Article II Section 1
Election and Qualification of the President
– The Nature and Number of Executives (from Convention Notes)
– The Election of the Executive (from Convention Notes)
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Appointment of Electors
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
The Election Process from Nomination to Final Vote
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 choose 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 choose the President. But in choosing 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 choose from them by Ballot the Vice President.
Congress to Determine When Electors Vote
The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Qualifications of the President
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.
Contingencies When the President Unable to Serve
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.
Compensation for President
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Oath of Office
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: –“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
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Analysis – General Description of the Process
Before describing the specifics of the constitutional method of selecting a president we will describe the process using general terms.
Indirect Elections
Our Constitution specifies that certain individuals are designated as delegates to represent separate interests. With regard to the selection of a President, there are two separate sets of delegates. One set of delegates has the specific duty of recommending (nominating) possible candidates, the other set is required to elect the President from the candidates. This results in an indirect method of selecting candidates as well as an indirect method of selecting a President from the candidates. To learn more about indirect elections click the button.
Nominating Potential Presidential Candidates
The first set of delegates start the process by writing the names on a ballot or
nominating two qualified potential candidates. (Any time someone votes for a write-in they are nominating that individual.) This set of delegates are not restricted to choosing between any pre-selected candidates. The Constitution precludes Federal elected officials or individuals on the federal payroll. They would probably be biased due to their position. Any existing connection with the federal government is considered a strong conflict of interest. The delegates are each to recommend the best potential presidential
candidates.
The name chosen in the Constitution to describe the first set of delegates (the ones who nominate) is Elector. To learn more about Electors and electoral colleges click the button.
A List of Five Candidates
Once the nomination (original naming) of potential candidates is complete, the actual candidate list is created. This is done by tallying the number of nominations made by the first set of delegates. It is strictly a clerical function. The five nominees with the highest number of votes will be the candidates unless an exceptional condition occurs. If the candidate with the highest number of nominating votes was actually nominated by over half of the first set of delegates that candidate is declared President. In this unlikely event there is no need for a second set of delegates or a final election. If more than one nominee are tied with a majority of nominating votes, only the tied individuals are candidates for a final election.
Choosing a President from the Candidates
The second set delegates, those who select the President from the candidates, are part of the federal government, specifically members of the House of Representatives. This set of delegates does not have the prerogative of nomination or write-in. They must select from the provided list. The Representatives (Congressmen) of each State are considered as a delegation. The delegation for each State casts one vote. A candidate needs to receive the vote of a majority of the total States in the Union. The balloting and discussion continue until a President is selected.
Federalism at its Finest
Ironically, the branch that was designed to be the popular branch is required to act in a federal capacity by casting a single vote per State to determine the President. This requires that statesmanship override party politics. Discussion must change minds and consequently votes. In an environment where each side is determined to conquer the other, federalism is not the answer.
The process could be summarized as follows:
- Nomination of candidates by delegates not tied to the Federal Government.
- Selection from the candidates by the Federal elected delegates (Representatives of the people) voting by State.
Analysis – Clause 2 – Appointing Electors
In any election there are three phases 1)Possibilities, 2)Probabilities, and 3)Pick. These phases may not always be so distinctly separated as to be recognizable but if one has ever made a choice before being made aware of other (and better) alternatives, no more need be said.
1) Determine the Possibilities–Nomination
2) Determine the Probabilities–Candidate Selection
3) The Pick (Choice)–Final Election
Part of the nomination phase is to determine who is eligible to nominate (suggest as a possibility) an individual who is qualified for office. In the Constitution the Framers designated this position with regard to putting forth nominees for President as an Elector. Interestingly elector is the same name they used in Article I to describe the voters who would elect by final vote the members of the House of Representatives.
Each state shall appoint, in such manner as the Legislature thereof may direct,
Even in this important national concern, the Constitution does not presume to control the State Legislatures by dictating the manner in which the Electors are to be chosen. This States’ rights issue leads to freedom rather than uniformity. Each State can decide with full constitutional sanction how they will go about selecting Electors irrespective of how other States determine to make this choice.
a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress:
This weighted method of determining the number of Electors per state still maintains the general principle of majority rule. By using the combined number of Senators and Representatives per State instead of only using the number of Representatives, the process dramatically increases the comparative influence of the States with the smallest population (small States) in the functioning of the electoral college. This methodology only moderately reduces the influence of the States with large populations (large States). Remember that using this nomenclature, Alaska our largest State geographically is a “small” State. What that means using our current numbers of Representatives per State is that Alaska with 1 Representative and 3 Electors exerts less than 0.6% of the total influence toward determining the electoral college outcome instead of a little more than 0.2% of the total influence if the number of Electors were equal to the number of Representatives only. On the other hand, California with 53 Representatives and 55 Electors only exerts 10.3% of the total electoral college vote instead of 12.2% if the number of Electors were equal to the number of Representatives only.
but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector.
The number of Electors was to be the same as the total representation (House + Senate), but the Electors appointed were not to be those same individuals or even to have a political or financial connection with the US government. This provision was placed in the Constitution to prevent the dictating (or influencing) of the electoral college outcome by the incumbents in office. The Electors were to be free from national government influence. In a word they were to be independent. By independent we mean not subject to pressure or influence that would prevent the Elector from submitting his or her best nominations for the office of President.
In our day, recognizing that the people are separated into political parties, one would logically have to ask the question: “Is not the mere fact that an Elector belongs to the same political party as an incumbent evidence of a conflict of interest?”.
Analysis – Clause 3 – The Election Process
Phase 1 – Nomination
The Electors shall meet in their respective States,
The intent of the Framers was that the Electors were to meet in “their respective States” and that the meeting was to be held on the same day* in each of the States. (*see clause 4) By using this methodology, at least on a State level, there would be a total independence of thought as to who was to be nominated for the position of President of the United States. To understand this, one would only have to ask why the Electors were to meet in their respective States if there was to be a national collusion (or even a conversation) between them.
and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves.
Writing a Name on a Ballot is Nomination
Whenever any voter writes in a name other than those preprinted on ballot that voter is nominating the candidate he or she wrote in.
One NOT from the Elector’s Own State
Many individuals have thought that the Constitution is worded this way to get a President and Vice President from different States. Nothing could be further from the truth. If every Elector favored two people from New Jersey, only the Electors from New Jersey would be restricted from voting for both.
Electors Need to Think Nationally
The Framers expected that many of the Electors would look only in their own State to find possibilities for President. To counter this expected bias, they required each Elector to refrain from making both of his choices from his own State. In this way even if many of the Electors threw away one of their votes on someone from his own State the other vote would still reflect an individual of more national renown.
One advantage to writing two names on a ballot is that it really discourages campaigning for one individual. While we have referred to the outcome of the electoral process or the electoral college, we have not really defined what the immediate and only outcome of the electoral college would be. While most people look at the outcome as the election of a President, that was not the charge given to the Electors. If that were the charge, one meeting, two names, seclusion by State, and acting independently in the matter would not be reasonable criteria to achieve the goal. The total process, not the Electors’ part, was to determine who would be the chief executive of the nation. As with other constitutionally defined procedures, there were to be checks and balances along the way. These were designed to discover consensus among the people and the States–not just
“majority rule”.
The purpose for writing two names was to start the process for election which is nomination. The question was not who (as an individual) wants to be President but rather who has shown by their past performance to be the best qualified candidates (plural). This was to be the beginning and not the end of the process of selecting the best individual for the job. In 1803 Senator Uriah Tracy actually used the word nominate* when describing the function of the Electors.
-* Mr Tracy’s Statement
The Framers were trying to set up a system to avoid all unseemly bias. Much of this bias would be avoided by not allowing current national officials or employees to be chosen as Electors. But there was something more that needed to be dealt with. The Framers knew that feelings and attachments to individuals from one’s own State would run deep and strong for patriots and acquaintances, many of whom the Elector might know personally as inhabitants of his community or State. In order to get the Electors to think more nationally which is critical to obtaining consensus nationwide, only one of the two names on his ballot could be from his own State. One of each Elector’s nominees did not have to be from his State, but at least for one of the candidates, the Elector needed to think outside of his State or as we would say today “think outside of the box”, which is what the State bias would easily become.
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.
Here the outcome of the electoral college meeting is defined. This is what we would call the “deliverable” if we were selling a service or product today. The deliverable is what the customer can expect to receive at the end of our service contract. In the case of the Electors the deliverable is a list of the nominees and a total of the nominating votes for each individual on the list. The total number of nominating votes will be twice the number of Electors.
The job of the Electors is complete when the list is signed, certified and transmitted to the seat of government. There is no new vote, no need for campaigning and in this regard no way to bribe the Electors. Their job is only to list the names of the best individuals available. This is the end of their elected position (only one meeting). This demonstrates term limits at their very best. Every effort was made in the framing of the Constitution to avoid intrigue and cabal. The Electors were to be independent and speak their own mind. If by chance a majority of all the Electors happened to nominate the same individual, it was because of the apparent merits of that individual and not by combined design or strategem of the Electors. As Alexander Hamilton said in Federalist 68: “the person who may happen to have a majority of the whole number of votes will be the President”.
Phase 2 – Candidate Selection
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 Senate and House of Representatives are to witness the opening of the certified lists and the tallying of the results of the separate meetings of Electors in each of the States. This certainly provides an ample number of witnesses for what seems to be a mundane procedure. It will not seem so strange however, if one considers that the President of the Senate is the current Vice President and a very likely candidate for President in as much as he was nominated (by a different set of Electors) in the previous presidential election more than any other individual with the possible exception of the current President. In fact many of the Senators or Representatives would likely be well known enough to be nominated.
When this part of the Constitution was followed in spirit as well as letter, it was the process of opening and tallying the nominations which built the field of candidates to be considered by the House. With that many eyes observing the process, there is no room for manipulation, only for verification. The count will be as it is and the results are incontestable. The only possibility of error at this stage is if the certified lists from the Electors are tampered with or improperly tallied by the Electors. It seems unlikely that the individuals selected to nominate our presidential candidates would be incompetent or careless enough to allow an improperly filled out form to be submitted.
The process described in this section is still followed today. It is televised for public viewing. Unfortunately currently it is a hollow sham and is done only as a ceremony to formalize and finalize the results of a method of nominating and electing a President and Vice President foreign to the Constitution.
The Shortcut
Whenever a system is put together, provisions must be made for exceptional conditions. The Constitution contains several of these. The next phrase has come to be thought of as the normal route to the presidency rather than the exception it is.
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;
It is quite difficult to have a diverse set of independently thinking individuals selected by several independent States as Electors who meet in their separate States, nominate the same individual for a position unless there is a consensus in the population from which the Electors are selected that that nominee is outstanding, perhaps almost super-human. When there is such an overwhelming consensus, the field of candidates is one. With only one candidate, there is no need for a vote by any other political body. Even if the fact that each Elector nominates two individuals is taken into consideration, this kind of regard is fantastic to contemplate.
Such was the character of George Washington. He not only had a nomination vote from a majority of Electors, his name was listed on every Elector’s ballot. This distinction probably contributed to the myth that came to be accepted as fact that having the election go to the House of Representatives was the exception (even a problem) and that final election by the Electors was the rule.
An Exception to the Exception
The Framers also provided for a tie for first place among those who received a nomination from a majority of Electors. Inasmuch as each Elector nominates two individuals, in theory at least, there could be two or three individuals that are listed on the ballot of a majority of the Electors. In the independent condition that was to prevail among the Electors, it is difficult to imagine the theoretical situation ever happening.
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 choose by ballot one of them for President;
In this unlikely case the field of candidates consists of the ones that are tied. The election then proceeds normally in the House.
Phase 3 – The Final Election
and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President.
In the absence of manipulation, “if no person have a majority” would be almost universally the condition, if not in the early days of the Constitution, at least today. To demonstrate this just consider the beginnings of the last presidential contest, not when the contenders from each of the political parties faced each other, but when each of the parties was looking for their “David” to go out to slay the other party’s “Goliath” (whoever he might be).
To achieve what so many people consider the “normal” outcome of election by electoral vote, we would have to consider every one who nominated (wrote a name on blank piece of paper) someone for presidential candidate whether from any party, or unaffiliated as an “Elector”. From that condition where any two names can be submitted by an “Elector” either from his own party or from another, how likely is it that one name would appear on over half of these ballots? How likely is it that two names that appear on a majority of the “Electors'” ballots would have precisely the same number of votes?
Having demonstrated that the final vote would nearly always be done in the House of Representatives, and that the number of candidates would be five, it is appropriate to next show the dynamics of the final election.
But in choosing 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.
Here is where the the genius of the Constitution comes into play. Unless there was a consensus of the people of the nation that someone was outstanding enough to be nominated by a majority of the Electors who have no connection with the government, the field of the five best qualified individuals (according to the votes of those same Electors) is passed to the elected Representatives (Congressmen) of the people who must vote as a State.
Up to this point no discussion outside of the State meeting of Electors was taking place. No Elector was required to change his opinion to support any other nominee. The determination of candidates was strictly a tallying of the electoral votes. Nothing could be changed at that time either. As soon as the field of candidates is formed the House goes to its chambers and begins deliberation. Here is where the debate and discussion begin in earnest. Of the five qualified choices, the elected Representatives must now choose one. This was not designed to be a win-lose battle as we see in our political arena nowadays, for the candidates (at least in theory) had not sought for power, but rather were selected as the best that could be found in the nation.
The Electors provided the people’s choice for candidates, it was now up to the elected Representatives to pick from the candidates by State. It wasn’t sufficient to elect a candidate with more votes than the other four (a plurality). It was necessary that a majority of the States support that choice. This process was to elect a President of the United States and so at least a majority of the States needed to be united in that decision. This was indeed a job for statesmen, not something that could be left to mere politicians.
The debate could continue for as long as was needed. As many ballots as were needed could be taken. There were a couple of things that were somewhat problematic, particularly for the rigid unyielding portion of individuals that seem to be found in any assembly. A State could have an even number of Representatives voting for different candidates. Two-thirds of the States were needed for a quorum, but a majority of all the States not just those present were needed for a decision.
Election of the Vice President
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 choose from them by ballot the Vice President.
This provision makes sure that the Vice President is either first or second choice of the Electors. Since the number of electoral votes received is irrelevant when the choice of President is made by the House, the first choice of the Electors may not be President. If he is not he will be Vice President. The only time the Senate gets to vote for Vice President is if there is a tie. The Vice President is also President of the Senate so why not let them decide in that rare case.
