"THE ELECTORAL COLLEGE"
The word "appoint" is used in clause 2 "as conveying the broadest power of determination."[28] This power has been used. "Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable."[29] In the Federal Convention James Wilson had proposed that the Electors be "taken by lot from the national Legislature," but the suggestion failed to come to a vote.[30]
CONSTITUTIONAL STATUS OF ELECTORS
Dealing with the question of the constitutional status of the Electors, the Court said in 1890: "The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the State legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. * * * In accord with the provisions of the Constitution, Congress has determined the time as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them."[31] The truth of the matter is that the Electors are not "officers" at all, by the usual tests of office.[32] They have neither tenure nor salary, and having performed their single function they cease to exist as Electors. This function is, moreover, "a federal function,"[33] their capacity to perform which results from no power which was originally resident in the States, but springs directly from the Constitution of the United States.[34] In the face, therefore, of the proposition that Electors are State officers, the Court has upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a Presidential Elector;[35] and more recently its power to protect the choice of Electors from fraud or corruption.[36] "'If this government,' said the Court, 'is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.'"[37] The conception of Electors as State officers is still, nevertheless, of some importance, as was shown in the recent case of Ray v. Blair,[38] which is dealt with in connection with Amendment XII.[39]
"NATURAL-BORN" CITIZEN
Clause 3 of this section, while requiring that the Electors each vote for two persons, did not require them to distinguish their choices for President and Vice President, the assumption being that the Vice President would be the runner-up of the successful candidate for President. As a result of this arrangement the election of 1800 produced a dangerous tie between Jefferson and Burr, the candidates of the Republican-Democrat Party for President and Vice President respectively. Amendment XII, which was adopted in 1803 and replaces clause 3, makes a recurrence of the 1800 contretemps impossible. See pp. [941-942]. Clause 4 testifies still further to the national character of Presidential Electors. Clause 5 is today chiefly of historical interest, all Presidents since, and including Martin Van Buren, except his immediate successor, William Henry Harrison, having been born in the United States subsequently to the Declaration of Independence. The question, however, has been frequently mooted, whether a child born abroad of American parents is "a natural-born citizen" in the sense of this clause. The answer depends upon whether the definition of "citizens of the United States" in section I of Amendment XIV is to be given an exclusive or inclusive interpretation. See pp. [963-964].
PRESIDENTIAL SUCCESSION
Was it the thought of the Constitution that a Vice President, in succeeding to "the powers and duties" of the office of President, should succeed also to the title? In answering this question in the affirmative in 1841, John Tyler established a precedent which has been followed ever since; but inasmuch as all successions have taken place in consequence of the death in office of a President, the precedent would not necessarily hold in the case of a succession on account of the temporary inability of the incumbent President. Nor has any procedure been established for determining the question of inability, with the result that in the two instances of disability which have occurred, those of Presidents Garfield and Wilson, the former continued in office until his death and the other, after his partial recovery, till the end of his term.
The Act of 1792
In pursuance of its power to provide for the disappearance, whether permanently or temporarily, from the scene of both President and Vice President, Congress has passed three Presidential Succession Acts. A law enacted March 1, 1792[40] provided for the succession first of the President pro tempore of the Senate and then of the Speaker; but in the event that both of these offices were vacant, then the Secretary of State was to inform the executive of each State of the fact and at the same time give public notice that Electors will be appointed in each State to elect a President and Vice President, unless the regular time of such election was so near at hand as to render the step unnecessary. It is unlikely that Congress ever passed a more ill-considered law. As Madison pointed out at the time, it violated the principle of the Separation of Powers and flouted the probability that neither the President pro tempore nor the Speaker is an "officer" in the sense of this paragraph of the Constitution. It thus contemplated the possibility of there being nobody to exercise the powers of the President for an indefinite period, and at the same time set at naught, by the provision made for an interim presidential election, the synchrony evidently contemplated by the Constitution in the choice of a President with a new House of Representatives and a new one-third of the Senate. Yet this inadequate enactment remained on the statute book for nearly one hundred years, becoming all the time more and more unworkable from obsolescence. One provision of it, moreover, still survives, that which ordains that the only evidence of refusal to accept, or of resignation from the office of President or Vice President, shall be an instrument in writing declaring the same and subscribed by the person refusing to accept, or resigning, as the case may be, and delivered into the office of the Secretary of State.[41]