George Will on the laws and the constitution on selection of the president. And me on that topic, too.

The Republican ‘reformation’

George Will, ably assisted by hack right wing scholarship, talks more rot about the constitution.

And to make it worse, in the present case Will is blathering about something that is not even a constitutional issue.

He is pontificating pompously about how the major party candidates are chosen.

Not how the president and vice president are elected, though he nevertheless complains sourly about every change to the process since the day the convention ended in Philadelphia.

And yes, this crank manages to give the impression that, as he has said of the selection of senators, he thinks we should have stuck with the method for selecting the president and vice president prescribed in the un-amended constitution.

When the generally liberal and solidly Democratic BooMan hears he’ll probably join him in this, as he has already done regarding repeal of the 17^th Amendment, though otherwise this has been an anti-democratic aim only of the political right.

This was the wisdom of the framers from which our sinful nation has fallen, according to Will, as found in the relevant portion of Article II, Section 1, of the constitution.

The bolded paragraph (I have broken it up for ease of reading) was changed by the 12^th Amendment, charging the electors to separately vote for the two offices of president and vice-president, each elector getting one vote for each.

That was the only difference that amendment made.

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 electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves.

And they shall make a list of all the persons voted for, and of the number of votes for each; which list 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 shall be the President, if such number be a majority of the whole number of electors appointed;

and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose 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.

In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President.

But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

The choices of the electors are limited by the constitutional specification of the qualification for office in the same Article and Section,

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

But there is absolutely no provision in the constitution for their choice being otherwise limited in any way.

They could pick absolutely anybody for president or vice president who is thirty-five or older and a natural born citizen who has resided in the US for 14 years.

They could pick Hannibal the Cannibal, if he was a real person.

They could pick Charles Manson.

Anyway, the states, allowed by the constitution to "appoint" their electors in whatever manner their legislatures may decide, choose their electors via an elaborate electoral charade.

In what only appear to be American presidential elections, each voter in each state signifies the pair of candidates he prefers for the offices of president and vice-president.

In most states, if the state-wide plurality of votes cast for the office is for the presidential and vice-presidential candidates of party X then persons designated by party X to be the state's electors in that case are "appointed" to the office.

In other states (currently Maine and Nebraska), that is true only for two of the state's electors.

As for the rest, in each congressional district within the state, if the plurality of votes cast for the office within the district is for the presidential and vice-presidential candidates of party X then the person designated by party X to be an elector in that case is "appointed" to the office.

The manner in which persons are designated to serve as electors by the parties varies among the states.

And this is why, by the way, voters don’t even appear, in our faux presidential elections, to vote for the president and vice-president, separately.

It is the electors appointed by the states who will be able to vote separately for president and vice-president, as prescribed by the constitution, and will do so when the time comes.

But they are pledged or at least expected to vote in each of the two separate elections for the candidate of the party whose designee they are.

Some state laws make that pledge binding.

But it is the constitutionality of that that I deny.

The office of elector, after all, was created by the constitution and its powers were defined therein, just like the offices of senator, representative, president, vice-president, or federal judge.

Those powers cannot be modified in any way, shape, or form by state or even federal law, but only by amendment to the constitution, itself - except where the constitution itself says they can, as where it leaves to congress the power to control the appellate jurisdiction of the supreme court.

And the power of choice – the word itself is actually used – is granted to the electors, not to the state legislatures or any other state official.

The case is exactly the same as that of the votes of congressmen or senators.

The constitution grants powers of choice to the senators and the representatives and not to the legislatures of the states they represent, nor to any official of those states.

Congressmen and senators are not mere loudspeakers to publicly announce the preferences of state governments or, for that matter, of the people of the states or districts they represent; nor would we want them so.

And the argument for allowing states - or public opinion polls? - to control the votes of electors is no better than the same argument would be for allowing them to control senators, congressmen, or for that matter somehow together trying to bind the decisions of federal judges or the choices of the president.

The Supremes have gone down a wrong path on this question and, as so often, have made up a constitution for us that is, in a weird fashion, better – though not a lot better – than the one we actually have, in the opinion of most – though apparently not in the opinion of George Will.

Faithless elector

Ray vs. Blair

Electoral College

PS.

Does the 24^th Amendment require states appoint their electors in any particular manner?

By a popular election of them, for example?

Does it require them to continue the faux elections for president and vice-president that they now conduct?

No.

No more than it requires primaries.

An amendment abolishing the Electoral College or telling the states how their electors must be appointed (or constraining the electors' choices for president and vice-president) could at any time have been passed.

None has been.

This is the text of the 24^th

Section 1

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2

The Congress shall have power to enforce this article by appropriate legislation.

PS.

Everyone says the 12^th took account of the existence of parties in a way the original process did not.

How so?

Under the original process, the leaders of the two principal opposed parties were very apt to wind up together in an administration, the one being the other’s vice-president.

The process as amended avoids that embarrassment.

PPS.

The 14th assumes but does not prescribe that there are presidential and vice-presidential elections, those who wrote it being apparently satisfied to thus refer to our faux presidentials.