Government in the United States, National, State and Local

by James Wilford Garner

Electoral and Popular Vote.—Generally the candidate for President whose electors receive the largest popular vote will also receive the largest electoral vote; but this has not always happened, and usually there is only a rough correspondence between the popular vote and the electoral vote. Thus in 1860 Lincoln received only about forty per cent of the popular vote, though he received a substantial majority (about fifty-nine per cent) of the electoral vote. Again, in 1864 he received only about fifty-five per cent of the popular vote, but ninety-one per cent of the electoral vote. In 1912 Wilson received forty-two per cent of the popular vote, and eighty-two per cent of the electoral vote. Such discrepancies are due to the fact that the entire electoral vote of a state is usually cast for the candidate who receives a plurality of the popular vote of the state, however small it may be. A party, therefore, may carry enough states by small margins to secure a majority of the electors and yet be in a minority so far as the popular vote of the entire country is concerned.

Choice of the President by the Electors.—The electors, on the second Monday of January following their election, assemble in their respective state capitals for the purpose of choosing the President.[63] The Constitution as it now stands requires the electors to vote by ballot for President and by a distinct ballot vote for Vice President, and make separate lists of all persons voted for as President and of all persons voted for as Vice President.

The Original Method.—The Constitution as originally adopted did not require the electors in casting their ballots to indicate the person for whom they were voting as President and whom for Vice President, or to prepare distinct lists. The one who received the highest vote (if a majority) was to be President, and the one receiving the next highest number (whether a majority or not) was to be Vice President. The result of this method of choosing the President was that as soon as political parties were formed and the electors came to vote strictly on the basis of party there would be a tie between the two persons highest on the list, and as there was nothing to show on the record which was intended for President and which for Vice President there would be no election. This happened in 1801, when Jefferson and Burr each received seventy-three electoral votes, and the choice between them had to be made by the house of representatives as the Constitution provides.

Twelfth Amendment.—To remove the difficulty, the Twelfth Amendment was adopted in 1804, requiring the electors in preparing their ballots to indicate their choice for President and their choice for Vice President so that the person intended for the latter office could not be confused with the person intended for President. The amendment also requires a majority of the electoral vote to elect the Vice President as well as the President.

Restrictions on the Electors.—In casting their votes the electors are prohibited from voting for candidates for both offices from the same state as themselves. The purpose of this provision is to prevent the electors from one state—if any state should ever become powerful enough—from choosing both the President and the Vice President from that state. This does not mean, however, that both the President and the Vice President could not be elected from the same state, since the electors of the other states are not prohibited from voting for two candidates from the same state.

Formalities and Precautions.—The Constitution requires the electors of each state to sign, certify, seal, and transmit to the president of the United States senate, a list of the votes cast for President and Vice President. The statutes also require two additional lists to be prepared, one to be sent to the president of the senate by special messenger, and the other to be deposited with the nearest United States district judge. These extra precautions are taken to prevent the loss of the state's votes through accident or otherwise. This done, the office of the Presidential elector expires and the electoral colleges cannot be again summoned to correct errors or to make a new choice in case the President elect should die before inauguration.

Counting the Electoral Vote.—The Constitution directs that the votes transmitted to the president of the senate shall be opened in the presence of both houses of Congress and that the votes shall then be counted. The Constitution does not say who shall count the votes. Apparently the framers believed that the process of counting would never involve anything more than a simple act of addition. But in the course of time disputed returns began to be sent in, and then the process of counting came to involve the more difficult task of determining what should be counted. Thereupon the question was raised, who shall count? Was the president of the senate to count and the two houses act merely as spectators, or was the president of the senate to open the votes and the two houses do the counting? For a long time, when the disputes were not serious enough to affect the result, the president of the senate was allowed to count the vote and proclaim the result.[64] In 1865 by a joint rule Congress assumed the right to count the electoral vote, thus taking the power away from the president of the senate.

The Disputed Election of 1876.—In 1876 a serious election dispute arose, involving the presidency. Both Hayes and Tilden claimed to have been elected, and the result depended upon which of two conflicting lists of votes from Florida, Oregon, South Carolina, and Louisiana should be counted. Under the joint rule mentioned above, either house could reject a questionable vote. One of the houses was Democratic and the other Republican, and because of the great excitement over the matter, it was feared that the votes of many states might be rejected for trivial reasons. After much discussion, in the course of which many ugly threats were made, Congress agreed to the creation of an electoral commission, to decide the disputed votes. The commission was to consist of five senators, five representatives, and five justices of the Supreme Court. As finally constituted it was composed of eight Republicans and seven Democrats, and by a strict party vote the commission decided in favor of Hayes in every case, thus insuring his election. The minority accepted the result, but not without protest and criticism.

The Act of 1887.—After this decision, Congress took up the task of devising permanent rules for counting the electoral vote, and finally in 1887 it passed an elaborate act which now regulates the electoral count. In brief, it places the responsibility so far as possible on the state authorities, and provides that the determination of each state as to how its electoral vote was cast shall, under certain conditions, be final. If, however, a state neglects to settle its own election contests, and double returns are transmitted to the president of the senate, the two houses of Congress sitting separately must determine how the votes shall be counted. But if the two houses fail to agree, as they did in counting the vote of 1876, then the vote of the state is lost. The day fixed by Congress for opening and counting the vote is the second Wednesday in February.

Election by the House.—In case no candidate receives a majority of the electoral votes, the choice devolves upon the house of representatives. But in that case the house votes by states, each state having one vote, irrespective of its number of representatives, and the choice is made from the three candidates standing highest on the list.[65] A quorum for the election of a President by the house consists of a member or members from two thirds of the states, and the vote of a majority of all the states is necessary to a choice.