The Electoral Meeting Clause

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.

—Michael T. Morley

Introduction

The Electoral Meeting Clause established the original procedure for casting electoral votes in presidential elections. It required presidential electors to “meet in their respective states.” Each elector had to cast electoral votes for “two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.” Each state’s electors were then required to “make a List of all the Persons voted for, and of the Number of Votes for each,” and send it to the President of the U.S. Senate. Under this provision, electors did not cast separate votes for presidential and vice presidential candidates. In 1804, the clause was superseded by the Twelfth Amendment, but several of the constitutional questions that the clause raised have endured.

History Before 1787

The English government did not include any institution comparable to the Electoral College. The closest parallel from early American state constitutions was the mechanism in the Maryland Constitution of 1776 for electing the state Senate.¹ Every five years, the voters of each county chose two electors by majority vote, and the voters of Annapolis and Baltimore each chose a single elector.² The state’s electors met in Annapolis “or such other place as shall be appointed for convening the legislature” on the third Monday in September to elect fifteen Senators.³ Each elector was required to take an oath “to elect without favour, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.”⁴ Maryland retained this system until 1837 when it adopted direct popular election of state Senators.⁵

During the Constitutional Convention, Alexander Hamilton of New York stated that Maryland’s senate had been “much appealed to” as a model for balancing the interests of the wealthy and the poor, although he did not raise that point specifically in connection with presidential elections.⁶ Federalist No. 63 cited the Maryland senate as precedent for the appointment of U.S. Senators by state legislatures.

The Constitutional Convention

Early in the Constitutional Convention, on June 1, 1787, James Wilson of Pennsylvania proposed dividing states into districts, each of which would elect an unspecified number of electors for the “Executive Magistracy.” The electors would “meet” at an unspecified place, “and they or any ____ of them so met shall elect by ballot, but not out of their own body, ____ Person in whom the Executive authority of the national Government shall be vested.”⁷ (The blanks were to be filled in later.) The Convention rejected Wilson’s motion.⁸ Other early proposals by Wilson, Luther Martin of Maryland, Gouverneur Morris of Pennsylvania, and Oliver Ellsworth of Connecticut to have the President chosen by electors did not discuss the electors’ meeting or how they would cast their votes.⁹

On July 25, Hugh Williamson of North Carolina first raised the idea of voting for multiple presidential candidates.¹⁰ He suggested that the people should elect the President with each person “vot[ing] for 3 candidates.”¹¹ Williamson surmised that each voter was likely to cast one of his votes for someone from his own state; candidates from large and small states were equally likely to receive the remaining votes.¹² Morris endorsed this idea but suggested that each person should vote for only two candidates, including at least one who was not from the voter’s own state.¹³ James Madison of Virginia acknowledged that this approach would allow a voter to cast one vote for “his favorite fellow Citizen” from his own state and then “throw away his second vote on some obscure Citizen of another State, in order to ensure the object of his first choice.”¹⁴ He thought it unlikely, however, that voters would take such a risk.¹⁵ The Convention declined to consider Williamson’s proposal by a vote of 5 to 6.¹⁶

In late August, the Committee on Postponed Parts proposed that the President be chosen by an electoral college.¹⁷ Its draft of the Electoral Meeting Clause was nearly identical to the version that the Convention would ultimately adopt.

Morris, along with Madison, Wilson, and George Mason of Virginia, contended that requiring presidential electors to cast their electoral votes within their respective states reduced the possibility of “cabal and corruption.”¹⁸ Morris further explained that having each elector cast at least one of his two electoral votes for someone from a different state would ensure that at least half of the electoral votes “will fall on characters eminent & generally known.”¹⁹ The Convention rejected an amendment mandating that the electors “meet at the seat of the Genl. Govt.”²⁰ It likewise declined to direct electors to transmit their votes “under the seal of the State.”²¹ The Convention ultimately adopted the Electoral Meeting Clause with only minor, non-substantive changes in capitalization and punctuation.²²

On September 17, after the Constitution was signed, the Convention adopted an accompanying resolution recommending that, following the Constitution’s ratification, the Confederation Congress should direct states to appoint presidential electors.²³ In correspondence following the Convention, Gouverneur Morris argued that the system protected small states because a candidate would seldom receive a majority of electoral votes. Presidential elections were therefore likely to be decided by the House of Representatives. Such contingent House elections greatly enhanced the influence of small states because each state’s representatives collectively could cast only a single vote.²⁴

The Ratification Debates

The state ratification conventions recognized that requiring each state’s presidential electors to cast their votes in their respective states on the same day would reduce the risk of their being bribed or otherwise corrupted. This point was articulated by Edmund Randolph in Virginia, James Iredell in North Carolina, and Charles Cotesworth Pinckney in South Carolina.²⁵ Alexander Hamilton echoed this notion in Federalist No. 68: “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”²⁶

Presidential Elections Before the Twelfth Amendment

The first presidential election was in 1788 and proceeded smoothly under the Electoral Meeting Clause. Each elector cast one of his two votes for George Washington, and John Adams received the most votes among the remaining candidates.²⁷

In 1792, Congress enacted the Presidential Election and Succession Act. That law required electors to deliver a certificate of their electoral votes to the President of the Senate, mail him a second copy, and send a third to their district’s federal judge.²⁸ Each certificate was to be accompanied by a list of the electors’ names certified by the state’s “executive authority.”29 The presidential election later that year again occurred without incident. Once again, Washington received the most electoral votes and Adams received the next-highest amount.²⁹

The election of 1796 demonstrated that the Constitution’s original electoral system did not contemplate the rise of political parties. Federalist John Adams received the most electoral votes and became President. Thomas Jefferson, who was Adams’s staunch political opponent, received the second-highest number of electoral votes and became Vice President.³⁰

The Election of 1800 revealed further defects in the system. Jefferson and his ostensible running mate Aaron Burr each received the same number of electoral votes.³¹ The election fell to the U.S. House of Representatives with each state’s congressional delegation casting a single vote. Some Federalists in the House opposed Jefferson, and it took thirty-six rounds of balloting until he finally received votes from enough states to become President.³² Due to these experiences, Congress proposed and the states quickly ratified the Twelfth Amendment, which modified the rules governing voting in the Electoral College.34 In anticipation of the amendment’s ratification, Congress adopted technical amendments to the 1792 Election and Succession Act.³³

The Electoral Count Act

The Electoral Count Act (ECA) of 1887 was adopted in response to the disputed Hayes-Tilden election of 1876. In addition to existing requirements, this law directed each state’s executive to transmit a certificate of ascertainment to the U.S. Secretary of State identifying the state’s electors and the number of votes that had been cast for each candidate for elector.³⁴ The certificate was to be sent “as soon as practicable” following the electors’ appointments.³⁵ The executive was similarly required to send a certificate memorializing the “determination” of any “controversy or contest concerning the electors’ appointments . . . as soon as practicable” after such determination was made.³⁶ Congress later required electors to make six copies of the certificates listing their votes,³⁷ adjusted the dates set forth in the ECA to reflect the Twentieth Amendment’s modification of Inauguration Day,³⁸ and transferred the U.S. Secretary of State’s responsibilities to the Archivist of the United States.³⁹

The Electoral Count Reform Act (ECRA) of 2022 requires Congress to accept as conclusive a certificate from a state’s executive regarding “the determination of electors appointed by the State,” as modified or superseded by any federal or state court order.⁴⁰ If a state’s executive refuses to issue or transmit the required certificate, a candidate may sue before a three-judge federal district court panel.⁴¹ The losing party may seek direct expedited review from the U.S. Supreme Court by petitioning for a writ of certiorari.⁴²

Elector Binding

The Electoral Meeting Clause does not expressly address whether states may “bind” electors, requiring them to vote for their party’s presidential and vice presidential candidates. Most early commentators concluded that the Constitution gave presidential electors discretion to vote for the candidates of their choice. In Federalist No. 64, John Jay wrote that electors’ decisions would “bear at least equal marks of discretion and discernment.” Hamilton echoed these sentiments in Federalist No. 68, explaining that electors would “possess the information and discernment requisite” to choosing a President. St. George Tucker, William Rawle, and James Madison also emphasized electors’ independence.⁴³ Justice Joseph Story’s Commentaries stated that electors would “act[] under circumstances favourable to deliberation, and to a judicious combination of all the inducements, which ought to govern their choice.”⁴⁴

The Supreme Court has observed that, notwithstanding these original intentions, “electors have only rarely exercised discretion in casting their ballots for President. From the first, States sent [electors] to the Electoral College . . . to vote for pre-selected candidates, rather than to use their own judgment.”⁴⁵ The majority of states have enacted various types of “faithless elector” laws that require electors to vote for the candidate of the political party that nominated them.⁴⁶ Ray v. Blair (1952) held that states may permit political parties to require their candidates for presidential elector to pledge to cast their electoral votes for that party’s presidential nominee.⁴⁷ Chiafalo v. Washington (2020), upholding the constitutionality of elector binding laws, affirmed that “[t]he Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.”⁴⁸

Open Questions

• What should Congress do if an elector casts both of his electoral votes for candidates from his own state? Under modern circumstances, this could realistically occur only if an elector errs or deliberately chooses to cast at least one “faithless” electoral vote.

The Electoral Meeting Clause was violated in the election of 1872 when two electors from Georgia voted for former Georgia Governor Charles Jenkins for President and former Confederate General Alfred H. Colquitt of Georgia for Vice President. During the joint session at which Congress counted electoral votes, Senator Oliver Norton objected that those votes violated the clause. The President of the Senate, presiding over the joint session, ruled that Senator Norton’s objection was out of order because he had raised it too late.⁰ In the election of 1792, four electors from Kentucky cast both of their electoral votes for candidates from Virginia: George Washington and Thomas Jefferson.⁰ In the 2005 election, a Minnesota elector cast his electoral votes for both President and Vice President for John Edwards.⁰ None of these votes violated the Electoral Meeting Clause, however, because the electors lived in different states from the candidates for whom they voted. Professor Derek Muller has argued that “Congress may have the power to refuse to count the votes of [an] elector[] who violate[s]” the Electoral Meeting Clause by casting both of his electoral votes for candidates from his state.⁰

• What should Congress do if electors do not transmit an accurate list of their electoral votes? The Electoral Meeting Clause provides that, after casting their electoral votes, electors must submit a signed and certified list specifying the number of electoral votes each candidate received. The Twelfth Amendment contains a modified version of this requirement.

Congressional precedents conflict concerning the proper treatment of procedurally defective votes. On the one hand, following the election of 1800, Georgia’s electors failed to provide a numerical tally of their electoral votes, and their filing was neither signed nor certified.⁰ Instead, the electors simply listed their names under the headings “Jefferson” and “Burr” on the back of the certificate of ascertainment.⁰ Vice President Thomas Jefferson, presiding over the joint session of Congress at which electoral votes were counted, did not raise any issue with the submission and no members of Congress objected; the votes were counted.⁰ On the other hand, following the election of 1872, Arkansas filed its electoral votes without certification; the state’s submission also erroneously included the seal of the Secretary of State rather than the state’s official seal. By a vote of 28 to 24, the Senate rejected the votes.⁰ Under Joint Rule 22, which governed the electoral count at the time, the Senate’s decision was sufficient for Congress to omit Arkansas’ procedurally defective votes from the results.⁰

• May Congress reject electoral votes from “faithless” electors? A faithless elector casts his electoral vote for a presidential and/or vice presidential candidate other than the ones who won the election within that elector’s jurisdiction. For example, in 1969, Republicans Richard M. Nixon and Spiro T. Agnew won the popular vote in North Carolina for President and Vice President, respectively. An elector from that state nevertheless cast his electoral votes for George Wallace and Curtis E. LeMay instead.⁴⁹ An objection was lodged but was rejected by both the House and Senate, which accepted the “faithless” votes as valid.⁵⁰

The ECRA allows Congress to reject electoral votes that are not “regularly given.”⁰ The statute does not define that phrase, however. Professor Derek Muller has persuasively argued that “regularly given” means “‘cast pursuant to law,’ with ‘law’ referring to the federal Constitution, federal law, and state law.”⁰ Some state laws require state officials to disregard “faithless” electoral votes and appoint replacement electors to cast their votes consistent with the outcome of the popular vote.⁰ Others require electors to cast their votes consistent with their state’s popular vote outcome but do not provide any express statutory remedies for violations.⁰ Congress might determine that electoral votes cast in direct violation of state law are not “regularly given” for purposes of the ECRA and therefore may be rejected. Still other states are silent as to electors’ obligations. Bush v. Gore (2000) held that “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental.”⁰ It is unclear whether Congress would deem it unconstitutional for an elector to cast his electoral vote—with no prior warning or notice—for someone who lost the election within the relevant jurisdiction or did not even run in the first place.

1. Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 904, 924 (2017); James Harvey Robinson, The Original and Derived Features of the Constitution, 1 Annals Am. Acad. Pol. & Soc. Sci. 203, 218, 228 (1890). ↩︎
2. Md. Const. of 1776, art. XIV. ↩︎
3. Id. art. XV. ↩︎
4. Id. art. XVIII. ↩︎
5. Tyler Yeargain, Maryland’s Legislative Appointment Process: Keep It and Reform It, 51 U. Balt. L.F. 1, 4 (2020). ↩︎
6. 1 Farrand’s 288–89. ↩︎
7. Id. at 77, 80. ↩︎
8. Id. at 77, 81. ↩︎
9. 2 Farrand’s 22, 32, 50, 57–58, 97, 99, 105, 107–09, 397, 404. ↩︎
10. Id. at 113. ↩︎
11. Id. ↩︎
12. Id. ↩︎
13. Id. ↩︎
14. Id. at 114. ↩︎
15. Id. ↩︎
16. Id. at 115. ↩︎
17. Id. at 493–94, 496–97. ↩︎
18. Id. at 30, 111, 500, 501. ↩︎
19. Id. at 512. ↩︎
20. Id. at 518, 526; id. at 525 & n.21. ↩︎
21. Id. at 517, 526. ↩︎
22. Id. at 573, 597–98, 658. ↩︎
23. Id. at 665. ↩︎
24. 3 Farrand’s 404–05; id. at 458–59. ↩︎
25. 3 Elliot’s 486; 4 Elliot’s 105, 304–05. ↩︎
26. 1 St. George Tucker, Blackstone’s Commentaries, App. Note D at 326–27 (1803); 3 Story’s Commentaries § 1451. ↩︎
27. S. Jour., 1st Cong., 1st Sess. 8 (Apr. 6, 1789); H.R. Jour., 1st Cong., 1st Sess. 8–9 (Apr. 6, 1789). ↩︎
28. Ch. 8, §§ 2, 4, 1 Stat. 239, 239–40 (Mar. 1, 1792); Annals of Cong., 1st Cong., 3d Sess. 1915–18 (1791). ↩︎
29. S. Jour., 2d Cong., 2d Sess. 485–86 (Feb. 13, 1793); H.R. Jour., 2d Cong., 2d Sess. 701–02 (Feb. 13, 1793). ↩︎
30. S. Jour., 4th Cong., 2d Sess. 320–21 (Feb. 8, 1797); H.R. Jour., 4th Cong., 2d Sess. 685–86 (Feb. 8, 1797). ↩︎
31. H.R. Jour., 6th Cong., 2d Sess. 799 (Feb. 11, 1801); S. Jour., 6th Cong., 2d Sess. 125 (Feb. 18, 1801). ↩︎
32. H.R. Jour., 6th Cong., 2d Sess. 799–801 (Feb. 11, 1801); S. Jour., 6th Cong., 2d Sess. 127–28 (Feb. 18, 1801). ↩︎
33. Ch. 50, 2 Stat. 295–96 (Mar. 26, 1804); Rev. Stat. §§ 131–45 (1874). ↩︎
34. Ch. 90, §§ 1, 3, 24 Stat. 373, 373 (Feb. 3, 1887). ↩︎
35. Id. ↩︎
36. Id. ↩︎
37. Act of May 29, 1928, ch. 859, §§ 2–4, 45 Stat. 945, 946 (1928); H.R. Rpt. No. 70-750, at 1–2 (Feb. 23, 1928). ↩︎
38. Act of June 5, 1934, ch. 390, § 6(a), 48 Stat. 879, 879. ↩︎
39. National Archives and Records Administration Act of 1984, Pub. L. No. 98-497, § 107(e), 98 Stat. 2280, 2291–92. ↩︎
40. Pub. L. No. 117-238, Div. P, § 104(a), 136 Stat. 4459, 5234–35 (Dec. 29, 2022) (codified at 3 U.S.C. § 5(c)(1)). ↩︎
41. Id. at 5235 (codified at 3 U.S.C. § 5(d)(1)(B)). ↩︎
42. Id. (codified at 3 U.S.C. § 5(d)(1)(D)). ↩︎
43. 1 St. George Tucker, supra App. Note D at 326–27; William Rawle, A View of the Constitution of the United States of America 52 (2d ed. 1822); 3 Farrand’s 464. ↩︎
44. 3 Story’s Commentaries § 1451. ↩︎
45. Chiafalo v. Washington, 591 U.S. 578, 593 (2020); Rawle, supra at 57–58; 3 Story’s Commentaries § 1457. ↩︎
46. Presidential Elections, FairVote, https://perma.cc/CQ7N-5NGR. ↩︎
47. 343 U.S. 214, 230–31 (1952). ↩︎
48. 591 U.S. at 588. ↩︎
49. 115 Cong. Rec. 146 (1969). ↩︎
50. Id.; id. at 171. ↩︎