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Published online by Cambridge University Press: 02 September 2013
The Constitution of the United States provides that each state shall appoint, in such manner as its legislature may direct, a number of presidential electors equal to the number of Senators and Representatives to which the state is entitled in the Congress. The Supreme Court has ruled that this clause gives the state legislature exclusive power to decide the manner of choosing electors. Before 1832, several legislatures themselves selected the members of the state's electoral college, a practice followed by South Carolina until the Civil War. As every student of American government knows, in the period from 1788 to 1832, the popular selection of electors was established and real discretion on the part of electors in choosing a President and Vice President became a legal fiction. For a century, the practice has been for the electorate to choose a set of electors, who, it is understood, will legally confirm the decision already made at the polls.
The automatic operation of the electoral college as a device for translating popular votes into electoral votes is now challenged, however, with the projection of the possibility of eighty “unpledged electors.” The governors of seven Southern states recently agreed that if the Democratic national convention nominates a presidential candidate advocating anti-segregation, anti-lynching, anti-poll tax, and fair employment practices legislation, they will attempt to keep the Democratic electoral votes of their states from being cast for such nominee. This possibility makes state laws regulating the nomination, election, and instruction of presidential electors of utmost interest and importance.
1 Art. II, Sec. 1.
2 McPherson v. Blacker, 146 U. S. 1 (1892). See pp. 29–36 for a history of the different methods used for appointing electors from 1788 to 1892.
3 New York Times, Mar. 14, 1948. The seven states and their electoral votes are as follows: Alabama, 11; Arkansas, 9; Georgia, 12; Maryland, 8; Mississippi, 9; South Carolina, 8; Texas, 23. The same possibility has been discussed in five other states, with fifty-five more electoral votes: Florida, 8; Louisiana, 10; North Carolina, 14; Tennessee, 12; Virginia, 11.
4 The author wishes to express appreciation to Samuel H. Still and W. Brooke Graves, of the Library of Congress, for checking the information in this article against the records of the State Law Division of the Library of Congress.
5 California, Colorado, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming. The Nebraska law requires this to be done at a post-primary convention [Laws (1943), c. 77, § 4]. The attorney-general of Wisconsin has ruled that such electoral candidates may also be nominated by petition [25 O.A.G. 610].
6 Alabama, Connecticut, Delaware, Georgia, Idaho, Kentucky, New York, South Carolina, Tennessee, and Virginia. In Alabama, the party may nominate electors through the primary, but there is no statutory provision for the primary [Code (1940), Title 17 §§ 65–66, 145]. In Idaho, the county and state central committees of the various parties are charged with the duty of providing for the nomination of presidential electors. Although the United States Supreme Court has ruled that electors are “state officers” [Fitzgerald v. Green, 134 U. S. 377, 379–380 (1890)], the supreme court of Idaho ruled that when the legislature provided for the nomination of state officers in the primaries, presidential electors were not included [State v. Gifford, 22 Idaho 613 (1912)]. Thus electors continue to be nominated by the party organizations. In New York, this task is performed by the state central committee of each party [Election Laws (McKinney, 1943), § 131]. South Carolina vests this power in each party, and it is for the party to decide whether it will be done in the primary or otherwise [Code (1942), § 2304].
7 Arizona, Florida, Kansas, Nevada, New Mexico, Oklahoma, and Oregon. In some states where this duty is imposed upon the party, the nominations may actually be made in the primary. See note 5 supra.
8 In Arkansas and North Carolina, there is no specific provision for the nomination of electors, but candidates for state offices are nominated by the state convention or primary of the respective political parties. In North Carolina, however, the supreme court has ruled that the primary provides the only method of nomination, and one who is not so nominated is not the nominee of any political party. McLean v. Durham County Board, 222 N. C. 6 (1942).
9 Stats. (Purdon, 1936), Title 25, § 1221.
10 Laws (1944), Ex. c. 2.
11 New York Times, May 7, 17, 24, 25, 28, June 5, 8, 11, 13, 15, 22, 23, 24, July 16, Sept. 24, 26, and Nov. 7, 1944.
12 Rev. Stat. (1943), c. 46, §21–1 (d).
13 Laws (1942), nos. 137, 138, § 26.
14 See Albright, Spencer D., “The Presidential Short Ballot,” in this Review, Vol. 34, p. 955 (Oct., 1940).Google Scholar New Jersey has adopted the so-called short ballot since Albright's study was published. Laws (1944), c. 16.
15 California, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, Washington, and Wisconsin. In Connecticut, the “short ballot” is permissive [Gen. Stat. (Supp., 1935), §165c]. The supreme court of Ohio upheld the presidential short ballot law of that state, saying that, since the United States Constitution vests the state legislature with authority to direct the manner in which presidential electors shall be appointed, and since the state constitution contains no limitation on the exercise of this power, the law providing for placing the names of the presidential and vice-presidential candidates on the ballot in lieu of the names of the electors is constitutional [State ex. rel. Hawke v. Myers, 4 N. E. 2d. 397 (1936)].
16 Kansas, Minnesota, Montana, Nevada, New York, North Dakota, Oklahoma Oregon, South Dakota, Tennessee, Virginia, West Virginia, and Wyoming. New York's right to omit the names of the electors on voting machines was upheld in Thomas v. Cohen, 262 N. Y., Supp. 320 (1933).
17 Arkansas, Florida, Georgia, Idaho, Maine, Texas, Utah, and Vermont. In 1931, the legislature of Texas provided for the presidential short ballot [Laws (1931), c. 186], but the attorney-general, James V. Allred, ruled that “… this act [Chap. 186] is so vague, indefinite, and uncertain, that in our opinion it ia incapable of either intelligent construction or application.” See Albright, op. cit., 957. In 1944, the Texas ballot listed the names of the electoral nominees without the names of the presidential and vice-presidential candidates; but this was not confusing to the voter since the “unpledged” Democratic electoral candidates ran under the appellation of “Texas Regulars party.”
18 Alabama, Arizona, Louisiana, Mississippi, and New Mexico.
19 Code Ann. (Michie, 1942) §155, as amended by law which becomes effective June 29, 1948.
20 Public officials conduct the election, but the parties prepare their own ballots. No legal action can be taken to compel a party organization to prepare ballots; and, in practice the Democratic party is usually the only one to print any ballots. See Gardner v. Blackwell, 167 S. C. 313 (1932).
21 Before 1832, electors were often chosen under the district system by which one elector was chosen by the voters in each Congressional district and two by the voters in the state at large. This, of course, allowed representation in the electoral college for minority parties with strength localized in some districts. In 1891, the Democratic legislature of Michigan, which usually is Republican, adopted the district system to secure a part of the electoral votes; and in the election of 1892, the Democrats captured five of the fourteen electoral votes. The law was upheld in McPherson v. Blacker, op. cit., but subsequently was repealed by a Republican legislature.
22 Kansas, Louisiana, Maine, Nevada, New York, Pennsylvania, Rhode Island, South Dakota, West Virginia, and Wisconsin. Presumably this could be done in some of the other thirty-eight states under the general “write-in” provisions.
23 For example, under this system, in 1944 Dewey would have captured 226 electoral votes instead of 99 and Roosevelt would have won only 305 instead of 432. The several state legislatures would doubtless have power to enact such a plan under the ruling in McPherson v. Blacker, op. cit., but such a reform on a national scale could be brought about only by a constitutional amendment. From time to time, a joint resolution seeking to accomplish this by constitutional amendment has been introduced in Congress, but never has attracted significant support. Such state laws would do nothing, of course, to correct the anomalies inherent in the electoral college system itself, since each state is entitled to as many electoral votes as it has senators and representatives in Congress. New York, with its 14 million population and 47 electoral votes, has 127 times the population of Nevada, but only 16 times the number of electoral votes.
24 The last time an elector failed to follow his “instructions” was in 1820, when William Plumer of New Hampshire cast his electoral ballot for Adams and Rush instead of voting for Monroe and Tompkins. Plumer did this because he wished to groom Adams for the presidential race in 1824, and he thought Monroe lacked economy and foresight and Tompkins neglected his duties. Brown, Everett S., The Missouri Compromise and Presidential Politics, 1820–1825 (St. Louis, 1926), 53, 60–62Google Scholar; Paullin, C. O., “The Electoral Vote for John Quincy Adams in 1820,” Amer. Hist. Rev. Vol. 21, p. 318 (Jan., 1916).CrossRefGoogle Scholar
In 1876, James Russell Lowell was urged to spare the country the Hayes-Tilden dispute by casting his electoral vote for Tilden; but he declined. On this subject, Lowell wrote to Leslie Stephen as follows: “In my own judgment I have no choice, and am bound in honor to vote for Hayes, as the people who chose me expected me to do. They did not choose me because they had confidence in my judgment, but because they thought they knew what that judgment would be. If I had told them that I should vote for Tilden, they would never have nominated me. It is a plain question of trust.” Scudder, Horace Elisha, James Russell Lowell (Boston, 1901), II, 216–217.Google Scholar
25 Codes of Cal. (Deering, 1939), Election Code, §10555.
26 Comp. Laws Ann. (1940), §81–503a. In 1939, the legislature repealed this provision; but the repeal law was rejected by referendum at the general election held Nov. 5, 1940.
27 Massachusetts law provides: “In order to vote for presidential electors, the voter shall make a cross (X) in the square at the right of the party or political designation appearing on the ballot at the right of the surnames of the candidates for president and vice-president, to vote for whom such candidates for electors are nominated…” Laws (1932), c. 135, §2.
28 The New Jersey law provides that the names of the candidates for President and Vice President “for whom such electors are to vote” may be included in the certificate of nomination of electors to be filed with the secretary of state by each party. Rev. Stat. (1937), §19:13–15.
29 A party's candidates for presidential elector are described in New York law as a specified number of candidates “nominated to support the party candidates, naming them, for the office of President and Vice President.” [McKinney, op. cit., §§83 (1), 84]. In 1932, however, an attorney-general's opinion stated that there is no provision requiring the presidential elector to vote for a particular candidate for President. [45 St. Dept. 144].
30 Virginia law provides that each party shall file with the secretary of the commonwealth the names of its candidates for the office of elector and the names of the candidates “for whom they are expected to vote in the electoral college.” Michie, op. cit., §155, amended by §157(a) effective June 1, 1948.
31 In the popular election of 1872, 286 Grant electors and 65 Greeley electors were appointed. When the electoral colleges convened, Greeley was dead; but three electors actually voted for him. The other 62 Democratic electors cast their ballots as follows: B. Gratz Brown, 18; Thomas Hendricks, 42; Charles Jenkins, 2. Congress decided not to count the three votes for Greeley since he was dead when the electoral votes were cast. Cong. Globe, 42nd Cong., 3rd sess., 1296–1298, 1305.
32 Op. cit., 25–26, 35. The effect of such law would be to rule unpledged electors off the general election ballot.
33 It is doubtful whether Congress has power to provide for cases in which a presidential candidate dies before the meeting of the electoral colleges. The Twentieth Amendment empowers Congress to provide for succession in cases involving the death of the President-elect or the Vice President-elect, but no candidate is the President-elect or Vice President-elect until after the meeting of the colleges.
