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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

Electors as Free Agents.—“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.”85 Writing in 1826, Senator Thomas Hart Benton admitted that the framers had intended electors to be men of “superior discernment, virtue, and information,” who would select the President “according to their own will” and without reference to the immediate wishes of the people. “That this invention has failed of its objective in every election is a fact of such universal notoriety, that no one can dispute it. 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.”86

Electors constitutionally remain free to cast their ballots for any person they wish and occasionally they have done so.87 A recent instance occurred when a 1968 Republican elector in North Carolina chose to cast his vote not for Richard M. Nixon, who had won a plurality in the State, but for George Wallace, the independent candidate who had won the second greatest number of votes. Members of both the House of Representatives and of the Senate objected to counting that vote for Mr. Wallace and insisted that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast.88

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The power of either Congress89 or of the States to enact legislation binding electors to vote for the candidate of the party on the ticket of which they run has been the subject of much argument.90 It remains unsettled and the Supreme Court has touched on the issue only once and then tangentially. In Ray v. Blair,91 the Court upheld, against a challenge of invalidity under the Twelfth Amendment, a rule of the Democratic Party of Alabama, acting under delegated power of the legislature, which required each candidate for the office of presidential elector to take a pledge to support the nominees of the party’s convention for President and Vice President. The state court had determined that the Twelfth Amendment, following language of Clause 3, required that electors be absolutely free to vote for anyone of their choice. Said Justice Reed for the Court:

“It is true that the Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector’s announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors— contemporaries of the Founders—would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party’s nominees for the electoral college. This long–continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.

“However, 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, Art. II, Sec. 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 unconsti[p.433]tutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. Ala. Code, Tit. 17, Sec. 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice.

“We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.”92 Justice Jackson, with Justice Douglas, dissented: “It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as ‘due process of law,’ ‘equal protection,’ or ‘commerce among the states.’ But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.”93

Clause 5. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been Fourteen Years a Resident within the United States.

QUALIFICATIONS

All Presidents since and including Martin Van Buren were born in the United States subsequent to the Declaration of Inde[p.434]pendence. The only issue with regard to the qualifications set out in this clause, which appears to be susceptible of argument, is whether a child born abroad of American parents is “a natural born citizen” in the sense of the clause. Such a child is a citizen as a consequence of statute.94 Whatever the term “natural born” means, it no doubt does not include a person who is “naturalized.” Thus, the answer to the question might be seen to turn on the interpretation of the first sentence of the first section of the Fourteenth Amendment, providing that “[a]ll persons born or naturalized in the United States” are citizens.95 Significantly, however, Congress, in which a number of Framers sat, provided in the Naturalization act of 1790 that “the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens. . . .”96 This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural–born subjects of the crown.97 There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens.98 Whether the Supreme Court would decide the issue should it ever arise in a “case or controversy” as well as how it might decide it can only be speculated about.

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Clause 6. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President declaring what Officer shall then act as President, and such Officer shall act accordingly until the Disability be removed, or a President shall be elected.

PRESIDENTIAL SUCCESSION

When the President is disabled or is removed or has died, to what does the Vice President succeed: to the “powers and duties of the said office,” or to the office itself? There appears to be a reasonable amount of evidence from the proceedings of the convention from which to conclude that the Framers intended the Vice President to remain Vice President and to exercise the powers of the President until, in the words of the final clause, “a President shall be elected.” Nonetheless, when President Harrison died in 1841, Vice President Tyler, after initial hesitation, took the position that he was automatically President,99 a precedent which has been followed subsequently and which is now permanently settled by Sec. 1 of the Twenty–fifth Amendment. That Amendment as well settles a number of other pressing questions with regard to presidential inability and succession.


Footnotes

85 Id., 232 (Justice Jackson dissenting). See The Federalist, No. 68 (J. Cooke ed. 1961), 458 (Hamilton); 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1457.
86 S. Rept. No. 22, 19th Congress, 1st sess. (1826), 4.
87 All but the most recent instances are summarized in N. Peirce, op. cit., n. 66, 122–124.
88 115 Cong. Rec. 9–11, 145–171, 197–246 (1969).
89 Congress has so provided in the case of electors of the District of Columbia, 75 Stat. 818 (1961), D.C. Code Sec. 1–1108(g), but the reference in the text is to the power of Congress to bind the electors of the States.
90 At least thirteen States do have statutes binding their electors, but none has been tested in the courts.
91 343 U.S. 214 (1952).
92 Id., 228–231.
93 Id., 232–233.
94 8 U.S.C. Sec. 1401 .
95 Reliance on the provision of an Amendment adopted subsequent to the constitutional provision being interpreted is not precluded by but is strongly militated against by the language in Freytag v. CIR, 501 U.S. 868, 886–887 (1991), in which the Court declined to be bound by the language of the 25th Amendment in determining the meaning of “Heads of Departments” in the appointments clause. See also id., 917 (Justice Scalia concurring). If the Fourteenth Amendment is relevant and the language is exclusive, that is, if it describes the only means by which persons can become citizens, then, anyone born outside the United States would have to be considered naturalized in order to be a citizen, and a child born abroad of American parents is to be considered “naturalized” by being statutorily made a citizen at birth. Although dictum in certain cases supports this exclusive interpretation of the Fourteenth Amendment, United States v. Wong Kim Ark, 169 U.S. 649, 702– 703 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most recent case in its holding and language rejects it. Rogers v. Bellei, 401 U.S. 815 (1971).
96 Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). See Weedin v. Chin Bow, 274 U.S. 657, 661–666 (1927); United States v. Wong Kim Ark, 169 U.S. 649, 672–675 (1898). With minor variations, this language remained law in subsequent reenactments until an 1802 Act, which omitted the italicized words for reasons not discernable. See Act of Feb. 10, 1855, 10 Stat. 604 (enacting same provision, for offspring of American–citizen fathers, but omitting the italicized phrase).
97 25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, Sec. 3 (1709); 4 Geo. 2, ch. 21 (1731).
98 See, e.g., Gordon,Who Can Be President of the United States: The Unresolved Enigma, 28 L. Rev.1 (1968).
99 E. Corwin, op. cit., n.44, 53–59, 344 n. 46.
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