11/16/00 10:40 a.m.
Without Florida, Then What?
The Framers thought of everything.

By David B. Rivkin Jr. & Darin R. Bartram are attorneys with the Washington, D.C., Office of Baker & Hostetler, LLP, & Kyle McSlarrow, vice president for political and governmental affairs at Grassroots.com

he unprecedented aftermath of the 2000 presidential election has prompted heated debates about how the next president could be selected. The extraordinarily close Florida vote, and the ongoing state and federal lawsuits it has spawned, create the possibility that the state's 25 electoral votes would still be up for grabs on December 18, when the presidential electors must gather to vote in their respective state capitals. In this case, the Constitution indicates that the Electoral College cannot select the next president. Fortunately, far from setting off any constitutional crisis, this development would merely trigger an alternative and equally constitutional mechanism — the choice of the president by the House of Representatives.

There has been much talk in the Al Gore camp that, if Florida electors are unable to vote and he still leads in the Electoral College albeit without an absolute majority of 270 votes, the vice president should win the presidency. Indeed, the Gore campaign has apparently been recruiting law professors nationwide who — with visions of judgeships dancing in their heads — have eagerly embraced the notion that a simple majority of the voting electors would suffice under the Constitution to elect our next president. Yet, constitutional text, the record of the 1787 Constitutional Convention, and subsequent history clearly mandate that only an "absolute majority" of the entire Electoral College, rather than a "simple majority" of the electors actually voting, can elect the president.

The relevant language in the Constitution can be found in Article II and the 12th Amendment. Article II requires each state "to appoint" a specific number of electors, equal to that state's House and Senate delegation (the District of Columbia is granted 3 electors by operation of the 23rd Amendment). The significant point is that, at the time of each election, the Electoral College's size is fixed and unambiguous — despite the fact that, over time, the addition of new states has increased that size. Today, the count stands at 538. Meanwhile, the 12th Amendment indicates that "the Person having the greatest number of [electoral] votes for President, shall be the President, if such number be a majority of the whole number of electors appointed."

The key term here is "whole" — a word found in several other places in the Constitution to describe the entire size of an institution — e.g., "the whole number of Senators." The Framers' use of the word "whole" to modify the phrase "number of electors" indicates that the Framers wanted any president to enjoy an absolute majority of the electoral votes, regardless of whether some electors got held up by a snowstorm, chose not to cast their votes (as 81 did in the 1864 election, when the South was put off by the so-called War of Northern Aggression), or, as was the case with the New York Legislature in the 1792 election, and may be the case with Florida in this most recent election, the choice of electors is not made by the appointed deadline.

Constitutional text aside, it is highly significant that, during the Constitutional Convention, the Constitution's Framers actually rejected a proposal, offered by James Madison, that would have permitted a simple majority of those electors voting in the Electoral College to select a president. Here, Madison's language stated that the president would be elected by a majority of those electors "who shall have balloted." However, this language was voted down. To make clear the Convention's rejection of this approach, Delaware's John Dickinson then proposed the current language. His motion carried, and was ultimately incorporated into Article II of the Constitution and the 12th Amendment. All later attempts to reverse this decision failed. Moreover, revisiting this issue at a later point in time, Alexander Hamilton observed that Madison's approach had been rejected because it would have allowed for a situation where "too small a number [of electors] might appoint [the president]."

The requirement for an absolute majority in the Electoral College is not an isolated or arbitrary requirement. In addition to trying to balance the rights and interests of large and small states — a subject of a difficult debate that took up much time during the Constitutional Convention — the Framers were greatly troubled by the possibility of divided regionalism. Indeed, many convention delegates, including James Madison, expressed concern that, with the possible exception of the candidate with the stature of our first, widely admired president, George Washington, citizens of various states would usually prefer their own "native son" politicians, producing a fractured electoral college. Their remarkable prescience is underscored by the fact that, 224 years later, Democrats and Republicans continue to have distinctive regional strongholds.

The Framers' solution to this potential national fissure was to mandate that an absolute majority, in whatever the relevant constitutional fora, be required to elect the president. Indeed, one characteristic of the Electoral College is that, in addition to drawing votes from a significant percentage of the population, the winning candidate must garner support from a broad geographic range of the country. This underscores the proposition that our Constitution does not embrace a pure form of popular rule, but instead embodies a "republican" form of government, and features regional representation and dual state and federal sovereignty. In a sense, the insistence of Gore's partisans, even if sincere, on the need to count accurately every Florida vote and their exultation of Gore's lead in both the popular vote and the Electoral College vote reflects a "majoritarian" model of democracy, that was decisively rejected by the Framers.

Significantly, the need to amass an absolute majority is reflected in all of the three alternative procedures to elect the president. If there is no absolute majority in the Electoral College, the selection of our president is transferred to the House of Representatives, where each State's congressional delegation casts a single vote. Here, the 12th Amendment makes clear that it would take 26 states to elect a president, regardless of whether all States are present. "[I]n choosing the President…a majority of all the states shall be necessary to a choice." So, if, for example, a state with a single congressman (today, there are six such states) were absent, or a number of states' delegations were evenly split, to win in the House, a candidate would still need the votes of 26 states.

The pattern of requiring an absolute majority is continued with the next and final step in the process. Should the House fail to select a president by the time set for inauguration (January 20), because no candidate has attracted 26 votes, then the choice of the vice president, pursuant to the 20th Amendment, the vice president shall act as president. This requires looking back to the 12th Amendment, which, again assuming an Electoral College stalemate, places the selection of the vice president in the Senate's hands. "[T]he 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." Once again, the Framers insisted that those making the decision to elect a president garner an absolute majority.

Thus, it is clear that the selection of the president — the single most important political choice that we make as a nation — is not to be effected through anything less than an absolute majority of the decision-makers, whether those decision-makers be electors, state congressional delegations, or senators. In this way, the Constitution ensures that, even in the aftermath of bitter and close elections, the president will possess sufficient legitimacy to govern effectively. The Framers' unique insights into our national psyche remain viable today and following their constitutional prescriptions remains imperative. Where, as with the present election, the margin of victory is slight, our Country is done a great disservice by those who suggest that we erode the margin of legitimacy even further by permitting anything but an absolute majority.