The Constitution of the United States establishes the basic procedures
by which Presidential elections are to be conducted. Subsequent
Amendments have replaced or modified those procedures in some parts.
The Constitution requires that the President shall be chosen by
majority vote of the Electors. Electors are selected in each State,
equal to the total whole number of the US Representatives and Senators
of each State. The Constitution vests in the several States the power
to determine the manner of choosing the Electors. The Constitution
gives Congress the power to set the time when Electors are to be
selected (election day) and the date on which their votes are to be
counted. The House of Representatives is given the power to decide
disputed elections, or elections in which no candidate has the
majority of Electoral votes. The Constitution does not provide any
specific role for the Courts in Presidential elections, but the
general power of the Courts to review any law and decide its
constitutionality, as well as to decide suits regarding the conduct of
elections, permits the Courts to intervene.
In addition to the Constitution, the Congress has enacted legislation,
primarily the Electoral Count Act of 1884 (US Code Title III), by
which the process of settling disputes over the selection and counting
of Electoral votes by the House of Representatives is established.
This law was passed in response to the disputed election of 1876, the
Hayes-Tilden contest.
THE CONSTITUTION
Article One establishes the Legislative Branch, the Congress, of the
Federal Government. Congress is composed of two bodies, The Senate and
the House of Representatives. The Congress makes the laws of the
country, among them the laws regulating the elections of Federal
officers. In Article Two, which establishes the Executive Branch, The
House of Representatives is empowered by the Constitution to decide by
vote of the States, one vote to each State delegation, the election of
the President, if there is no candidate with a majority of Electoral
votes.
The U.S. Constitution Online - USConstitution.net
http://www.usconstitution.net/const.html
ARTICLE ONE
"Article I. - The Legislative Branch
Section 2 - The House
The House of Representatives shall be composed of Members chosen every
second Year by the People of the several States, and the Electors in
each State shall have the Qualifications requisite for Electors of the
most numerous Branch of the State Legislature."
"Section 4 - Elections, Meetings
The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Place of Chusing Senators."
ARTICLE TWO
"Article II. - The Executive Branch
Section 1 - The President
The executive Power shall be vested in a President of the United
States of America. He shall hold his Office during the Term of four
Years, and, together with the Vice-President chosen for the same Term,
be elected, as follows:
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."
[...}
"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."
The President, as the Constitution requires, is elected by the
Electors, not by direct ballot of the voters (popular vote), and the
Electors are chosen in the manner specified by the legislatures of the
several States. As a result, it is the general practice that when a
voter casts a vote for a Presidential candidate, the vote is actually
for a slate of Electors who are pledged to cast their Electoral
ballots for that Presidential candidate. In fact, the Legislatures are
given the very broad power to dictate the manner of electing the
Electors, and can themselves chose the Electors for their States.
Legislatures can, if they choose, ignore the result of the popular
vote, and select Electors by legislative act. Also, Electors cannot be
bound to cast their votes as they are pledged. There have been
incidents when Electors have mistakenly cast their votes, or have
voted in protest for a candidate other than the one to whom they were
pledged.
Originally, the Constitution directed that the candidate who received
a majority of the Electoral votes would be President, and the
candidate receiving the next highest number of Electoral votes would
be Vice President. In the election of 1800, Thomas Jefferson and John
Adams were the Presidential candidates; Aaron Burr and Charles
Pinckney were their respective Vice Presidential running mates.
Through an error, Jefferson's running mate, Burr, received the same
number of Electoral votes as Jefferson, 73. Adams received 65, and
Pinckney 64. This error threw the election into the House, which
eventually elected Jefferson, but Aaron Burr might very well have been
elected President, with Jefferson as his Vice President. As a result,
the Constitution was amended to provide for the separate election of
Presidents and Vice Presidents. Henceforth, the House would chose the
President in the case of a lack of a majority, and the Senate would
chose the Vice President in the same circumstances.
"Amendment XII - Choosing the President, Vice-President. Ratified
6/15/1804. The Electoral College
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 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 the office of President shall be eligible to that of
Vice-President of the United States."
In 1824, the process broke down again, when in a four-way election
between Andrew Jackson, John Quincy Adams, Henry Clay, and William
Crawford, no candidate received a majority of the Electoral votes.
Jackson received 94 votes, Adams 84, Crawford 41, and Clay 37. Jackson
received a large plurality of the popular vote, 41 per cent to Adams'
31 percent. In the House, however, a deal was struck between the
supporters of Adams and the supporters of Clay, by which Adams was
elected.
In 1876, Rutherford B. Hayes, Republican, and Samuel Tilden, Democrat,
were the candidates. Tilden won a majority of the popular votes and a
plurality of the Electoral votes, but the Electoral votes of a number
of States were disputed, with two sets of Electors being chosen. It
remained for the House to decide which sets of Electors would be
recognized and accepted as the Electors for each of the disputed
States. A commission was created by Congress to decide, and Hayes was
given all of the disputed votes.
As a result, Congress eventually passed the Electoral Count Act in
1884, which set up the mechanism by which the House would decide to
accept or reject slates of Electors. The act established a number of
tests which the House would apply to determine which slate of Electors
was legally entitled to vote. One test imposed a deadline by which a
State must certify its Electors. If the State has not certified a
slate of Electors by that date, the House must apply other tests to
decide whether a slate of Electors is qualified. If more than one
slate has been certified, as happened in 1960, then the House applies
other tests to chose a slate. The intent of the law is to guarantee
that each State will have a qualified slate of Electors to cast its
votes prior to the date on which the Electoral votes are counted and
certified before the House and Senate, although it is possible that no
slate could be certified.
COURTS
It can happen that a candidate will challenge the popular vote results
in a State, and in each State there are procedures, established by the
Legislature of the State, by which the challenges can be made and
decided. Recounts are provided for in all States. Courts can decide to
overturn results, if the voting (voter fraud, misconduct by election
officials) or the counting and the recording (incorrect tabulation,
defective equipment, etc.) of the votes has been conducted improperly,
or if certain Constitutional (either the State of Federal
Constitution) protections have been violated (illegal disqualification
of ballots or voters, violation of equal protection, Civil Rights,
etc.). The election of 2000 is a case in point. All of the possible
problems that could arise did arise in that election -- recounts,
Constitutional violations, Court interpretations of provisions of
State election laws, the meeting of the deadline imposed by the
Electoral Count Act, disqualification of ballots, etc. -- all figured
in the outcome.
Congress's Record in Choosing Presidents
http://www.leinsdorf.com/House.htm
HarpWeek Elections
Overview-1876
http://elections.harpweek.com/4Overview/overview-1876-2.htm
US CODE COLLECTION
TITLE 3
http://www4.law.cornell.edu/uscode/3/ch1.html
Electoral College and Voting Links
http://www14.brinkster.com/ecorg/links/ec.html
Honolulu Star-Bulletin Editorial
Hawaii was the ?Florida? of 1960 election
http://starbulletin.com/2000/11/18/editorial/special.html
Florida Election Cases - U.S. Supreme Court
http://www.supremecourtus.gov/florida.html
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