Denying electors their discretion defies founders’ intent

ballots of any southern states in 1860, neither did anyone else!)

According to the Constitution, the states choose presidential electors, thereby creating a so-called Electoral College. These electors can either be appointed, as was routine at the time of the founding, or popularly elected, which is the approach favored (though not required) today. Each elector was then, under the 1787 Constitution, given two votes, or nominations if you will. From the ensuing collection of nominations, if no candidate received a majority (a fair assumption at the time), the five who received the most nominating votes would square off in the House of Representatives. The House was expected to elect the president.

Similar "processes of exclusion," as they were known, existed throughout the states. Voters would informally nominate candidates (through caucuses or by taking out newspaper ads), and the electorate would make its official selections from this informal list. Voters could choose anyone they wished, regardless of whether they had been nominated. Thus, whether nominating or voting, people's choices were not constrained by ballots, lists, caucuses or anything else. Many candidates consequently received votes. (New Jersey had 54 candidates tally votes in its first congressional election.)

Following Washington's preordained tenure as president, the election of 1800 confirmed the framers' expectation, only with an unusual twist. Five candidates received votes in the Electoral College, while two of these, Jefferson and Burr, tied with equal majorities. Jefferson ultimately prevailed in the House as a compromise candidate.

Jefferson's tie with his de facto running mate resulted in passage of the Twelfth Amendment, which now requires that members of the Electoral College vote separately for presidential and vice-presidential candidates. Our electors' fundamental nominating role, however, has not changed. Now they nominate presidential candidates and vice-presidential candidates, who are technically elected separately. For president, assuming no presidential candidate receives a majority, under the Twelfth Amendment the House still selects from a topthree ballot supplied by the Electoral College. John Quincy Adams was selected over Andrew Jackson in this fashion.

Today we have official ballots and political parties to control them. Voters' choices are severely limited. But this does not change the original intent. Forcing electors to vote for popularly preselected candidates vitiates the intent behind the Electoral College. The framers expressly chose a middle ground between a popular election, state appointment and congressional selection.

Denying to electors their proper discretion renders the Electoral College meaningless. It rewrites the constitutional compromise.