Prior to, I believe, the election where Jackson won, it was common for presidential elections to be voted on by state legislatures rather than direct votes by the citizenry determining the slate of electors. Is there anything standing in the way of that happening again? I expect some states would need to have their constitutions changed to allow this, and that where one party held sway, this would basically be unnecessary, but there are probably a few swing states where this could happen. Are there any legal barriers to this?
It’s a free-for-all. Interestingly, Congress.gov has a great summary of court decisions over history as well as some tidbits from the constitutional beginnings. The Constitution Annotated.
I have to ask why anyone would want state legs to appoint electors over a free election by a near universally enfranchised population.
Because they doubt that the candidates they favour can win free elections in a near universally enfranchised population.
Electors are named before the election because voters don’t actually vote for candidates, they vote for slates of electors.
When the voters in each State cast votes for the Presidential candidate of their choice they are voting to select their State’s electors. The potential electors’ names may or may not appear on the ballot below the name of the Presidential candidates, depending on election procedures and ballot formats in each State.
What you’re thinking of is the legs tying to game the system by submitting as electors those not on the winning electors’ slate. Not the same issue. Electors are already 99.9% faithful to their candidates. No gaming needed.
The Constitution allows each state Legislature to determine the manner in which it will choose electors. However, the Constitution also provides that Congress may determine the time of choosing the electors, which Congress has statutorily defined as the Tuesday next after the first Monday in November.
So, a state could change it’s laws to allow for the legislature to appoint electors, but it cannot do so after the date on which Congress has mandated those electors are chosen.
I guess the crux of the distinction - are we referring to legislatures selecting electors who are then free to vote their preference, or electors who then vote the legislators’ preferences, or simply the names of the persons as electors who then (must/should) vote the people’s majority (or proportional) preference?
(I mean, the electors’ actual identities are irrelevant as long as they are state-approved and vote the way they are supposed to)
I guess what’s being asked is does the constitution guaratee that voters are able to participate directly in the selection of electors/president?
Note recent court cases where the legislature is entitled to replace electors who fail to follow their promised/committed vote. I’m not sure how that works. After all, you don’t necessarily know if someone is an “unfaithful” elector until they officially cast their vote.
Insofar as I’ve read …
There is no Federal obstacle to a state deciding to stop having the populace vote for presidential electors (by way of a ballot for named presidential candidates) and instead have the state legislature vote on their own for a slate of electors pledged to the presidential candidate that the legislature’s majority prefers.
The only obstacle to doing this is state-level politics.
16 states plus DC have signed up to the National Popular Vote Interstate Compact, which requires them to give their electors to the winner of the national popular vote rather than the winner of the popular vote in the states. The scheme is not active yet (it becomes active once the participating states have a total of 270 electoral votes, and the current status is 205 electoral votes); but it does show that the idea of moving away from the current system of presidential elections is not entirely far-fetched. Under the Compact, states would still hold popular votes, but it would not be the vote in that state which determines who gets the state’s electors.
Following up on Schnitte’s post, the National Popular Vote Interstate Compact may or may not be constitutional, for reasons related to the OP. Wiki:
The main article summarizes as follows: " Some legal observers believe states have plenary power to appoint electors as prescribed by the compact; others believe that the compact will require congressional consent under the Constitution’s Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment." So the answer to the thread title is, the Supreme Court can prevent state legislatures from moving back to the old system using a range of justifications at various levels of plausibility.
And… Keep in mind the combined congress on Jan. 6 can refuse to accept any slate of electors from any state if they deem them objectionable. (Whch was the basis for the 2021 attempt to alter to result of the election.)
What wasn’t clear to me was whether if a slate of electors is excluded, does then the total required for a majority also diminish?
I.e. the electoral college is 538, so 270 is needed to win. If let’s pretend, the electoral votes for Georigia were not accepted as valid by congress, would the numbers now be 16 and 8 less - 522 and 262?
The Twelfth Amendment states that, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”
However, it’s an open question whether electors rejected by Congress during the count would reduce the denominator for determining a majority. If Congress rejects a state’s electors, does that mean that state’s electors were never “appointed” in the first place?
I’ll also note that Congress passed some important updates to the Electoral Count Act in 2022, including that an objection to a state’s electors must be submitted in writing by at least one-fifth of Senators and one-fifth House Members to be considered. Previously, an objection required only one member of each chamber to proceed. The changes also limit the grounds for an objection to either that the electors of a state were not lawfully certified, or that an elector’s vote was not “regularly given”.
But the compact isn’t “moving back to the old system” - it would be creating a new system, which raises issues under the compact clause and other constitutional provisions.
The old system, used by the states up to the advent of Jacksonian democracy, was to have the electors appointed by the state legislature, with no votes at all.
As far as I know, there is nothing in any of the amendments since then that confer a right on citizens to vote for the presidential electors. All of the voting rights amendments are framed in the negative. States shall not:
- deny or abridge the right to vote based on “race, color, or previous condition of servitude” (15th Amendment);
- deny or abridge the right to vote “on account of sex” (19th Amendment);
- deny or abridge the right to vote “by reason of failure to pay any poll tax or other tax” (24th Amendment);
- deny or abridge the right to vote of citizens aged 18 or older “on account of age” (26th Amendment).
All of those amendments are non-discrimination clauses: if the state is running an election, it cannot deny the right to vote on any of the personal characteristics set out in those amendments.
But where is there a positive right to vote, that all citizens have a constitutional right to vote for presidential electors? Those amendments don’t confer a general constitutional right, they just say that if there are elections, the right to vote cannot be abridged on any of those personal characteristics.
Where in the Constitution is there a requirement that the states must select presidential electors by means of popular elections? That wasn’t the case when the Constitution was ratified, so where in the Constitution is there something that has changed to require popular elections?
I find it very hypocritical that Colorado is part of it. Part of the reasoning they gave for disqualifying a faithless elector in 2016 was the electors need to vote as per the will of Coloradans.
Well, Colorado joined the compact in 2019 after the law passed both houses and was signed by the Governor. The faithless elector decision was taken to the Supreme Court (by Colorado officials), which ruled in 2020 that, “Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion.” Just providing context. My take is that there are a range of systems throughout the world that experts consider democratic, and a range of systems that are not.
I endorse Northern_Piper’s reasoning, though if anyone disagrees, take it up with them. IANAL: I just browse wikipedia.