Article 2, Section 1, Clause 2: 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.

As we noted earlier, the Framers nowhere ventured more deeply into the political unknown than in their conception of the President. The experience of the United States under the Articles of Confederation, which lacked a strong executive, had demonstrated the need for an executive of “energy, dispatch, and responsibility”, in the words of James Wilson. But the Framers found all the historical models for the executive unsatisfactory. Their distaste for hereditary monarchy was nearly universal. They apparently closely studied the office of the stadtholder (steward) of the Dutch Republic, but this office had become hereditary and effectively a monarchy. The historical examples of elective monarchy were shot through with public corruption.

Some thought was given to a non-unitary executive. The Roman Republic had the example the consuls, who were the chief magistrates of Rome, elected annually by the Centennial Congress in pairs. But there was danger of the consuls deadlocking on important measures. A triumvirate was considered as a way to solve this problem; a vote by any two carried a measure. But the Framers ultimately decided that only a unitary executive would do.

The challenge then was how to select a suitable President, and then to keep him on a short leash, but not too short a leash. With this and the next two clauses, the Framers confronted the issue of selecting a President.

Let us recall what qualities we might desire in a President:

• He should be a person of exception ability, energy, and initiative.
• He should be knowledgeable in the law, economics, diplomacy, military affairs, budgeting, statistics, and the basic sciences.
• He should have great depth and breadth of experience in leading and organizing the efforts of other capable persons in large and critical endeavors.
• He should be an excellent judge of character.
• He should himself be a person of character, with no taste nor tolerance for scandal nor any serious personal vices.
• His ambitions should be limited chiefly to being remembered by posterity as a faithful guardian of the constitutional order.
• He should be popular with the voting public, but no demagogue.
• He should have the basic humility that allows a man to listen carefully when told that he is wrong.
• He should have the kind of disposition that allows him to regard himself as the servant of the people and of Congress.
• He should be comfortable in the spotlight, but no seeker of publicity.

This is, of course, a wish list defining an ideal. We are most unlikely to find any one individual with all these qualities. The real question to be posed is: What process would actually select such an individual, if he was available? The supposition then is that such a process will also likely pick the closest thing that is available.

In this clause, the election process is placed (implicitly) in the hands of electors, and the number and qualifications of these electors is spelled out. The subclauses are as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct… It is perhaps unsurprising that the Framers punted on the issue of just how the President would be elected. The Constitutional Convention apparently leaned towards having Congress appoint the President, in the manner of a parliamentary system, and approved four proposals for such a scheme.  Two proposals for direct election were both voted down. James Wilson later reported that

This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide.

The Electoral College was the compromise coming out of this process. The electors would ultimately be responsible to the people, since the state legislatures would determine the manner of their appointment. But they would presumably  have some scope to exercise independent judgment, though this quickly all but disappeared. We will review this again after examining all three presidential election clauses.

In a sense, the Convention punted. Each state could decide whether its electors were popularly elected, or appointed by the legislature; whether the electors could exercise their own judgment freely or were bound to vote a particular way; and whether, in the latter case, they were bound to all vote alike. In the first election, five state legislatures chose the electors themselves; six chose their electors based on some kind of popular vote, but in only two of the states were the electors chosen by a statewide popular vote. New York did not choose electors in time for theirs to be counted, and North Carolina and Rhode Island had not yet ratified the Constitution.

Today every state chooses its electors in a manner that almost amounts to popular election of the President. The parties nominate electors who are pledged (and often bound by law) to vote for their party’s nominee. The voters vote for the party nominees for President and Vice-President, not for the electors, whose names do not even appear on the ballot.

The power of the state legislators to choose the manner of appointment is very broad, but not unlimited. For example, a method of appointment that clearly violates the 14th Amendment is off limits. For example, the courts have struck down appointment schemes designed to keep third parties from nominating electors on equal protection grounds.

a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress Almost all the states require all their electors to vote the same way, aggregating their vote, and smaller states are weighted more heavily in the final tally, since they have proportionally more electors. This it can and often has happened that the winner of the nationwide popular vote has been the loser of the electoral vote. As sympathetic as we are to the particular interests of the smaller States, we are mostly of the view that this is unfortunate, and if we are to de facto elect a President by plebiscite, it should be a genuine plebiscite. But we are mostly of the view that it is election by plebiscite that is to be avoided.

but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. It seems likely the Framers wished for the President to be beholden in any visible way to either a member of Congress or to an officer of the executive branch. The conflict of interest seems clear enough.