Election Day
Today, November 5, 2024 is election day. This is the day that American citizens think that they vote for the President and Vice President. Legally speaking, that is not true. Today, the several state legislatures decide how to appoint Electors. Election day is actually 3 separate days: Once in November to appoint Electors, once in the middle December for the Electors to vote, and once in early January when the President of the Senate tallies the votes in front of Congress. A candidate needs 270/538 Electors to vote for them to be President or Vice President.
Article II, Section 1, Clause 2 reads that Electors are appointed by the state legislatures. Verily,
“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.”
Article II, Section 1, Clause 3 has been amended twice and the amendments are discussed further below.
Today, most state legislatures have decided to have their citizens appoint the Electors via a popular vote. For example, in Mississippi, one can vote for Trump on the ballot, but one is actually appointing the Electors who say that they will vote for Trump next month per Mississippi Code Title 23. Elections § 23-15-785.
“(3) […] Each person so listed shall execute the following statement which shall be attached to the certificate or petition when it is filed with the State Board of Election Commissioners: ‘I do hereby consent and do hereby agree to serve as elector for President and Vice President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such for ․․․․․․․․․․ for President and ․․․․․․․․․․ for Vice President of the United States’ (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached).
(4) The State Board of Election Commissioners and any other official charged with the preparation of official ballots shall place on such official ballots the words ‘PRESIDENTIAL ELECTORS FOR (here insert the name of the candidate for President, the word ‘AND’ and the name of the candidate for Vice President)’ in lieu of placing the names of such presidential electors on the official ballots, and a vote cast therefor shall be counted and shall be in all respects effective as a vote for each of the presidential electors representing those candidates for President and Vice President of the United States. […]”
The Electors are supposed to be educated people who can choose a good chief executive. Legally, Electors can vote for whomever they want. For example, in 2016, the Electors in Texas voted 36 for Trump, 1 for John Kasich, and 1 for Ron Paul, despite Trump winning their popular vote and Ron Paul not running for president. Practically speaking, most Electors vote like they promised.[1][2]
Originally, the Electors would vote for 2 people each, with the person coming in first place being President and the person coming in second place being Vice President (and President of the Senate per Article I, Section 3, Clause 4).
However, in the 1796 election, John Adams won the Presidency as a member of the Federalist Party and Thomas Jefferson came in Second place as a member of the Democratic-Republican Party, becoming Vice President. This split the power of the executive branch contributed to political infighting.[3]
In fact, the election of 1800 was so hotly contested that no person had a majority, resulting in a tie vote between Thomas Jefferson and Aaron Burr- both Democratic-Republicans at 73. Adams came in third with 65. Because of this, the vote went to the House of Representatives, who decided, after 36 ballots, to elect Thomas Jefferson as President. Aaron Burr became the Vice President.[4]
As a result of these two elections, President Adams would leave Washington D.C. before his friend President Jefferson was inaugurated, and Aaron Burr would kill Alexander Hamilton. Hamilton opposed electing Aaron Burr as president and later opposed his run to be governor of New York in 1804. Aaron Burr challenged Hamilton to a duel and killed him that same year.[5]
To avoid the complications of the elections of 1796 and 1800, Article II was amended in 1804 so that the President and Vice President were elected separately. The 12th Amendment reads,
“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 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 for President, shall be the 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 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 the office of President shall be eligible to that of Vice-President of the United States.”
*Superseded by Section 3 of the 20th Amendment
The 20th Amendment changes the dates for the President of the Senate tallying the vote from March to January. The Constitution was written when Winter travel wasn’t as convenient or practical as today. Freezing to death is less common now.
Today, November 5, 2024 is election day. This is the day that American citizens think that they vote for the President and Vice President. Legally speaking, that is not true. Today, the several state legislatures decide how to appoint Electors. Election day is actually 3 separate days: Once in November to appoint Electors, once in the middle December for the Electors to vote, and once in early January when the President of the Senate (Kamala Harris) tallies the votes in front of Congress. A candidate needs 270/538 Electors to vote for them to be President or Vice President.
[1]http://electoralcollegehistory.com/electoral/federalist68.asp
[2]https://www.archives.gov/files/electoral-college/2016/vote-texas.pdf
[3]https://www.history.com/news/jefferson-adams-founding-frenemies
[4]https://www.britannica.com/event/United-States-presidential-election-of-1800
[5]https://www.history.com/news/burr-hamilton-duel-political-legacy-died
