declared President after the electoral votes are counted. Accordingly, the Twentieth Amendment's succession provision governs, and the Vice President-elect is sworn in as President on January 20th.

I take it that this result is beyond serious dispute. Nevertheless, were additional support required, it could be found in the legislative history of the Twentieth Amendment.

The House Committee which considered the Joint Resolution proposing the Twentieth Amendment explained:

DEATH OF THE PRESIDENT ELECT BEFORE THE BEGINNING OF HIS TERM

If the person who received the majority of the electoral votes dies after the votes are counted, or if the person who is chosen by the House in case the election of the President is thrown into the House, should die before the date fixed for the beginning of his term, the same question arises as to whether the Vice President would become President.

The first sentence of section 3 of the proposed amendment provides that the Vice President will become President.9

In mid-December, 10 the electors chosen on election day meet in their respective states and cast their ballots for President and Vice President.11 A certificate of their votes is then forwarded to the President of the Senate, 12 to be opened and counted on January 6th.

What would be the consequence if the President-designate were to die after a majority of electors cast votes for him or her in December, but before the votes were formally counted by Congress in January? Again, I think the Twentieth Amendment provides the answer, but here with somewhat less clarity.

Whether the Twentieth Amendment covers this situation turns on the meaning of "President elect" as used in that Amendment. If the term refers to the person for whom a majority of electors have cast their votes, at the time that they do so, then the President-designate is, during this period, the President-elect, so that his death would trigger the succession provisions of the Twentieth Amendment. If, on the other hand, the President- designate does not become "President elect" until after the electoral votes are opened and counted in Congress, then the Twentieth Amendment would not apply before January 6th.

A convincing argument can be made that the counting of electoral votes in Congress is in the nature of a formality, or ministerial task; the substantive work of selecting a President is entrusted to the electors, and is completed when they designate their votes. Under this view, the "President elect" and the "Vice President elect" are chosen on the date in December when the electors meet and vote, and any subsequent death would be governed by the Twentieth Amendment.

By itself, this argument might not be strong enough to carry the day. Fortunately, however, any ambiguity in the text of the Twentieth Amendment may be resolved by recourse to the Amendment's legislative history. On this point, the intent of the Congress that sent the Twentieth Amendment to the states is quite clear: the Amendment's succession provisions are to govern when the person receiving a majority of electoral votes cast dies before those votes are counted in Congress.

DEATH OF THE PRESIDENT ELECT AFTER THE ELECTORS VOTE AND BEFORE THE VOTES ARE COUNTED

Two serious problems are presented in the case of the death of the person who has received a majority of the electoral votes after the electors vote and before the votes are counted:

(1) May the votes which were cast for a person, who was eligible at the time the votes were cast but who has died before the votes are counted by Congress, be counted?

(2) Would the Vice President elect become President?

9 H.R. Rep. No. 345, 72d Cong., 1st Sess. 6-7 (1932) [hereinafter House Report].

10 The precise date set by Congress is the first Monday after the second Wednesday in December. 3 U.S.C.§7 (1988).

11U.S. CONST. amend. XII. The electors do not, as is sometimes supposed, meet as one body in an "electoral college," for purposes of debate and deliberation. In fact, such concerted action is precluded by constitutional provisions requiring that the electors meet in their various states on the same date. This "detached and divided situation," it was believed, would "expose [the electors] much less to heats and ferments," and minimize the possibility of "cabal, intrigue, and corruption." The Federalist No. 68, at 412 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 123 U.S.C. §§ 9-11(1988).

It is the view of your committee that the votes, under the above circumstances, must be counted by Congress. An analysis of the functions of Congress indicates that no discretion is given and that Congress must declare the actual vote. The votes at the time they were cast were valid-so that the problem involved in the case of votes cast for a dead person is not here presented. Consequently, Congress would declare that the deceased candidate had received a majority of the votes.

But would the Vice President elect become President? * * *

In order to remove all possible doubt *** the first sentence of section 3 of the amendment proposed by this resolution provides specifically that the Vice President elect, in such case, shall become President.

It will be noted that the committee uses the term "President elect" in its generally accepted sense, as meaning the person who has received the majority of the electoral votes, or the person who has been chosen by the House of Representatives in the event that the election is thrown into the House. It is immaterial whether or not the votes have been counted, for the person becomes President elect as soon as the votes are cast.13

Given this clear evidence of congressional intent, the Twentieth Amendment should be deemed to apply to the death of a President-designate during the period between the casting of votes by the electors in each state capitol and the counting of those votes by Congress. 14

Under Article II, section 1 of the Constitution, each state appoints a specified number of presidential electors "in such manner as the Legislature thereof may direct." Uniformly, the states have provided for the appointment of electors by way of popular election. So it is that on the familiar first Tuesday of November 15-the day we think of as "election day"-the voters go the polls and select the presidential electors who will, in turn, meet the following month to choose a President and Vice President.

This two-tiered process leaves us with a final question: what would happen if the President-designate, who won the popular vote on election day, were to die before the electors met and cast their votes? Here, I am afraid, the Twentieth Amendment can offer no guidance. That Amendment provides for the succession of the "President elect," and it seems clear that no President has been constitutionally elected until the electoral votes are cast in December. Indeed, this last problem is not really about succession at all, for there is, during this period, no President (or Presidentelect) to be succeeded. Rather, the problem is one of election: given the death of the popular vote winner, who shall become President?

The short answer, under the Constitution, is whoever the electors choose. I said at the outset that this situation does not pose a crisis of constitutional law. That is because the Constitution's election provisions do not depend on the existence of a candidate supported by popular mandate, and would continue to function in the absence of such a candidate. The electors would, as planned, meet in their various states. Once gathered, they would cast their votes; as a matter of constitutional law, at least, electors are not bound to vote for the popular choice, or indeed for any particular candidate. 16 The person receiving a majority of electoral votes would, under the terms of the Twelfth Amendment, become the President, and our election problem is "solved."

It is fair to ask, of course, how this process would work in practice, and whether it would produce a satisfactory result. On this level, too, I see little cause for alarm. In all likelihood, the electors, predominantly party loyalists, would cast their votes for a substitute nominee chosen by the prevailing national party. The new nominee might well be the Vice President-designate or, perhaps, the candidate running second in a closely contested primary season; constrained by the need to choose a candidate acceptable to its electors, the party would be most unlikely to designate someone without a tenable claim to the nomination. In any event, the upshot would be the election of the candidate of the party that prevailed in November-which,

13 House Report, supra note 9, at 5-6.

14 If the Subcommittee were to propose legislation addressing presidential succession in these circumstances, then it might wish, in order to avoid any potential uncertainty, to include a provision defining "President elects" for purposes of the Twentieth Amendment, as the person for whom a majority of electors have designated their ballots on the date of the meeting of the elec

tors.

15 More precisely, the date set by Congress for appointment of electors is the Tuesday after the first Monday in November. 3 U.S.C. §1 (1988).

16 For purposes of this discussion of the Constitution, I leave to one side the existence of various state laws binding the votes of electors. That issue is addressed separately below.

given the unavailability of the President-designate, seems a perfectly legitimate, if second-best, outcome.

There is always the possibility that a faction-ridden party would be unable to agree upon a substitute nominee, or that some of the party's electors would refuse to vote for the new nominee. Such a scenario might well lead to a split electoral vote, with no candidate receiving a majority. Again, the Constitution provides the mechanism for selection, this time election by the House of Representatives. 17 And again, this result, though close to unprecedented, could hardly be deemed unacceptable; in the remarkable situation described here, it is not self-evident who could most legitimately lay claim to the presidency, so that no decision by the House could be said to frustrate an otherwise appropriate outcome. In these tragic circumstances, choice of the national executive by the popular branch of the national legislature a process similar to that routinely used in most other Western democracies does not seem unacceptable. 18

In short, the Constitution already provides and provides acceptably, I think-for the situation in which a President-designate dies after winning the popular vote in November and before the electoral votes are cast in December. This is, I should add, the same conclusion reached (with admirable brevity) by the House Committee considering the legislation that became the Twentieth Amendment: "Inasmuch as the electors would be free to choose a President, a constitutional amendment is not necessary to provide for the case of the death of a party nominee after the November elections and before the electors vote." 19

At the same time, however, it must be conceded that the death of a Presidentdesignate during this period would produce substantial confusion and uncertainty. The political parties, the presidential electors, and the people themselves would be faced with a wholly unprecedented situation; political upheaval, accompanied by an acute sense of crisis, could well be the result. What can be done, under the existing constitutional regime, to minimize these effects? At least four possibilities deserve consideration.20

A. CONGRESS CAN SHORTEN THE INTERVAL BETWEEN THE GENERAL ELECTION AND THE CASTING OF ELECTORAL VOTES

The Constitution gives Congress the authority to establish the two dates that define the time period with which we are here concerned: the date on which the presi

17"[I]f no person have [a] majority [of electoral votes], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President." U.S. CONST. amend. XII.

The prospect of an election "thrown" to the House is generally viewed with alarm, as posing a constitutional crisis in its own right. In fact, the Framers were generally of the view that final selection by the House (or, as originally contemplated, the Senate) would be the norm, rather than the exception; rarely (after George Washington) would any candidate have so strong a national following that he could win a majority vote in the electoral college. Debates in the Federal Convention of 1787 as Reported by James Madison, in Documents Illustrative of the Formation of the Union of the American States 109, 662-664, 668-669, 673-675 (Charles C. Tansill ed., 1927). See also Joseph E. Kallenbach, The American Chief Executive 49-50 (1966).

18 A problem could arise if the House, which is confined for its choice to the top three electoral vote-winners, were faced with an unduly limited field. So long as a significant number of the prevailing party's electors cast their votes for the Vice President-designate or for some other substitute candidate named by the party-by far the most likely outcome-the problem is avoided; one or both of these persons will finish among the top three, and the House will have recourse to a suitable choice for President.

At least theoretically, however, one might construct a scenario in which no candidate of the prevailing party is among the top three electoral vote-winners from whom the House may choose. If every elector of the affected party were to cast his or her vote for the dead President-designate, and if those votes were disqualified as invalid, then the House might be faced with a field of one: the nominee of the unsuccessful party, as the only candidate receiving any (valid) electoral votes.

This is, it should be evident, a remote contingency. By diminishing the prospect of votes cast for the dead President-designate, some of the possible reforms discussed below would make it remoter still. But even in the imagined worst-case scenario, the House's hand would not be forced. Faced with a choice it deemed unacceptable, the House could simply decline to choose at all; in that event, the Vice President-elect (chosen either by the electors or, under the Twelfth Amendment, by the Senate) would become acting President under the terms of Section 3 of the Twentieth Amendment. ("If a President shall not have been chosen before the time fixed for the beginning of his term *** then the Vice President elect shall act as President until a President shall have qualified * **").

19 House Report, supra note 9, at 5.

20 Again, it is not clear that the existing system poses a sufficient danger of malfunction to warrant legislative intervention.

dential electors are selected, and the date on which the electors meet and vote.21 Currently, those dates are set by statute as the Tuesday after the first Monday in November, and the Monday after the second Wednesday in December.22 That leaves a gap of roughly six weeks during which the death of the President-designate could generate the confusion described above.

The Subcommittee may wish to consider legislation that closes this gap, either by pushing back the day on which electors are selected, or moving up the day on which they vote. Unfortunately, it probably is not possible to eliminate the gap entirely; even in this day of modern voting systems, it takes time for the states to count the popular votes cast for electors, and still more to resolve any disputes. Nevertheless, the gap could be reduced appreciably, and with it, the probability that a Presidentdesignate will die before becoming a "President-elect" whose succession is governed by the Twentieth Amendment.

B. CONGRESS CAN POSTPONE THE MEETING OF THE ELECTORAL COLLEGE IN THE EVENT OF THE DEATH OF THE PRESIDENT-DESIGNATE

The confusion surrounding the death of a President-designate during this period would reach its zenith were the death to occur in the days, or even hours, immediately preceding the scheduled meeting of the electors. In that event, the affected political party might be unable to designate a substitute nominee before the electors were required to vote, and the electors themselves might be left without time to fully analyze their options.

Under its Article II authority to establish the date on which electors vote, Congress can provide for this contingency. The practical difficulties imagined above could be relieved by legislation postponing the convening of the electoral college if, during some period immediately prior to the scheduled meeting-say, two weeks— a candidate who won the popular vote in states having a majority of electoral votes were to die. Indeed, a statute of this type was envisioned by the House Committee responsible for the joint resolution that led to the Twentieth Amendment.23

C. THE STATES CAN INSTRUCT THEIR ELECTORS HOW TO VOTE

The proposals discussed above are designed to reduce the probability that the situation we are considering will occur in the first instance, and to eliminate some of the practical complications that might arise if it did. We are still left, however, with the central uncertainty surrounding the death of a President-designate before the electoral votes are cast: when the electors meet in their various states, for whom will they vote?

The surest way to eliminate this uncertainty is with legislation requiring that electors cast their votes in a specified manner. That is to say, if our end goal is a predictable and unified electoral vote-as in the normal election year, when we can predict with some certainty that a majority of electors will vote for the living President-designate-then we should select electors who are instructed how to vote in ad

vance.

For Congress, unfortunately, this is easier said than done. Article II of the Constitution reserves to the states close to exclusive authority over the appointment of electors; the only role contemplated for Congress is, as mentioned above, the setting of the date.24 In light of this textual division of authority, it is far from clear that the Constitution would permit Congress to legislate in the manner contemplated.

For the states, it is a different matter. Given their Article II power over the appointment of electors, the states would seem to be well-positioned to ameliorate un

21 U.S. CONST. art. II, § 1.

22 3 U.S.C. §§ 1, 7 (1988).

23 House Report, supra note 9, at 5.

The Subcommittee might also consider a similar approach to a different, but analogous, problem: that presented by the death of a major party candidate immediately before the November election itself. Again, the candidate's party might be unable to designate a substitute nominee before the scheduled election; and again, the voters-this time, the general electorate-might be caught without sufficient time to make an informed decision. These problems would be eased considerably by legislation postponing election day in the event of the death of a major party candidate during the period just before the scheduled election.

To avoid unnecessary confusion, the effect of such legislation probably should be limited to the death of candidates of "major" parties, defined, for instance, as parties polling 25 percent or more in the previous general election. Cf. 26 U.S.C. § 9002(6) (defining "major party" for purposes of presidential election campaign fund).

24 The Twenty-third Amendment provides the one exception to this rule, empowering Congress to direct the manner of appointment of the District of Columbia's electors.

certainty by legislation instructing their electors how to vote. This approach, however, does raise one critical question: whether state legislation instructing electors how to vote would be deemed constitutional, as against arguments that Article II and the Twelfth Amendment guarantee to electors the freedom to vote as they see fit.

We are confronted at the outset with a strong argument that the Framers intended, or at least expected, that presidential electors would exercise independent judgment. Indeed, certain constitutional provisions may be read most sensibly as reflecting such an understanding. Article II, for instance, prohibits Senators, Representatives, and "Person[s] holding an Office of Trust or Profit under the United States" from becoming electors. Unless electors were given some discretion as to how to vote, this conflicts rule would appear unnecessary.25 Further, the Twelfth Amendment specifies that electors shall vote "by ballot," and that their votes shall be transmitted "sealed" to the Senate. Both these provisions import a strong sense of secrecy,2 26 which would be quite unwarranted if the votes of electors were pre

determined.

This vision of unconstrained electors finds additional support in the expressed views of some of the Framers themselves. Alexander Hamilton, for one, described electors free to vote for the candidates of their choosing: "[I]mmediate election should be made by men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation * * * A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation." "27

There are, on the other hand, indications that others among the Framers had a different understanding of the role of electors. James Wilson of Pennsylvania, an advocate of popular election of the President, appeared to assume that many electors would follow the popular vote. Speaking at the Constitutional Convention, he praised the electoral system ultimately adopted as tantamount to "election mediately or immediately by the people." 28

Under this conception, electors might be expected (or instructed) to represent the popular will, rather than substituting their own judgment.29

More important, even assuming that the Framers expected or anticipated that electors would operate as independent agents, it is by no means clear that this expectation hardened into a constitutional command binding on the states. Nothing in the text of Article II or the Twelfth Amendment, or of any other constitutional provision, precludes efforts to bind the votes of electors. On the contrary, Article II vests the states with broad discretion over the selection of electors, advising only that electors shall be appointed "in such Manner as the Legislature [of each state] may direct." By its terms, this grant of authority appears generous enough to allow for appointment of electors who have been instructed how to vote.

Our entire electoral history, moreover, teaches that presidential electors have not, in practice, functioned as independent decisionmakers. Instead, since the very earliest elections, presidential electors have been expected to, and almost always have, voted for the nominees of their parties, to whom they are pledged in advance.30 Nearly two centuries of consistent historical practice is entitled to significant weight in the constitutional balance, at least where, as here, it does not run counter to any textual provision of the Constitution.

However we might resolve this issue were we writing on a clean slate, the fact is that the Supreme Court, relying principally on the historical practice noted above, already has held that the states may limit elector discretion. În Ray v. Blair, 343

25 The conflicts provision might be useful if it were anticipated that some states would choose to have uninstructed electors even if other states instructed electors how to vote.

26 At the time, perhaps more so than today, "ballot" implied a confidential vote. See Samuel Johnson, A Dictionary of the English Language (1755) ("To BALLOT * **To choose by ballot, that is, by putting little balls or tickets, with particular marks, privately in a box; by counting which it is known what is the result of the poll, without any discovery by whom each vote was given.").

*

27 The Federalist No. 68, supra note 11, at 412. See also The Federalist No. 64, at 391 (John Jay) (Clinton Rossiter ed., 1961) ("as an assembly of select electors possess the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment").

28 Debates in the Federal Convention of 1787, supra note 17, at 412.

29 Wilson's views on this subject, it should be noted, are not entirely free from doubt. At one point during the ratification debate, Wilson referred to the likelihood that electors would be able to "know and judge" presidential candidates. Debates in the Federal Convention of 1787, supra note 17, at 664. Arguably, this statement presupposes that electors will exercise autonomous judgment.

30 See, Ray v. Blair, 343 U.S. 214, 228-30 (1952); McPherson v. Blacker, 146 U.S. 1, 36 (1892).

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