ArtII.S1.C3.1 Electoral College Count Generally

Article II, Section 1, 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 certify, and transmit sealed to the Seat of the 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.

Article II, Section 1, Clause 3 outlined the process for selecting the President and Vice President. The provision is no longer operative because the Twelfth Amendment, ratified in 1804, superseded it. This essay discusses the history of Article II, Section 1, Clause 3 from its drafting until the adoption of the Twelfth Amendment.

The procedure for electing the President was a topic of considerable interest at the Constitutional Convention. Both the Virginia and New Jersey Plans for the Constitution contemplated that Congress would select the President.1 In this, they were consistent with current practices where state legislatures generally selected the Governor.2 During the Convention, however, it became apparent that how the President was selected would shape his role and relationship with the Legislative Branch. Urging that Congress select the President, Roger Sherman of Connecticut stated that the Executive was “nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the depositary of the supreme will of Society.” 3 However, other delegates argued that the President should not be beholden to Congress for his office and that the separation of powers could only be ensured if the people elected the President.4 Taking this position, James Madison stated:

If it be a fundamental principle of free Govt. that the Legislative, Executive & Judiciary powers should be separately exercised; it is equally so that they be independently exercised. There is the same & perhaps greater reason why the Executive shd. be independent of the Legislature, than why the Judiciary should . . . . It is essential then that the appointment of the Executive should either be drawn from some source, or held by some tenure, that will give him a free agency with regard to the Legislature. . . . The people at large was in his opinion the fittest in itself.5

Debate over how the President should be selected also focused on which method would best ensure that the President represented the people’s interests.6 On July 19, 1787, Rufus King of Massachusetts proposed that the President be appointed “by electors chosen by the people for the purpose.” 7 Madison, William Patterson of New Jersey, Elbridge Gerry of Massachusetts, and Oliver Ellsworth of Connecticut quickly voiced support for electors choosing the President, with Madison noting that using electors would account for differences among the states as to whom they granted suffrage.8 On September 4, 1797, the Committee of Eleven submitted a report a that included a proposal on how to select the President which, after further debate and modification, the Convention ultimately adopted.9

The Framers’ process for choosing the President blended federal and national aspects of the U.S. system of government. Reflecting that the United States was a federation of states, the election of the President was to be conducted on a state-by-state basis, and state legislatures would determine how their electors would be selected.10 Reflecting that the United States was a single nation, the states were allocated electoral votes based on their total number of representatives and senators, with the result that the number of each state’s electoral votes was based on its relative population.11 Combining both federal and national aspects, in the event of a tie or if no candidate received a majority of votes, the House of Representatives would select the President.

Under Article II, Section 1, Clause 3, each state’s electors would meet in their state and vote for two persons to be President, one of whom could not be from their state. The electors would then send a list of the persons for whom they had voted and the number of votes each had received to the President of the Senate. In the presence of the Senate and House of Representatives, the President of the Senate would then count the votes. The candidate with the greatest number of votes would become President, provided he had received a majority of the votes. In the event of a tie, provided the tying candidates had each received a majority of the votes, the House of Representatives would select the President by vote, but each state would have only one vote. If no person had received a majority of the votes, the House would select the President by vote from the five candidates who had received the greatest number of votes. Each state would have only one vote, notwithstanding how many representatives they had, and the candidate with the greatest number of votes would have to receive a majority of the votes to win. Article II, Section 1, Clause 3 further provided that a quorum consisting of a Member or Members from two-thirds of the States would be necessary for a vote and a majority of all the States had to vote for the winner. Once the President was elected, the person with the second highest number of electoral votes would be the Vice President. In the event of a tie, the Senate would select the Vice President by vote.

The Article II, Section 1, Clause 3 process for choosing the President had unanticipated and unwelcome results. George Washington’s overwhelming popularity minimized the problems with the provision during the elections of 1788 and 1792.12 In 1796, Federalist John Adams won the Presidency while Republican Thomas Jefferson became the Vice President. This proved unworkable as Jefferson was the leader of the opposition to Adams.13 In 1800, the Federalist candidates were John Adams and Thomas Pinckney, while the Republican-Democrat candidates were Thomas Jefferson and Aaron Burr. The Republican-Democrat electors gave both their votes to Jefferson and Burr, resulting in a tie between the two for the most votes.14 Consequently, the election went to the House of Representatives where the Federalists were in the majority. As Jefferson was the leader of the opponents to the Federalists, the Federalists were not inclined to vote for him.15 The result was a deadlock, which required thirty-six ballots to resolve.16 After seven days of voting, the House of Representatives elected Jefferson President and Burr Vice President.17

To address problems that arose during the 1796 and 1800 elections, the states ratified the Twelfth Amendment on June 15, 1804.18

The Virginia Plan, § 7, reprinted in Max Farrand, The Framing of the Constitution 226–227 (1913) [hereinafter Farrand’s Records] ( “Resolved that a National Executive be instituted; to be chosen by the National Legislature for the term of ____ years . . . and to be ineligible a second time; and that besides a general authority to execute the National Laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.” ); The New Jersey Plan, § 4, reprinted in id. at 230–231 ( “Resolved that the United States in Congress be authorized to elect a federal Executive to consist of ____ persons, to continue in office for the term of ____ years, . . . to be incapable of holding any other office or appointment during their time of service and for ____ years thereafter; to be ineligible a second time, and removable by Congress on application by a majority of the Executives of the several States; that the Executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General, or in other capacity.” ). back
Lolabel House, A Study of the Twelfth Amendment of the Constitution of the United States 7 (1901). At the time of the Convention only Connecticut, Rhode Island, New Hampshire, New York, and Massachusetts selected their governors by a popular election; in all the other states, the state legislature selected the governor. Id. back
1 Farrand’s Records, supra note 1, at 65. John Rutledge of South Carolina proposed that the Senate alone should elect the President. Id. at 69. back
Id. at 69 ( “Mr. Wilson renewed his declarations in favor of an appointment by the people.” ); 2 The Records of the Federal Constitution 29 (Max Farrand ed. 1911) (noting that Gouverneur Morris believed that the President “ought to be elected by the people at large, by the freeholders of the Country” ). back
2 Farrand’s Records, supra note 1, at 56. back
E.g., id. at 29 (Roger Sherman of Connecticut stating that “the Nation would be better expressed by the Legislature, than by the people at large.” ); id. at 31 (Gouverneur Morris of Pennsylvania stating, “If the Executive be chosen by the Natl. Legislature, he will not be independent on it; and if not independent, usurpation & tyranny on the part of the Legislature will be the consequence.” ). back
Id. at 56. back
Id. at 56–58. Supporters of electors disagreed on how states would select the electors. While Rufus King of Massachusetts and James Madison supported popular election of electors, Oliver Ellsworth proposed that state legislatures appoint the electors and Elbridge Gerry proposed that state governors choose the electors. Id. back
Id. at 497–498, 517–531. back
U.S. Const. art. II, § 1, cl. 2. back
Id. See also 1 Farrand’s Records, supra note 1, at 166–67. back
House, supra note 2, at 23–26. back
Id. at 39. back
Alan P. Grimes, Democracy and the Amendments to the Constitution 21 (1987). back
House, supra note 2, at 33. back
Grimes, supra nota 14, at 21. back
Id. back
1 Mark Grossman, Constitutional Amendments 111 (2012). For discussion on the Twelfth Amendment, see Amdt12.1 Overview of Twelfth Amendment, Election of President. back