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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next
TENURE

Formerly the term of four years during which the President “shall hold office” was reckoned from March 4 of the alternate odd years beginning with 1789. This came about from the circumstance[p.426]that under the act of September 13, 1788, of “the Old Congress,” the first Wednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the Constitution. Although as a matter of fact, Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that the presidential term should be reckoned from the fourth day of March next succeeding the date of election. And so things stood until the adoption of the Twentieth Amendment by which the terms of President and Vice–President end at noon on the 20th of January.62

The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. Prior to 1940, the idea that no President should hold office for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word “term.” The voters’ departure from the tradition in electing President Franklin D. Roosevelt to third and fourth terms led to the proposal by Congress on March 24, 1947, of an amendment to the Constitution to embody the tradition in the Constitutional Document. The proposal became a part of the Constitution on February 27, 1951, in consequence of its adoption by the necessary thirty–sixth State, which was Minnesota.63

Cls. 2–4—Election

Clause 2. 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.

Clause 3. The Electors shall meet in their respective States and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and cer[p.427]tify, and transmit sealed to the Seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a majority of the whole Number of Electors appointed: and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Clause 4. 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.

ELECTORAL COLLEGE

The electoral college was one of the compromises by which the delegates were able to agree on the document finally produced. “This subject,” said James Wilson, referring to the issue of the manner in which the President was to be selected, “has greatly divided the House, and will also divide people out of doors. It is in[p.428]truth the most difficult of all on which we have had to decide.”64 Adoption of the electoral college plan came late in the Convention, which had previously adopted on four occasions provisions for election of the executive by the Congress and had twice defeated proposals for election by the people directly.65 Itself the product of compromise, the electoral college probably did not work as any member of the Convention could have foreseen, because the development of political parties and nomination of presidential candidates through them and designation of electors by the parties soon reduced the concept of the elector as an independent force to the vanishing point in practice if not in theory.66 But the college remains despite numerous efforts to adopt another method, a relic perhaps but still a significant one. Clause 3 has, of course, been superseded by the Twelfth Amendment.

“Appoint”.—The word “appoint” is used in Clause 2 “as conveying the broadest power of determination.”67 This power has been used. “Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various 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 legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a[p.429]division of their strength, and that a uniform rule was preferable.”68

State Discretion in Choosing Electors.—Although Clause 2 seemingly vests complete discretion in the States, certain older cases had recognized a federal interest in protecting the integrity of the process. Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector.69 Its power to protect the choice of electors from fraud or corruption was sustained.70 “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.”71

More recently, substantial curbs on state discretion have been instituted by both the Court and the Congress. In Williams v. Rhodes,72 the Court struck down a complex state system which 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 some and disfavored others and burdened both 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. For the Court, Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny.73 Then, in Oregon v. Mitchell,74 the Court upheld the power of Congress to reduce the[p.430]voting age in presidential elections75 and to set a thirty–day durational residency period as a qualification for voting in presidential elections.76 Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes,77 is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment78 may override state practices which violate that Amendment and substitute standards of its own.

Constitutional Status of Electors.—Dealing with the question of the constitutional status of the electors, the Court said in 1890: “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 accord with the provisions of the Constitution, Congress has determined the times as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them.”79 The truth of the matter is that the electors are not “officers” at all, by the usual tests of office.80 They have neither tenure nor salary, and having performed their single function they cease to exist as electors.

This function is, moreover, “a federal function,”81 their capacity to perform which results from no power which was originally[p.431]resident in the States but which springs directly from the Constitution of the United States.82

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.83 But in Ray v. Blair,84 the Court reasserted the conception of electors as state officers with some significant consequences.


Footnotes

62 As to the meaning of “the fourth day of March,” see Warren, Political Practice and the Constitution, 89 Pa. L. Rev.1003 (1941).
63 E. Corwin, op. cit., n.44, 34–38, 331–339.
64 2 M. Farrand, op. cit., n.4, 501.
65 1 id., 21, 68–69, 80–81, 175–176, 230, 244; 2 id., 29–32, 57–59, 63–64, 95, 99–106, 108–115, 118–121, 196–197, 401–404, 497, 499– 502, 511–515, 522–529.
66 See J. Ceaser, Presidential Selection: Theory and Development (Princeton: 1979); N. Pierce, The People’s President: The Electoral College in American History and the Direct–Vote Alternative (New York: 1968). The second presidential election, in 1792, saw the first party influence on the electors, with the Federalists and the Jeffersonians organizing to control the selection of the Vice–President. Justice Jackson once noted: “As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.” Ray v. Blair, 343 U.S. 214, 232 (1952). But, of course, the electors still do actually elect the President and Vice President.
67 McPherson v. Blacker, 146 U.S. 1, 27 (1892).
68 Id., 28–29.
69 Ex parte Yarbrough, 110 U.S. 651 (1884).
70 Burroughs and Cannon v. United States, 290 U.S. 534 (1934).
71 Ex parte Yarbrough, 110 U.S. 651, 657–658 (1884) (quoted in Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).
72 393 U.S. 23 (1968).
73 “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. [citing the Fifteenth, Nineteenth, and Twenty–fourth Amendments]. . . . Obviously we must reject the notion that Art. II, Sec. 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions.” Id., 29.
74 400 U.S. 112 (1970).
75 The Court divided five–to–four on this issue. Of the majority, four relied on Congress’ power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. Id., 119–124 (Justice Black announcing opinion of the Court).
76 The Court divided eight–to–one on this issue. Of the majority, seven relied on Congress’ power to enforce the Fourteenth Amendment, and Justice Black on implied and inherent powers.
77 393 U.S. 23 (1968).
78 Cf. Fourteenth Amendment, Sec. 5.
79 In re Green, 134 U.S. 377, 379–380 (1890).
80 United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 (1868).
81 Hawke v. Smith, 253 U.S. 221 (1920).
82 Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934).
83 Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United States, 290 U.S. 534 (1934).
84 343 U.S. 214 (1952).
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