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U.S. 214 (1952), the Court sustained a state law allowing political parties to exact from primary candidates for elector a pledge to support the party nominee. And though the Court stopped short of approving similar pledges for the general election, it did reject the argument that the Constitution demands absolute freedom for electors. “The suggestion that in the early elections candidates for electors—contemporaries of the Founders—would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept." Id. at 228.

Nothing in the years since Ray v. Blair was decided undermines the Court's conclusion in that case. The constitutional text continues to commit discretion over the appointment of electors to the states. The “long-continued practical interpretation" of the role of electors noted in Ray, id. at 229, persists undiminished. In short, it seems most unlikely that the Supreme Court would today have cause to disavow Ray v. Blair, and hold that the Constitution impliedly compels independence for electors. Accordingly, we can work safely from the assumption that the states may, if they wish, instruct their electors how to vote.

Just over half the states and the District of Columbia have taken advantage of this authority, and require by law that their electors vote for particular candidates when they convene in December. The most common formulation of this obligation is also, I think, the most appropriate. In a majority of these states, electors are bound simply to vote for the candidate of their party.31 Should the President-designate die during the interval between the general election and the casting of electoral votes, such laws would appear to cover the situation, making a legal requirement of what is already the natural outcome: the prevailing party's electors will vote for the substitute nominee designated by their party.

Other states conceive of their electors' obligations differently. In a handful of states, electors are bound to vote for the candidate who won the state's popular vote in November; 32 in a few, electors must vote for the candidate whose name appeared with theirs on the official election ballot.33 Generally, all of these laws operate to the same effect, directing electors selected in November to vote for their party nominee. If, however, the President-designate dies before the electoral college convenes, then this latter group of state laws functions quite distinctively, essentially requiring that the affected electors cast their votes for the deceased candidate. To avoid this doubtlessly unintended result, the relevant states might reformulate their laws with this contingency in mind, and join those other states that have directed the prevailing party's electors to vote for the person designated by their party.

Of course, state laws instructing electors how to vote will bring the desired certainty to the proceedings only if they are enforceable. Though electors are likely, as a practical matter, to vote in accord with state law regardless of enforcement, strong enforcement provisions can make that likelihood a certainty. Although most states that bind their electors do not provide for any enforcement mechanism, two statesMichigan and North Carolina-have taken additional steps to ensure that their electors vote as directed. In both these states, the failure of an elector to cast his or her vote as required by state law constitutes a resignation; the faithless elector's vote is not counted, and he or she is replaced immediately by the remaining electors.34

In sum, much of the uncertainty that would surround the casting of electoral votes after the death of the President-designate could be avoided if the electors were bound, under state law, to cast their votes for the person who is the nominee of their party at the time of the electoral vote. The effect of such laws would be enhanced by adoption of the Michigan-North Carolina approach to enforcement, providing that votes cast in derogation of state law obligations would not be counted.

D. CONGRESS CAN PROVIDE FOR THE MANNER IN WHICH ELECTORAL VOTES ARE

COUNTED

As we have seen, Congress' part in selecting electors is a small one; primary responsibility for this stage of the electoral process is left to the states. The situation is quite different, however, with respect to the final counting of the electors' votes. This task is explicitly entrusted to Congress by the Twelfth Amendment. It would seem, then, that by virtue of its authority to "make all Laws which shall be nec

31 E.g., D.C. Code Ann. §1-1312 (1981): Fla. Stat. Ann. 8 103.021 (1992); N.C. Gen. Stat. $ 163–212 (1991): Wash. Rev. Code Ann. $29.71.020 (1993).

32 E.g., Colo. Rev. Stat. $1-4-304 (1980); Mont. Code Ann. § 13–25–104 (1992); Vt. Stat. Ann. tit. 17, 82732 (1982).

33 E.g., Conn. Gen. Stat. Ann. 89–176 (1989); Mich. Comp. Laws Ann. $ 168.47 (1989). 34 Mich. Comp. Laws Ann. § 168.47 (19 89); N.C. Gen. Stat. § 163–212 (1991).

essary and proper for carrying into Execution * * * all other Powers vested by this Constitution in the Government of the United States," 35 Congress is empowered to establish the manner in which electoral votes will be counted. Indeed, Congress has already taken advantage of this authority, providing by statute for the way in which it will hear and decide objections to electoral votes.36

Were the President-designate to die before the casting of electoral votes in each state, I can envision at least two questions regarding the counting of electoral votes that might arise. The first involves votes cast by electors for the dead Presidentdesignate. This scenario is not as far-fetched as it may seem. Some electors of the affected party, confused and without guidance, might well decide that the most loyal course is a vote for their party's former standard-bearer; others, as discussed earlier, might even find themselves bound under state law to cast their votes for the deceased candidate.

Such votes would almost surely exacerbate the uncertainty surrounding the electoral proceedings. At the very least, a significant number of electoral votes cast for the dead President-designate would diminish the ability of the affected party to muster a majority for its substitute nominee, increasing the likelihood of resort to the House. Perhaps more important, the constitutional validity of these votes would be in real doubt, so that their counting would present Congress with a thorny constitutional question at a most inopportune time.37

To avoid this added uncertainty, the Subcommittee might consider legislation providing that an electoral vote for a candidate who is dead at the time the vote is cast will not be counted. Such legislation would guide electors in a direction that comports, I think, with our common intuition about the proper result: electors should vote for a living person who can assume office in January. In the unlikely event that some electors nevertheless designated votes for the dead President-designate, the legislation would relieve the counting Congress of the burden of determining the validity of those votes.38 Finally, legislation along these lines might have the benefit of encouraging states, which presumably wish to have their electoral votes counted, to avoid binding their electors through formulations that could operate to direct votes a deceased candidate.

A second potential source of confusion during the electoral vote count is the fate of votes cast contrary to state law obligations. As we have seen, most state laws that purport to bind electors are not self-enforcing. In the case of the death of the President-designate, the resulting upheaval might prompt electors who were, for instance, formally bound to vote for their party nominee to consider casting their votes for some other person. Rather than producing the hoped-for certainty, state laws binding electors would end up generating additional uncertainty: for the electors, uncertainty as to whether they can, as a practical matter, vote in derogation of their state law pledges; and for the counting Congress, uncertainty as to whether votes so cast should be counted.

Again, Congress might wish to eliminate much of this confusion by answering the relevant question in advance. Here, the appropriate legislation might provide that Congress will not count electoral votes cast contrary to state law obligations (where state law obligates electors to vote for a living candidate).39 In effect, federal law would act as a back-up enforcement mechanism for applicable state laws, giving electors a powerful incentive to vote in accord with their state law duties.40 And by establishing a federal scheme that expressly recognizes these state laws, such congressional action may well promote passage of similar laws in additional states.

36 U.S. CONST. art. I, 88, cl. 18. 363 U.S.C. 88 15–18 (1988).

37 One might imagine an argument that the dead President-designate does not meet the Article Il qualifications for the presidency-he or she is no longer, for instance, a citizen of the United States, and most certainly cannot take an oath of office so that he or she is not eligible to receive electoral votes. The House Committee considering the Twentieth Amendment apparently was of the view that such arguments were to be taken seriously: “It seems certain that votes cast for a dead man could not legally be counted.” House Report, supra note 9, at 6.

Congress adhered to this position on the one occasion it was forced to confront the question directly. In 1872, Horace Greeley, the unsuccessful Democratic candidate in the general election, died just before the meeting of the electoral college. When three electors cast their votes for Greeley despite his demise, Congress refused to count the votes.

38 Technically, of course, one Čongress cannot bind a future Congress; the counting Congress, in the event, would retain the authority to legislate a different result

. As a practical matter, however, I think it unlikely that a Congress faced with this situation would change the rules already established by law.

39 If, on the other hand, state law appeared to require (as some state laws do) that an elector cast her vote for the dead President-designate, then the legislation imagined here would not hold the elector to her pledge. This qualification is necessary, I think, to avoid placing a federal imprimatur on what is almost certainly an unintended result of state law. It also avoids any inconsistency with the possible legislation described earlier, providing that votes cast for a dead person will not be counted.

* * * * *

We are dealing here with a tragic scenario. The death of the winner of the November election before he or she is inaugurated, as after, would be devastating for the country. It need not, however, provoke a constitutional crisis. As I have attempted to show, the Constitution already provides the basic structure through which such a contingency would be addressed. The Subcommittee is to be commended for giving careful attention to these issues and to the possibility that further legislation might alleviate any remaining uncertainty caused by the untimely death of the people's choice.

Senator SIMON. I thank you. I have just been advised that I have 8 minutes left to cast a vote. I am sorry to delay the hearing further, but we will have to take a temporary recess.

[Recess.]

Senator SIMON. The subcommittee will resume its hearing. Again, I apologize. This is one of those terrible mornings where you are all getting delayed.

Let me ask you, General, you mentioned particularly using the party apparatus. If there is a determination that we need to clarify this, should we recognize the party apparatus in the law?

Mr. DELLINGER. I think if I were a State legislator, I would. As a State legislator, I would provide that electors should vote for candidate designated by the national party, assuming that their national party ticket prevailed in the State and they were elected as the electors.

In Congressional legislation, if you were to pass a law that faithless electors' votes would not be counted, perhaps it should be in terms of the votes of electors who fail to vote as State law requires for the persons designated by the national party. That is a possibility on which I don't have a strong view.

Senator SIMON. If we decide to move on legislation, I would like to submit draft legislation to all of the witnesses to get your reaction on that draft legislation.

Mr. DELLINGER. Senator, I would be happy to do so at the Department of Justice. Finally, then, in closing, let me just commend you for the fact that I think you do not seem inclined toward the road of a constitutional amendment on this issue. Am I correct in that, that you would rather proceed by statute?

Senator SIMON. No, no, I don't think we need a constitutional amendment on this at all. It seems to me that we can take care of this statutorily.

Mr. DELLINGER. Right. My 1-minute version would be that the electoral college has, in fact, served us well. The electoral system, in fact, tends to produce a clear and legitimate winner in what are otherwise closely divided contests. It avoids the horrendous problem of a national recount. It discourages third-, fourth- and fifthparty candidacies that would be trying to get bargaining leverage for the runoff. I think, altogether, it has worked well. It allows our Presidential election to be conducted by 51 separate governmental jurisdictions, which is a great insulator and preventer of fraud, instead of having it conducted by one national election apparatus. So I think it is altogether to the good, and that the choice by the House is a useful one when it fails.

40 Cf. Charles L. Black, Jr., The Faithless Elector: A Contracts Problem, 38 La. L. Rev. 31, 33 (1977) (suggesting that Congress exercise equitable power to ensure that electors vote as pledged).

Thank you very much, Senator.

Senator SIMON. I thank you. Let me just add, I understand I missed the most interesting discussion while I was gone. I wish I had been here.

Mr. DELLINGER. I would like to say for the record that Professor Amar has persuaded me to change one word of my view-one word, not a big word. I said, in defending the notion that selection by the House of Representatives was not a big constitutional crisis, that the Framers were generally of the view that selection by the House would be the norm. He has persuaded me to say that “the Framers” is an overstatement and that I should say “some Framers” were of the view that it would be normal for the House to wind up choosing the President. Through vigorous argument, he has per suaded me and I will correct my testimony from "the Framers” to "some Framers” on that particular point.

Thank you, sir.

Senator SIMON. I thank you. I might mention this whole question came up as a result of a hearing on the electoral college, and I have become persuaded that we do not need a constitutional amendment on the electoral college. But out of that hearing came this area where there is some gray, where we may need some statutory definition, I think.

Mr. DELLINGER. Thank you, Senator.
Senator SIMON. I thank you.

Our panel now is Trevor Potter, the Chairman of the Federal Election Commission; Akhil Amar, Professor at Yale Law School; and Walter Berns, Professor at Georgetown University. I note he is the John M. Olin University Professor, and John M. Olin was from the State of Illinois.

Unless there is a preference, I will just go in the order mentioned here and, Mr. Potter, we will call on you first.

PANEL CONSISTING OF TREVOR POTTER, CHAIRMAN, FEDERAL ELECTION COMMISSION; AKHIL REED AMAR, SOUTHMAYD PROFESSOR, YALE UNIVERSITY LAW SCHOOL; AND WALTER BERNS, JOHN M. OLIN PROFESSOR, GEORGETOWN UNIVERSITY, AND ADJUNCT SCHOLAR, AMERICAN ENTERPRISE INSTITUTE

STATEMENT OF TREAVOR POTTER Mr. POTTER. Thank you, Mr. Chairman, and good morning. I am Trevor Potter, the Chairman of the Federal Election Commission. It is a pleasure to appear before you this morning. My testimony addresses a relatively narrow portion of the issue before you today and will therefore be brief.

As you know, the Federal Election Commission is responsible for the implementation of the Federal Election Campaign Act of 1971 and of Title 26 of the Presidential Election Campaign Fund, which pertains to the certification of matching funds in the Presidential primary elections and grants to the major national political parties for their national nominating conventions.

The Commission as an independent agency will administer whatever legislation is enacted concerning the payment of Federal funds to Presidential candidates and nominating conventions. Accordingly, on behalf of the Commission, I offer the following comments.

It is our understanding that the subcommittee is considering a number of statutory and constitutional issues. One of the questions concerns the Presidential nominee succession should a party nominee die or become disabled after winning sufficient popular votes for an electoral college majority, but before the casting of the electoral college votes.

Specifically, it is our understanding that the subcommittee is considering a proposal that would amend title 26, section 9008, to add an eligibility requirement in order for a national committee to receive its convention funding. The party committee would be required to agree that, in the event of the death or disability of the party's Presidential nominee after the popular election, but prior to the electoral college vote, it would nominate the Vice Presidential candidate as its Presidential nominee.

At the moment, both parties' rules would refer the question to a specially called meeting of the party national committees for a decision on a new nominee. Under current section 9008 of title 26, each major party is entitled to a public grant to finance its Presidential nominating conventions. In addition, the Commission has a variety of implementing regulations requiring the national committee of a major party to agree to certain conditions.

Given this contractual framework, Congress could establish additional conditions precedent to the receipt of Federal funding for party nominating conventions. These conditions could include requiring the parties to nominate a particular person, such as their Vice Presidential nominee or runner-up, as their Presidential nominee if the original nominee dies or is incapacitated in the period between election day and the electoral college vote.

The Federal Election Commission takes no position as to whether or not adding such a proposed new condition is an appropriate or effective solution to the Presidential succession concerns you are seeking to address. That is Congress' decision and is beyond the purview or expertise of the Commission. However, should such a proposal become law, the Commission would be able to promulgate implementing regulations to condition party-nominating convention funds.

There are three concerns the subcommittee may wish to consider as it reviews this proposal. First, what sanctions would apply in the event a party committee does not fulfill its agreement? Second, what would the schedule be for implementation of this proposal? It would require the parties to agree to amend their rules and fundamental charters, actions which may only be possible by the parties assembled in their quadrennial conventions. Finally, what provision should be made for the possibility that one or both of the major parties would decide to forgo convention funding rather than accept the conditions for succession of the Vice Presidential nominee?

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