Leave aside the obvious fact that if a candidate with a slight plurality has no mandate to make radical changes, the one with less than that has even less of one. However, the recent Trent Lott flap has reminded me that by actually electing Truman, they dodged a bullet in 1948. For Strom Thurmond actually won 39 electoral votes and Truman won a bare majority. Had he not, the election would have been thrown into the house to choose among the top three candidates (Truman, Dewey, and Thurmond) and it would have been ugly. To win a candidate would have to win a plurality of congressional votes in a majority of states. The one time it happened (1824) it was ugly. Finally the speaker of the house, Henry Clay, who had been third, threw his votes to Q (John Quincy Adams) who named Clay Secretary of State in what was obviously a deal. Andrew Jackson had finished first and was actually elected in 1828 and 1832, so he got his revenge. But those were the days before the party system had hardened. There were (Democratic) Republicans, the party of Jefferson and forerunner of the Dems and the Federalists, who were pretty much a dead party. But by 1948 it is hard to see how it could have been resolved. Of course Truman would have remained president until his successor was chosen, so the Dems would have had no reason whatever to break ranks. I suppose the Dixiecrats and Republicans might have brokered a deal, but it would have been ugly. That was the time to change the system and they didn’t. They did put in the two term limit amendment, but that was an irrelevancy compared to this time bomb. And that is why the system is gimmicked to prevent the rise of third parties.
BTW, there is nothing to stop a state legislature from choosing the electors themselves. Except the peepul might get a wee bit upset.
The 1800 election was also decided in the House. And in 1824, Clay finished fourth, not third. Under the terms of the 12th Amendment, if there is no majority, the top 3 candidates go on to the House for election. Prior to that it was the top 5.
Final Score in 1824: Andrew Jackson 99, JQ Adams 84, William Crawford 41, Henry Clay 37.
In the House, Adams won 13-7-3. Jackson was #2 and Crawford was #3. It was doubtful that Crawford could ever have served as president as he had a stroke around the time of the election.
I make no argument. Such discussion is better held in GD. I merely point out that you cannot assume that there will be a consensus behind the proposition that the popular vote leader should always win the election.
That is not possible. The Constitution reserves the power to specify the method of choosing the electors in each state to the legislature.
I’ve never read a good account of why Nebraska and Maine switched to WTA at the district level. Nebraska is so heavily Republican that the Republican candidate usually sweeps all three districts anyway. I suspect, but do not know, that the legislature thought that putting the slightly more Democratic Omaha district “in play” might generate an occasional visit from an actual real-live presidential candidate. As for Maine, well, I think they just like to be different. I also recall that North Carolina once debated “district WTA” but did not approve it.
Crawford received 4 votes in the House. Adams won with the minimal majority of 13 states out of 24.
Yes, but should Delaware really count as a state? After all, it’s so small. And there have been threads here which have challenged that state’s existence.
Popular vote for selection of presidential electors is a decision of the States, and is not constitutionally mandated. It would be quite theoretically possible for a state to allocate their electors to the winner of a Sumo wrestling contest between the two major party candidates wearing those inflatable rubber suits – and it would be quite legal as far as Constitutional law goes.
Well, a slight caveat. Though 26 of the 27 amendments have been ratified by the Legislatures, it rests with Congress to mandate ratification by conventions called in each state – and for the 21st Amendment, repealing Prohibition, they did just that (since otherwise the state legislators would be torn between the knowledge that a majority of their constituents favored Repeal, but the Prohibitionists would pillory them for voting for it). Exactly the same methodology, for similar reasons, could be used with an amendment modifying or eliminating the Electoral College, if Congress can be moved to adopt one in the first place.
JKLANN- “The Constitution reserves the power to specify the method of choosing the electors in each state to the legislature.”
Well…not exactly. Here is what the Constitution of 1787 says: “Each State shall appoint, in such a manner as the Legislature thereof may direct, a certain number of Electors…(etc.)”
However, consider this underappreciated gem from the (superceding) 14th Amendment: "…when the right to vote at any election for the choice of electors for President…is dened to any of the male inhabitants of such state (etc.)…or in any way abridged…the basis of representation therein shall be reduced [basically proportionately–ie, the state loses some of its Congressional reps–ALL of them if the “denial” is total].
Now we don’t always go by the plain words of the Constitution. Nor should we. But one could certainly argue that the 14th Amendment effective establishes a right to vote directly for the “choice of electors for President.” I see nothing that even implies that voting for your State legislator satisfies this requirement.
So my (crank?) interpretation is, again–since July 9, 1868, the choice of Presidential electors in all States has been assigned to the legally qualified voting populace.
Had Florida decided to appoint its Electors by legislative action, it would have been vulnerable to the loss of its entire Congressional delegation.
(Note, by the way, that whereas the supposed legislative prerogative was much discussed in the aftermath of November 2000, the Supreme Court did not address that issue.)
IANACLE, but I think the Fourteenth Amendment would have only mattered if the Florida Legislature was chosen in an election that did not guarantee equal voting rights.
Florida could argue that by voting for the State legislature, people were in turn voting for the Electors.
Ultimately, it would have been Congress’ decision on whether or not to accept votes chosen in this way.
Good point, Scott. I had not noticed that point – while the Legislature of any state could select something other than popular election as the means of choosing electors, they could reasonably be made to forfeit part of all of their House delegation for doing so. Although with the way the Constitution seems to get strained the past few decades, BobT probably has a valid point if such a court case ever arose.
Question: would SCOTUS regard this as “a political question” to be decided by the Congress?
I wouldn’t call that a crank interpretation, but on balance, and considering the 14th Amendment in its entirety, I would have to disagree.
First of all, be aware that this has happened. Florida (again!) actually did cancel its presidential election in 1868–the very year that the 14th Amendment was ratified. The Legislature feared (correctly) KKK intimidation of black voters would make a fair election impossible, so they appointed Republican electors themselves. Colorado also appointed electors in 1876. The legislators said that they were doing it so save money–Colorado had just been admitted to the Union and held state elections earlier in the year–but I suspect the real reason was to ensure a Republican victory. Rutherford Hayes ended up winning the disputed election of 1876 by one electoral vote, so they needed every vote they could get.
In neither case did anyone suggest that Florida or Colorado’s House delegation should be reduced in size. Also, consider that the 14th Amendment references state judicial elections. Some states elect judges and some don’t, so the point of the amendment is that if you hold such elections, you can’t disenfranchise adult male voters (other than felons).
I would argue for a parallel interpretation of the clause about presidential elections–you don’t have to hold one, but if you do, then you must not disenfranchise.
Something like your interpretation is clearly the prevailing one, as the unacceptable and definitely unintended alternative would be to claim that every State must allow popular election of its judicial officers. Didn’t notice that teeny clause.
BUT-- I’ll add this further thought. Florida already had what was purported to be “popular election of the electors.” That being so, one could argue that the situation perfectly fits your second possible case–“if you do, you must not disenfranchise.” Mightn’t one argue (no doubt without success!) that once the legislature has allowed direct selection of electors by popular vote (and not defined in statute as merely advisory, in the manner of the old Senate elections)–then that prerogative cannot be resumed by the legislature?
Or is it really allowable for a legislature to look at the outcome of the popular vote, decide they don’t like it, and simply substitute their own electors? (That is, with reference to the Constitution, not the Federal act of–I think–1888.)
I’m amazed to learn that legislatures were appointing electors later than the earliest days of the Republic.
I don’t know. Obviously, if this had happened in 2000, it would have been hugely controversial, and the result would have been challenged when the electoral votes were counted in Congress.
But I guess my point is that the “reduced representation clause” of the 14th Amendment would have been the wrong tool with which to fight any such perceived injustice. What would be the point–to say, “Florida, you were naughty and disenfracnhised your voters, so we’ll make it even worse by taking away your House delegation–many of whom are Democrats”? Keep in mind that Congress itself would have to approve any change in the distribution of House seats–the courts would never get involved.
The relevant portions of the U.S. Code say that if there are conflicting sets of electors, priority is given to those which have been approved by the governor of the state in question.
Also a state can change its method of choosing electors up to six days before the Electoral College meets (mid-December).
