congress, candidates for elector may make campaign promises. Like members of Congress, moreover, once chosen, an elector may vote according to his judgment exercised in light of facts then available.

The evidence that the Constitution lodges discretion in presidential electors is overwhelming. It can be summarized in eight separate points:

First: The name elector. Founding-era dictionaries leave no ambiguity about the meaning of that word: An elector is one who chooses, who makes decisions for himself or herself. Other parts of the Constitution use the word the same way.

Second: The Constitution prescribes that electors vote by ballot. When the Constitution and the 12th Amendment were adopted, “ballot” invariably meant secret ballot—secrecy being the crucial distinction between that method of voting and other methods, such as “viva voce,” or orally. Hence in 1800, Senator (and former Framer) Charles Pinckney could say on the floor of the Senate, “[T]he Constitution expressly orders that the Electors shall vote by ballot; and we all know, that to vote by ballot is to vote secretly.” Of course, if state law can determine an elector’s vote, there would be no reason for secrecy.

Third: The Constitution’s same day clause (Article II, Section 1, Clause 4) empowers Congress to fix a day for the choice of presidential electors, “which Day shall be the same throughout the United States.” One purpose of the same day clause was to prevent the states (or other outside forces) from swapping and trading electors to manipulate the vote—precisely the unconstitutional practice of which the U.S. Court of Appeals for the 10th Circuit found Colorado guilty in Baca v. Colorado Department of State.

Fourth: The Constitution grants no express authority to the states to control electors. If such authority exists, therefore, it must be implied as incidental to the power to appoint. Founding-era law recognized incidental powers. However, for a power to be incidental to an express power, it had to be less “worthy” (important) than the express power. But the power to control is at least as important as the power to appoint.

The Constitution supplements the president’s authority to appoint executive branch officers with several clauses authorizing him to control them. But the Constitution contains no clauses permitting the president to dictate to the judges he selects or permitting the states to dictate to the electors they choose.

Fifth: The two principal models for the Electoral College were the indirect election systems then prevailing in Scotland (for members of the British Parliament) and in Maryland (for state senators). In both systems, electors took oaths disclaiming outside instructions and promising to exercise their best judgment.

Sixth: The record of the ratification-era constitutional debates (1787-1790) tells us that presidential electors were to exercise discretion. The most commonly cited example is Alexander Hamilton’s Federalist No. 68: “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” But we can, and should, consult other documents as well. Among other ratification-era records confirming elector discretion are:

• Hamilton’s remarks in Federalist No. 60;
• John Jay’s comments in Federalist No. 64;
• Comments by John Dickinson, a former Constitutional Convention delegate, in his widely read Fabius essays;
• A December 8, 1787, letter written by Roger Sherman, another Constitutional Convention delegate;
• Statements by James Iredell, a leader of the pro-Constitution forces in North Carolina, and later a justice on the U.S. Supreme Court; and
• Other writings on the Constitution by both supporters and opponents of ratification.

This historical record is such that even many apologists for puppet-elector laws admit that the Founders expected electors to exercise judgment. However, some contend that the 12th Amendment changed that rule. “The Founders did not anticipate the rise of political parties,” the argument goes. “But by the time the 12th Amendment was adopted (1804), electors were expected to vote as their parties prescribed.”

The common claim that the Founders did not anticipate political parties is overdrawn: Many of their comments show that they did. More importantly, however, the text and background of the 12th Amendment argue for elector discretion, not against it. To return to our list of reasons:

Seventh: Although the 12th Amendment changed the electoral process in some respects, the language pertaining to discretion remained almost identical to that in the original Constitution. Those voting for president and vice president were still called “electors” (with the implication of free choice). They still voted by “ballot” (i.e., secretly).

Eighth: The congressional debates over the 12th Amendment contain virtually no evidence that electors were to be more constrained than they were under the original Constitution. On the contrary, the debates are filled with remarks showing an assumption that electors should vote as they deem best.

For example, members of Congress referred to presidential candidates’ being “intended by the electors” and “preferred by the electors” (Rep. James Holland, N.C.), “selected by the Electors” (Rep. Samuel Purviance, N.C.) and “intended . . . by a majority of the Electors” (Rep. John Clopton, Va.). One member emphasized that electors had the “obligation of voting for none but men of high character” (Rep. Thomas Lowndes, S.C.). Another referred to “the great and solemn duty of Electors, upon all occasions, to give their votes for two men who shall be best qualified for the office of the President” (Rep. Roger Griswold, Conn.).

Other portions of the congressional debate centered on how to ensure that electors would be free from influences that might corrupt their unfettered and honest judgment.

The value the Founders placed on unfettered and honest judgment—even when it interfered with prior pledges—is exemplified by the process by which the Constitution was adopted.

After the Confederation, Congress sent the proposed Constitution to the states for ratification, and each state legislature (although Rhode Island only belatedly) arranged for the election of delegates to that state’s ratifying convention. Competing candidates frequently pledged to vote for or against the Constitution if elected.

When the conventions met in key states such as Massachusetts, Virginia and New York, they consisted of majorities who had pledged to vote against the Constitution. But everyone recognized the need for open debate, and they acknowledged that delegates could change their minds. Because the Founders honored these principles, enough delegates were persuaded to ratify the Constitution rather than reject it.

If the Founders had followed the puppet-elector rule, the Constitution might never have been ratified.

Of course, electors usually should honor their promises, and history shows that they nearly always do so. But even in the short interval between the popular vote and the electoral vote, circumstances can change, candidates can die and new information can surface. Our Constitution anticipates that electors will, in such circumstances, act as reasonable people should act.

That is why the Constitution’s presidential election system does not merely assign numbers to each state. It provides for an Electoral College consisting not of marionettes, but of real human beings.