Studies in Civics

by J. T. McCleary

CHOOSING THE PRESIDENT AND VICE-PRESIDENT.

Clause 2.—Number and Appointment of Electors.

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.

Three plans for the election of president and vice-president were proposed: First, election by congress; second, election by the people; third, election by persons chosen by the people for that special purpose.

The objection to the first plan was, that it would rob the executive branch of that independence which in our plan of government it is designed to possess—it would render the executive branch in a measure subordinate to the legislative.

The objections to the second plan came from two sources. Some of the delegates feared that, inexperienced as they were, the people could not be trusted to act wisely in the choice of a president—that they would be swayed by partizan feeling, instead of acting with cool deliberation. And the small states feared that in a popular election their power would count for little.

Then the compromise in the organization of the congress was remembered, and it was resolved that the election of the president and vice-president should be placed in the hands of persons chosen for that special purpose, and that the number of the electors from each state should be that of its representation in congress. This satisfied both parties. Those who thought that the people could not be intrusted with so important a matter as the choice of the president, hoped that this mode would place the election in the hands of the wise men of the several states. And the delegates from the small states secured in this all the concession which they could fairly ask.

This matter being settled, the next question was: How shall the electors be chosen? There being much difference of opinion on the subject, it was thought best to let each state choose its electors in the way which it might prefer.

Naturally the modes of choosing electors varied. In some states the legislature chose them, but this mode soon became unpopular. [Footnote: South Carolina, however, retained this mode until very recently.] In some states they were chosen by the people on a general ticket, and in others, by the people by congressional districts. The last is the fairest way, because it most nearly represents the wishes of the people. By electing on a general ticket, the party which is in the majority in any state can elect all of the electors. But, for this very reason, the majority in each state has finally arranged the matter so that this is now the practice in nearly all the states.

The present system of nominations and pledged electors was undreamed of by the framers of the constitution. They intended that in the selection of the president each elector should be free to vote according to his own best judgment. But it has come to pass that the electors simply register a verdict already rendered. Briefly the history of the change is this: During the administration of Washington (who had been elected unanimously) differences of opinion on questions of policy gave rise to political parties. To secure the unity of action so essential to success, the leaders of the respective parties, by agreement among themselves, designated, as each election approached, persons whom they recommended for support by electors of their party. Gradually the recommendation came to be looked upon as binding. In 1828 the Anti-Masonic party, having no members of congress to act as leaders, held a "people's convention." Its nominees received a surprisingly large vote. The popularity of this mode of nomination thus appearing, the other parties gradually adopted it, and since 1840 it has remained a recognized part of our political machinery.

Clause 3.—Election of President and Vice-President.

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 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. 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 shall be president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such a majority, and have an equal number of votes, then the house of representatives shall immediately choose by ballot one of them president, and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the president, the vote shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the president, the person having the greatest number of votes of the electors, shall be vice-president. But if there should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president.

Under this provision Washington was elected president twice and Adams once. In the disputed election of 1800, it was found that this mode would not do. The faulty feature in the plan is found in the first sentence, which requires the electors to vote for two persons for president. In this election, Jefferson and Burr, candidates of the same party, received the same number of votes and each had a majority. The power to choose then devolved upon the house of representatives. There were at that time sixteen states, and consequently sixteen votes. Of these Jefferson received eight, Burr six, and the remaining two were "scattering." As it required nine votes to make a majority, no one was elected. The balloting was continued for seven days, thirty-six ballots being taken. On the thirty-sixth ballot Jefferson received ten votes to four for Burr. Jefferson thus became president and Burr vice-president. But the consequent bitterness of feeling was much regretted, and it was determined to change, slightly, the mode of election. The changes consisted in having the electors vote for one person for president and for a different person for vice-president; and when the election is thrown into the house of representatives, the selection is to be made from the three highest instead of the five highest as originally. The change was made by the twelfth amendment, passed in 1804, which is here given in full.

The Twelfth Amendment.

The electors shall meet in their respective states and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the president of the senate. 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 president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately by ballot, the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March, next following, then the vice-president shall act as president, as in the case of the death or other constitutional disability of the president.

The person having the greatest number of votes as vice-president, shall be the vice-president, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list the senate shall choose the vice-president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to office of president shall be eligible to that of vice-president of the United States.

Thus we see that the president may be elected in one of two ways—by electors or by the house of representatives; and that the vice-president may also be elected in one of two ways—by electors or by the senate.

The mode of choosing the president is regarded by many as difficult to remember. Perhaps making an outline like the following will aid the memory:

First Mode or Process.

I. The electors, after they are chosen:
1. MEET in their respective states.
2. VOTE by ballot, for president and vice-president.
3. MAKE LISTS of the persons voted for and the number
of votes for each.
4. SIGN, CERTIFY and SEAL those lists.
5. TRANSMIT them to the seat of government, addressed
to the president of the senate.

II. The president of the senate:
1. OPENS the certificates, in presence of both houses.
2. DECLARES THE RESULT, after the votes have been
counted.

Second Mode or Process.

Points— President— Vice-President—
Chosen by………. House of Representatives The Senate.
From…………… Three highest. Two highest.
Voting…………. By ballot. By ballot.
State power…….. Each one vote. Each two votes.
Quorum…………. Representatives from Two-thirds of senators.
two-thirds of the states.
Necessary to choice Majority of states. Majority of senators

The place of meeting is usually the capital of the state.

Three "lists" of the vote for president and three for vice-president are prepared, and "signed, certified and sealed." One pair of these lists is sent by mail and another by special messenger. The third is deposited with the judge of the United States District Court in whose district the electors meet, to be called for if necessary. The purpose of these precautions is to make sure that the vote of the state may not be lost, but shall without fail reach the president of the senate.

Clause 4.—Times of These Elections.

The congress may determine the time of choosing the electors,[1] and the day on which they shall give their votes;[2] which day shall be the same throughout the United States.[3]

[1] The day designated by congress is the first Tuesday after the first Monday in November. The election always comes in "leap year."

[2] The electors meet and vote on the second Monday in January.

[3] This provision was designed, first, to prevent fraud in voting; and second to leave each state free to act as it thought best in the matter of persons for the offices, unbiased by the probability of success or failure which would be shown if the elections occurred on different days in different states.

It may be desirable to know in this connection that:

The president of the senate sends for missing votes, if there be any, on the fourth Monday in January.

The counting of votes is begun on the second Wednesday in February and continued until the count is finished. (See page 334.)

In case the electors have not given any one a majority for the presidency, the house proceeds at once to elect. In a similar case the senate proceeds at once to choose a vice-president.

The provisions of the continental congress for the first election were:

1. Electors to be chosen, first Wednesday in January, 1789.

2. Electors to vote, first Wednesday in February.

3. The presidential term to commence first Wednesday in March. The first Wednesday in March in 1789 was the fourth day of the month, and on that day the presidential terms have continued to begin.

_Clause 5.—Qualifications of President and Vice-President.

No person except a natural born citizen,[1] or a citizen of the United States at the time of the adoption of this constitution,[2] shall be eligible to the office of president; neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years,[3] and been fourteen years a resident within the United States.[4]_

[1] The importance of the office is such as, in the opinion of the framers of the constitution, to necessitate this requirement. And it does not seem unjust to make this limitation.

[2] This exception was made from a sense of gratitude to many distinguished persons, who, though not native citizens, had placed their lives and fortunes at the service of this country during the revolution, and who had already become citizens of the young republic. This provision is now, of course, obsolete.

[3] Age should bring wisdom. The age specified is great enough to permit the passions of youth to become moderated and the judgment matured. As a matter of fact, the youngest president yet elected was much older than this minimum. In monarchies the rulers are sometimes children. It cannot be so with us.

[4] But a "natural born citizen," even, may live so long in a foreign country as to lose his interest in his native land. This provision is intended to preclude the election of such persons to the presidency. They might seek it at the instance of a foreign government, for sinister purposes.

Will residence during any fourteen years satisfy the requirement? Commentators generally have expressed an affirmative opinion, based upon the fact that James Buchanan and others were elected president on their return from diplomatic service abroad. It must be remembered, however, that a person sent abroad to represent this government does not lose his residence in this country. Therefore the fact of Mr. Buchanan being elected after acting as our minister to England, has no bearing upon the question. On the other hand, the evident purpose of the provision could hardly be satisfied if a boy, a native of this country, should live here until fourteen years of age and then spend the rest of his years in a foreign country. And when the matter is carefully considered, it will be seen that the only fourteen years which will secure that state of mind in the candidate which is sought by the provision, are the fourteen years immediately preceding election. Again, twenty-one and fourteen equal thirty-five. A person "comes of age" at twenty-one. The fourteen years of manhood added would just make thirty-five years, the minimum age required. This coincidence could hardly have been accidental, and justifies the view expressed.

According to the twelfth amendment, the qualifications of the vice-president are the same as those of the president.

Clause 6.—Vacancies.

In case of the removal of the president from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected.

If no regular succession were established, there would be danger of anarchy.

By an act passed March 1, 1792, congress provided that in case of the disability of both president and vice-president, the duties of the office of president should devolve upon the president pro tempore of the senate; and in case of a vacancy in that office, that they should then devolve upon the speaker of the house of representatives.

But when president Garfield died there was no president pro tempore of the senate and no speaker of the house; so that when vice-president Arthur became president, there was no one to succeed him in case of his disability. It was then expected that congress would devise another plan of succession; but it did not. When vice-president Hendricks died, there was again no president pro tempore of the senate or speaker of the house. This recurrence of the danger within four years prompted congress to provide an order of succession less liable to accident than the one so long in use. The succession was placed in the cabinet in the following order: Secretary of state, secretary of the treasury, secretary of war, attorney-general, postmaster-general, secretary of the navy, and secretary of the interior.

When the vice-president or secretary becomes president, he serves for the remainder of the term.

One very important item in this connection the constitution leaves unprovided for, namely, who shall determine when "disability," other than death, occurs or ceases? Certainly the decision should not be left to those interested in the succession. No official answer to this question has yet been given.

Clause 7.—President's Salary.

The president shall, at stated times, receive for his services a compensation[1] which shall be neither increased nor diminished during the period for which he shall have been elected,[2] and he shall not receive within that period any other emolument from the United States or any of them.[3]

[1] Otherwise a person of moderate means would be debarred from accepting the position, and the country might thereby be deprived of the services of some man of lofty character.

[2] Thus congress can neither bribe nor drive the president into doing anything which he may regard as unwise or wrong. And on the other hand, the president has no temptation to try to "undermine the virtue" of congress for his own pecuniary benefit.

[3] This provision has the same purpose in view as the last. "He is thus secured, in a great measure, against all sinister foreign influences. And he must be lost to all just sense of high duties of his station, if he does not conduct himself with an exclusive devotion to the good of the whole people, unmindful at once of the blandishments of courtiers, who seek to deceive him, and of partizans, who aim to govern him, and thus accomplish their own selfish purposes." [Footnote: Story]

Till 1873 the salary of the president was $25,000 a year. It was then raised to $50,000 a year. He also has the use of the White House, which is furnished at national expense; and special appropriations are frequently made to cover special expenses. And yet few presidents have been able to save anything out of their salaries.

The vice-president receives $8000 a year.

Clause 8.—Oath of Office.

Before he enter upon the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States."

This oath is usually administered by the chief justice of the Supreme Court. It is very simple, pledging the president to two things only; but they are the essential things.

"Taking the oath" is a part of the inauguration ceremonies which occur, usually, on the fourth of March.

Pertinent Questions.

Was there any president under the confederation? Why? When does the president's term begin? Suppose that day comes on Sunday? How does a presidential term compare with that of senator? Of representative? The first proposition in the constitutional convention was to make the presidential term seven years, and limit a person to one term. Is the present plan better or not as good? For how many terms may a person be elected president? What presidents have been elected for a second term?

How many presidential electors is this state entitled to? New York? Illinois? Wisconsin? Delaware? How many are there altogether? Show how the present mode is an advantage to the small states. Who were the electors of this state in the last presidential election? Get a "ticket" or ballot and study it. Tear off, beginning at the top, all that you can without affecting the vote. How could a person have voted for one of the republican candidates without voting for the other? Where did the electors of this state meet? When? Did you preserve the newspaper report of their proceedings?

Could the president and vice-president be chosen from the same state? How many electoral votes were necessary to a choice last time? How many did each candidate receive? In case of election by the house of representatives, what is the smallest possible number that could elect? In case the house should fail to choose a president before the fourth of March, who would be president? Have we ever been threatened with a case of this kind? Which presidents have been elected by the house? Has a vice-president ever been chosen by the senate?

Specify four differences between the old and the new way of electing president and vice-president. Which was the most important change? What statement in the twelfth amendment was unnecessary in the original provision? If "two-thirds of the senators" are present, are two-thirds of the states necessarily represented? What is the smallest number of senators that could elect a vice-president? How many times has the vice-president succeeded to the presidency? What caused the vacancies? Is the result of the election known before the meeting of the electors?

Who is our present minister to England? Would a son of his born in England today be eligible in due time to the presidency? Make a comparative table, giving the qualifications, mode of election (general), and term of representatives, senators and president.

Who is now vice-president of the United States? Have we ever had more than one vice-president at the same time? Name the persons, in their order, who would succeed to the presidency if the president should be unable to perform his duties. If the president should become insane, who would decide that such is the fact? How long would the person thus succeeding to the position of acting president serve? State four ways in which a vacancy in the office of president may occur. If the president leaves Washington, is a vacancy created? If he leaves the country? If he is impeached? In case of the non-election of either president or vice-president, who would serve? How long? How is a vacancy in the office of vice-president filled?

At what "stated times" is the salary of the president paid? In November, 1872, President Grant was re-elected. His new term began March, 1873. In the meantime the salary of the president was increased to $50,000. Did President Grant get the increase? Explain.

Does the vice-president take an "oath of office?" If he succeeds to the presidency must he take the oath prescribed in the constitution? What constitutional provision for the salary of the vice president? Compare the duties of a governor of a state with those of the president.

Debate.

Resolved, That the president should be elected by a direct vote of the people.

Resolved, That the presidential term should be lengthened, and a second term forbidden.