When you vote this November 4, you probably know that you are not voting for the President and the Vice-President; you are voting for electors who will actual select the President and Vice-President. What you should also know is that:
- you don’t have the Constitutional right to vote for these electors; and
- they don’t have the Constitutional obligation to vote the way the state voted.
This article will examine:
- why we don’t have the Constitutional right to vote for President (or Presidential electors);
- what is being done about it;
- what should be done about it;
- conclusion.
Why We Don’t Have the Constitutional Right to Vote for President (or Presidential Electors): The State Legislatures Have The Constitutional Right To Appoint Electors Who Inevitably Choose The President
The Constitution sets up a system of electors (the term "Electoral College" does not appear anywhere in the Constitution), said set of state electors to be chosen "in such Manner as the Legislature thereof may direct" (Article II Section 1 of the Constitution). In fact, a legislature could take back the power to appoint electors as Bush v. Gore (Section IIB) reaffirmed.
What’s Being Done About It: Several States Have Taken Back, Tentatively, The Right Of Their Citizen’s To Choose Electors.
Four states have signed on to the National Popular Vote Compact, which awards the state’s electoral votes to the candidate who received the largest number of popular votes in the 50 states and District of Columbia as opposed the candidate who received the largest number of popular votes in the state (it is activated when states totalling 270 electoral votes sign on; so far states totalling 50 votes have joined). A paper issued by the plan’s sponsors explains how the Compact works, along with the shortcomings of the current elector system. I agree that the elector system is outdated, and that the United States needs to elect a President by popular vote, but not in a round about way. I believe the Compact does the right thing, but in the wrong way.
What Should Be Done About It: The Only Solution is a Constitutional Amendment
This section will deal with a potential solution to the problem:
- a summary of a proposed Constitutional Amendment implementing a popular vote for the President and Vice-President and what it should contain (greater participation by third parties and independents, and guarantee the winner has a majority vote);
- the proposed wording of the Amendment; and
- a method of state ratification of this amendment by popular vote (yes, we can do that; in fact, yes, we have done that).
Summary
• Section 1 establishes the right of the people to elect the President and Vice-President jointly.
• Section 2 establishes three elections, the first eliminating all but six persons. This allows for greater participation by minor parties. The second election eliminates all but two, guaranteeing that the winner of the third election receives a majority of votes. Also, at this time the candidate selects his running mate. In the unlikely event that there is a tie not making clear who should progress, the Congress as a whole decides with each Member (of the House of Representatives and Senate) having one vote (briefly, two non-party national primaries, the first eliminating all but six candidates, the second all but two).
• Section 3 provides for the joint election of the President and Vice-President; in the unlikely event of a tie Congress decides the winning ticket, again as a whole with each Member of both Houses having one vote.
• Section 4 gives Congress the power to legislate any specific issues that may arise, and this clause is common in many Constitutional Amendments.
• Finally, in Section 5, this amendment provides for ratification by Convention, an alternate method of state approval of Constitutional Amendments under Article V of the Constitutional.
Section 1: The President and Vice-President of the United States shall be elected jointly by the people of the several states and the District constituting the seat of Government as provided in this article of amendment.
Section 2. Every 4 years the people shall elect the President and Vice-President jointly through a series of three elections, each held throughout the nation on the same day, as determined by the Congress, but in no case shall the last election be more than 180 days after the first election. The first election will eliminate all but six persons that received more votes each than any other persons throughout states and the District constituting the seat of Government, or the five that received more votes each than any other persons and the current President if that President is eligible to seek, and desires to serve, a second term. The second election shall eliminate all but the two persons receiving the greatest number of votes throughout states and the District constituting the seat of Government. Should there be a tie in the popular in either of these elections, the Congress as a whole shall determine who continues to the next election, each member of the House of Representatives having one vote and each Senator having one vote.
Section 3. The two persons receiving the greatest number of votes throughout the states and the District constituting the seat of Government in the second election shall then each select another person to seek election as Vice-President, and these two together shall constitute a Presidential ticket. The third election shall be held at the same time the people choose the Members of the House of Representatives for that year. The Presidential ticket receiving the greatest number of votes shall be elected. Should there be a tie in the popular vote the Congress as a whole shall choose the Presidential ticket, each member of the House of Representatives having one vote, and each Senator having one vote.
Section 4. The Congress shall have the power to enforce this article by appropriate legislation.
Section 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, in a manner to be prescribed by Congress.
Voting For A Constitutional Amendment: Yes, We Can Do That; In Fact Yes, We Have Done That
The only amendment approved this way, the convention method, was the Twenty-first Amendment, which repealed Prohibition. However, most states elected delegates to these conventions, and many of these delegates were pledged to vote for or against ratification. Some of the state laws enacted for this process, such as Ohio’s, are still in effect. Although some states had a large number of delegates, such as Indiana’s 329, other states had a small number of delegates, such as New Mexico, which had only 3 (Political Science Quarterly, Volume 82 [1967] page 61 at page 69-sorry, not online). Federal law could be passed (under section 5 of the proposed amendment) allowing voting (at the first midterm election following passage of the proposed amendment by Congress) for a small number of delegates in each state, pledged to vote for or against the amendment, and, if it passed, the amendment would take effect at the next Presidential election.
This would be more of a popular vote than is our current Presidential election system since the delegates would be required to vote as directed by the people, unlike a lot of the state electors who have no legal requirement to vote as the people of the state voted. Also, the delegates could meet in the state capitals, as do the electors of most of the states, keeping the "convention" costs to a minimum.
Conclusion
Not having a popular vote for our President is a crisis. Granted, not an immediate crisis but a crisis nonetheless (I liken it to a family that has just received word that one member has cancer, and another was shot; each is a crisis that has to be dealt with, but one is more immediate than the other). I’m not naive enough to think that the proposed Amendment above would be passed as I have written it. But hopefully it might provide a starting point for discussion.
BasicPoliticalFacts