Article 2, Section 1, Clause 3: Manner of Election of the President

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.

The Presidential Election Clause in the original Constitution is moot, since the generation of the Framers quickly amended the Constitution to alter the manner of election of the President. The clause is replaced  in its entirety by the 12th Amendment (though some of the language of the original Presidential Election Clause is retained there.) The clause is thus chiefly of historical interest, in showing how tentative was the Framers’ concept of the Presidency.

The Founders originally gave each elector two votes, one of which had to be for someone not from his own state. If any candidate received a vote from the majority of electors, he became president. But because each elector had two votes, it was possible for two candidates to both receive a vote from the majority of electors. In this case, the House chose between the two. If no candidate received a vote from the majority of electors, then the House chose the president from the five candidates with the greatest number of votes.

Once the president was chosen, then whichever candidate had received the greatest number of votes (other than the candidate chosen as president) became the vice-president. It was thus theoretically possible for the president to have received votes from a bare majority of electors while his vice president had received votes from every one of the electors, if the House was sufficiently at odds with the electors.

The system also all but guaranteed that the vice president would be a political rival of the president, except in the first election, where everyone knew Washington was going to be president.

History shows how this played out. Washington, as expected, was chosen unanimously by the electors in both elections in which he was a candidate. John Adams had just returned in triumph from excellent service as a diplomat in Europe, and this made him unexpectedly popular in the Electoral College, so that he was elected vice president by a very respectable margin. In fact, some of his rivals feared that he might gain the votes of a majority of the electors, thereby throwing the election into the House, and they engaged in various political machinations to deny him such a majority and ensure Washington was elected outright. In this we believe they served their country, but Adams did not take it well. Adams was a genuinely brilliant and articulate man, honest almost to a fault; but he was also used to being the smartest man in the room, which was almost certain to be the case – unless his rivals Jefferson or Hamilton were also in the room. Adams thus acquired a reputation (not undeserved) for being vain and pompous, with a tendency to lecture when he should have been persuading.

Under the Washington administrations, this hardly mattered. Washington shaped the office of the President, deliberately setting precedents that served the country well and which we wish were more fully in place today. One of the most important of these was leaving office after two terms, a precedent that was not discarded until 1940 by Franklin D. Roosevelt, on the pretext that the Second World War was not a time to change administrations. But Washington’s retirement left a void that no other American was able to fill. Adams was chosen president and Jefferson, who by this time had gone from friend to rival, became vice-president. Adams had declared that the vice-presidency was a nearly meaningless office, even though he broke more ties in the Senate than any vice president since. But Adams had nearly always sided with Washington in his tie-breaking votes. Jefferson transformed the vice-presidency into a center of opposition to Adams (as president) and his policies.

The flaws of the original electoral plan were thus plainly manifest, and it was replaced by the Twelfth Amendment in 1804. We will defer our discussion of the present mode of election of the President until we consider that amendment.

However, we believe there are lessons to be drawn from the experience of the first two presidents. One is that, as important as a system of checks and balances is, the constitutional order should not create strong disincentives to negotiation and compromise. Another is that complex voting systems may come with serious pitfalls. We do not reject suggestions for ranked-choice voting or other novel electoral schemes out of hand, but we are decidedly skeptical about them until they have been tried more locally and their strengths and weaknesses fully understood.