State Law on the Nomination, Election, and Instruction of Presidential Electors

Abstract

The Constitution of the United States provides that each state shall appoint, in such manner as its legislature may direct, a number of presidential electors equal to the number of Senators and Representatives to which the state is entitled in the Congress. The Supreme Court has ruled that this clause gives the state legislature exclusive power to decide the manner of choosing electors. Before 1832, several legislatures themselves selected the members of the state's electoral college, a practice followed by South Carolina until the Civil War. As every student of American government knows, in the period from 1788 to 1832, the popular selection of electors was established and real discretion on the part of electors in choosing a President and Vice President became a legal fiction. For a century, the practice has been for the electorate to choose a set of electors, who, it is understood, will legally confirm the decision already made at the polls.The automatic operation of the electoral college as a device for translating popular votes into electoral votes is now challenged, however, with the projection of the possibility of eighty “unpledged electors.” The governors of seven Southern states recently agreed that if the Democratic national convention nominates a presidential candidate advocating anti-segregation, anti-lynching, anti-poll tax, and fair employment practices legislation, they will attempt to keep the Democratic electoral votes of their states from being cast for such nominee. This possibility makes state laws regulating the nomination, election, and instruction of presidential electors of utmost interest and importance.