Picking the President

Vol 13 n. 1

by

Dewey Clayton is a professor of political science at the University of Louisville. He is the author of two books, The Presidential Campaign of Barack Obama, (2010), and African Americans and the Politics of Congressional Redistricting (2000). His research interests include presidential politics, and race, law, and politics.

 

The presidency was established by Article II of the U.S. Constitution when the framers of the Constitution met at the Constitutional Convention in the spring and summer of 1787 in Philadelphia, Pennsylvania. They agreed that a strong executive would be needed to balance the powers of the legislature; however, differences arose over the structure of the institution, the powers vested in the institution, and the selection process of the President. After some debate, the delegates decided on a single executive. The framers wanted a strong executive but not so strong as to threaten the other institutions of the national government. They initially sought to limit the executive powers to making sure that the laws were faithfully executed and to appointing officials.

Constitutional Framework
The U.S. Constitution, Article II, places only three requirements on those seeking to hold the highest office in the land. First, the President must be a “natural-born citizen.” That includes anyone born on United States territory. Scholars have debated whether a child born abroad of an American parent is considered a “natural-born citizen.” Congress has adopted the rule of jus sanguinis (law of the blood) to apply in special circumstances. Under the rule, one may be a citizen of the United States if born abroad, provided that either or both of one’s parents are citizens. Persons born in foreign countries who later become citizens by naturalization are not eligible to be President. President Barack Obama found himself at the center of controversy during the 2008 presidential election and throughout his first term by a group of Americans who have insisted that he was not a “natural-born citizen” and thus does not meet the requirements to be President. Known as the birther movement, some of these conspiracy theories hold that Obama was not born in Hawaii but in Kenya, the birthplace of his father, and that therefore he is not eligible to be President of the United States. The controversy persisted so much so that in April 2011, the White House released a certified copy of President Obama’s Certificate of Live Birth (the long-form birth certificate).

Second, the President must be at least 35 years old. The youngest President ever elected was John F. Kennedy, at age 43. The youngest President to serve, however, was Theodore Roosevelt, who took office at age 42 upon the death of William McKinley. Third, the President must have lived in the United States for at least fourteen years. The fourteen years do not have to be consecutive. Herbert Hoover and Dwight Eisenhower had lived outside of the United States for several years before their election as President.

The Electoral College
Determining how the executive would be chosen was a difficult task. The framers considered several methods: election by the people, election by Congress, and election by a group of electors. Direct election by the people was rejected because the framers believed that the masses of people would not make informed, intelligent decisions because of the size of the country and lack of communication and information. Election by Congress was rejected because that would compromise the concept of an independent executive. Ultimately, the framers reached a compromise on selection of the president called the Electoral College (the Constitution does not use this term) which allows for indirect popular voting. According to the original plan (Article II, Section 1), each state was allotted a number of electors equal to its number of U.S. Senators (2), plus its number of U.S. Representatives (which may change each decade according to the size of each state’s population as determined in the decennial census). This design gave the larger populated states the larger share of electoral votes, and it gave the smaller populated states a two-seat bonus based on their senators. Each state is allowed to choose its slate of electors as determined by the state legislatures. No elector may be a member of Congress or hold any other federal office.

The Twelfth Amendment
The Electoral College of today differs somewhat from the original plan created. The first of these changes resulting from the Twelfth Amendment, adopted in 1804, was designed to clear up the confusion that arose in the election of 1800. Originally, the Electoral College was set up so that each elector would vote for two candidates. The candidate receiving the greatest number of electoral votes, provided it was a majority, would become President: the runner-up would become Vice President. If no candidate received an absolute majority or if there were a tie, then the U.S. House of Representatives would choose the President. Each state would cast one vote. This arrangement worked well for the first two elections won by George Washington with unanimous votes in the Electoral College. However, by the end of Washington’s second term, the first two political parties had been established: the Federalists and the Democratic-Republicans. For the election of 1796 John Adams, a Federalist, was chosen as President and Thomas Jefferson, a Democratic- Republican, was elected as Vice President. No one had anticipated that the President and Vice President could be chosen from different political parties.

An even more unusual situation would arise with the election of 1800. Because each elector cast two votes for his party’s two candidates, Democratic- Republican presidential candidate Thomas Jefferson and his vice presidential candidate Aaron Burr, tied with the largest number of votes, 73. Because of the tie, the election would be decided by the U.S. House of Representatives. After numerous ballots Jefferson was finally elected President and Burr was elected Vice President. The framers had not anticipated the new political party third Amendment). To become President, one needs 270 electoral votes (a simple majority of 50 percent plus one).

Today, presidential elections are held every year divisible by four on the Tuesday after the first Monday in November. This is the day for actually selecting electors and not voting for the President. Many Americans are unaware of this step. In most of the states, the electors’ names do not even appear on the ballot. In those states, a vote for a presidential candidate is assumed to be a vote for the corresponding electors.

The original plan of the framers was to have each state choose its electors in the manner it deemed appropriate (state legislatures selected the electors in most states). The electors would meet as the Electoral College and exercise their own judgment in selecting the President and Vice President. Today, electors are not directly chosen by state legislatures. They are chosen by the electorate of each state and, since 1800, political parties have chosen them. Each of the major political parties will select a separate set of electors. As a result, presidential electors are not truly independent; they cast their votes for the candidate of their party.

Once the voters have cast their ballots, it is up to each state to determine how that electoral vote will be distributed. In all but two states (Maine and Nebraska), the presidential candidate who wins the popular vote wins all of the state’s Electoral College votes. In Maine and Nebraska, the electoral votes are divided proportionately to the popular vote. One elector would be chosen from each congressional district in that state based on the presidential candidate with a plurality of the popular vote (more votes than any other candidate) in that district. Two more electors are chosen at-large from the entire state. Their votes go to the candidate with a plurality of votes statewide.

Technically, the popular vote does not count and the President is not elected until the first Monday following the second Wednesday in December. After the electors sign and cast their electoral ballots in their respective state capitals, the ballots are sent to Washington, D.C., where on January 6, of the following year, the ballots are unsealed, counted and certified by the President of the Senate before a joint session of Congress. The electors pledge themselves to vote for their party’s candidates for President and Vice President, although the Constitution allows them to use discretion (only rarely have electors broken this pledge). The candidates who receive a majority of the Electoral College votes are certified as President-elect and Vice President-elect. If no candidate wins a majority in the Electoral College, the House of Representatives chooses the President, voting by state delegations with one vote to a state; the Vice President is decided by the Senate from between the two highest candidates, with each Senator having one vote.

Flaws in the Electoral College
It is possible for a candidate with the most votes in the Electoral College to lose the presidency in the House. This happened to Andrew Jackson in 1824. The election was unusual because the Federalist Party had dissolved and the country was left with only one national political party (Democrat-Republicans). Jackson led in both popular and electoral votes in a four-way race but did not have a majority of Electoral College votes. Thus, it was left to the House of Representatives to decide among the top three candidates who the President would be. This process eliminated Henry Clay, the Speaker of the House, who had come in fourth. Clay gave his support to John Quincy Adams, who won the election in the House of Representatives even though he had received roughly 45,000 fewer popular votes than Jackson.

The Electoral College has on three occasions failed to elect a President and Vice President. In addition to the elections of 1800 and 1824, (discussed previously), this also occurred in the highly controversial election of 1876, which pitted Democrat Samuel Tilden against Republican Rutherford B. Hayes. Tilden won the popular vote by 250,000 votes nationwide and won 184 Electoral College votes to 165 for Hayes. Twenty electoral votes in three southern states were in dispute (South Carolina, Florida, and Louisiana). After recounts in all three states were unsuccessful, Congress created a commission to resolve the dispute. It consisted of eight Republicans and seven Democrats (five selected from the House of Representatives, five from the Senate, and five from the Supreme Court). The commission voted along party lines giving all 20 disputed votes and the presidency to Rutherford B. Hayes by a 185 to 184 margin.

One criticism of the Electoral College is that it is possible for a candidate to win a majority in the Electoral College and not win a majority or even a plurality of the total popular vote. This situation has occurred three times: in 1876, 1888, and 2000. The election of 1876 (see above) was full of illegal voting and ballot fraud and though Rutherford B. Hayes received 250,000 fewer popular votes than Samuel Tilden, he was still elected President. In 1888, the winner of the popular vote lost in the Electoral College. Democrat Grover Cleveland received 90,596 more popular votes than Republican Benjamin Harrison. Nonetheless, Cleveland had garnered only 168 electoral votes as opposed to Harrison’s 233, thus, Harrison was elected President. This situation has only occurred once in modern times: the presidential election of 2000 between George W. Bush and Al Gore. Gore won 600,000 more popular votes than Bush nationwide and led Bush in the electoral vote total by 267 to 246. Neither candidate had the 270 majority needed. However, Florida had 25 electoral votes that were hotly disputed due to widespread voting irregularities. After 37 days of numerous recounts and legal maneuvering, in Bush v. Gore (2000), the Supreme Court decided that Florida’s 25 electoral votes would go to Bush, effectively awarding him the presidency.

Electoral College
Reform The Electoral College is part of the original design of the Constitution. On the one hand, it benefits larger states because they have more Electoral College votes, which often cause the presidential candidates to spend more time and resources in those states. On the other, the Electoral College benefits smaller states, because these states gain more influence in the Electoral College than they would otherwise have by virtue of the two votes given to every state. The Electoral College has come under criticism because candidates who have received a minority of the popular vote have won elections; electors no longer perform the selecting function that was the original design of the framers; the rule that mandates all of a state’s Electoral College votes go to that party that receives a statewide plurality (winnertake- all) of the popular vote is unfair to other candidates who are on the ballot in a state. Small states, in particular, fear that if the country moved to the direct election of the President nationwide, they would be overwhelmed by the larger urban vote. The two major political parties have concerns that a change would allow minor parties a much larger role and possibly prevent any one candidate from receiving a majority of electoral votes.

This nation is vastly different today from the one that existed when the Electoral College was created in 1787. In some respects, our system of electing the President is anachronistic because the majority of Americans now have access to information and communication to make an informed decision. Some have called for reforms such as direct election of the President, but the Congress has rejected several constitutional amendment proposals to eliminate or substantially change the Electoral College.

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Insights on Law and Society is edited by Tiffany Middleton. She can be reached at tiffany.middleton@americanbar.org.