From: bam@bnlux1.bnl.gov (Bruce A. Martin)
Subject: Re: Twelfth Amendment Question?
Organization: (none)
Distribution: usa
Date: Tue, 14 Apr 1992 23:13:26 GMT

In article <1992Apr1.225859.17111@genie.slhs.udel.edu> tom@genie.slhs.udel.edu (tom) writes:
>In article <1992Apr1.172440.15609@infonode.ingr.com> shelley@s5048.b17c.ingr.com writes:
>}Are there any Constitution experts out there that could explain 
>}what would happen if Bush, Clinton(or Brown), and Perrot get nearly
>}equal percentages of the vote in November?  My very limited understanding 
>}of the 12th Amendment to the Constitution is that the HOR chooses the
>}President and the Senate chooses the Vice President.  Could we actually
>}have a Clinton/Quayle or (lordy!) a Brown/Quayle presidency?  What are
>}the possible scenarios?  This should be fun.
>
>unless they got identical vote totals state by state, nothing weird would
>happen.
>
>even though the actual procedure has little to do with the intent of
>the constitution these days thanks to state laws mandating that electors
>vote in certain ways, i'll attempt to explain it.
>
>according to article ii, section 1, (as modified by amendments 12, 20 & 23):
>

Tom then proceeds to provide a very nice explanation of the process.  
I appreciate his effort and agree with most of it, but cannot refrain from
picking a few nits and adding a few notes.

>1. each state[1] selects a number of electors equal to the number of 
>senators + representatives it has in some manner determined by state
>law. (in most places each party/candidate picks the people they want to
>serve as electors. then in the general election when you cast your
>ballot for a presidential candidate, you are actually voting that one or
>more of their people be appointed to the electoral college. (if you
>beleive in the e.c. at all, it would make some sense for the voters in
			     ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>each state to chose two electors at large and the rest by representative
 ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>districts, but this isn't necessarily the way it's done))
 ^^^^^^^^^

I agree!
Unfortunately, it is done this way in only one or two states.
In Maine, I believe you vote for an elector from your CD  plus 2 statewide.
Recently, I heard that Nebraska does this, too.  [Can anyone confirm this?]

Like most states, New York has you vote for a complete set of electors (34,
this year), regardless of district.  However, you USED TO be able to get
slips of paper listing the actual names of electors from each party.  

In the past, a few weirdos who so desired (like me, on two occasions) were
able to CROSS OUT individual electors on these sheets and write in others at
the bottom, or take a blank slip and write in a complete set of names.  The
sheets were gummed on the back; you would open the "write-in" slot at the top
of the machine column and PASTE the slip there.  (New York City machines have
rows instead of columns, but there was a similar process.)

One year, I crossed out the first two names on one party's list and wrote
in the first two names from another (3rd party) list, as a chicken-hearted
way of casting a protest vote.  [Since then, however, I've STOPPED WASTING 
my vote by casting it for a "lesser" evil; now I always vote my conscience.]

A few elections ago, they stopped making these slips available.  In NY, for
a Presidential write-in, you now have to stand there and write all the names.
(I suppose you could also do a paper ballot for this.)  New York has since
dropped from about 48 to about 34 electors.  (Personally, I consider this 
FORTUNATE, not merely because it simplifies write-ins, but also because 
MY interests are far better represented by the congressional delegations 
of many other states than they are by NY's so-called "Representatives" ;-(

>
>2. once all the electors (currently 538) are appointed, the[y] meet in
					      ^^^^^^^^^
They are "elected", not "appointed".
(Of course, they might have been appointed to get on the ballot, 
but they become an Elector by being elected to that office.)

>their states and cast ballots for president and vice president. these
>are counted, certified and sealed by the electors and sent to washington
>dc. to be opened by the president of the senate in a joint session of
                         ^^^^^^^^^^^^^^^^^^^^^^^

That is why it was Richard Nixon who had to announce his own defeat to 
the Senate in early January 1961.  In keeping with the customary form of
address by a Senator to the chair of that body, it would have been quite
appropriate for John Kennedy to have said "Thank you, Mr. President" to 
him.  However, I don't even know whether JFK was present, that day, nor
whether he had yet resigned his seat.

On the other hand, Lyndon Johnson had not only not resigned his Senate seat
at the time of the election, he was actually re-elected to the new Congress
(due to a special Texas law that allowed him to run both as Senator and VP!).
Had the VP choice gone to the Senate, not only would LBJ have been able to
vote for himself to be Vice President, he would probably have done so while
serving as Majority Leader.

>congress.[2] the vote totals for president from all of the states are
>totalled and if any candidate has a majority they are have been elected
>president. same process for vice president. in either case, if no
>candidate has a majority of electoral votes, the winner is selected from
                 ^^^^^^^^
Note that it's an absolute majority, not just a plurality.
That could become significant, this year!

>among the three with the most votes by a house of congress in such a way
>that each state has equal influence. (pres by the house & vp by the senate)

VP is selected by the Senate, from the top TWO.  Senators vote as individuals.

The previous poster had asked about mixed-ticket winners.  Yes, it is quite
possible for the House and Senate to select winners not from the same ticket.  
Bush-Tsongas?  Marrou-Stockdale?  Perot-Quayle? -- all possible.)
(But NOT Clinton-Perot or Bush-Clinton (Thank God!))

>in this case, the members from each state agree upon who their state
>will vote for.

Remember that each state casts one vote.  In 1976, if Carter and Ford
had fallen both short of the necessary 270 electoral votes, 27 new House
delegations would be from states in which Ford had WON the election.
Even tho more states had Democrat majorites, there would have been pressure
to vote for the candidate the folks back home had picked.  (Furthermore,
the incumbent President had many strings to stay in office.  I believe that
enough Democrats would have allowed their state delegations to go for the
man who had won the poular vote back home, and that the House would have
ultimately selected their former colleague, Ford, over the less-familiar
Governor who had run as an "outsider" and promised to "clean house".)

BTW, sixteen Presidents have taken office after receiving less than half of
the popular vote; six during this century.  Three Presidents were elected
with fewer popular votes than an opponent; one also had fewer electoral votes.

>
>so there it is, clear as mud.
>
>many people think this system is an anacronism from a time when the
>common people were considered too foolish to be trusted to chose the
>right president, and therefore should be done away with.
>
>then again, looking at some of the presidents and vice presidents
>we've had in the last 50 years, i think the founders were right...

What the Founders did not anticipate, however, was the advent of political
PARTIES, as we now know them.  The Founders expected Electors, in each state
capital to behave more or less like delegates to a modern-day Demoblican or
Replicrat CONVENTION, reaching a consensus for the most acceptable (or least
unacceptable) alternative -- rather than leave it to the tyranny of a
majority confronted with binary choices.  The general elections were intended
to be more like our Primaries.

The PARTY system rendered moot most of what the Electoral College was
designed to do in narrowing down the field.  (It was also designed to keep
smaller states from being ignored, by giving them more Electors.)

IMO, District selection of electors would regain some of the good thing for
which the Electoral College was designed.  So might proportional voting (as
opposed to a "winner-take-all" system) and having all electors meet together
in the same place.  (Founders didn't anticipate jet planes, either. :-)
Of course there is little hope of such an amendment passing, nowadays.

>
>notes;
>
>1. washington dc gets electors based on the number of congressmen it
                                                       ^^^^^^^^^^^
Sorry, but this term has always bugged me.  There is no such thing in
the Constitution, and besides Congress also includes the Senate, too.
The proper term is "Representative", but most members of the "House
of Representatives" seem to be ashamed of such a concept!    :-(

>   would have by population, but no more than the smallest state.
>
>2. at this time, this step has only ceremonial significance, since all
>   but a few states have passed laws requiring their electors to vote
>   for the winner of the popular vote in that state.

It ain't necessarily so!

Only a few states (does anybody out there know how many?) have laws like 
this and such laws would most likely fail a test of Constitutionality!  
Remember that "elector" is a Federal office and states cannot dictate 
HOW that Constitutionally- defined duty is to be performed by the one
who was elected. (Courts have not ruled on this, but prcedents exist
to bar states from interfering with the conduct of others such as
Representatives and delegates to Constitutional Conventions.  In fact,
the Constitution even prevents states from questioning the members of
Congress about statements made there.)

(In NY, Nelson Rockefeller had to collect RESIGNATION LETTERS from all
Republican candidates, including electors, to be used if they accepted a
cross-endorsement from another party.)

Also, many electors run as "uncommitted".

In 1972, it was a Republican elector from Virginia who cast the first
electoral vote in history for a woman.  Roger MacBride was *expected*
to vote for Nixon, but he was technically "uncommitted".  He voted
for John Hospers and Tonie Nathan, who came in only 16 electoral votes
behind McGovern & Shriver (sp?).

In more than half of the last dozen elections, electors have cast votes for
three or more Presidential candidates.  (In addition to the Dem. and Rep.
candidates, electoral votes for President went to Bentsen in 1988, Reagan in
1976 (sic), Hospers in 1972, Wallace in 1968, Byrd in 1960, Jones in 1956,
and Thurmond in 1948.)  In two of the last dozen elections (1948 & 1968),
some states elected "split" sets of Electors from slates of different parties.

As was mentioned before, a "third-party" got enough electoral votes to beat a
sitting President and come in second in the election of 1912.  Another third
party got 13 elctoral votes in 1924.  Recently, third-party/independent
Presidential candidates have received over a half-a-million votes in most of
of the last half dozen Presidential elections:  one each in 1968, 1972, 1976,
and two in 1980.

I would not be surprised if some Electors elected this November were to
cast their electoral vote in December for someone other than their party
standard-bearer!  This would certainly be a good way to voice a sentiment of
protest or disgust at the unbelievably poor crop of candidates in 1992,
regardless of whether it throws the choice to the House or not (I hope not),

>-- 
>tom@udel.edu                                        ...!{gateway}!udel!tom
>tom@genie.slhs.udel.edu           UDel: School of Life and Health Sciences
>
>"Themes were useless; Destiny was here, and the foot pedals were bleeding."


BAM  /|\Master of the Tripods of Haephestus./|\    -/s/-  Bruce A. Martin
[My opinions are my property, belong to me only, and represent no one else!]
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