Liberty or Laws?

Are You a Voter, or, an Elector?

Gary Hunt
Outpost of Freedom
September 6, 2016

During this current election cycle, a matter has constantly recurred, that of the federal government mandating, primarily through the District and Circuit Courts, who can vote and what requirements, if any, are necessary to do so.

To understand what has gone wrong, we will have to look to the Constitution, what was required to vote in national elections in the past, and how the federal government has supplanted the States regarding the authority over who may vote.  There is also concern about the Electoral College, so we need to see what was intended when the Constitution was written.  It is necessary to follow this history of voting to understand just how Article IV, § 4 of the Constitution has become moot.  The pertinent part of that Article reads:

The United States shall guarantee to every State in this Union a Republican Form of Government…

So, let’s begin with references to voting and elections in the Constitution.  In Article I (Legislative Branch), we find:

Section 2 — The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Well, clearly, it is the prerogative of the State to determine what “Qualifications [are] requisite for Electors of the most numerous Branch of the State Legislature.”  The federal then yields to the state’s authority concerning who is qualified to vote in federal elections.  The use of the term “Electors”, in this section, is what most would simply call “voters”.  They elect the Representatives, but their qualifications are based upon the qualifications that State has set for its most “numerous Branch.”  There is no such condition for the Senate, like the Senators, prior to the 17th Amendment, were chosen by the state legislatures.

Next, we see that the Constitution leaves a degree of discretion to the federal government, though quite limited:

Section 4 — The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

It says that “Congress may at any time by Law make or alter such Regulations…”, though since it refers to itself, when it says “alter such regulation”, it can only refer to “The Times, Places and Manner of holding Elections…”  Otherwise, the previous (Section 2) provision would be without substance.  The same power or authority cannot be granted to two different parties, the federal government and the State governments.  That would be contrary to any practical possibility that both would agree to any acceptable determination of who could vote, especially if one had the guarantee of a Republican Form of Government.  As we will see, the states that existed in 1874 had diverse requirements.  There was some commonality, but the federal government could only intervene to assure that such voting was done timely, not done at a place that would limit access to voting, and of the manner (not requirements), such as paper ballots.  At that time (before the Seventeenth Amendment), the state legislatures elected the Senators.

Next, we have:

Section 5 — Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…

Now, there is another grant to the federal government, but only to “Judge… the Elections“.  That, obviously, could only extend to judging the results of the elections, as they cannot be judged before being completed.  This would include Returns.  The Qualifications, of course, is to satisfy the requirements regarding who may serve in the House of Representatives and the Senate, found in Article I. Section 2, clause 2 and Section 3, clause 3.

Initially, Article II (Executive Branch) set forth the method by which the President would be elected:

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 chuse 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 chuse the President.  But in chusing 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 chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Now, in the election of the President, the Electors are selected according to the “Manner as the Legislature thereof may direct“.  In the subsequent section on the “Electoral College“, the disparity of this method has become problematic.  However, we can see that the federal government may only “determine the Time of chusing the Electors, and the Day on which they shall give their Votes.”

This procedure was changed in 1804 with the ratification of the 12th Amendment.  The Constitution had the second highest vote receiver as Vice-President, and it was determined that the two highest vote getters, running in opposition to each other, would then share the responsibilities of the Executive Branch of Government.  The 12th Amendment changed the voting by the Electors to one vote for President and one vote for Vice-President, rather than, as described above, where they voted for “two Persons.”

The only other amendment to affect the election of the President was ratified in 1961 as the 23rd Amendment; it simply gave Washington, D.C., the District of Columbia, the ability to participate by allowing it to select Electors for the election of the President and Vice-President, just as the States.

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