Congressional power over presidential elections: lessons from the past and reforms for the future.

• Author: Coenen, Dan T.

INTRODUCTION

Presidential election controversies are nothing new. They have plagued our republic since 1801, when the fourth election for the office ended in a muddle that nearly deprived the rightful winner of the presidency. Each controversy has led to calls for reform. In every instance, the cryptic and troublesome constitutional text has hampered congressional efforts to correct the problems. Simply stated, the Constitution offers little explicit guidance on when and how Congress can regulate the selection of the President. In this Article, we explore the implications of this textual deficiency, looking both at what Congress has done in the past and at what it might do now.

Our analysis proceeds in five steps. Part I of our Article highlights relevant features of the constitutional text. Part II explores how Congress reluctantly but successfully used this text to enact significant reform legislation in response to the Hayes-Tilden election debacle of 1876. Part III identifies some reforms that Congress has under consideration to address the problems that complicated the 2000 presidential vote, focusing on measures that would lead to nationwide use of a uniform ballot and federally approved voting devices and machinery. Part IV then examines whether Congress has the power to enact these measures, concluding (in an analysis that covers six possible sources of authority) that it does. Part V urges Congress to wield this power by enacting significant reform legislation in time for the 2004 election.

Our central message is that our federal leaders should learn from the past. Following the election of 1876, Congress was able, in time, to put aside partisan wrangling and constitutional concerns to enact presidential election reforms that have served our nation well for more than a century. The present Congress should take bold action as well. Invoking the powers we identify in this Article, our federal leaders should respond to the essentially technical and mechanical problems that cast a lingering cloud over the 2000 election. In short, Congress should address with visionary legislation the gravest problems that surfaced in the last election to ensure they do not reoccur in the future.

1. THE CONSTITUTIONAL TEXT

   The Constitution says surprisingly little about the process of choosing those individuals empowered to select our President. In pertinent part, it provides: "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...." (1) These electors, meeting in their respective states, elect the President and Vice President by majority vote. The Constitution expressly gives Congress only two roles in this process. (2) First, as to the time of choosing electors and the day on which the electors vote, it states: "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." (3) Second, as to the counting of votes cast by the electors, it states: "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." (4) Only if the electors fail to elect a President or Vice President by majority vote does. Congress take center stage by choosing those officers from among the top electoral-vote recipients. (5)

   The constitutional process was altered by the Twelfth Amendment after the 1800 election ended in a tie between Republicans Thomas Jefferson and Aaron Burr, a deadlock resulting from the failure of the original constitutional text to permit electors to distinguish between their votes for President and Vice President. (6) Republican Party electors, who held a narrow eight-vote majority of the electoral college, all duly voted for Jefferson and Burr, intending the former to become President and the latter to become Vice President. (7) The resulting tie threw the election into the House of Representatives, where lame-duck Federalists saw an opportunity to frustrate their opponents by electing Burr (or even their own candidate, the third place finisher John Adams) over Jefferson. In the end, the Federalists relented, (8) and the new Republican-dominated Congress promptly passed a constitutional amendment specifying that electors must separately designate their votes for President and for Vice President. (9) The Twelfth Amendment also clarified that, if no candidate for President receives a majority of the electoral vote, then the House of Representatives chooses the President by majority vote (with the delegation from each state casting a single vote) from among the three top candidates. (10) Similarly, if no candidate for Vice President receives a majority of the electoral vote, then the Senate elects the Vice President by majority vote from among the two top candidates. (11) The states quickly ratified this amendment, but never again effected any constitutional changes regarding the electoral-vote process. Thus the cryptic provisions of Article II and the Twelfth Amendment remain unadorned in the constitutional text to this day. (12)

   Under these provisions, state legislatures are empowered to devise their own "Manner" for appointing presidential electors. (13) In one of its few decisions interpreting this language, the Supreme Court stated:

   The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. (14) Delegates to the Constitutional Convention did consider various methods for selecting electors, but ultimately rejected them all in favor of leaving the choice to the individual state legislatures. The records of the Convention disclose that separate proposals that the President be elected either by "the citizens of the United States" through a nationwide vote or "by electors to be chosen by the people of the several states" were defeated even though James Madison favored the former approach and Alexander Hamilton favored the latter

   one. (15) For a time, the Convention leaned toward having the President chosen by Congress, an approach favored by Roger Sherman, (16) but in the end left it to the state legislatures, who would presumably either appoint electors directly, provide for their popular election by district, or opt for their election by statewide vote. (17)

   All three of these different methods of choosing electors were employed by various states at various times. In the first presidential election, for example, electors were chosen directly by the legislatures in about half of the states and elected by district or statewide vote in the rest. (18) This rough split in approaches continued through the presidential election of 1796, but thereafter most states moved toward choosing electors through some sort of popular vote. (19) Initially, states' electors were chosen on a district-by-district basis, with one elector chosen from each congressional or electoral district (typically with two electors chosen at large where congressional districts were used). (20) The district method fell out of favor early in the 1800s, as states sought to gain influence in federal politics by block voting. (21) By 1836, every state had adopted the statewide election method of choosing electors except for South Carolina, which followed the legislative-appointment approach until 1868. (22) Despite the occasional argument that the district method offered a more democratic approach to electing electors, (23) that method is now used only in Maine and Nebraska. (24) Occasionally, temporary expediencies have caused individual states that otherwise would have chosen their electors by popular vote to appoint them legislatively, such as Florida in 1868 and Colorado in 1876. (25) Yet the votes of these electors were counted by Congress (just as they were when unusual procedures were used by Hawaii in 1960) (26) in keeping with the idea that the method of choosing electors is expressly reserved to state legislatures. (27)

   The principle of broad state control over selecting electors was affirmed by one of the great constitutional craftsmen of the early nineteenth century, Justice Joseph Story. In his historic and influential Commentaries on the Constitution of the United States, Justice Story explained:

   In some states the legislature have [sic] directly chosen the electors by themselves; in others they have been chosen by the people by a general ticket throughout the whole state; and in others by the people in electoral districts, fixed by the legislature, a certain number of electors being apportioned to each district. No question has ever arisen, as to the constitutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenious minds, has been firmly established in practice, ever since the adoption of the constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it. (28) After recounting this history, Story added a personal, concluding observation about presidential elections: "It has been thought desirable by many statesmen to have the constitution amended so, as to provide for a uniform mode of choice by the people." (29)

   Congress repeatedly considered such amendments in the years before and after Story wrote, but never passed any of them. (30) In one 1874 report recommending such an amendment, the Senate Elections Committee emphasized:

   The appointment of these electors is thus placed absolutely...