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Friday, January 14, 2022

How the Constitution’s Original (or pre-1801) Electoral College Worked

 

Under the original design of the Constitution, members of the Electoral College would each cast two votes for President for two distinct candidates, and, at least, one of the two votes cast by each elector could not be an inhabitant of the same state as the elector. There was no separate ballot for Vice President. Generally, the candidate with the most electoral votes would become President, and the runner-up in the Electoral College, who might very well be a political rival of the prevailing candidate, would become Vice President.

By modern U.S. elections standards it was an odd system, particularly because it was possible for more than one candidate to carry a majority of the electors. This is how that system worked.

If no candidate carried a majority of the electors appointed, then the election was thrown into the House, and the House—in a House contingent election*—could choose any of the top five candidates in the electoral college. Of the remaining four candidates, the one with the most electoral votes (even if not a majority) would become Vice President, unless there was a tie, and then, after the House chose the President, the Senate, in a Senate contingent election, would choose the Vice President between or among those who tied. (Interestingly, the Constitution did not clearly provide for the possibility where no candidate secured an electoral college majority, and six or more candidates tied for the top position.)

If only a single candidate carried a majority of the electors appointed, then that candidate became President, and the runner-up in the electoral college (even though that candidate did not carry a majority) would become Vice President, unless there was a tie for runner up, and then the Senate, in a Senate contingent election, would choose the Vice President between or among all those who tied. This scenario (in respect to the presidency) is what happened in the 1789 presidential election. General George Washington had 69 electoral votes: the vote of every appointed elector. John Adams was the runner up with 34 votes—one vote short of a majority. John Jay, with nine elector votes, trailed in a distant third place. (There were 73 authorized electors—four potential electors did not vote.)

If more than one candidate carried a majority of the electors appointed but one candidate had a greater majority than all the other candidates, then that candidate became President, and the runner-up in the electoral college (who also carried a majority) would become Vice President, unless there was a tie for runner up, and then the Senate, in a Senate contingent election, would choose the Vice President between or among all those who tied. This scenario (in respect to the presidency) is what happened in the 1792 presidential election: incumbent President George Washington had 132 electoral votes: the vote of every appointed elector. On this occasion, however, incumbent Vice President John Adams carried a substantial majority of the electors, but Washington carried a greater majority than Adams. New York’s Governor Clinton came in third, but he did not carry a majority of the electors. (There were 135 authorized electors—three potential electors did not vote.)

If two candidates tied, carrying a majority of electors appointed, and carried more electoral votes than all the other candidates, then that threw the election into the House. The House, in a House contingent election, could choose between the two candidates who tied, and the remaining candidate became Vice President. This actually happened in the Jefferson-Burr election of 1800. This odd, and somewhat unexpected, result led to the Twelfth Amendment, which now provides for separate presidential and vice presidential electoral ballots.  

Finally, there was the possibility that three candidates tied, carrying a majority of electors appointed. In that situation, the House, in a House contingent election, could choose among the three candidates who tied, and then, after the House chose the President, the Senate, in a Senate contingent election, would choose the Vice President between the two remaining candidates. This situation never occurred, and because of post-1800 constitutional amendments, this situation, now, never can occur.

All this is reasonably clear under the Constitution’s original design. Again: under this original design, it was possible: [1] for one, two, or even three candidates to secure a vote from a majority of the electors, and [2] for two or three such candidates to tie having secured a vote from a majority of the electors. 

Seth

*The unusual rules applicable in a House contingent election and in a Senate contingent election will be discussed in another post

For further details, see Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105(3) West Virginia L. Rev. 601 (2003), <https://ssrn.com/abstract=422700>. 

Seth Barrett Tillman, How the Constitution’s Original (or pre-1801) Electoral College Worked, New Reform Club (Jan. 14, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/how-constitutions-original-or-pre-1801.html>.


2 comments:

Unknown said...

I’m having trouble following this because I think your wording isn’t getting it. I think that your last sentence should substitute “…to secure a vote from a majority of the electors” for your construct “… to secure a majority of electoral votes.”

In 1792 there were 132 voting electors, so 264 “electoral votes” So while Washington got a unanimity of the electors that was only half of the votes.

And am I following correctly that of our first four presidential elections only 1796 were both president and vice president determined by the electoral college?

Seth Barrett Tillman said...

thanks
seth