ArtII.S1.C2.1.2.1 State Discretion in Choosing Electors

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The word appoint as used in Clause 2 confers on state legislatures the broadest power of determination.1 Upholding a state law providing for selection of electors by popular vote from districts rather than statewide, the Court described the variety of permissible methods. Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by the legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable.2

Although Clause 2 seemingly vests complete discretion in the states, certain older cases had recognized a federal interest in protecting the integrity of the process. Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector. 3 Its power to protect the choice of electors from fraud or corruption was sustained. 4 If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.5

More recently, substantial curbs on state discretion have been instituted by both the Court and the Congress. In Williams v. Rhodes, 6 the Court struck down a complex state system that effectively limited access to the ballot to the electors of the two major parties. In the Court’s view, the system violated the Equal Protection Clause of the Fourteenth Amendment because it favored some and disfavored others and burdened both the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice. For the Court, Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny. 7 Then, in Oregon v. Mitchell, 8 the Court upheld the power of Congress to reduce the voting age in presidential elections 9 and to set a thirty-day durational residency period as a qualification for voting in presidential elections. 10 Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes, 11 is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment 12 may override state practices that violate that Amendment and may substitute standards of its own.

Whether state enactments implementing the authority to appoint electors are subject to the ordinary processes of judicial review within a state, or whether placement of the appointment authority in state legislatures somehow limits the role of state judicial review, became an issue during the controversy over the Florida recount and the outcome of the 2000 presidential election. The Supreme Court did not resolve this issue, but in a remand to the Florida Supreme Court, suggested that the role of state courts in applying state constitutions may be constrained by operation of Clause 2. 13 Three Justices elaborated on this view in Bush v. Gore, 14 but the Court ended the litigation – and the recount – on the basis of an equal protection interpretation, without ruling on the Article II argument.

Footnotes

  1.  Jump to essay-1McPherson v. Blacker, 146 U.S. 1, 27 (1892).
  2.  Jump to essay-2146 U.S. at 28–29.
  3.  Jump to essay-3Ex parte Yarbrough, 110 U.S. 651 (1884).
  4.  Jump to essay-4Burroughs & Cannon v. United States, 290 U.S. 534 (1934).
  5.  Jump to essay-5Ex parte Yarbrough, 110 U.S. 651, 657–58 (1884) (quoted in Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).
  6.  Jump to essay-6393 U.S. 23 (1968).
  7.  Jump to essay-7There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution . . . . [It cannot be] thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. [citing the Fifteenth, Nineteenth, and Twenty-fourth Amendments]. . . . Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. 393 U.S. at 29.
  8.  Jump to essay-8400 U.S. 112 (1970).
  9.  Jump to essay-9The Court divided five-to-four on this issue. Of the majority, four relied on Congress’s power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. 400 U.S. at 119–24 (Justice Black announcing opinion of the Court).
  10.  Jump to essay-10The Court divided eight-to-one on this issue. Of the majority, seven relied on Congress’s power to enforce the Fourteenth Amendment, and Justice Black on implied and inherent powers.
  11.  Jump to essay-11393 U.S. 23 (1968).
  12.  Jump to essay-12Cf. Fourteenth Amendment, § 5.
  13.  Jump to essay-13Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 78 (2000) (per curiam) (remanding for clarification as to whether the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’s authority under Art. II, § 1, cl. 2).
  14.  Jump to essay-14Bush v. Gore, 531 U.S. 98, 111 (2000) (opinion of Chief Justice Rehnquist, joined by Justices Scalia and Thomas). Relying in part on dictum in McPherson v. Blacker, 146 U.S. 1, 27 (1892), the three Justices reasoned that, because Article II confers the authority on a particular branch of state government (the legislature) rather than on a state generally, the customary rule requiring deference to state court interpretations of state law is not fully operative, and the Supreme Court must ensure that postelection state-court actions do not frustrate the legislature’s policy as expressed in the applicable statute. 531 U.S. at 113.