Presidential Electors and the Electoral College: An Examination ...

controversial features of the Constitution. Hundreds of proposals have been introduced in Congress to reform or abolish the Electoral College. Though most of these proposals have died lonely deaths in Congress, several early modifications to the process were warranted and produced.

Within a dozen years of the college’s creation, flaws in the system were revealed. As it was originally conceived, there was no distinction between votes for president and vice president. This resulted in a tie between Thomas Jefferson and Aaron Burr in the election of 1800. The two ran as a ticket and each received the same number of votes. Even though Jefferson was presumed to be the presidential candidate and Burr was presumed to be the vice presidential candidate, Burr did not cede the presidency to Jefferson and instead forced the Congress to choose the next president and vice president. This confusion resulted partly from the failure of the framers of the Constitution to recognize the rise of party tickets in the presidential selection process. Coupled with the lack of independence among presidential electors, the election of 1800 produced an early crisis for the republic. The tie between Jefferson and Burr initiated the House contingency feature in which each state casts one vote (among its representatives) for the office of president. In spite of his disdain for Jefferson, Hamilton lobbied the New York delegation against the selection of Burr, and on the thirty-sixth vote, Jefferson emerged as the victor. The Twelfth Amendment to the Constitution (stipulating that electors cast separate ballots for president and vice president) was born of this election.

The origins of both the Twelfth Amendment and the Electoral Vote Act of 1887 show that when flaws in the process have been exposed, action has been taken to prevent similar future mishaps. But action has been taken only after those flaws have produced real electoral consequence (as in the elections of 1800 and 1876). The same can be said of the casting of faithless votes.¹ Those states that have witnessed faithless electors have soon thereafter enacted laws prohibiting and in some cases punishing such behavior. That is, a faithless vote was necessary to stimulate action toward preventing such an occurrence in future elections. States that have witnessed faithless electors have addressed what had seemed an insignificant problem only after that problem had surfaced.