The Green Papers: History
 

WHAT ARE THEY ALL DOING, ANYWAY?
an historical analysis of the Electoral College

by RICHARD E. BERG-ANDERSSON
"The Green Papers" staff
September 17, 2000

One day, during some heated political discussion among myself and a group of friends several years ago, one of my friends forcefully declared, "As an American Citizen, I have a RIGHT to vote for my choice for President of the United States". While this particularly firm retort was not directed at me, I could not help but jump in with a curt "No you don't!" This seemed to catch my friend a bit off-guard: "W-what do you mean?", he sputtered. "Very simple", I responded, "you don't have ANY right to vote for President- or Vice President, for that matter!"

One of my other friends in this discussion, thinking he had this all figured out, wryly smiled and said: "I get it! We don't actually vote for President and Vice President; we, in reality, vote for ELECTORS who, theoretically, choose the President and Vice President for us, though they really just rubber stamp whichever presidential candidate has won our State's popular vote!!". To which I replied, "Yes- that's true enough: but we still don't have any RIGHT to vote for these Electors, either directly or indirectly". Now, HE was confused!

I pulled out an Almanac with the text of the Constitution of the United States inside and read from Article II, Section 1, clause 2: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress". I looked around me- there was not a hint of recognition: that is, until I emphatically repeated one clause, "in such Manner as the Legislature thereof may direct"... I could see the "light bulbs" going on one by one until one of my friends said, "In other words, the State Legislature could legally decide not to allow us to choose the Presidential Electors- either directly or indirectly- by popular vote. Right?" "BINGO!!", I shouted.

The friend who had first asserted his "right" to vote for President was appalled by this possibility and asserted that he would "kick the bums out- all of 'em!: any legislator who would dare vote for, and any Governor who would be stupid enough to sign, a bill which would not let me vote for our Nation's highest office", to which I wryly noted that "I would be surprised if you didn't want to do just that... but, of course, you wouldn't even THINK about doing that until AFTER they had already taken your vote for President away- correct?" Everyone nodded: they then acknowledged that they hadn't really thought about this before.

This story illustrates the typical American's view of his or her "right to vote" as it relates to the choice of the man or woman who will fill the office of the Presidency. Many are blissfully unaware- at least it rarely, if ever, pervades their everyday consciousness- that they do NOT directly vote for President or Vice-President; most have some vague notion that there is this "Electoral College" and that the candidates for those high offices get something called "Electoral Votes" which is somehow different from the "Popular Vote"- the actual, raw tally of election statistics, as in: how many pulled the lever on a voting machine- or marked the "x" on a paper ballot- for whom; some even have a more than vague idea how this "Electoral College" thing might work: they may even know that, in order to win the Presidency, a candidate has to get at least 270 Electoral Votes out of the current total of 538 because that is an absolute majority.

But most, I dare say, do not really understand subtle nuances such as that I pointed out to my friends that day nearly a decade ago; and a large number of my fellow citizens have very little idea where this "Electoral College" came from- other than a vague notion of high school history references to "Great Compromise"s in the Constitutional Convention and the like- or why it, such an old-fashioned institution, still survives and functions in modern America. This essay will be an attempt to- in chronological sequence of the various developments in the history of the Electoral College- attempt to answer at least some of this.

To begin with, calling the body which actually elects the President and Vice President of the United States the "Electoral College" is a bit of a misnomer: unlike an institution such as, say, the College of Cardinals which elects the Pope, it does not meet all together in one place. Instead, it is rather purposely forced to meet in segments based on the State which "appoints" a number of its members. In order to understand this, as well as other elements of its history and functioning, we have to go back to the beginning to where the concept of the Presidential Elector first began- and, to do that, we will first have to go back to where the concept of that high office for which the Elector chooses as well. In short, we have to know how the conception of the office of President of the United States itself arose in order to then understand why these sometimes mysterious Electors actually elect that President.

One of the many weaknesses of the Continental Congress operating under the first fundamental law of the United States of America- the Articles of Confederation- was that it had no permanent executive. This was a result of the fear of executive power engendered as a result of the American Revolution: on the colonial- soon to become State- level, the Governors- in most colonies, an officer of the Crown- were the "bad guys"; it was the colonial assemblies- with their "power of the purse" forcing these Royal Governors to at least take cognizance of the hopes and fears, wishes and desires of the People they governed- that were the heroes of the Patriot cause. Accordingly, the early state legislatures were given great power in the new State Constitutions: the Governor- even though elected by the People in some States, but the legislature in most- was viewed as a necessary evil hemmed in by constitutional restrictions, a short term of office and direct oversight by bodies such as New England's "Executive Councils" or the legislatures themselves so that he could not ever become the despots his colonial predecessors were.

When it came to any government on a level above the newly "free and independent States", an executive in this sphere conjured up images of the British Crown embodied by the King George III the newly independent Americans were only lately unchained from. So, the United States of America would prevent the type of Tyranny they so recently fought by not having any executive above the State level at all! Of course, these same newly independent Americans conveniently forgot about the "tyranny of the majority"; they also forgot that, in at least some cases, someone has to be in charge and to be accountable in order to get the things done that had to be done. They forgot the lesson that- when it comes to legislatures- "too many cooks" often DOES "spoil the broth"! The Articles of Confederation was failing by the mid-1780's: Congress couldn't raise revenue, it couldn't command armies, it couldn't coin money and- above all- the nation had no executive; it was quite possible that these defects in its fundamental law would end up strangling the young Republic in its cradle!!

Encouraged by many who were becoming more and more alarmed by growing unrest among debtor farmers and frontiersmen in the countryside as well as the inability to form and enforce agreements among the several States, the Continental Congress authorized the holding of a Convention to meet in Philadelphia "to revise the Articles of Confederation" beginning in the late Spring of 1787. We, of course, now know that meeting as the Constitutional Convention and its delegates as the Framers; we also know that they drafted a whole new document to supplant the Articles of Confederation en masse: that document being the Constitution of the United States of America.

That a permanent national executive was needed was clear to the delegates meeting in Philadelphia that May, but what should it be? One person? a committee?? some sort of council???... and, regardless of its makeup, who should choose this executive? the national legislature? the People directly?? the governments of the several States??? The so-called "Virginia Plan", submitted to the Convention on 29 May 1787 by Edmund Randolph of Virginia, called for a "national executive" (purposely leaving its makeup unstated) "to be chosen by the national legislature" (for a deliberately unstated term of office). On 1 June, James Wilson of Pennsylvania proposed that this executive be a single person but Randolph was vehemently opposed to this, feeling that a single executive smacked of monarchy (Randolph preferred a committee of 3 to form the executive- one from each of the major regions of the country: New England, the Middle [now Mid-Atlantic] States and the South); the question of the makeup of the executive was postponed but the idea that there be a "national executive" was approved by the Convention forthwith- showing how this was seen as one of the chief defects of the Articles of Confederation.

As to how the executive- whatever it consisted of- was to be chosen, this was another matter: Wilson was for election by the People (though it is unclear whether he was in favor of direct election: he did hope for election of both the legislature and the executive without the States being involved). George Mason of Virginia agreed with Wilson but doubted it was practical (he was clearly thinking about direct election). John Rutledge of South Carolina thought the "second branch" of the legislature (it had been decided- only the day before- that the "national legislature" should be bicameral and that- while the "first branch" should be popularly elected, the choosing of and basis of representation for this "second branch" was still up in the air) should make the choice of executive.

The next day (2 June), Wilson offered the first proposal from which the Electoral College would eventually emerge: he proposed that the States be divided into districts and that the people qualified to vote for the "first branch" of the national legislature also elect "members for their respective districts to be electors of the executive magistracy" who would later meet to choose (but not from among themselves) the executive (which Wilson- later in this same proposal- suggested be one single individual). Wilson's proposal was soundly defeated (which makes the eventual creation of the Electoral College to chose a single President singularly ironic!). Instead the Convention voted to have the executive (still unknown as to makeup) elected by the national legislature for a term of 7 years. Four days later (6 June), Elbridge Gerry of Massachusetts would revive Wilson's proposal for electors- but as a method of choosing the House of Representatives !!

[One might well wonder where Wilson got his idea of using "electors" in the first place. Lord Bryce, the author of the seminal late 19th Century two-volume The American Commonwealth (which I personally consider a work at least the equal to deTocqueville's Democracy in America ), suggested comparisons to the method of choosing the Doge of Venice or the Holy Roman Emperor; others have made comparisons to the College of Cardinals or the method used to elect the King of Poland (a kingdom- at the time of the Convention- being slowly partitioned out of existence by "Great Powers"). However, when the Convention considered electoral schemes such as these, it was in the negative- as methods of election with inherent defects and weaknesses and altogether fraught with peril if applied to the choice of an American national executive.

The prevailing view of historians has been that Wilson simply adapted the method used in the Maryland Constitution of the time for choosing its State Senate (Maryland had 9 Senators from west of Chesapeake Bay and 6 Senators from the Eastern Shore: each of these sections of the State would choose "electors" on the same basis as they would elect the House of Delegates- "electors" who, in turn, would choose the section's Senators). However, James Madison- in the Federalist- expressed the opinion that "the President is indirectly derived from the choice of the People, according to the example in most of the States" (in 1787, 8 of the 13 "united" States chose their state executives via joint ballot of the state legislature); he noted that the legislatures in those States had, thereby, two functions- lawmaking and electoral- which the Constitutional Convention took upon itself to split between two separate bodies (Congress and the Electoral College).

One must be cautious in accepting Madison's interpretation of the origins of the concept: although a delegate to the Constitutional Convention who- as time would reveal- kept the most extensive (but, by no means, complete) notes of the goings-on at the Convention of 1787, the Federalist was an attempt to secure the ratification of the document against strong Antifederalist sentiment in, primarily, New York. Madison may have simply been trying to downplay the novelty of the Electoral College system of electing the President by relating it to concepts already familiar from recent State government practice.

It may be that the truth lay somewhere in between: that Wilson did, in fact, borrow a practice (and even the wording) from the Constitution of the southern neighbor of his own Pennsylvania (it is clear that Gerry must have been thinking of Maryland's system of electing State Senators when he proposed the use of "electors" for what was still being called the "first branch" of the "national legislature")- but that the Convention, as a body (as we shall soon see), would come to regard the use of "electors" as a desirable alternative to election directly by that same "national legislature" and, thus, in their own minds (which may explain Madison's comments some months later) related it to then-current legislative practice in most of the 13 States.]

Meanwhile, on 4 June, despite strong objections by Randolph, the Convention finally decided that the "national executive" should be a single person; although not important to the story of the Electoral College, the only thing left to consider- as far as the makeup of the executive was concerned- was the title of this national executive office: after going through a number of possibilities- "Governor of the United People" and "Governor" generally, the Committee on Detail would report out- in late August- the title of "President of the United States of America" which was accepted by the Convention (Wilson was a member of the Committee on Detail and- being a Pennsylvanian- he substituted, for the word "Governor" [the name of the executive in most of the States], the word "President" [the name of the executive of Pennsylvania at that time]).

On 9 June, Gerry made a proposal that the national executive be chosen by the executives of the several States (his argument was that- by this time- the Convention had already decided that the "first branch" [the House of Representatives] was to be chosen by the People and the "second branch" [the Senate] by the State legislatures: by analogy, the national executive should be chosen by other executives): the proposal was voted down. So, for the time being, the executive was still to be chosen by the "national legislature" (the exact methodology left for another day).

The question of how the executive should be elected was not taken up again until 17 July: an attempt to have the choice made by "the citizens of the United States" was defeated and a plan to have him chosen by electors chosen by the State legislatures also was voted down. But by 19 July, a consensus had developed in favor of "electors" doing the actual choosing of the national executive, though it was not yet decided whether the People or the State legislatures or some combination thereof should choose these "electors". The next day (20 July), there emerged a consensus for a system of the "electors" being appointed by the State legislatures (the devil was in the details as to how to allocate them among the States and this forced the issue to be put aside for the time being).

But then, as often happened in the course of the Constitutional Convention, an issue was reconsidered; the whole idea of "electors" was discussed from 24 through 26 July and eventually scrapped: choice of the "national executive" by the "national legislature" was restored and then the whole kit n' kaboodle- like other thorny issues still outstanding- was simply dumped into the lap of the Committee on Detail. This committee reported out that the President (for so- as noted above- the executive was now called) would be chosen "by ballot by the legislature"; on 24 August, John Rutledge got approval of the word "joint" being inserted before the word "ballot" but there was still strenuous objection to the election of the President by the national legislature at all. Gouverneur Morris was very much opposed to choice by the national legislature, but his attempt to have the President chosen by "electors to be chosen by the people of the several States" was voted down. The whole issue would now go to the Committee on Unfinished Portions (of which Gouverneur Morris was a member).

What was reported out of this committee on 4 September was quite different from what had gone in with it a little over a week earlier- essentially, the basic Electoral College system pretty much as it appears in the body of the original Constitution was presented to the Convention that day: each State would be assigned a number of Electors equal to the number of Senators and Representatives that State had in Congress; the Electors would meet in their respective States and vote for two men for President, only one of whom could be from the same State as the Elector so voting. A majority of the total number of Electors would be necessary to elect the President outright. The person with the next highest number of votes would be Vice President. It was obvious what was being proposed here and the main reason why the method of choosing the executive was causing such consternation in the Convention of late:

Once the Convention had decided on a single executive back in June, its delegates pretty much knew (or at least came to know soon enough) who that executive was likely to be at first: the president of that very body- the hero of the American Revolution, George Washington. The problem was to have a system in place - once the General was no longer serving as President- to choose Washington's successors, none of whom- no matter how honorable they might be, no matter how respected in a given State or region of the country- would have (or so the Framers thought) the national prominence of the General who had only so recently guided the Continental Army through a series of harsh military campaigns. The plan here was for the Electors collectively to put forth a number of candidates for President from different parts of the country: if one of them could command a majority of the Electors, so much the better- he would clearly be the consensus choice of the Nation and should be elected President. Of course, for the Framers, the issue was now what if- as they considered to be the more likely happening- no one commanded a majority of this "Electoral Vote"? What if- as (or so those in the Convention thought) was most probable- the President were NOT elected outright??

The solution to the failure to gain a majority of the votes of the Electors proposed by the Committee on Unfinished Portions that 4 September of 1787 was to have the top five vote-getters (as well as the possible case that two persons could have a majority of the Electoral Vote and be tied) be considered by the Senate (the President of the Senate was to receive the certifications of the votes cast by the Electors in their respective States in any event). Objections to this were raised (George Mason opined that 19 out of 20 times the Senate would be choosing the President [which shows the feeling of the Convention that majorities in the Electoral College would be hard to come by once George Washington was no longer a candidate for the Presidency]; James Wilson [who also would say the method of choosing the President had become the most difficult issue the Convention had been dealing with] felt that this smacked of aristocracy): but Gouverneur Morris argued that, with the Senate being the smaller body, there would be fewer who could claim the President owed his election to them.

On 5 September, however, things began to change rapidly: "Senate" was replaced by "legislature" on a motion by Wilson. The next day (6 September), this was changed again to "House of Representatives" (to further blunt the force of Wilson's "aristocracy" argument); there was some objection to this (James Madison, for one, argued that- as a majority of the House would constitute a quorum- the President might, thus, be elected solely by Pennsylvania and Virginia [again showing that the Framers thought election of the President by the House would be a much more common occurrence] ) but this final change as to the body which would choose the President when the Electoral College failed to elect held firm (though the Electoral Vote was now to be counted before a Joint Session of the Congress rather than the House alone [when the Senate was still being considered the body to choose the President where no candidate achieved a majority, the Senate alone was to have tabulated the Electoral Vote; the President of the Senate was still to receive the certifications of each State's Electoral Vote]). The only time the Senate alone would be part of the Electoral Process would be if- and only if- there was a tie between the two highest vote-getters not chosen President (either by the Electoral College outright or, later, the House of Representatives), in which case the Senate would choose the Vice-President.

What was here being embodied in the Constitution as the new "Electoral College" was a nominating body, pure and simple: though that body could only function as the sum of its parts. It would never meet together in one place- thus there could never be collusion between Electors in one State and those in another. Each Elector would choose two men: more than likely, an Elector's first vote would be for a leading citizen of his own State but he could not cast his second vote for someone from his own State- so he would have to vote for, say, someone prominent in his region of the country. The system was the ultimate "machine that would go of itself" in the minds of the Framers: it would- with no way for the Electors to know how their second vote would affect the presidential election- spit out, in cases where no candidate could command a majority of the Electoral Vote (which the Framers thought would be rather often), five candidates with regional consensus from which the House of Representatives could make the final choice; however, since- presumably- each of the five would be as good a candidate for President as any of the others, the person with the highest number of Electoral Votes who was not chosen President by either the Electoral College or the House would be Vice-President, a capable man ready to have the powers of the Presidency "devolve upon" him in an emergency. This is clearly how the Framers expected this system would someday work... that is, once Washington was no longer occupying an office they were, in effect, creating for him: they simply could not conceive that lesser men than George Washington could win the Presidency solely through the vote of the Electoral College itself!

As of 6 September 1787, then, the Electoral College as an institution was firmly ensconced in the Constitution and was included in the final draft of the document that was approved by the Constitutional Convention on 17 September 1787 and then sent on to the States for ratification. By just after the middle of June 1788, the Constitution had been ratified by the minimum 9 states to put it into effect (though, as a practical matter, both Virginia and New York had to then ratify- they would both do so by late July 1788- in order for the whole new Federal system to be a viable one).

On Saturday 13 September 1788, not quite a year to date after the document was adopted by the Convention in Philadelphia, the Continental Congress (although one must wonder what that body as a whole thought of what the Convention had done with its original charge "to revise the Articles [of Confederation]") set up the timetable for the first election for President of the United States through the device of the newly created (and extremely short-lived, in terms of length of service) "office" of Presidential Elector: the States would appoint their Electors on the first Wednesday in January [7 January] 1789, the Electors would assemble on the first Wednesday in February [4 February] 1789 and the new Constitution would formally take effect on the first Wednesday in March [4 March] 1789 (so the use of 4 March as the start and end of terms for Presidential Administrations and Congress from then until the mid-1930's was simply an accident born of the fact that, in 1789, 4 March happened to fall on a Wednesday!)- that is, the earliest a President, Vice-President and Senators and Representatives of the First Congress could be formally sworn in and actually get down to Federal business would be Wednesday 4 March 1789.

The Electors were chosen- as per this directive by the dying Continental Congress- on 7 January 1789, but most were NOT elected by the People! Of the 10 states which would be choosing Presidential Electors in 1789 (North Carolina and Rhode Island had not yet ratified the Constitution and New York would end up not choosing Electors because of a dispute between the two houses of its Legislature as to how to go about doing this), only Delaware, Maryland, Pennsylvania and Virginia allowed direct election by the voters: Maryland and Pennsylvania by the so-called "General Ticket" system (all Electors chosen at-large statewide: the basis of today's "winner-take-all" system of allocating Electoral Votes used in 48 of the 50 states), Virginia by 1 Elector per district and Delaware had a strange system in which each voter was only allowed to select 1 of the state's 3 Electors (the 3 top vote-getters becoming Electors).

Massachusetts and New Hampshire- in "split-the-difference" fashion- combined direct election by the voters with a choice by the legislature: Massachusetts had the voters in each of its 8 congressional districts choose 2 "elector candidates" from which the General Court (the legislature of the Commonwealth) would choose 1 per district to go along with the 2 that body would choose to represent the Commonwealth at-large; New Hampshire used the "General Ticket" system found in both Maryland and Pennsylvania, but required a majority to elect: if there were electoral posts still unfilled because fewer than the 5 Electors allocated to the Granite State had achieved the majority requirement, the New Hampshire General Court (its legislature) would fill the vacancies. The 4 remaining states- Connecticut, Georgia, New Jersey and South Carolina- had their respective legislatures make the choice of Presidential Electors: in these states, the voters weren't even asked to cast a single ballot involving the new Nation's choice for Chief Executive!

On 4 February 1789, the Electors met in their respective States (as required by both the Constitution and the Continental Congress' later enabling legislation)- usually at the State Capital but not necessarily (the Pennsylvania Electors, for example, assembled in a county courthouse in Reading, even though Philadelphia was then the state capital [the building in which the Constitution now being put into effect had been drafted was, in fact, the Keystone State's State House: perhaps, this even had something to do with the choice of the more remote location])- and each one cast their two votes for President. The votes were transmitted to New York City, the temporary national capital, but the Congress- as things turned out- would not be assembling- and certainly a new President and Vice-President would not be inaugurated- come that Wednesday 4 March when the old Continental Congress legally expired and the new Federal Government was officially born (at least on paper).

It wasn't until 6 April 1789 that a quorum of both houses of the First Congress had assembled and the People's business could then be legally transacted: on that date, before a joint session of the new Congress, the certificates of each State's Electoral Vote were opened and the results of the choices of the Electors announced. The Electoral Vote was counted and then tabulated geographically- from New Hampshire down the Atlantic seaboard through Georgia, a tradition of Electoral Vote tabulation before Congress that would survive for the better part of the next century. The first-ever U.S. Presidential Election was now one for the history books, but the victors- George Washington and John Adams, respectively- now had to be (in the practice of the day) formally called upon at their homes and officially informed of their election. Adams arrived in New York in time to take the oath of office as Vice President on 21 April 1789 but President-elect Washington didn't arrive in the temporary capital- amid significantly more pomp and circumstance than that provided for Adams- until more than a week later, taking the oath of office as President of the United States on the balcony of Federal Hall on Wall Street on 30 April 1789.

For the election of 1792, there were five more states participating (New York had finally gotten its act together, North Carolina and Rhode Island had since finally ratified the Constitution and Vermont and Kentucky had later been admitted to the Union) and more than a few changes in how the Electors were to be chosen: the prevailing method was by the state legislature- Delaware had switched from its use of popular vote (well... sort of) to this method, joining its sister States of Connecticut, Georgia, New Jersey, New York, North Carolina (which districted itself for the purpose), Rhode Island, South Carolina and Vermont- it is interesting that four of the five additional states (all but Kentucky) choosing Presidential Electors in this second election had opted for legislative choice.

Maryland and Pennsylvania retained their statewide "General Ticket" popular vote and Virginia its popular vote of 1 elector chosen by each district, which was the system also used by the new Commonwealth of Kentucky (which had so recently been part of Virginia). New Hampshire went for the "General Ticket" system without its earlier legislative choice in case of a failure to elect via a majority: instead, if not enough electors were chosen by majority vote, the Granite State would hold a "runoff" involving the top vote-getters not elected up to twice the number of electors still needed. Massachusetts, however, went in the opposite direction of that of its sister New England state and made their system a bit more complicated: 2 of the "Olde Commonwealth"'s 4 districts would choose 5 electors each and the remaining 2 would choose 3 electors each (there would be no at-large electors), a majority being required to elect; where a majority was not attained, the General Court (legislature) would make the choice: in 1792, more than 2/3 of Massachusetts' Presidential Electors were chosen by the legislature rather than the voters who went to the polls.

The timetable for the choosing and meeting of the Electors had also been altered by Federal statute (which became law with President Washington's signature on 1 March 1792): the Electors would be hereafter chosen no earlier than 34 days prior to the first Wednesday in December, upon which date the Electors would meet in their respective States and cast their two votes each for President. The Electors would- after casting their vote- be required to sign three certificates of the total Electoral Vote from the State: one of which would be hand-delivered to the President of the Senate (the Vice President whose term was then coming to an end), a second mailed to the Vice President in his capacity as President of the Senate and the third deposited with the federal District Court in that State.

If the Vice President- at the seat of government (Philadelphia in 1792: it would not be Washington, D.C until 1800)- still had not received either of the two certificates sent to him by either messenger or post by a given State by the first Wednesday in January, he was to inform the Secretary of State who would then be required to send a special messenger out to the District Court in the missing State and bring that third certificate back to the seat of government before the second Wednesday in February. For now, Congress would meet in joint session to open, announce, count and tabulate the Electoral Vote on that second Wednesday in February so that the victors of the offices of President and Vice-President could take their oaths of office on time on the following 4 March. (By the way, with a few minor changes here and there [mostly dealing with the number of certificates and to whom they are to be sent: nowadays, the Secretary of the State and the Archivist of the United States are involved as well as the President of the Senate and a judge of the District Court for the Federal District in which the Electors met], these laws regarding the disposition of the Electors' certificates is still basically in force!) Congress did, of course, follow this new plan in its tabulation of the Electoral Vote on Wednesday 13 February 1793, continuing the geographic practice of "New Hampshire through Georgia"- neatly shoehorning Rhode Island between Massachusetts and Connecticut in the tally, Vermont and New York between Connecticut and New Jersey and Kentucky and North Carolina between Virginia and South Carolina.

The third election of 1796 brought more changes: one more state (Tennessee) had been admitted in the meantime. The new Volunteer State brought an unusual system to its choice of Presidential Electors- a relatively short-lived one which was destined never to be emulated by any other State: each County in Tennessee would chose 3 "electors" and these "electors" in each of 3 districts would choose the Presidential Elector for that district!

Connecticut, Delaware, New Jersey, New York, Rhode Island, South Carolina and Vermont continued to have their respective legislatures choose the Presidential Electors- but both Georgia (opting for the "General Ticket" statewide popular vote system still being used by Pennsylvania) and North Carolina (using popular vote: 1 Elector per district) had fallen off the legislative choice bandwagon.

Like North Carolina, Virginia and Kentucky chose their electors by districted popular vote as well (as they had four years earlier), joined by Maryland- which had now switched over to the district system from the "General Ticket" system. Once again, it was the New England states of Massachusetts and New Hampshire that stubbornly held onto their respective "two-tier" systems of choosing Electors: Massachusetts returned to its 1789 system- 1 Elector elected by popular vote per district, a majority necessary to elect- the General Court making the choice where candidates failed of this requirement (there would, once again, be 2 at-large Electors); New Hampshire also returned to its 1789 system- a "General Ticket" popular vote for Electors, a majority being necessary to elect and the General Court making the choice where candidates failed to meet this provision.

But a more ominous change hung over the meetings of the Presidential Electors in their respective States that December of 1796: that of the growing influence of "factions"- or what we today would call Political Parties, a development which would have a most profound effect on the Electoral College and one that would drive the final nail into the coffin containing the best hopes of the Framers of the original Constitution for the Electoral College:

"Factions" existed before the U.S. Constitution did and even well-predated the American Revolution itself: most of the 13 colonies which would form the original United States of America were split between "port/merchant" [law and order] and "country/frontiersman" [libertarian] political elements. These were most noticeable in those colonies which were affected by the Proclamation Lines of 1763 and 1768 (with which the young British Empire attempted to keep the frontier of settlement from encroaching upon Indian lands in the Ohio Valley)- New York, Pennsylvania, Virginia, North Carolina and Georgia- but they were visible in other colonies as well; New Jersey- totally untouched by the Proclamation Lines- had "factionalism" exacerbated by its really being the forced union of two earlier colonies with quite different traditions of local government: East Jersey (with a heavy New England influence) and West Jersey (with a heavy Quaker influence).

In the American Patriot cause of 1774/75, these "Seaboard vs. Upcountry" divisions became the basis of further "conservative" (wanting merely to gain the rights of Englishmen due to these subjects of the British Empire) vs. "radical" (beginning to agitate for full Independence) divisions in many of the colony (though, in Massachusetts [to take one exceptional example]- where the spark which lit the American Revolution was first struck, these "conservative"/"radical" divisions cut across the "seaboard"/"open country" divisions in that colony). After 1776- when all Patriots were, in theory if not in practice, pro-Independence- these "factions" settled pretty much into what one historian [Jackson Turner Main, in his 1973 work Political Parties before the Constitution] has called "Cosmopolitan" vs. "Localist". It was this division which would pretty much form the basis of the "Federalist" (pro-ratification of the Constitution) and "Antifederalist" (opposed to ratification of the Constitution) debate in 1787 into 1788.

Once the Constitution was ratified, however, the "Antifederalists"- as here narrowly defined- were no longer a factor: for, if an ardent Antifederalist wanted to hereafter serve in public office, he would- nevertheless- have to now swear an oath to uphold the Constitution the ratification of which he so vehemently had once sought to prevent. This, apparently, proved little problem for many who had been opposed to the new document (Elbridge Gerry, a delegate to the 1787 Convention from Massachusetts, refused to sign it and was an Antifederalist during the debates over ratification: but this had little impact on his ability to be elected to Congress and eventually become Vice President!)

It is traditional, in the way American History is taught (as in "rather badly"!) in our Nation's educational system as a whole, to regard our modern-day Political Parties as being products only of the post-U.S. Constitution era; high school and college textbooks are filled with text expounding upon the emergence of Parties only in the waning days of George Washington's Presidency. This mythology is further bolstered by a tendency to view the Constitutional Convention as having been well above the fray of ordinary Politics: but, while it might be useful to the organization of society to treat the framers of that society's fundamental charter as near-gods debating atop of some kind of "Mount Olympus", the fact is that the Pennsylvania State House (now "Independence Hall") in which they met was not on so lofty a height. As already noted in an earlier historical analysis of mine posted on this website, most of the Framers were themselves products of "factionalism" on the State level; their error was in their earnest thinking and sincere hope that they could somehow keep this political scourge out of the new system of governance they had created: insofar as the history of the Electoral College was concerned, it was a rather grave miscalculation which came rather close to disastrous result.

1796, however, was not that potential disaster: it was merely the foreshadowing of disaster. Two "factions" had- despite the best intentions of the Framers- emerged on the National/Federal political stage: the conservative "Federalists"- headed by Vice President John Adams (the national version of J.T. Main's "Cosmopolitans" on the state and local level) and the libertarian "Republicans" (the new Federal version of Main's "Localists")- headed by former Secretary of State Thomas Jefferson. Both sides claimed to be the true incarnation of the "intent of the Framers" and both claimed close ties to the Administration outgoing President George Washington (who would have none of this) [the Federalists' claim was, perhaps, the more legitimate- as Jefferson had been eased out of the Cabinet in 1793 by Federalist "power behind the throne" Alexander Hamilton but Adams remained Washington's Vice President.] We can even precisely date when these two "factions" first became most fully visible in the cold, hard light of National Politics: that date being Saturday 30 April 1796.

One of the "dirty, little secrets" (a quite inconvenient little factoid, in fact, for those who apotheosize George Washington) of American History is that, during his entire Second Administration, Washington's Federalist friends did not have political control of the Federal House of Representatives: that is, at the precise time these new national "factions" were first emerging. Yet there was an early effort to, as in Britain to this day, treat the office of Speaker of the House as a non-partisan position; the Speaker was not even- unlike today- the political leader of his Party in the House (by the Third Congress [1793-95], Congressman James Madison of Virginia had emerged as the leader of the Opposition "Republicans" who now formed the majority of that body; the "Federalists", meanwhile, were under the control of Secretary of the Treasury Alexander Hamilton- as that "faction" came to dominate Washington's Second Administration, a man who had even opined that- like the equivalent Chancellor of the Exchequer in Britain- his Cabinet office should become the basis of a kind of "prime minister": it is to Washington's credit as regards his establishing the forms and customs of his high office that the U.S. President- although an "elected King"- would hereafter remain his own "Prime Minister"!).

Accordingly, Federalist Jonathan Dayton of New Jersey was elected Speaker of the House in the Fourth Congress [1795-97]- even though Republicans controlled that body.

On the date in question (30 April 1796), Dayton voted with the Federalists to produce two ties that defeated anti-Jay's Treaty motions (the Republicans were attempting to block the efficacy of Jay's Treaty- already ratified the previous June by the Senate- by withholding funds to be appropriated for its enforcement): on that day, the Speaker of the House became a political office (and no more would a Speaker NOT represent the majority in the House)- but, more importantly, the lines between the two "factions" were now clear and this demarcation would begin to adversely effect the Electoral College.

Once it became apparent that President Washington would not be seeking a full term, the Federalists chose, as their candidate for President, Vice-President John Adams; Thomas Jefferson was the obvious choice to be the presidential candidate of the Republicans. But this was all done rather informally and, beyond this, ran headlong into the workings of the Electoral College: for the Framers had purposely had the Electors from each State meet in each State on the same day which, in that era of poorer communications, would easily prevent collusion (and thereby, so the Framers vainly hoped, prevent "factionalism" from invading their system); in addition, each Elector had to vote for two men for President: it was, therefore, quite possible for the "wrong man" to become President- even if he be of the same faction as the "right man". As a result, the Federalists had to "throw away" some Electors' votes on other candidates to assure a majority for Adams and Adams alone: however, they threw away too many Electoral Votes to have Federalist Thomas Pinckney of South Carolina come in second and therefore become Adams' Vice President. The Republicans, it turned out, had enough Electors chosen to bring their champion, Thomas Jefferson, into second place: it would be the first- and only- time that the President and Vice President of the United States were of opposing parties.

Such political chicanery clearly presaged serious difficulties with the system the Framers had devised for the election of the Nation's Chief Magistrate in light of the unexpected (though, with hindsight, it should have been expected) development of "factions" on the Federal level: South Carolina Congressman William L. Smith, shortly after the 1796 election, was the first to introduce- on the floor of the House of Representatives- an Amendment to the Constitution embodying substantially that which was later to become the gist of the 12th Amendment mandating that the Presidential Electors vote separately for President and Vice-President, but no action was taken on his proposal. Still, the worst was yet to come!

The election of 1800 brought more changes to the methods of choosing the Presidential Electors: Georgia abandoned its "General Ticket" system of election and went back to legislative choice; Massachusetts and New Hampshire both finally discarded their cumbersome procedures in favor of legislative choice. In all, 10 of the 16 states participating in the 1800 election would be choosing the Electors through their state legislatures (this would, as events transpired through the early 19th Century, prove to be the "high-water mark" for what was clearly the intention of the Framers and the Continental Congress' enabling legislation in the choice of Presidential Electors).

Kentucky, Maryland and North Carolina all retained their 1 Elector per district popular vote method from four years earlier, but Virginia had now abandoned this in favor of the "General Ticket" system involving a statewide popular vote for Electors. Rhode Island had also switched to the "General Ticket" system from legislative choice (but, curiously, Pennsylvania had abandoned its "General Ticket" in FAVOR of legislative choice!). Tennessee was to use its rather bizarre "county electors" meeting to choose Presidential Electors by sub-State district method once more in 1800.

But the actual way the Electoral Vote was cast remained unchanged for the Nation's fourth Presidential Election: each Elector was to vote in his respective State- away from any possible direct and instantaneous communication with any other State's Electors- for TWO men for President of the United States, the second place candidate to be Vice President. The choices of the "factions" was the same as it had been four years before: now-President John Adams for the Federalists and now-Vice President Thomas Jefferson for the Republicans. The same dilemma once again appeared: while it was possible to indirectly coordinate the first vote (every Federalist Elector knew- without even being told- that he had to give one vote to Adams and every Republican inherently knew he had to cast one vote for Jefferson), what should be done with the second vote each Elector had? No one wanted a repeat of 1796 with the candidate of one "faction" as President and the other as Vice President... but there was an even greater danger: what if John Adams, the incumbent President, suddenly found himself once again "demoted" to Vice President? What kind of strife might he- consigned so unceremoniously to an inferior position- cause a potential Jefferson Administration??

Of this latter possibility, many Federalists cared little- if at all: if Jefferson were to become President and they could thereupon scheme against his "Jacobin" "mob-rule Democracy" from the Senate President's chair, so much the better! Hamilton- still pulling strings behind the scenes in what would turn out to be the last Presidential Election in his lifetime- tried to have the Federalist Electors withhold their second vote from Charles Cotesworth Pinckney, the older brother of the man Hamilton had "sandbagged" four years before. However, most Federalists were frightened enough of the dangerous possibilites in what, by all accounts, was going to be an Election as close as that of 1796, that only one Federalist Elector- from Rhode Island- cast his vote for John Jay instead of C.C. Pinckney (giving Pinckney only one vote fewer than Adams in what turned out to be a losing Federalist cause).

But the Republicans were well aware of the "revenge factor" should Adams and Jefferson end up reversing roles as a result of this election: they could take no chances- every Republican Elector cast the same two votes: one for Thomas Jefferson, the other for former Senator Aaron Burr of New York. Thus, when the balloting of the Electoral Vote had been completed, there was a tie: Jefferson and Burr each had a majority of the votes cast by the Electors, 73 out of 138 cast! Fortunately, the Framers did provide- in Article II, Section 1, clause 2 of the Constitution- for this contingency: "if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President". This- along with the related provision that, where no candidate had a majority, the House would choose from among the top five vote-getters- was a provision born of the Framers' concept that the House would ALWAYS choose the President (at least once George Washington was no longer in office)- that the Electoral College was originally to be a presidential nominating body, much like the National Party Conventions in recent times.

Those who drafted the fundamental charter of the Nation- much as in their lack of anticipation of the development of Political Parties on the Federal level- had had no conception that any successors to Washington would- other than occasionally- command the votes of a majority of Electors: however, not only had the successors to Washington now- twice!- commanded just such a majority, but now you had a situation in which TWO men commanded that majority!! Unfortunately, the Framers also did not take into account that the two men tied might be of the same "faction" and that the House which would now have to "chuse" might be controlled by a different, opposing "faction"! The House of Representatives called upon to exercise this constitutional duty- for the first time ever- was overwhelmingly Federalist and, thus, anti-Jefferson: the newly-elected Republican majority Seventh Congress would not take office until 4 March 1801!!

Therefore, on Wednesday 11 February 1801, in the midst of a raging snowstorm blanketing the still-new national capital known as the District of Columbia, the lame-duck Sixth Congress [1799-1801] met in Joint Session to officially count the Electoral Vote: Vice President Jefferson presided over what has to be looked upon as one of the strangest Congressional sessions in History and had the dubious pleasure of announcing the tie between himself and Burr, whereupon the House rose and repaired to "immediately chuse" the next President. Of course, it was very clear to all- regardless of "faction"- that Jefferson was the one the Republican "faction"- by consensus- had intended to be President, but Aaron Burr was a politically ambitious man with more than his fair share of ego; moreover, he had more than a few Federalists more than willing to stroke that ego, if only to deny the White House to the hated Jefferson. A more fair-minded politician than Burr might have stepped aside, knowing that he was intended to be merely Vice President: however, no one would accuse Burr of being so willing to serve in an office that already was being seen as rather insignificant.

The Constitution further provided that the balloting in the House for President was to be by States, not by individual Congressmen: this was reflective of the Framers' belief that the House would, in those cases when they would choose the President, be a kind of "second Electoral College" representing the People (who, after all, had elected them: albeit two years earlier!) but also, at the same time, the States- just as the Electors themselves had done. The House, further, could only elect a President by an outright majority of States (in 1800, 9 of 16): fortunately for the future peace of the Republic, the Federalists only controlled the House delegations from half the States (Connecticut, Delaware, Georgia, Maryland, Massachusetts, New Hampshire, Rhode Island and South Carolina)- this would prove to be lucky break # 1, one State was equally divided (Vermont) and the remaining 7 States (Kentucky, New Jersey, New York, North Carolina, Pennsylvania, Tennessee and Virginia) all had Republican majorities.

Burr was a leader in the local New York organization that would someday become the Democrats' [in]famous "Tammany Hall" and he could well do his own political head count. If the Federalists were so opposed to Jefferson to vote instead for him, Burr reasoned, then he- not Jefferson- was the man only one state away from the big prize: therefore, Burr refused to yield to reason... or Thomas Jefferson. Only one man now stood in Burr's way, really: his New York political nemesis, Federalist Alexander Hamilton; Hamilton's influence was waning, as indicated by his inability to "sandbag" Charles Cotesworth Pinckney in the Electoral College the way he had his brother- but he was still a voice to be reckoned with among a number of Federalists: nevertheless, Hamilton had a hard time- at first- convincing his fellow Federalists to vote for Jefferson and not Burr. Hamilton strongly disliked Jefferson's politics but he respected Jefferson the man (the two had, of course, been original members of Washington's Cabinet); he, however, positively despised Burr and, thus, Hamilton would do- where he saw opportunity- whatever he could to undermine Burr: lucky break # 2. Burr's initial hope was that his home state of New York would be convinced to break from Jefferson when they saw that he- not the Virginian- was one state away from election by the House; Hamilton would, to start with, make sure New York did not break with Jefferson through a few connections he had with the other party in that state.

Still, Burr was essentially right in his calculations: had the initial vote gone along "factional" lines, the tally would have been the 8 Federalist states for Burr, the 7 Republican states for Jefferson leaving Vermont split and, therefore, casting a blank ballot under the constitutional "rules". But it didn't turn out that way: one of Georgia's two Congressmen, James Jones, had died a month earlier- leaving the only vacancy of this session; the other Congressman, Benjamin Taliaferro, thus, got to cast Georgia's vote for President alone- lucky break # 3 (well... OK... perhaps not for Congressman Jones!). While we don't know how Jones would have voted had he lived long enough to participate in this session, we do know that Jones was an ardent Federalist; not so Taliaferro, who later would be elected to the Georgia Superior Court- then the state's highest judicial tribunal- as, of all things, a Jeffersonian Republican! Georgia had, in fact, gone for the Jefferson/Burr ticket in the Electoral College; in addition, Taliaferro despised Burr as much as Hamilton: accordingly, Georgia- though represented by a Federalist- voted for Jefferson in the House of Representatives.

However, there was one other Federalist Congressman who refused to vote for Burr- lucky break # 4: George Dent of Maryland. Maryland had 5 Federalists to 3 Republicans in this Congress and, thus, Dent's voting for Jefferson deadlocked the State's House delegation, forcing Maryland to join Vermont in casting a blank ballot. Still, Maryland might still have gone for Burr had another of its Congressmen, Joseph H. Nicholson- suffering from what we now know to be the flu- stayed home in bed. The final tally on the 1st ballot taken that wintry day turned out to be for Jefferson, 8 states (the 7 Republican states plus Taliaferro's Georgia); for Burr, 6 states (the Federalist states other than Georgia and Maryland) and 2 states (Maryland and Vermont) casting blanks. This 1st ballot effectively ended Burr's hope of becoming President through political chicanery, but it most assuredly did not yet elect Jefferson either!

The vote remained unchanged through 35 ballots over 6 days (in which the House could consider no other legislation, by the way!). Federalists now hoped that- rather than electing Burr, no longer a possibility- they could keep Jefferson from being elected till after 4 March and that this would force a whole new presidential election (at the time, a constitutionally-justifiable position to take); but the outgoing Adams Administration now was getting frustrated at the fact that the House could not even debate, let alone vote on, Federalist bills it was hoping to get through Congress before their term of office expired and the Republicans would take power in Congress, even if the Presidency could be made to remain vacant: in addition, the change in focus from "elect Burr" to "block Jefferson" was making Federalists- once in favor of Burr- more and more lukewarm to the New Yorker.

Both these changes in attitude on the Federalist side played into Hamilton's hands as he made his one last great contribution to the Republic by stopping the "wrong man" from being elected President: he could now finally deliver the coup de grace to his political enemy (though, in retrospect, he ended up signing his own death warrant- as he would become the mortal victim in a duel with Burr in the year of the next Presidential Election) and managed to convince Congressmen from South Carolina (a state that had, like Georgia, voted for Jefferson and Burr in the Electoral College anyway) to cast blank ballots: likewise the 4 Federalists- aside from Dent (who consistently voted for Jefferson anyway)- in Maryland, the sole Congressman- a Federalist- from Delaware and the 1 Federalist from Vermont (which allowed the 1 Republican to cast Vermont's vote for Jefferson). On Tuesday 17 February 1801, on the 36th ballot in the House, Jefferson- thus- received the votes of 10 states (Maryland and Vermont added to his previous 8 state total), leaving Burr with only 4 states (all in New England) and 2 states (Delaware and South Carolina) blank.

The "right man", Thomas Jefferson, had now been finally elected President of the United States- but it had been a near thing! Only a combination of dumb luck (the 4 lucky breaks noted above), political skill and last-minute compromise prevented Aaron Burr from being elected President or a constitutional crisis from ensuing come 4 March 1801. The Union had dodged a bullet... now it was up to Congress to make sure it didn't ever have to do so ever again! The "bullet-proof vest" was to be the 12th Amendment to the Constitution, which forever altered the presidential election system so carefully devised by the Framers less than 15 years earlier; the key clause of this Amendment was this: that "[the Electors] shall name in their ballots voted for as President, and in distinct ballots the person voted for as Vice-President"... that is, the President and Vice-President would, from now on, be voted for by the Electors meeting in their respective States separately ! It remains this way to this day!!

Still, even this now-necessary change was a near thing: although there was a sense of urgency, the election of a Jeffersonian Republican majority in Congress was the first so-called "sea change" in American Political History and the political branches of the Federal government had other policies to pursue throughout most of the Seventh Congress. It wasn't until the waning months of that Congress, in 1802, that the proposal first proposed by Congressman Smith nearly six years earlier was revived and very nearly passed by the 2/3 vote required in each house of Congress to send proposed Amendments on to the States: the House voted, 47 to 14, to approve an Amendment mandating that the President and Vice-President be voted for separately but, in the Senate, the proposal fell one vote short of the necessary two-thirds.

New York Senator Gouverneur Morris- a Federalist whom we have already seen as a delegate to the Constitutional Convention in 1787- cast the deciding vote against: presciently, he was concerned that the change would diminish the office of Vice-Presidency (turning it into a throwaway among the largest political bloc instead of its intended role as the post awarded to the second-most highly regarded potential President [but- in answer to Morris- had Aaron Burr really been the second-most highly regarded presidential possibility in 1800?]) and reduce it to what we today would call a political football, one which would surely be used almost solely to balance the national tickets which would result from the change. Morris, of course, spoke as the voice of one who had been a Framer- but the Framers' political world-view was passing from the stage by 1802 going into 1803. What is most interesting about the Amendment which was rejected by the Senate is that it contained something dropped by the time the eventual 12th Amendment was next considered: it mandated that Electors be chosen by "electoral district" in each State!

When the Eighth Congress [1803-05] convened, it was decided to try again: on 2 December 1803, the Senate passed what would, this time, actually become the 12th Amendment by a vote of 22-10; Gouverneur Morris was no longer a factor: he had retired from the Senate between Congresses back in March. Even so, however, it was a near thing again: on Morris' last official day as a U.S. Senator, one new State had been admitted to the Union (Ohio) and the Senate now had 34 members. 22 had been 2/3 of those "present and voting" but NOT 2/3 of the total membership! This had never been an issue before now: the Senate voted that "present and voting"- and not total membership- was to be the criterion and the proposal next went to the House of Representatives. After some debate, the proposed Amendment was passed by the House on 8 December 1803 by a vote of 84-42, exactly 2/3 of those "present and voting" (but well short of 2/3 of the total membership of 142 in that body!!)

Still, there was no guarantee that the Amendment would be ratified in time for the upcoming 1804 Election, but- lucky break # 5?- it was: On 15 July 1804 (or 27 July: the difference in dates has to do with the fact that New Hampshire ratified on 15 July but the Governor vetoed the ratification and the Granite State's legislature failed to override; Tennessee then ratified on 27 July 1804 to make 3/4 of the whole once and for all- assuming, of course, New Hampshire's ratification was invalid), the 13th of 17 states ratified the Amendment. On 25 September 1804, Secretary of State James Madison declared the Amendment a part of the Constitution- with or without New Hampshire (most constitutional scholars today would say that New Hampshire's ratification was perfectly valid: Article V of the Constitution requires only "the Legislatures of three-fourths of the several States" to ratify Amendments [Governors, therefore, need not apply!]; however, in the early 19th Century, this was far from a settled question: Madison had prudently waited for Tennessee before issuing his decree) and the new Electoral Vote casting system was in place for the 1804 Election after all!

The "factions" were now the full-fledged Political Parties known as the Federalists and the Democratic Republicans, and- as pointed out in a previous Historical Analysis on this web site- these Parties would now formally nominate the candidates for President and Vice-President well before the Electoral College would even vote for them: first by the device of "King Caucus" among partisans who were also members of Congress, followed- in the 1820's- by the state legislatures nominating regional candidates (which nearly brought back the presidential election system- if only in part- envisioned by the Framers) and, eventually- beginning in the early 1830's- the National Party Conventions. But all this was in the future in 1804, when the first election was held under the brand new 12th Amendment.

The fifth election for President (and now Vice-President!) would have all sorts of changes in how the States chose the Electors from four years before: only six States- Connecticut, Delaware, Georgia, New York, South Carolina and Vermont- would choose them in the state legislatures. Four states- Kentucky, Maryland, North Carolina and Tennessee (the latter finally abandoning its "county elector" system)- would use popular vote by district. But the biggest change of note was that six states would now be using the "General Ticket" (statewide popular vote): New Hampshire, New Jersey (both of which had switched from legislative choice), the new State of Ohio, Pennsylvania (returning after a stab at legislative choice four years before), Rhode Island and Virginia. Masachusetts also used popular vote, choosing 17 electors by congressional district and 2 at-large. In all, 11 of the 17 states would allow their voters to cast ballots for Presidential Electors (and, by extension, President and Vice-President): it was the first time a majority of the States used popular vote in the presidential election process!

The only change 1808 witnessed was the return to choice by the General Court (the legislature) in Massachusetts. New Jersey and North Carolina were the next to abandon popular vote for legislative choice of Electors for 1812: the new State of Louisiana also used legislative choice; however, Massachusetts had returned to election of Presidential Electors by popular vote per district for that election. For 1816, the new State of Indiana used choice by its legislature and Massachusetts- seemingly having trouble settling on a permanent system- once more returned to legislative choice while New Jersey and North Carolina returned that year to popular vote (both "General Ticket" statewide popular vote). Of the 19 states participating in the 1816 presidential election: 9 chose their Electors in the legislature, leaving 10 using popular vote (7 utilizing a statewide "General Ticket", 3 electing Electors by district).

The election of 1820 saw one-party government for the only time in American History as the Federalist Party was in its death throes and James Monroe's Democratic Republicans ruled the roost. Five new states had been added since the last election: Alabama and Missouri had opted for legislative choice of Electors, while Mississippi utilized "General Ticket" popular vote and Illinois used popular vote by district; Maine used popular vote by district with 2 Electors chosen at-large. But the trend was clear: Connecticut had finally switched from legislative choice to "General Ticket" popular vote and Massachusetts abandoned legislative choice once and for all to adopt the same system its daughter State of Maine was using. Clearly, the days were numbered for the use of legislative choice to "appoint" Presidential Electors as America was now well into the so-called "Era of Good Feelings" but, at the same time, heading headlong toward the democratic upheaval eventually to become known as the "Jacksonian Revolution". In all, 9 of 24 states were using legislative choice of Presidential Electors- but 15 [!] were now using popular vote (6 by district [in some form or fashion] and 9 via statewide "General Ticket").

1824 saw Alabama, Indiana and Missouri switch to popular vote for Electors (Alabama and Indiana by "General Ticket"; Missouri by district) from legislative choice: only 6 states now chose Electors via the legislature. Of the two popular vote options, statewide "General Ticket" was, by far, the most popular (12 states [half the total number of states]- after Massachusetts had switched to it as well). It is no accident that the 1824 Election is the first for which popular vote returns for President become a staple of the Appendices in most American History books! 1824, however, saw the Democratic Republicans break into "factions" as four candidates- from ostensibly the same Party- sought the White House.

On 9 February 1825, the Eighteenth Congress tabulated the Electoral Vote and, after finding that John C. Calhoun of South Carolina had a majority (182 of 261) of the votes cast by the Electors for Vice-President and was thereby elected to that office, found that no one had gained a majority in the Electoral College and- for only the second time- the House of Representatives was now to be obliged to choose the new President. Under the 12th Amendment which had come into being as a result of the last time the presidential election had been thrown into the House, the choice would be between the highest three vote-getters (in order: first place Andrew Jackson of Tennessee, runner-up John Quincy Adams of Massachusetts- the son of the outgoing President the last time the House chose the President, with William H. Crawford of Georgia [who had been nominated by "King Caucus", thereby demonstrating the ineffectiveness of the Congressional Caucus by this time] as the "show horse")... the "odd man out" among the four candidates was Henry Clay of Kentucky.

Unlike in 1800, however, the House vote was over rather quickly- only one ballot was necessary: Adams had the vote of 13 State delegations to the House (Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New York, Maryland, Ohio, Kentucky, Illinois, Missouri and Louisiana), leaving Jackson with 7 states (New Jersey, Pennsylvania, South Carolina, Tennessee, Alabama, Mississippi and Indiana) and Crawford with 4 states (Delaware, Virginia, North Carolina and Georgia). Clay had thrown his support behind J.Q. Adams (amid cries of a foul "deal" by Jackson supporters- made more believable when Clay became Adams' Secretary of State!)- which was how Adams picked up Ohio, Kentucky and Missouri (which had all gone for Clay in the Electoral College) to gain his majority of the States in the House balloting.

The Democratic Republicans now basically consisted of two warring factions: President Adams' (and Secretary Clay's) "National Republicans", opposed by the "Jacksonian Democrats"- within a decade, these two factions would become two new Political Parties: the Whigs and the Democrats, respectively. 1828 was to be the "Jacksonian"s' revenge: however, Andrew Jackson's cause was helped greatly by the tidal wave of "Jacksonian Revolution" which swept the Electoral College. Georgia, Louisiana, New York and Vermont abandoned the choosing of Electors by the legislature in favor of popular vote- all but New York going to the statewide popular vote "General Ticket". Only two States were still choosing Presidential Electors by legislature: Delaware and South Carolina; Delaware would abandon legislative choice (in favor of the "General Ticket") in time for the 1832 Election, while South Carolina would stubbornly hold onto legislative choice until post-Civil War Reconstruction in the late 1860's would finally force its hand. Thereafter, legislative choice would only be used in special circumstances (time constraints between admission of a State and an ensuing Presidential Election, for example- as with Florida's readmission in 1868 and newly admitted Colorado in 1876- or a divided result in the popular voting [in 1848, Massachusetts' legislature chose the Electors as no slate of Electors had a majority in a three-way race between Democrat, Whig and Free Soil: under state law at the time (since repealed), the legislature would make the choice absent this required majority]).

But the other factor during this time of "Jacksonian Revolution" was the complete abandonment of electing Presidential Electors by district as well: in 1824, six states (Illinois, Kentucky, Maine, Maryland, Missouri and Tennessee) elected Electors by popular vote per district. Four years later [1828], Illinois, Kentucky and Missouri had all switched to "General Ticket": as noted above, New York had switched from legislative choice to district popular vote (with 2 at-large Electors chosen by the 34 Electors elected by district)- leaving four states with districted popular vote. But Maine, New York and Tennessee went to "General Ticket" for 1832- leaving only Maryland still choosing Electors by district. And, by 1836, Maryland itself had gone over to "General Ticket" choice of Presidential Electors.

With the two newest States of Arkansas and Michigan adopting "General Ticket" as well for the 1836 Election, all but South Carolina (the last bastion of legislative choice, as noted above)- 25 of 26 states in all- were "appointing" their Electors by statewide popular vote of the People of these States. The roots of the present "winner-take-all" (that is, to the winner of a statewide plurality goes the Electors) Electoral College system was well in place by 1836. One can only wonder how different things would have been had that original version of the 12th Amendment which had failed by Gouverneur Morris' single vote in the Senate of being sent out to the States for ratification back in 1802- and which had mandated "electoral districts"- had been adopted instead!

1836 also saw the only time the Senate had to get directly involved in the presidential (well... OK... in reality, VICE-presidential!) election process. Under the 12th Amendment, the Senate would- voting as individuals and not as States (and interesting difference from the procedure used by the House when it has to choose the President!)- elect the Vice President if no one had a majority of the Electoral Vote for Vice President. The Democrats- once President Andrew Jackson had announced he would not seek a third term- had nominated Jackson's second Vice President, Martin Van Buren, for President and Richard Mentor Johnson of Kentucky for Vice President.

Johnson was a tough old Indian fighter who had- or so legend had it- singlehandedly killed the legendary (in his own right) Tecumseh at the Battle of the Thames (interestingly, Johnson was- at the time of that battle- under the command of William Henry Harrison, the leading Whig candidate for President in that same 1836 election!). But frontiersman Johnson was also known to cuss with impunity (at a time when public men cursing in front of ladies or generally swearing with alacrity was still the moral equivalent of a "Monica Lewinsky scandal"): worse yet (for his time- and particularly his State of residence), he had taken an African-American woman to be his common-law wife! In the Electoral College, Van Buren easily got the majority he needed to be elected President (170 of the total 294 Electoral Votes) but the Van Buren state of Virginia refused to vote for Johnson (its Democrat Electors casting their votes for William Smith of Alabama instead), leaving Johnson- at 147 Electoral Votes- exactly one Electoral Vote shy of the 148 needed to elect!

So, the election for Vice President was- for the first and only time- thrown into the Senate: on 8 February 1837, after the Joint Session of Congress had tabulated the Electoral Vote, the Senate retired to vote for Vice President. Johnson was easily elected over leading Whig Vice Presidential candidate Francis Granger of New York (the 12th Amendment mandating that the Senate choose from the two highest vote-getters in the Electoral College), 33-16, in a vote that strictly followed party lines.

The next change in the Electoral College occurred with a Federal statute that was passed by Congress and signed into law by President John Tyler on 23 January 1845, requiring that the Presidential Electors be chosen on the same day nationwide: the by now famous "Tuesday next after the first Monday in November of the year in which they are to be appointed". This provision first became effective for the Election of 1848 and, of course, is still in force- which is why Americans will go to the polls on Tuesday 7 November 2000 during this particular presidential election cycle.

The presidential election of 1876- the infamous "Disputed Election"- was to provide a severe test for the Electoral College system, certainly as much a test of it as the Jefferson-Burr deadlock of 1800 had been. The Electors were chosen (by popular vote in all states save the newest state of Colorado, which was permitted to have its legislature choose its 3 Electors this time only) on Tuesday 7 November 1876, per the 1845 timetable for actually choosing Electors. Under the ancient and honorable schedule laid down back in 1792, the Electors met in their respective States on Wednesday 6 December 1876 and cast their ballots for President and Vice-President. It was soon apparent (the telegraph having greatly changed the rapidity of interstate communications) that 20 of the 369 Electoral Votes were in dispute due to two conflicting sets of returns being received by the President of the Senate (Senator Thomas W. Ferry- a Republican from Michigan who was also Senate President pro Tempore: Vice President Henry Wilson having passed away a year earlier) from 4 states: Florida, Louisiana, Oregon and South Carolina. To make matters worse, the Democrat candidate for President- Governor Samuel J. Tilden of New York- led with 184 undisputed Electoral Votes (to 165 for the Republican candidate- Governor Rutherford B. Hayes of Ohio), leaving Tilden one vote shy of the 185 needed to elect! (It goes without saying- but I'll say it anyway- that, given the 12th Amendment, the same problem affected the respective Vice-Presidential hopefuls: Democrat former Senator Thomas A. Hendricks of Indiana and Republican Congressman William A. Wheeler of New York; Hendricks was, by definition, also- like his running mate Governor Tilden- one vote shy of the majority needed to elect!!)

Under the 1792 schedule, the Electoral Votes would not be opened and tabulated before a Joint Session of Congress until Wednesday 14 February 1877 and this would not leave enough time before the new Administration (whosever it was to be!) was scheduled to take office on 4 March to resolve the dispute. No one wanted a repeat of the political chicanery of 1800/1801 and- with the Senate of the lame-duck 44th Congress (which would choose the Vice President in case of a lack of a majority in the Electoral College) in the hands of the Republicans and the House (which would choose the President in the case of a lack of an Electoral Vote majority) in the hands of the Democrats- the possibilities for such chicanery were much the more multiplied! Thus, on 21 December 1876, anticipating these difficulties, the Senate appointed a committee (per an earlier Resolution of that body) to meet with a House committee appointed the next day (per an even earlier Resolution) to discuss how best to handle what was a rather dicey situation, considering the Nation had only lately readmitted three of the four disputed States (which had been members of the Confederate States of America that had been the cause of the Civil War and the subsequent Reconstruction then still ongoing in the South).

As a result of these discussions, a bill was passed by both houses and signed into law by President Ulysses S. Grant on 29 January 1877, which created- for resolving that election only- a 15-member Electoral Commission (5 members from the Democrat-controlled House of Representatives, 5 from the Republican-controlled Senate and 5 from the U.S. Supreme Court [4 Associate Justices (2 having been- before their appointment to the Court- Democrats, the other 2 having been Republicans in the past) were specifically named and they would subsequently pick a 5th Associate Justice, who- it was presumed- would be the deciding vote in case of a tie among the other 14 "Commissioners"]). The next day, the two houses of Congress chose their allotted "Commissioners"- the House choosing 3 Democrats and 2 Republicans (one of whom was a future President- Congressman James A. Garfield of Ohio), the Senate choosing 3 Republicans and 2 Democrats, while the 4 Supreme Court Justices chose Associate Justice Joseph R. Bradley, a Republican (it was intended that Associate Justice David Davis, a true political Independent, be the 5th Justice on the Electoral Commission- but he was elected to the Senate from Illinois by a Republican legislature [back then, Senators were not yet chosen by popular vote but by the legislature of their State] just before the Commission was formed [but AFTER the bill forming the Commission was drafted!... there is, as one might suspect, a lot of interesting historical speculation about this little factoid!]; this forced the 5th Justice to be a Republican, as the only two former Democrats on the Supreme Court were already on the Commission!!).

The Electoral Commission Act had moved the date of the Joint Session of Congress to tabulate the ballots- for that election only- up to "the first Thursday in February" [1 February in 1877]. The Electoral Vote would be counted alphabetically, rather than geographically as had hitherto been the practice, and any Electoral Vote from a State to which there was objection from any of the Senators and Representatives then assembled would be put aside and submitted to the Electoral Commission. When the list of States was completed (with the Electoral Vote tally at 184 for Tilden/Hendricks and 165 for Hayes/Wheeler), the Joint Session adjourned and the Electoral Commission went about its work, taking each disputed State in alphabetical order.

On 9 February 1877, the Commission voted 8-7 (strictly along Party lines) to give Florida's 4 Electoral Votes to Hayes/Wheeler (now the count was 184-169 in favor of Tilden/Hendricks). Identical votes gave Louisiana to Hayes/Wheeler on 16 February and Oregon to Hayes/Wheeler on 23 February. The last State to be considered was South Carolina with 7 Electoral Votes: the Electoral Vote tally last stood at Tilden/Hendricks 184 to 178 for Hayes/Wheeler; on 28 February, the Commission voted, once more by a vote of 8-7, to give the Hayes/Wheeler ticket South Carolina's Electoral Votes. On 1 March 1877, the Electoral Commission formally announced the results of its work and disbanded; the following day, the two houses of Congress met once more in Joint Session to ratify these results and Rutherford B. Hayes was declared elected President (the votes of the Electoral Commission had given him just the 185 needed to elect him!)- just in time for him to take office on 4 March!!

The Electoral Commission of 1876/1877 was clearly a failure in the sense that it was obviously overtly partisan, but it was a success in that it had provided a method of avoiding a messier consequence of the dispute within the Electoral College. It did have two lasting effects: the entire United States Code section dealing with presidential elections was recodified in 1878 (it was felt that Congress had to assert that the Electoral Commission Act had been a temporary expedient and had not been intended to repeal existing sections of the relevant statutes: by repassing both the 1792 and 1845 language already on the books, there could be no question that the Electoral Commission Act was no longer in force) and Congress would never tabulate the Electoral Vote geographically ever again: from now on, the opening, announcing, counting and tabulating of state-by-state Electoral Vote in the post-presidential election Joint Session would be alphabetical and this remains true to this day!

The next change affecting the Electoral College came a decade after the meeting of the Electoral Commission: on 3 February 1887, President Grover Cleveland signed into law a bill changing the date of the meeting of the Electors in their respective States to cast their votes for President and Vice-President to the second Monday in January (instead of the first Wednesday in December, as heretofore)- this was to give time for the States to adjudge any dispute involving the Electoral Vote from that State (among the other provisions of this 1887 Act are the following: the States may- by law- provide for a method of settling disputes over who the Electors should be BEFORE the Electors meet to cast their votes and the Governors of the States are required to certify as to who the Electors are once they are formally "appointed" [in current practice, the Electors are those chosen by the Party whose presidential candidate won the plurality of the presidential vote in that State (or, in Maine and Nebraska, the Congressional District as regards Electors to be chosen by district), so that their "appointment" is effective once the Secretary of the State officially certifies the results of the State's (or Congressional District's) popular vote for President of the United States]: if there is only one set of returns sent by a State, it is to be accepted as the Electoral Vote of that State, but- in the case of two or more sets of returns- if there is a question as to who has the lawful authority to have settled a dispute involving Electors from a given State OR if no determination was made by a given State re: a dispute involving that State's Electors, the two houses of Congress are to vote separately on the issue [upon an objection by at least one Senator and one Congressman to the counting of that State's Electoral Vote during the Joint Session]- if the Senate and the House agree in their separate votes, their "concurrent" decision becomes the official determination of the Electoral Vote from a disputed State, but- if they disagree in their separate votes- then the Electors as certified by the Governor of the given State becomes the official determination of who lawfully cast the Electoral Vote for that State. The most interesting provisions of this 1887 Act was that which stated that when the Joint Session of Congress for the purpose of counting and tabulating the Electoral Vote would come- in alphabetical order- to a disputed State to which objection was raised to the counting of that State's Electoral Vote, the two houses would retire immediately to their respective chambers and vote on the dispute right then and there and then immediately return to a Joint Session which, technically, would not end until the tabulation of the Electoral Vote was completed and the results announced!). The primary purpose of the 1887 Act was to try and avoid having to go through the whole Electoral Commission debacle of ten years before by putting the onus on the States to avoid- wherever practicable- ever having to send two or more sets of returns as happened in the 1876 Election and setting up a more or less fail-safe procedure through which Congress (without having to involve other branches of the government: especially the Supreme Court!) could fairly adjudicate any dispute involving a State's Electoral Vote. This 1887 Act- except for changes in the dates of some of the elements of the presidential election process since- is still in force today!

In 1934, as a consequence of the adoption of the 20th Amendment to the Constitution (the so-called "Lame Duck Amendment" which moved the date of inaugurating a newly elected President and Vice-President from 4 March after a presidential election up to 20 January [this first became effective with the presidential term beginning in 1937] and the date of a newly-elected Congress from 4 March up to 3 January) the year before, the dates of the Electors' meeting in their respective States to cast their votes for President and Vice-President and that of the Joint Session of Congress to tabulate the Electoral Vote was changed once again. The Presidential Electors would now cast their votes in their respective States on the first Monday after the second Wednesday in December- this provision is still in force (and, thus, the Electors will vote for President and Vice-President this year on Monday 18 December 2000); Congress would meet to open, announce, count and tabulate the Electoral Vote on 6 January (unless that day be a Sunday, whereupon they are to meet on 7 January).

The next change to affect the Electoral College occurred with the adoption of the 23rd Amendment to the Constitution in 1961: this Amendment allows the District of Columbia- even though it is not a State- to cast a popular vote for President and Vice-President and have a number of Electoral Votes counted by Congress on its behalf equal to the number to which it would be entitled if it were a State but never more than the Electoral Vote of the least populous State.

1969 saw two minor, yet somewhat interesting, additions to the "Electoral College story": on 6 January, as the Electoral Vote was being announced and tallied in Joint Session of Congress, the provisions of the 1887 Act regarding the handling of objections to the counting of a State's Electoral Vote were utilized for the first time. When North Carolina's Electoral Vote was announced, a handful of Senators- along with several Congressmen- from both parties objected to the counting of the vote of one so-called "faithless Elector" who- unlike his fellow Electors from that State- had voted for the American Independent Party ticket of Alabama Governor George Wallace and Air Force General Curtis LeMay instead of the winning Republican ticket of former Vice President Richard Nixon and Governor Spiro Agnew of Maryland which had carried the State. Pursuant to the provisions of the 1887 Act, the two houses immediately retired to separately vote on this issue; both "concurred" that the vote of the "faithless Elector" should be counted as cast and then immediately returned to Joint Session to complete the tabulation of the Electoral Vote and the announcement of the result.

Also in 1969, Maine became the first state in nearly 80 years to authorize the popular election of at least some Presidential Electors by district (Michigan had done so for the 1892 Election but this provision was repealed in time for the 1896 Election, at which time Michigan returned to the statewide popular vote system of allocating Electors): effective with the 1972 Election, Maine would elect two Electors at large and one Elector from each of the State's Congressional Districts. Nebraska would follow suit with a similar law effective with the 1996 Election. However, as of this writing, neither Maine nor Nebraska has ever failed to cast its entire Electoral Vote for the statewide winner- despite these districting provisions, showing that allocating the Electoral Vote by district is an empty gesture unless it is done by a large State in population (and no large State has an incentive to so water down its influence on the outcome of the presidential election by so dividing its significant Electoral Vote!)
 


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