I’ve had some helpful exchanges with independent scholar Michael L. Rosin on the history and practice of the Electoral College. After the recent Senate Rules Committee hearing on the Electoral Count Reform Act, he shared some thoughts with me that I thought would be of interest to ELB readers. -Derek

When the Senate Rules Committee held hearings on the Electoral Count Reform Act, Senator Ted Cruz opened his remarks (1:57:20) by quoting this now well-known text of Article II, repeated verbatim in the Twelfth Amendment.

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

He then asked University of Iowa College of Law Professor Derek Muller the following question:

Why, in your judgment, do you believe the Framers gave that responsibility to the President of the Senate and to the House and Senate? (emphasis added)

If by that responsibility Senator Cruz meant opening the certificates and counting the votes, then the answer is straightforward.

As the Framers looked forward to the first election, the only constitutional actors who could be in place were the Senate and its presiding officer and the House and its presiding officer. In the absence of a president there could be no executive branch nor could there be a judicial branch. The two chambers and their presiding officers were the only possible candidates.

Why then did the Framers choose the actors they did and what can we say about their responsibilities?

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At the time of the Framing only five of the thirteen states chose their governor by popular vote. The Massachusetts Constitution of 1780 and the New Hampshire Constitution of 1784 employed nearly identical text to describe the collection of the popular vote from around the state, its tabulation at the seat of government, and the process for electing a governor.

the sheriff of the county …. shall transmit the number of votes for each person … to the secretary [of state]’s office …

the secretary shall lay the same before the senate and the house of representatives …

to be by them examined:

and in case of an election by a majority of all the votes returned, the choice shall be by them declared and published;

but if no person shall have a majority of votes,

the house of representatives shall, by ballot, elect two out of four persons who had the highest number of votes, if so many shall have been voted for; but, if otherwise, out of the number voted for ; and make return to the senate of the two persons so elected;

on which the senate shall proceed, by ballot, to elect one, who shall be declared governor.

(3 Thorpe 1900 for Massachusetts. Emphases added. See 4 Thorpe 2463 for New Hampshire where the chief executive was dubbed “the president”)

The New York Constitution of 1777 did not require the governor to be elected by a majority of the popular vote (see 5 Thorpe 2632) and left the mechanics of vote transmission and tabulation to the statute book. In New York the sheriffs transmitted the raw ballots to the secretary of state’s office and he provided them unopened to a twelve member committee composed of six senators and six members of the assembly. The statute authorized the committee counted all the ballots with one exception. “[I]f more than one ticket or ballot shall be found inclosed together, none of the ballots or tickets so inclosed together shall be estimated.”

Connecticut and Rhode Island also chose their governor by popular vote. Neither adopted a constitution until the nineteenth century. The relevant Connecticut statute allowed its electorate to vote for anyone eligible to be governor without a primary-like election beforehand. After the electorate cast its vote “the election of Governor, Lieutenant-Governor, …, shall by Proxy of the Freemen be attended and consummated in the General Assembly to be holden at Hartford.” (I have not found the relevant Rhode Island statute.)

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On August 31, 1787 the Convention commissioned the marvelously named Committee on Postponed Parts, chaired by New Jersey’s David Brearley. Among its several tasks was making a final proposal for presidential selection. When the Committee responded on September 4 it reported a proposal remarkably similar to the final text we all know. This was the first proposal in which each state had a number of electors equal to its number of senators and representatives.

But there were some subtle differences from the final text. Here is the portion relevant to Senator Cruz’s question.

The President of the Senate shall in that House open all the certificates; and the votes shall be then & there counted. The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors; and if there be more than one who have such a majority, and have an equal number of votes, then the Senate shall immediately choose by ballot one of them for President: but if no person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President. And in every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the vice-President. (2 Farrand 497-98)

In this proposal the contingent elections of the president and the vice president fall to the Senate. The House plays no role in these parts of the election process so there is no need for the House to be present for the opening of the certificates of and the counting of the votes. With the House not present there is no way that Congress can play any role the election of the president and the vice president. In contrast to the explicit exception spelled out in the New York statute, nothing in the Convention’s records suggests that the Framer’s intended to give the Senate any authority to reject electoral votes transmitted from the state.

Concerned that giving the contingent election of the president to the Senate would give that body too much power, on September 6 the Convention shifted that part of the process to the House, voting by state. That required the House to be present for the opening and counting of the electoral votes to learn if it needed to convene immediately to elect the president.

Madison records the following text incorporating these changes.

The President of the Senate shall in the presence of the Senate and House of Representatives open all the certificates & 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 a majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President, the Representation from each State having one vote– But if no person have a majority, then from the five highest on the list, the House of Representatives shall in like manner choose by ballot the President– In the choice of a President by the House of Representatives, a Quorum shall consist of a member or members from two thirds of the States, —And 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 choose from them the vice-President. 2 Farrand 528-29 (Emphases added) For the Journal see 2 Farrand 520.

Nothing in these debates suggests that anyone thought any part of Congress had any power to reject electoral votes.

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By 1800 Congress realized that there could well be disputes over electoral votes and that they would need to be adjudicated. In the first half of that year (well before the Jefferson-Burr fiasco) Congress considered and almost passed a bill that would have established a thirteen member committee drawn from its two chambers. Two items in the bill merit our attention in the wake of any claims that the vice president has any authority to pass judgment on electoral votes. First, only members of Congress could serve on the committee. Not being a member of the Senate, the vice president could not serve on the committee. Second, no one among the top five electoral vote recipients could serve on the committee. If the vice presidency were vacant, the President pro tempore of the Senate would be the President of the Senate when the electoral votes were opened and counted, but he could not serve on the committee if he were in contention for the presidency (or vice presidency). Although this bill was not passed, its drafters demonstrated a concern that the President of the Senate play no role in resolving a disputed election if he were in the running.

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In retrospect, on September 6, 1787, the Convention should have made the Speaker of the House the presiding officer when the two houses convened to open and count the electoral votes since the next occupant of that office would not be determined by the outcome of the vote. (Hindsight is always 20-20.) Congress had an opportunity to make this change when it crafted the Twelfth Amendment in 1803. It chose not to. As Senator Cruz noted, it adopts text whole cloth from Article II.

We moderns look back on the Twelfth Amendment as a no brainer. How could anyone have voted against designating electoral votes? In fact, a lot of members of Congress did just that. No Federalist voted for the Twelfth Amendment and it passed each house with no votes to spare thanks, in small part, to some House Jeffersonians being concerned that a Senate-elected vice president might act as president while the House failed to elect a president.

Even adding a tweak as small as making the Speaker of the House the presiding officer might have lost the amendment a crucial vote in one of the two chambers.

Of one thing, however, we can be sure. None of the Jeffersonians who approved the amendment intended to give any power to the sitting vice president. His name was Aaron Burr.