What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

• December 9, 2017
• Rob Natelson

The
previous installment collected founding era evidence on whether
presidential electors were to control their own votes. The evidence
included dictionary definitions, existing practices, and the records of
the Constitutional Convention.


This installment continues the discussion of founding era by
collecting material from the public debates on whether to ratify the
Constitution. These debates occurred between September 17, 1787, when
the Constitution became public, and May 29, 1790, when the 13th state,
Rhode Island, ratified. Comments from those debates generally show that
the ratifiers understood presidential electors were to exercise their
own judgment when voting.


Probably the most-quoted statement from the public debate is from Alexander Hamilton’s Federalist No. 68:

A small number of persons, selected by their
fellow-citizens from the general mass, will be most likely to possess
the information and discernment requisite to such complicated
investigations. . . . And as the electors, chosen in each State, are to
assemble and vote in the State in which they are chosen, this detached
and divided situation will expose them much less to heats and ferments,
which might be communicated from them to the people, than if they were
all to be convened at one time, in one place.

This is an important statement. However, for a number of reasons, we should not over-rely on The Federalist—or
on Hamilton, for that matter—when reconstructing how the public
understood the Constitution. Fortunately, there is a fair amount of
additional evidence.


Some of this material consists of comments stating merely that the
electors—rather than anyone else—would decide how to vote. In other
words, they assume the electors would remain independent.


For example, Roger Sherman, a delegate at Philadelphia and a
supporter of the Constitution, wrote that the president would be “re
eligible as often as the electors shall think proper.” An essayist
signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel
asserted that the state legislatures would “nominate the electors who
choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”


In his second Fabius letter, John Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states,
utterly vain will be the unreasonable suggestions derived for
partiality. The electors may throw away their votes, mark, with public
disappointment, some person improperly favored by them, or justly
revering the duties of their office, dedicate their votes to the best
interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be
chosen by select bodies of electors, to be deputed by the people for
that express purpose; and they have committed the appointment of
senators to the State legislatures . . .  As the select assemblies for
choosing the President, as well as the State legislatures who appoint
the senators, will in general be composed of the most enlightened and
respectable citizens, there is reason to presume that their attention
and their votes will be directed to those men only who have become the
most distinguished by their abilities and virtue, and in whom the people
perceive just grounds for confidence.

Some participants emphasized that electors would remain independent
because the Constitution would protect them from outside influence. At
the North Carolina ratifying convention, James Iredell, later a justice
of the U.S. Supreme Court, spoke to the issue in a slightly different
context:

Nothing is more necessary than to prevent every danger of
influence. Had the time of election been different in different states,
the electors chosen in one state might have gone from state to state,
and conferred with the other electors, and the election might have been
thus carried on under undue influence. But by this provision, the
electors must meet in the different states on the same day, and cannot
confer together. They may not even know who are the electors in the
other states. There can be, therefore, no kind of combination. It is
probable that the man who is the object of the choice of thirteen
different states, the electors in each voting unconnectedly with the
rest, must be a person who possesses, in a high degree, the confidence
and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral
College as representing a viewpoint all its own rather than as
reflecting the will of others. Hence Hamilton’s observation in
Federalist No. 60:

The House of Representatives being to be elected
immediately by the people, the Senate by the State legislatures, the
President by electors chosen for that purpose by the people, there would
be little probability of a common interest to cement these different
branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether
by the state legislatures or the people. For example, an essayist styled
A Democratic Federalist wrote, “our federal Representatives
will be chosen by the votes of the people themselves. The Electors of
the President and Vice President of the union may also, by laws of the
separate states, be put on the same footing.”


Yet such discussions of appointment were not accompanied by claims
that those who made the appointments would dictate the electors’ votes.
To be sure, William Davie, another Philadelphia delegate, said at the
North Carolina ratifying convention that “The election of the executive
is in some measure under the control of the legislatures of the states,
the electors being appointed under their direction.” But “in some
measure under the control” does not mean “wholly dictate.”


Possibly the closest anyone came to suggesting the legislatures would
direct electors’ votes was a comment by Increase Sumner at the
Massachusetts ratifying convention: “The President is to be chosen by
electors under the regulation of the state legislature.” However, it is
unclear what Sumner meant by “regulation.” He could be referring merely
to the fact that the legislature would “regulate” how electors were
appointed.


For those most part, moreover, participants worded their statements
in ways that avoided any suggestions that electors’ votes could be
controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors,
each having one vote of this number . . . The constitution also admits
of the people choosing the electors, so that the electors may be only one remove from the people . . .”

Note how this is phrased: (1) the electors choose the president, (2)
the people may choose the electors, and if so (3) the choice of the
president will be “only one remove from [not “determined by”] the
people.”


At the Massachusetts ratifying convention Thomas Thacher asserted
“The President is chosen by the electors, who are appointed by the
people.” And in North Carolina Iredell argued that “the President is of a
very different nature from a monarch. He is to be chosen by electors
appointed by the people.” Again, observe the difference between
appointment and choice of the president.


A final point: When crafting the Electoral College, the framers were
careful to minimize opportunities for collusion, intrigue, or
“influence.” As James Iredell observed in the extract quoted above, one
element of the framers’ plan was to allow Congress to appoint a day for
appointment of electors and another day for voting. In each case,
however, “the Day shall be the same throughout the United States.”
Article II, Section 1, Clause 4.


In 2016, the uniform day for the appointment of electors established
by Congress was November 8. But Colorado authorities removed an elector
and appointed in his alleged successor on December 19—manifestly not the
same day as November 8.


Not only did this violate the uniform day rule, but it was a classic
example of the kind of political maneuvering the rule was designed to
prevent.