The Presidential Electors Clause

[The President] shall . . . together with the Vice President, chosen for the same Term, be elected, as follows: 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.

—Derek T. Muller

Introduction

Before the Constitutional Convention, most state legislatures appointed their executives, and during the Convention, there seemed to be a consensus that the Congress would elect the President. However, the Framers crafted a compromise: The state legislatures could choose how they would appoint electors who in turn would vote for the President. In the early Republic, some state legislatures appointed their electors, and some states held popular statewide elections. Following the Civil War, the nation’s growing democratic ethos led to popular election of presidential electors in all states. Courts have continued to affirm that state legislatures maintain broad authority over the method of choosing presidential electors.

History Before 1787

Following independence, states had various methods for choosing the executive. In some states, like Massachusetts and New York, the people chose the executive in a popular election.¹ In others, like Georgia and Virginia, the executive was chosen by the legislature.² Still others had hybrid arrangements. Pennsylvania, for example, created a Supreme Executive Council of twelve members chosen by eleven counties and the city of Philadelphia, and the Council chose its President.³

The Constitutional Convention

During the Constitutional Convention, delegates debated how the President should be elected. James Madison would later explain to Thomas Jefferson that under various proposals, the President would be elected by popular vote, by state governors, by a joint ballot of both houses of Congress, or by one house choosing a slate of candidates from which the other house would choose the winner.⁴ By wide margins, the Convention consistently rejected popular election or election by state legislatures.⁵ The plan to have Congress choose the President seemed to be more agreeable,⁶ although Gouverneur Morris of Pennsylvania worried that the executive would be dependent on the legislature and that it could lead to “Legislative tyranny.”⁷

By August 24, 1787, late in the Convention, a series of divided votes led to an unsatisfactory proposal: The President would be elected by joint vote of both houses of Congress.⁸ Gouverneur Morris proposed the “abstract question” that the President should be chosen by electors, but the vote failed because the states were equally divided.⁹ The matter was referred to a Committee of Eleven, which included representatives from each state.

On September 4, the Convention considered the Committee of Eleven’s proposal, which built on Morris’s suggestion that electors would choose the President. Electors would be appointed in a manner of each state legislature’s choosing, and the number of each state’s electors would equal the number of its Senators and Representatives.¹⁰ Roger Sherman of Connecticut explained that the objective was “to render the Executive independent of the Legislature.”¹¹ State representation in the selection of the President would mirror state representation in Congress, which already reflected compromises between large states and small states and between free states and slave states. (In the Senate, every state received two Senators regardless of size; in the House, representation would be based on the free population plus three-fifths of the enslaved population.) Under the committee’s proposal, the states would decide for themselves whether their electors would be chosen by the legislature, by popular vote, or by some other method. Delegates acknowledged that the committee’s proposal seemed reasonable.¹²

The Ratification Debates

In Federalist No. 39, James Madison defended the Electoral College. He wrote that several features of the system balanced state sovereignty and participation of the national government: states were assigned a designated number of electors based on the “compound ratio” of the total number of Senators and Representatives; the House of Representatives had the ultimate responsibility for the election of the President; and during a so-called contingent election, each state’s representatives would function as a single delegation with one vote.

The Anti-Federalists were skeptical of this system and favored a popular vote. Cato wrote that “[i]t is a maxim in republics, that the representative of the people should be of their immediate choice.”¹³ Luther Martin of Maryland warned that larger states, with more electors, would “have a very undue influence” and that the states would have “an equal voice” in the President’s election only in close elections that would be decided by the House of Representatives.¹⁴ Anti-Federalists also worried about potential undue influence on electors. The fact that there were so few of them (just sixty-nine in the first presidential election)¹⁵ meant that it would not be difficult to influence them before they cast their votes. A Georgian wondered, “How many offices, and how much money, will it take to buy the majority of [the electors], if ambitious men should attempt to set about it?”¹⁶ Agrippa even proposed that the President should be elected each year by a different set of states.¹⁷

Early Practice

In the first nine presidential elections after ratification, states appointed presidential electors in a variety of ways. In 1789, when the first presidential election was held, some states, including Pennsylvania and Maryland, held popular statewide elections for all of their electors.¹⁸ In Delaware and Virginia, electors were appointed by popular election in individual districts.¹⁹ In South Carolina and Connecticut, the legislatures directly appointed electors.²⁰

By 1824, popular elections were held in eighteen of the twenty-four states,²¹ and by 1828, only Delaware and South Carolina chose electors by legislative appointment.²² The last two legislatures to appoint presidential electors were Florida (in 1868) and Colorado (in 1876).²³ After the Civil War, popular election of presidential electors became the standard. An increasingly democratic national ethos embraced popular elections on all fronts, including presidential elections.

Judicial Precedent

The U.S. Supreme Court has been very deferential with respect to state laws that regulate the manner of appointing electors. In 1892, for example, Michigan divided the award of electors among districts across the state instead of awarding them in a winner-take-all fashion. McPherson v. Blacker (1892) upheld this system, which was used by some states in the early Republic.²⁴ Alabama presented voters with ballots that listed only the names of presidential candidates even though the votes for a candidate are really for his party’s slate of electors. Ray v. Blair (1952) upheld this ballot.²⁵ The Ray Court also allowed the states to require elector candidates to pledge that, if chosen, they will vote for their party’s candidate.²⁶ Chiafalo v. Washington (2020) further held that a state may penalize a “faithless elector” who pledges his vote for a candidate and then fails to vote for that candidate.²⁷ The state may even replace an elector who attempts to cast a vote for a candidate he was not pledged to support.²⁸

Article II’s grant of authority to states to appoint electors “in such manner” as the legislature may direct gives “‘the broadest power of determination’ over who becomes an elector.”²⁹ However, the exercise of a state’s federal constitutional power to direct the manner of appointing presidential electors must be consistent with other constitutional provisions, including the First and Fourteenth Amendments. For example, in Williams v. Rhodes (1968), the Court found that an Ohio law that required new political parties to obtain petitions signed by number of voters equal to fifteen percent of ballots cast in the previous election was too onerous a burden on the Socialist Labor Party’s right of association when the party tried to run a presidential ticket in the state.³⁰ In Bush v. Gore (2000), the Court found that the Florida Supreme Court’s rules for a recount created uneven treatment of voters across the state, and the recount needed to be halted because this uneven treatment ran afoul of the Equal Protection Clause of the Fourteenth Amendment.³¹

Bush v. Gore resolved the contested presidential election in Florida by a 5-to-4 vote. The majority opinion focused on the equal protection issue, but Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, wrote a concurring opinion that provided a different ground to decide the case. Rehnquist argued that the Constitution imposed a duty on a particular branch of the state government—the legislature—to direct the manner of appointing electors. The concurring opinion noted specifically that the Florida Supreme Court had infringed on the legislature’s authority when it disregarded the “clearly expressed intent of the legislature”³² and had “significantly departed from the statutory framework” for recounts provided by the legislature.³³

Typically, questions of state law are left to state courts. In Rehnquist’s view, however, “appointing Presidential electors presents a federal constitutional question,” and when there is a “significant departure from the legislative scheme” by a state court in such cases, the Supreme Court should decide that constitutional question.³⁴ In this case, the state court usurped the role of the “legislature” in appointing electors, and the U.S. Supreme Court could correct the state court’s decision. (Hours before the Court decided Bush v. Gore, the Florida House of Representatives passed a measure that would have appointed a slate of electors, but after the Supreme Court resolved the recount, the Florida Senate did not consider it.³⁵)

During disputes that arose ahead of the 2020 presidential election, Justices Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh seemed to agree with Rehnquist’s approach (sometimes called the “independent state legislature doctrine” in academic literature).³⁶ Some matters of state law might be ripe for federal court review if state actors deviated from the legislature’s preferences or tried to develop rules on their own. The Supreme Court, however, has not definitively resolved the meaning of “Legislature” in the Presidential Electors Clause and what involvement non-legislative actors may have in setting the rules for a presidential election.

The language of the Elections Clause in Article I is similar to the language in the Presidential Electors Clause in Article II. The Elections Clause provides that in each state “the Legislature thereof” shall prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.”³⁷ Moore v. Harper (2023) held that “Legislature” in the Elections Clause did not refer only to the state’s institutional legislature—in that case, the North Carolina General Assembly and Senate.³⁸ Rather, consistent with other Supreme Court precedent, “Legislature” referred more broadly to the state’s lawmaking process, in which the state judiciary can determine whether the legislature followed the state constitution, as long as the state court did not “transgress the ordinary bounds of judicial review.”³⁹ Moore did not resolve the meaning of “Legislature” in the Presidential Electors Clause, but it seems likely that the Supreme Court would give “Legislature” the same meaning in both clauses, as Moore cited Bush v. Gore favorably.⁴⁰

The Electors Clause in Article I expressly grants Congress the power to “make or alter” state regulations regarding the “manner of holding elections” for Senators and Representatives; the Presidential Electors Clause does not provide a similar power. Nevertheless, Congress has sometimes regulated both types of elections together. The Supreme Court has previously assumed that Congress must have the power to regulate both presidential and congressional elections,⁴¹ but this assumption does not square with the text of the Presidential Electors Clause, and the appropriate scope of federal power over presidential elections remains an open question.⁴²

Amendments to the Constitution may also grant Congress additional power to regulate the selection of presidential electors. Under the Fifteenth Amendment, Congress can enact “appropriate legislation” regarding state laws that deny the right to vote on the basis of race. The Fifteenth Amendment does not distinguish between the types of federal elections; Congress therefore has power to regulate both congressional and presidential elections.⁴³

Open Questions

• Do other provisions of the Constitution—including the Fourteenth Amendment—prevent a state legislature from appointing electors without a popular election in the present day?⁴⁴
• How broad is Congress’s power to regulate states’ appointments of electors? How do other provisions of the Constitution interact with Congress’s power?⁴⁵
• What are Congress’s powers, if any, to regulate the manner of appointing presidential electors, and what is the source of those powers?
• Under the proposed National Popular Vote Interstate Compact, each state would agree to award its electoral votes to the person who received the most popular votes nationwide.⁴⁶ Does the Presidential Electors Clause allow electors to be appointed based on reference to popular sentiment outside of the state?⁴⁷

1. Mass. Const. of 1780, pt. II, ch. II, § I, cl. III; N.Y. Const. of 1777, § 17. ↩︎
2. Ga. Const. of 1777, § II; Va. Const. of 1776, ch. II, § IX. ↩︎
3. Pa. Const. of 1776, ch. II, § 19. ↩︎
4. 3 Farrand’s 132. ↩︎
5. 2 Farrand’s 22, 402. ↩︎
6. Id. at 401. ↩︎
7. Id. at 403, 36. ↩︎
8. Id. at 402–04. ↩︎
9. Id. at 404. ↩︎
10. Id. at 497. ↩︎
11. Id. at 499. ↩︎
12. Id. at 499–502. ↩︎
13. Storing 2.6.30. ↩︎
14. Id. at 2.4.83. ↩︎
15. 1 Annals of Cong. 17 (1789). ↩︎
16. Storing 5.9.9. ↩︎
17. Storing 4.6.75. ↩︎
18. 13 Statutes at Large of Pennsylvania 140–45; 2 The Documentary History of the First Federal Elections, 1788–1790, at 136–40 (1985). ↩︎
19. 2 Documentary History at 69–71, 289–92. ↩︎
20. 1 The Documentary History of the First Federal Elections, 1788–1790, at 201–03 (1976); 2 Documentary History at 48. ↩︎
21. Svend Petersen, A Statistical History of the American Presidential Elections 18 (1980). ↩︎
22. Id. at 20. ↩︎
23. Id. at 41, 45. ↩︎
24. 146 U.S. 1 (1892). ↩︎
25. 343 U.S. 214 (1952). ↩︎
26. Id. at 227. ↩︎
27. 591 U.S. 578, 587–89 (2020). ↩︎
28. Colo. Dep’t of State v. Baca, 591 U.S. 655 (2020) (per curiam). ↩︎
29. Chiafalo, 591 U.S. at 589 (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)). ↩︎
30. Williams v. Rhodes, 393 U.S. 23, 28–31 (1968). ↩︎
31. Bush v. Gore, 531 U.S. 98, 105–06 (2000) (per curiam). ↩︎
32. Id. at 120 (Rehnquist, C.J., concurring). ↩︎
33. Id. at 122. ↩︎
34. Id. at 113. ↩︎
35. Jo Becker, Florida Senate May Scrap Plan to Name Second Slate of Electors, Wash. Post (Dec. 14, 2000), https://perma.cc/D9QX-3CQA. ↩︎
36. Democratic Nat’l Comm. v. Wis. State Legislature, 141 S.Ct. 28, 34 n.1 (2020) (Kavanaugh, J., concurring); Republican Party of Pa. v. Boockvar, 141 S.Ct. 1, 2 (2020) (statement of Alito, J.). ↩︎
37. Art. I, § 4, cl. 1. ↩︎
38. 600 U.S. 1 (2023). ↩︎
39. Id. at 36. ↩︎
40. Id. at 35–36. ↩︎
41. Burroughs v. United States, 290 U.S. 534, 548 (1934); Buckley v. Valeo, 424 U.S. 1, 90–91 (1976). ↩︎
42. Derek T. Muller, The Electoral College and the Federal Popular Vote, 15 Harv. L. & Pol’y Rev. 129, 138–41 (2020); Arizona v. Inter Tribal Council of Ariz., 570 U.S. 1, 35–36 n.2 (2013) (Thomas, J., dissenting). ↩︎
43. Ex parte Yarbrough, 110 U.S. 651, 665 (1884). ↩︎
44. David B. Froomkin & Eric Eisner, The Second Coming of the Second Section: The Fourteenth Amendment and Presidential Elections, 58 Ariz. St. L.J. 127 (2024). ↩︎
45. Williams v. Va. State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff’d, 393 U.S. 320 (1969); Note, “As the Legislature Has Prescribed”: Removing Presidential Elections from the Anderson-Burdick Framework, 135 Harv. L. Rev. 1082 (2022). ↩︎
46. Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007). ↩︎
47. Norman R. Williams, Why the National Popular Vote Is Unconstitutional, 210 BYU L. Rev. 1523, 1573–77 (2012). ↩︎