What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

• December 3, 2017
• Rob Natelson

As
mentioned in the first installment of this series, litigation has
erupted in Colorado over whether the state may dictate the vote of a
presidential elector and remove him if he opts to vote otherwise.
Similarly, a Washington State lawsuit tests a system that, while
recognizing the validity of a vote contrary to an earlier pledge,
imposes a $1000 fine on an elector who casts such a vote.


In 1952 the Supreme Court upheld an Alabama law requiring a person seeking office as an elector to pledge to support the nominee of his party.


Laws limiting the discretion of electors are justified as part of the
state’s power to “appoint” electors. The justification is not airtight,
however, because the appointment of an officer and directing his or her
vote are not quite the same thing. For example, the people have power
to appoint (elect) members of Congress and other officials. The people
are right to expect successful candidates to honor their promises within
practical limits. But the people have no constitutional power to direct
congressional votes.


Consider also the rules under which Congress, state legislatures, and
conventions exercise their constitutional powers in the amendment
process. States have repeatedly passed laws attempting to control the
actions of those assemblies, but the courts have repeatedly struck them down.
The courts’ holdings are consistent with the founders’ understanding of
how legislatures and conventions worked: Lawmakers could follow their
consciences and convention delegates enjoyed significant discretion
within the scope of the convention call. Indeed, if some delegates who
had run for their state ratifying conventions as antifederalists had not
voted for the Constitution once compromise had been reached, the
Constitution would not have been ratified.


As explained below, the evidence suggests that the scope of a
presidential elector’s constitutional discretion is even greater than
that of a convention delegate.


Before proceeding further, however, let’s dispose of one issue. Some
see significance in the fact that the original Constitution was ratified
before the rise of national party voting, while the 12th amendment was
approved in 1804 after parties became the norm. They suggest,
therefore, that the meaning and expectations for elector voting under
the 12th amendment might be different from those under the original
Constitution.


It is, of course, true that the 12th amendment changed some aspects of the electoral system. But the language relevant to elector discretion charged hardly at all.


The original Constitution provided:

Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors. . . 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.

The 12th amendment did not alter the wording of the first part of
this selection, and its replacement for the second part was almost
identical to the original: “The Electors shall meet in their respective
states, and vote by ballot for President and Vice-President, one of
whom, at least, shall not be an inhabitant of the same state with
themselves.”


This near identity cuts against the idea that there was less elector
discretion under the 12th amendment than under the original
Constitution. Standard rules of legal interpretation hold that when
language does not change, meaning does not change. Party pressures might
discipline electors more after 1804 than before, but electors had no
more legal obligation to be disciplined after 1804 than before.


It follows that when construing the present constitutional language,
we are fully justified in relying on the usual sources employed in
construing the original Constitution.


One source of that kind is how contemporaries normally understood words and phrases used in the text.


In both the original and 12th amendment versions, the electors were to vote by ballot.
To the founding generation, this invariably meant secret ballot. The
whole point of a secret ballot is to hide the elector’s choice so to
ensure that choice is free. But free choice is inconsistent with the
state telling an elector how to vote.


Another important word in the text is elector. Eighteenth
century general dictionaries define an elector as a person who does the
choosing. Nathan Bailey’s 1765 dictionary defined an elector as “a
chuser.” The first entry for “elector” in the 1785 edition of Samuel
Johnson’s dictionary was “He that has a vote in the choice of any
officer.” Other dictionaries featured kinred definitions.


Eighteenth century legal dictionaries did not define “elector,” but
they did describe “election”—and with even clearer implications. The
most popular law dictionary in America, that of Giles Jacob, said of
“Election” that it “Is when a man is left to his own free will to take
or do one thing or another, which he pleases.” Wording very similar to
this appears in other law dictionaries.


Another important source of original meaning are practices of which
the founding generation was aware. One was the election of members of
Parliament in Scotland. Members were not directly elected, as in
England. Rather, they were elected by “commissioners” selected for that
purpose by voters or local governments.


A Scottish commissioner could be required to take an oath prescribed
by parliamentary statute. By that oath he swore he had not received
anything of value—apparently including his position as elector (“Office,
Place, Employment”)—in exchange for his vote. In other words, a
Scottish elector’s choice was not to be directed by the place that sent
him.


Under the 1776 Maryland constitution, the state senate was selected
by electors chosen by the voters. Electors were required to swear that
they would “elect without favor, affection, partiality, or prejudice,
such persons for Senators, as they, in their judgment and conscience,
believe best qualified for the office.” Again, public expectation was
that electors’ discretion would be unfettered.


The two leading precedents in the English speaking world both
reinforced dictionary definitions: Electors were to think for
themselves.


Now let’s turn to the Constitutional Convention. A key reason for
adopting the Electoral College was to ensure the president’s
independence from Congress and the states. Thus, James Wilson, who
initially favored direct election of the president, shortly thereafter
proposed an electoral college instead. According to Madison’s notes,
Wilson “wished to derive not only both branches of the Legislature from
the people, without the intervention of the State Legislatures but the
Executive also; in order to make them as independent as possible of each
other, as well as of the States.”


Obviously, permitting the states to dictate electors’ votes would
undercut that policy of independence from the states. This is one reason
the convention repeatedly rejected proposals for state officials to
choose the president. As Edmund Randolph observed, “A Natl. Executive
thus chosen will not be likely to defend with becoming vigilance &
firmness the national rights agst. State encroachments.”