Electoral College

[jonathan flanders <jon_flanders@xxxxxxxxxxxxxxxxxx>]

Below is an excerpt on the US Electoral College from David Hutchison's
"Foundation of the Constitution" written in 1928. While I am sure this book
is superseded in some ways by more recent works, it contains a lot of
detailed background worth knowing re the current crisis.
The key paragraph in this selection is of course the fear of popular
election of the president. It is ironic that the one of the other fears,
that of cabal and corruption, which led to the creation of this seperate
quasi-legislative body, has now come home to roost in spades.

Jon Flanders

 Ferdinand Lundberg, author of "The Rich and the Super-Rich" and "America's
60 Families" says of the book in his introduction.....


"But Professor Hutchison's offering-tightly written, factual, compressed,
always to the point, and also heavily backed up by source notes-is a
continuous splashing fountain of often curious information. It stimulates
new interest as one reads along. Cumulatively it begins to generate the
excitement of discovery.

In brief, it is not just another dull book on the Constitution. Nor is it
another one of those which relates how a group of super-natural figures
appeared in 1787 and wrought a miracle in Philadelphia as time stood still
and angel choirs sang sweet melodies of peace on earth, good will to men.

What Professor Hutchison sets forth of a purely marginal nature will
surprise many readers. For example. he points out that women had the vote
under the New Jersey Constitution of 1776 and continued to have it-I won't
say "enjoy" it-for thirty-one years. This was long before the nineteenth
amendment to the national Constitution and longer still before women's
ever-blessed liberation from subordination to the male.

But such minor nuggets apart, the book is made for the true constitutional
buff seeking enlightenment amid the shrill cries of contending political
hawkers and hucksters-all with visions of government contracts and campaign
donations in mind."


The Electoral College

>From "The Foundations of the Constitution" by David Hutchison
1928

(Art. II, Sec. 1, cl. 2, 3.) Lord Bryce regarded electors as "a faint
reminiscence of the methods" used in electing the Doge of Venice and the
Roman Emperor in Germany. Others have seen resemblances to the Polish or
cardinal electoral schemes. These were mentioned in the Convention of 1787,
but as methods of election with dangerous or undesirable tendencies,
weaknesses, and defects which ought to be avoided by the Americans. It may
be said, there are two views of the origin of the electoral college.

(1)     Bowdoin's view. He regards the Maryland electoral scheme as the
source. "This method of choosing," he said, "was probably taken from the
manner of choosing Senators under the Constitution of Maryland." Though
Bowdoin was not a member of the Federal Convention, and he merely states a
probability, and does not make a positive statement, his view has been
universally accepted.

James Wilson of Pennsylvania was the man who first proposed the election of
the President by means of electors. On June 1, 1787, he said he was almost
unwilling to make known his method, as he was afraid that it might appear
chimerical. He declared himself in favor of popular election of the
President in theory at least, and pointed to the experience of Massachusets
and New York as proving that the election of the executive by the people
was both convenient and successful. On June 2, he moved that the Executive
be elected by electors chosen by districts by the voters qualified to vote
for members of the first branch of the national legislature. A portion of
Article XV of the Maryland constitution, and part of Wilson's resolution
are identical. This reads: "That the said electors of the meet at and they,
or any of them, so met, shall proceed to elect by ballot."

It is clear he had the Maryland electors in mind. The use of the same,
identical phraseology could not possibly be the result of chance or
accident. It is probable that the term "electors" may have been suggested
to Wilson by the Maryland constitution. However, he could have taken it
from the constitution of his own state, which applied it to members of the
General Assembly and Council when acting as electors of the President and
Vice-President of Pennsylvania. Iredell applies the term to members of the
state legislatures when choosing senators. Gouverneur Morris applies it to
members of Congress as prospective electors of the President. The term was
commonly applied to persons   acting in an electoral capacity, or
performing electoral functions, and the name would naturally be given to
anyone who helped to elect the President, whether directly or indirectly,
immediately or intermediately.

(2)Madison's view. He says: "The President is indirectly derived from the
choice of the people, according to the example in most of the States."
This "example" was found in eight states in 1787, in which the executive
was elected by joint ballot of both houses of the legislature. In Georgia,
the house of representatives elected. The legislatures in those eight
states possessed and exercised both legislative and electoral powers, and
were legislatures or electoral colleges, according as they exercised
legislative or electoral functions. There were two sets of functions
electoral and legislative performed by one set of men. The committee of
eleven in the Convention of 1787, separated the functions, and provided two
sets of men, or two Congresses, namely, an electoral body and a legislative
body of representa-tives. The Virginia plan provided for legislative
election of the President, or election by Congress.

That is, the plan retained the method of electing the President in the
Congress of Confederation. James Wilson proposed popular election of the
executive, confessedly based on American experience, but the Convention
believed both dangerous. On the one hand, they must guard against the
dangers of a legislative election. These would be intrigue, faction, cabal,
and corruption. The President would be the mere creature of the House and
Senate, as the one was to impeach him and the other to try him. He would
not dare even to exercise the veto power. The only safeguard would be to
make the President ineligible, which they opposed. Legislative election
must be rejected to secure the President's complete independence, and
preserve inviolate the sacred doctrine of the separation of powers.

 It would result in foreign influence and intrigue in Presidential
elections, as in Poland and Germany, while Congress would be so excited and
divided into factions over elections that the national administration and
public business would suffer through neglect. An insuperable objection to
election by Congress was that the electoral body would be a standing,
permanent body that could be approached at any time, courted and intrigued
with by the candidates, their partisans, and the ministers of foreign
powers. The electoral body must never be a standing, permanent, preexisting
body which could be found at any time, and intrigued and bargained with,
and "tampered with before-hand to prostitute their votes," whenever
opportunity offered.

On the other hand, the dangers of popular election must be guarded against.
If the people should elect the President, the unsophisticated voters would
be duped and deluded by scheming political tricksters. It was unthinkable
to suppose that the people would ever be able to unite on any one man, and
simply preposterous to believe they could be capable of judging and voting
intelligently on the subject. Utmost confusion and periods of interregnum
would result. To the small states, a more terrible spectre loomed
up--popular election would throw the power to elect the President into the
hands of the large states. The people would be sure to throw the President
out of office for doing his duty, and dangerous riots, faction fights, and
wild commotions would occur as in Poland. Popular election was utterly
impracticable because of the vast extent of territory in the Union. The
South would be placed at a decided disadvantage in the election as the
negroes would not have a vote, and the Southern influence on elections
would be disproportionate to her population. "To avoid the inconveniences
already enumerated and many others that might be suggested," said James
Wilson, "the mode before us was adopted."

The great problem before the Federal Convention was, then, to devise such a
method of election, as would get rid of the evils and dangers of both
methods. Legislative election, or election by Congress provided, as in the
states, for two sets of functions-electoral and legislative-to be performed
by one set of men. In that fact, lay all the dangers and difficulties of a
legislative election. Therefore, to get rid of these dangers, or minimize
them as far as possible, the committee of eleven separated the functions of
Congress, and provided an independent body of representatives to perform
the electoral work. This gave an electoral Congress and a legislative
Congress. The electoral body is modelled after Congress, contains the same
number of representatives apportioned in the same way, and is the exact
counterpart and miniature of Congress.

Should the electors meet to elect a President, they would simply represent
a joint session of both houses met for electoral purposes. It is a
temporary body, called into existence for the sole pur-pose of taking over
and doing the electoral work of Congress, meets, performs its work, and
immediately becomes defunct. On September 6, it was moved twice "that the
electors meet at the seat of the general government," but this was
rejected. The Convention then adopted the report of the committee of
eleven, which broke up the electoral body into bodies of state electors to
meet and ballot in their own states.

Collectively, these state electoral colleges stand instead of, and
represent a joint session of both houses of Congress met for electoral
purposes. The breaking up into bodies of state electors, it was believed,
would still further remove the dangers of a legislative election. It also
gives the states a share in the selection of the President, and makes the
election partly federal.

 The Electoral College was, then, merely a second or substitutionary
Congress created for the express purpose of taking over and doing the work
originally intended to be done by Congress, because it was believed this
substituted body could do the electoral work better and with greater safety
to the nation. This was clearly understood by the members of the Federal
Convention. General Pinckney pointed out in the South Carolina convention
that instead of being elected by the Senate and House of Representatives,
as was originally planned, the President was "to be elected by the people
through the medium of electors chosen particularly for that purpose." This
would secure executive independence.

Charles Pinckney said in the Senate of the United States on January 23,
1800, he remembered that the Convention had taken great care "to provide
for the election of the President of the United States independently of
Congress, and to take the business as far as possible out of their hands.
The votes are to be given by electors appointed for that express purpose."
On March 28, 1800, he said: "I well remember it was the object . . . to
give Congress no interference or control over the election of the
President." Baldwin of Georgia, a member of the committee of eleven,
appointed to deal with postponed and unfinished portions of the
Constitution, said, on January 23, 1800, that the Constitution had directed
"electors to be appointed throughout the United States, equal to the whole
number of Senators and Representatives in Congress for the express purpose
of entrusting the Constitutional branch of power to them." The Electoral
College then appears to be simply the existing state institution men-tioned
by Madison, but modified, and adapted to meet the needs of the nation.

The Charter of New England, 1620, created a Council of forty persons, and
confided the power of electing the President to them. The Charter of
Massachusetts Bay, 1629, provided for election of Governor and
Deputy-Governor by the General Assembly. The first general court held in
Boston, October 19, 1630, decided the freemen should choose the Assistants,
and the Assistants the Governor. The Charter of the East India Com-pany,
December 31, 1600, gave the General Court power to elect the Governor and
Deputy-Governor. The General Courts exercised electoral functions. The
first state to adopt a constitution providing for legislative election of
the executive was South Carolina, March 26, 1776. The principle of indirect
election also appears in the English boroughs, where, in some cases, the
freemen elected the delegates to the county court, and the delegates
elected the representatives to Parliament. Out of such a background,
English, colonial, and state, the Electoral College grew. The electors are
to be appointed by the states "in such manner as the Legislature thereof
may direct."

This was apparently suggested by the method provided for electing delegates
to Congress from the states under Article V, Articles of Confederation,
which required delegates to Congress to be appointed "in such manner as the
legislature of each state shall direct."

No member of Congress "or person holding an office of trust or profit under
the United States, shall be appointed an elector."  This is the application
to electors of the clause in the Constitution disqualifying officeholders
as members of Con-gress. The same principle is found in the Articles of
Con-federation, the Dickinson Draft, and in several state constitu-tions as
New Hampshire, Pennsylvania, Maryland, North Caro-lina, and Georgia. Back
of this, the principle is found in the Charter of Georgia, 1732, and the
Concessions of West New Jersey, 1676.60 Identity of principle and
phraseology of the Georgia Charter and state constitutions with the English
Act of Settlement, 1701, and the Place Act of 1707 shows them to have been
the ultimate source of the principle. Part of the phraseology of the Place
Act appears in the Constitution of the United States. The purpose,
according to the Federalist (67), was to secure electors "free from any
sinister bias."

Several important working principles of the Electoral Col-lege were
evidently suggested by the constitution of Massachusetts of 1780.

(1)     The Electors "shall make a list of all persons voted for, and of
the number of votes for each."  The Massachu-setts constitution provided
that the town clerk with the assist-ance of the selectmen "shall . . . form
a list of the persons voted for with the number of votes for each
(person)."

(2)     The Electors are required to "sign, certify, and trans-mit" the
list "sealed to the seat of the Government, . . . directed to the President
of the Senate." In general outline this follows the Massachusetts plan
which provided for the clerk and selectmen sealing up copies of the list,
attesting them, and transmitting the list to the sheriff who is to transmit
it to the Secretary's office.

(3)     "The President of the Senate shall in the presence of the Senate
and House of Representatives" open the certificates and count the votes.
The Massachusetts constitution pro-vided for the counting of the votes
"before the Senate and House of Representatives."  The Delaware
constitution pro-vided for counting the vote for President "by the Speakers
of each house in the presence of the other members." 68 In Vir-ginia, the
vote was to be "examined j jointly by a committee of each house." 69 It is
the Massachusetts plan, or possibly that and the suggestion of Delaware
regarding the Speakers presid-ing that is adopted. The language of
Massachusetts is employed.

(4)     The Constitution provided that the person having the greatest
number of votes, if "a majority of the whole number of Electors," should be
President. The constitution of Massachusetts required "an election by a
majority of all the votes returned."

(5)     The Constitution gives eventual election to the House of
Representatives. This was also suggested by the constitution of
Massachusetts which gave eventual election to the legislature. On July 17,
James Wilson spoke in the Federal Convention in favor of the Massachusetts
expedient giving eventual election to the legislature. The committee of
eleven, however, gave eventual election to the Senate, apparently on the
ground that the large states would have the advantage in nominating the
candidates, while ultimate election by the Senate would give the advantage
to the small states. Gouverneur Morris gave a second reason. Randolph
asked: Why is eventual election given to the Senate instead of the
legislature? Gouverneur Morris replied: "The Senate was preferred, because
fewer could then say to the President, 'You owe your appointment to us.'"
His answer shows that the committee had the Massachusetts plan under
consideration, and that giving the Senate eventual election was merely a
conscious adoption of part of the Massa-chusetts expedient for the whole.
On September 4 and 5, Wilson moved to strike out "Senate" and give eventual
election to the legislature. That is, that the principle of Massachusetts
be adopted.

However, it was felt that the Senate was too powerful already to have
anything to do with eventual election, and it was seen that the same
advantages might be secured to the small states, if eventual election were
given to the House of Representatives, and the vote taken by states. On
Sherman's motion, the Convention, therefore, adopted this ex-pedient. In a
letter to George Hay, August 23, 1823, Madison says, eventual election was
given to the House as "an accommodation to the anxiety of the smaller
States for their sovereign equality," and because of the jealousy of the
larger states "towards the cumulative functions of the Senate." The House
was thought safer than the Senate, because it had a larger number of
members, and would, therefore, present greater obstacles to corruption. The
arrangement, he declares, was a compromise between the large and small
states, in which the former secured the advantage by selecting the
candidates from the people, and the latter by selecting the President from
the candidates. Were it not for this, he says, a joint ballot of both
houses would have been substituted.79 That is, the complete Massachusetts
plan would have been adopted. The Vermont constitutions of 1777 and 1786,
both provided for eventual election of the Governor by joint ballot of both
houses. The North Carolina constitution contained the same provision.

King declared the small states would never have consented to the
appointment of the President by electors, if the large states had not
consented to eventual election, and an equal vote in the House.

Congress Is to Determine the Time of Choosing Electors, and Casting the
Electoral Vote.

The report of the committee of eleven submitted by Brearly, September 4,
contained this provision in germ. "And of their giving their votes" was
inserted September 5, and "the election shall be on the same day throughout
the United States" was added September 6.82 Some slight verbal changes were
made in the clause as reported by the committee on style on September 15.83



(1)     The purpose of the clause was to secure regularity and uniformity.
Spaight, a member of the Federal Convention, said in the North Carolina
convention, it was felt that if the power to determine the day were left to
the states, one would appoint one day and another another day, which would
result in con-fusion.

(2)     Another purpose of the clause by requiring the electors to meet on
the same day, was to prevent cabal, combination, corruption, and bargaining
between the Electoral colleges of the different states. Spaight said again:
"And that the election being on the same day in all the States, would
prevent combination between the electors." 84 Iredell pointed out that if
the day of election had been different in different states, electors chosen
in one state might have gone from state to state which would have left room
for undue influence. The require-ment of the same day, however, prevented
any kind of combination or secret deals or intrigues between the electors
of different states. Governor Randolph, a member of the Con-vention, gave
the same explanation, and Gouverneur Morris of the committee of eleven
said: "As the electors would vote at the same time throughout the United
States, and at so great a distance from each other, the great evil of cabal
was avoided. It would be impossible also to corrupt them."