US Constitutional Provisions Relating to Presidential Elections

With the rise of extreme polarization, intense political divisiveness, and gridlocked government, many Americans are turning to reforms of the democratic processes that create incentives for candidates and officeholders to appeal to broader coalitions. A centerpiece of these efforts is ranked-choice voting (RCV). RCV allows voters to rank candidates in order of preference: first, second, third, and so on. To determine the winner, the candidate with the fewest “first choices” is eliminated and those ballots are then counted for the voter’s second-choice candidate. This process continues until a candidate either has a majority of the votes or until only two candidates remain. Voters in Maine and Alaska have endorsed RCV for federal and state elections in recent years, and RCV continues to gain traction in a variety of large cities throughout the country, including New York, Minneapolis, San Francisco, and Oakland. Some reformers have also proposed that states move to RCV in presidential elections, as Maine recently did. Yet RCV now faces an existential legal threat. In 2017, the Maine Supreme Judicial Court, the State’s highest tribunal, advised that RCV violates the state constitution. Were that interpretation correct, it would imperil RCV nationwide. Nearly 40 state constitutions include provisions similar to that in Maine’s constitution. These provisions declare that candidates are to be elected to office if they receive “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes. Maine’s highest court concluded that RCV’s multi-round tabulation process violates this type of provision. Even in states without such a constitutional provision, state statutes often include the same requirement. In short, if the Maine decision is correct and adopted more broadly, it could prevent state and local governments throughout the country from adopting RCV. This Article is the first to examine the history, context, and meaning of these widespread plurality-vote provisions. After doing so, this Article concludes that RCV does not violate these provisions. The history of these provisions reveals that many states initially required winning candidates to receive a “majority of the votes” and that plurality provisions eventually came to replace these majority thresholds. The purpose of these plurality-vote provisions was to ensure that a winner could be identified through a single popular election, rather than requiring multiple separate elections to determine a winner or leaving the choice to the legislature. RCV offers precisely that: voters cast a single ballot in a single election and the candidate with the most votes, once the counting is complete, wins the election. Instead of plurality-vote provisions, a “majority of votes” is required to win in two state constitutions, some state statutes, and certain proposed reforms to the voting rules for presidential elections. These provisions pose a different challenge for RCV: whether the winner in an RCV election has received a “majority” of the relevant votes. The winner in RCV receives a majority in the final round of tabulation, but that might not be a majority of all the ballots (some voters might not have ranked either of the two candidates left in the final round of tabulation). This Article concludes that RCV is also best interpreted as consistent with most of these “majority-vote” provisions. Thus, if Americans choose to adopt RCV for presidential, national, state, or local elections, these plurality- and majority-provisions in state constitutions and state law should pose no legal obstacle to properly drafted RCV legislation.

Problem statement. Throughout the history of Ukraine's independence, the issue of language regulation has always played a particularly important role in society. After all, language is one of the main attributes of the sovereignty of every state. After the collapse of the Soviet Union, the Ukrainian state inherited not only the cultural values and language guidelines artificially imposed by the totalitarian regime, but also imperfect legislation in the field of state language policy, which ensured the dominance of the Russian language in Ukraine. The lack of a stable state language policy and conflicts in the legal field were often used by political groups in order to produce contradictory and hostile sentiments in Ukrainian society; distract society from economic and social problems; to provide a favorable basis for justifying further aggression by the Russian Federation in order to avoid legal liability under international law. In addition, in the current context of a hybrid war with Russia, the creation of a full-fledged legal framework in the field of language policy is of particular importance in the context of national security.The purpose of the article is to determine the role of each of the six presidents of Ukraine in the formation of language policy in terms of ensuring the proper functioning of the Ukrainian language as the state language. The purpose of the article is realized through the following tasks: to study the regulations on ensuring the functioning of the Ukrainian language as the state language, which were developed during the term of each of the presidents of Ukraine, to analyze and organize them, to show a holistic picture of Ukraine's state language policy. based on the results of the study to form recommendations for its improvement.Main material. The article analyzes the activities of all presidents of independent Ukraine and outlines their role in the formation of Ukraine's language policy in 1991-2020. Three key laws and constitutional provisions are described, based on which normative legal acts in the sphere of functioning of the state and other languages in Ukraine were created. An attempt has been made to generalize the legal framework of these years to understand the direction of further work to improve the legal regulation of the language issue.Conclusions. The issue of language in Ukrainian statehood remains one of the most pressing. For almost thirty years of independent Ukraine, the state, in particular, and all six presidents have not completed the process of forming a holistic language policy that would allow the smooth functioning of the Ukrainian language as the state in all spheres of public life throughout Ukraine, while ensuring the coexistence of minority languages. in places of their compact residence.The development of Ukrainian language policy is inextricably linked to the general political process in Ukraine and the change in political cycles that occurs de jure and de facto after each presidential election. Thus, under L. Kravchuk, a gradual de-Russification began in education and other spheres of public life, which was caused by the restoration of independence and significant public demand.Later, during his election campaign in the South and East, where most Russian-speaking citizens live, Kuchma used the language issue. Although the Constitution of Ukraine was adopted during his term, in Article 10 of which the Ukrainian language is defined as the state language, most of the legal framework concerning the language has been formed, and de facto Ukrainian has not received all the declared rights.Mr. Yushchenko, who came to power thanks to the events of the Orange Revolution and large-scale processes of national revival, became hostage to the political situation at the time, forcing him to relinquish many of the powers of the President in favor of Parliament and Government. As a result, most of his initiatives to improve language policy have remained mere declarations, and misinterpretations of the European Charter for Regional or Minority Languages ratified in 2006 have led to a so-called parade of linguistic sovereignties in some parts of the country, which in turn exacerbated the language issue in Ukrainian society.With the coming to power of Viktor Yanukovych, the issue of returning the Russian language to all spheres of public life became his priority. The period of Viktor Yanukovych's presidency is characterized by rapid and decisive action to develop the relevant legislation. In 2012, the Law on the Principles of State Language Policy was adopted, which became a powerful basis for the return of Russification to all spheres of life. The adoption of the law caused a wave of discontent in society. It is believed that the struggle for the Ukrainian language was one of the impetus for the Revolution of Dignity and the overthrow of the regime of Viktor Yanukovych.The next political cycle, which began after the election of President Poroshenko, was marked by progress in the formation of the Ukrainian language as the state language, the expansion of its use. During his term, the Law on the Principles of State Language Policy was repealed, significant amendments were made to legislation related to the development of the Ukrainian language, and finally the Law on Ensuring the Functioning of the Ukrainian Language as the State Language was approved. the role of the Ukrainian language increased.However, with the coming to power of V. Zelensky, pro-Russian forces intensified, trying to undermine the status of the Ukrainian by proposing significant changes to the legislation, appealing to the decision of the Venice Commission. However, V. Zelensky believes that the issue of language in Ukraine is artificial.Thus, at the present stage, for the full functioning of language policy, the state needs to legislate the issue of determining the language rights of indigenous peoples and national minorities. At the same time, there is a need to finally form a holistic system of language legislation by eliminating contradictory and inconsistent norms of laws governing the use of languages in various spheres of state and public life.

The Law of the Land: A Grand Tour of Our Constitutional Republic. By Akhil Reed Amar. New York: Basic Books, 2015. 357 pp. $29.99 hardcover.Constitutional law scholar Akhil Amar's latest book analyzes federalism under the constitution through the creative means of road tour-an examination of critical interpreters, cases, and constitutional provisions on the ground in 12 different states encompassing every region of the continental United States. The book, however, is not an analysis of the importance of regional constitutional politics on constitutional development, but rather series of observations designed to illustrate how American constitutionalism manifests itself in variety of ways inflected by its situation in the states. The seeds planted by the constitution's framework develop into the same American species of plants, but their local soil, water, and sunlight conditions have made them flower differently.Substantive issues that Amar addresses on the interpretive front in the book's first section include the problems of crafting multiracial union (Illinois), the modest populism of the constitution embraced by Alabama's Hugo Black, the practical reasoning of former politician and New Yorker Robert Jackson, and Justice Kennedy's gradual evolution toward Californian ideal of equality. The second section of the book uses landmark cases as both interpretive and geographic lenses. He explores the meaning of segregation as form of American apartheid outside the south in chapter on Brown, considers the central democratic importance of political dissent in discussion of Iowa's Tinker v. Des Moines, and explores the relationship between state and federal constitutional law through Florida's litigation culminating in Bush v. Gore. The final section addresses particularly vexed constitutional provisions in geographic situ: Ohio's and Texas's engagement with presidents and the problem of mandates and succession, Wyoming and the gendered and racialized implications of the Second Amendment, Massachusetts and the lost history of the warrant requirement, and finally New Jersey and the possibility of state enforcement of federal constitutional rights.The general theme of the book is that attending to this context enables us to understand a larger and distinctly American mosaic of federalism-a mosaic reflecting subtle constitutional variation from state to state and across broader geographic regions (Preface, xii). This point was well taken when the book was published in 2015, but it resonates more strongly in the wake of the election of 2016, as do several of Amar's individual chapters.When the book came out, readers likely encountered his discussion of the problem of presidential mandates and the technicalities of how the Twenty-Fifth Amendment allows the vice president to assume presidential powers as interesting thought experiments. Now, however, questions of what constitutes mandate in presidential election, how to understand voters' intentions in casting ballot for ticket with two ideologically disparate candidates, and how to think about potentially conflicted relationship between president and vice president are potentially concrete and serious. Amar criticizes the electoral college system as problematic primarily because it allows for lengthy lag between the election of the president and the president's assumption of office, but notes only briefly the potential legitimacy concerns with disjuncture between electoral and popular vote winners. …

Reforms usually spring from felt or threatened grievances, not from abstract considerations of institutional perfection. It is understandable then that Presidential election years regularly bring a renewal of more than ordinary interest in reforming the way the President is elected. Interest in reform of this kind was more widespread and intense than usual before and after the 1968 election. Changes have already been made in certain phases of the nomination processes of the major political parties. Nevertheless, the constitutional provisions and the laws governing the Presidential election itself remain unchanged. In 1969 and 1970, these provisions and laws were almost swept aside by a proposed constitutional amendment providing for direct popular election of the President.

This Essay examines the historical and constitutional foundations of an anti-coup principle in the United States, emphasizing how state-level prosecutions deter and can appropriately punish election subversion. Tracing its roots to English constitutional history and the Glorious Revolution, the anti-coup principle rejects arbitrary executive power. It underscores the need for accountability to sustain democratic norms against presidential self-coup conspiracies. Highlighting how presidential systems are vulnerable to autocoups, the Essay argues that the decentralized nature of American presidential elections and constitutional provisions, such as the Guarantee Clause, empower states to act as guardians against authoritarian threats. It further explores the historical evolution of voting rights through state constitutions. The Essay illustrates states’ foundational role in protecting free and fair elections alongside the federal government, which supports using state prosecutorial power to punish wrongdoers who conspire to overturn lawful presidential elections. The Essay concludes that preserving democratic institutions requires cultural safeguards and the active enforcement of accountability mechanisms at the state level, ensuring that no individual or group undermines the rule of law and citizens’ right to vote with impunity.

This study discusses the constitutionality of presidential candidacy threshold, particularly related to the principle of presidentialism. This study argues that the threshold is unconstitutional because it does not reflect the principle of presidentialism. The principle emphasizes executive and legislative prescriptions that should be independent of each other. Supporting the current threshold, the Constitutional Court proposes a rationale that the threshold aims to strengthen presidentialism in Indonesia. The current threshold is believed can give the elected president adequate political support in parliament. In fact, the idea is not factually and juridically correct. An elected president can govern effectively without significant institutional obstacle, although the President does not gain support of majority political power in the parliament. On that basis, it is necessary to amend Article 6A paragraph (2) of the 1945 Constitution so that the implementation of presidential system can be more consistent. Political parties should not be given monopolistic power to bear the presidential and vice-presidential candidates. The system should also accommodate the possibility of independent presidential and vice-presidential candidates, separating the line of political parties. Such constitutional provisions are expected to annul the presidential nomination threshold.

The terms of the majority of lawmakers in Haiti ended in January 2015 without new elections to replace them, shutting down the parliament. While President Michel Martelly governed pursuant to constitutional provisions permitting government institutions to continue operations, the lack of a legislature and protracted political stalemates over elections hindered the Haitian government's ability to meet the basic needs of its people, resolve longstanding human rights problems, or address continuing humanitarian crises. As of June, only 3 percent of internally displaced persons (IDPs) living in camps in the aftermath of the 2010 earthquake remained, according the International Organization for Migration. Authorities, however, failed to assist many of the remaining 60,000 IDPs to resettle or return to their places of origin, and many continued to face environmental risks and the threat of forced evictions. Haiti's cholera epidemic, which has claimed more than 9,500 lives and infected over 770,000 people in five years, surged in the first four months of 2015 following a significant decrease in 2014. There were more than 20,500 suspected cases and 175 deaths as of August 1. A controversial regularization plan for foreigners in neighboring Dominican Republic caused an influx of thousands of Haitians and Dominicans of Haitian descent into Haiti; authorities were ill-prepared to meet their humanitarian needs. At time of writing, nearly all elected national and local positions were open or filled by appointees; the only exceptions were the president and one-third of Haiti's senators. Negotiations between the provisional electoral council, executive branch, and political parties culminated in a March presidential decree mandating three election dates: first-round legislative elections on August 9; second-round legislative, first-round local and municipal, and presidential elections on October 25; and a presidential run-off election on December 27.

With this fourth volume, a history documenting the evolution of political processes in the United States is complete. The four volumes in The Documentary History of the First Federal Elections record the process by which the Confederation Congress and the thirteen original states implemented the electoral provisions of the federal Constitution of 1787. Contemporaries understood that the first federal Congress would flesh out the Constitution, and that the first federal elections were therefore an important step in the continuing struggle to shape, influence, and control the central government. The Constitution and the Confederation Congress allowed the states wide latitude in choosing Senators and in framing their laws for the election of the first presidential Electors and Representatives. This latitude encouraged experimentation and a lively public discussion about the entire electoral process. In all the volumes of The Documentary History of the First Federal Elections, the reader will find a wide range of sources from official proclamations to contemporary newspaper accounts, from biographical sketches of candidates to the election results. Maps showing electoral districts accompany the political developments in each state. Volume IV contains documents relating to elections in North Carolina and Rhode Island as well as to the election of the president and vice president.

This chapter will outline the evolution of the institutional framework for elections in Indonesia and analyse how a lack of detailed constitutional provisions about the electoral system and frequent changes to the legislative framework have affected the conduct of elections and the trajectory of the political party system. Moreover, the chapter will also reflect on the roles of the General Election Commission (KPU) and the General Election Supervisory Agency (Bawaslu) in safeguarding the integrity of the electoral process in Indonesia. It highlights that the vague constitutional provisions have provided flexibility for lawmakers to alter electoral institutions and processes through statutory laws occasionally checked by the Constitutional Court as guardian of the Constitution. Yet, while this flexibility has advantages, the frequent changes to Indonesia’s electoral systems for presidential and parliamentary elections have also posed enormous challenges for electoral management bodies, candidates, and voters. That Indonesia’s electoral regime remains one of the most democratic in Southeast Asia despite these challenges is largely due to the checks and balances provided by the Honorary Council of General Election Organisers (DKPP) and Bawaslu who have ensured that the General Election Commission conducts elections in line with its constitutional mandate of being national, permanent, and independent.

Questions about the state legislative role in determining the identity of presidential electors and electoral slates, and the permissible extent of a departure from regular legislative order, have recently reached peak prominence. Much of the controversy, including several cases to reach the Supreme Court, has concerned the constitutional delegation of power over pre-election rules. But a substantial amount of attention has also focused on the ability of state legislatures to appoint electors in the period between Election Day and the electors’ vote. An asserted legislative role in the post-election period has two ostensible sources: one constitutional and one statutory. The constitutional provision — the portion of Article II allowing states to appoint electors in the manner the legislature directs — has received substantial scholarly and judicial attention. In contrast, there has been no prominent exploration of the federal statute, 3 U.S.C. § 2, despite text similar to the constitutional provision. This piece appears to represent the first exploration of that federal statute as an ostensible basis for legislative appointment of electors in the aftermath of an election, when that election has “failed to make a choice.” After reviewing the constitutional controversy, the essay canvasses the history of the statute and its context. And it discovers a previously unreported historical anomaly, which might well affect construction not only of the statutory text, but the constitutional predicate, in the event of a disputed presidential election.

Prior to his death, Yuan Shih-k’ai willed that Vice President Li Yuan-hung be the Acting President in accordance with Article 29 of the Constitutional Compact. The succession of Li to the Presidency had been advocated by the anti-Yuan forces, but they insisted that such a step should be based on the Provisional Constitution. It will be seen that Dr. Sun and his followers had persistently upheld the validity of the Provisional Constitution of 1912 throughout the period of internal dissensions between the North and the South. On the other hand, Premier Tuan Ch’i-jui maintained that since the Provisional Constitution had long been abrogated, it could not be legally restored simply by a government decree. After much discussion, the views of the South finally prevailed. On June 29, 1917, President Li proclaimed the formal restoration of the Provisional Constitution, the Presidential Election Law of 1913 and the first Parliament, which should be reconvened beginning with August 1,1917. Satisfied with Li’s measures, the Military Council in the South dissolved itself on July 14 and the nation was thus reunited.

Every Presidential election is, in effect, a national referendum on the meaning of the Constitution. The people of the United States are largely united in their dedication to the general constitutional principles of liberty, equality, fundamental fairness, democracy, and limited government. We are, however, divided as to the proper application of those principles to our laws and public institutions. Elections for the Presidency and (to a much lesser degree) the Senate of the United States afford each citizen the opportunity to vote on how the Constitution should be interpreted.Myriad provisions of Constitutional Law bear upon gender equality. Standards under the Equal Protection Clause, the Right to Privacy, the First Amendment, the Establishment Clause, the Free Exercise Clause, the Commerce Clause, the Enforcement Clause of the Fourteenth Amendment, the State Action Doctrine, and the unenumerated principle of State Sovereignty all bear upon the legal rights of women and men, LGBTQ and straight individuals. The Supreme Court is evenly and sharply divided in its approach to interpreting all of these constitutional provisions, and these interpretive differences also affect the validity and application of civil rights statutes. This presidential election will have a major impact on our legal rights to gender equality.

There is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: Does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. Article I, Section 4 of the Constitution gives Congress the power to override a state’s choices about the “times, places, and manner” of congressional elections held in the state. Article II, Section 1 gives each state legislature the power to determine the “manner” in which its presidential electors are appointed but grants no additional authority to Congress or the states to regulate presidential elections themselves. Congress plainly has the power to regulate many aspects of these elections under the enforcement clauses of the Reconstruction Amendments. But what power, if any, does Congress have under the original Constitution to regulate those elections once a state legislature has opted to use popular elections to appoint the state’s presidential electors? The Supreme Court has upheld congressional authority to regulate presidential elections under the original Constitution in several contexts, but the issue has gained new salience in recent years because of a long running dispute in Arizona about whether the state can require voter registrants to present documentary proof of citizenship, contrary to federal law. This dispute has presented the current Court with an opportunity to reconsider those earlier opinions and reshuffle the division of power between states and Congress in this realm. This Essay approaches this issue through a new lens. It begins by exploring the conflict in Arizona that has brought the issue back to the Supreme Court. It then explains the background or “default” rules governing the distribution of power between Congress and the states, and why those rules are inapplicable in this context. It does so by examining both the 1787 Constitution’s division of power over federal elections and several judicial opinions discussing and applying the resulting constitutional provisions. It concludes by arguing that this history, as well as multiple precedents of the Supreme Court, affirm that Congress has ample authority to regulate presidential elections once a state has chosen that method of appointing its electors.

Conceptualizing and defining the executive power, particularly the presidency as its primary exponent, is a pressing issue in constitutional systems that have adopted the third model of power organization, known as the semi-presidential system. This challenge emerges from a justified apprehension regarding an overly strong executive branch and the attendant risks of systemic deformation into a personalized, unlimited, and arbitrary rule. The direct election of the president confers upon that office a legitimacy that is inherently stronger than that of the parliament, whose authority is essentially an aggregate of individually elected parliamentarians. In the national legal framework of the Republic of Serbia, the direct election of the president is a constitutional solution introduced with the advent of civic constitutionality and pluralism during the 1990s. Given the absence of a tradition involving a political system characterized by equitable rules between the government and the opposition, this modality led to a deformed constitutional democracy. Despite certain fluctuations during this period, there was a discernible tendency toward strengthening the role of the president and, at times, even achieving his absolute dominance over the executive branch as well as in relation to the legislative and the judicial branches. Since the election of the current president in 2017, this trend has evolved into a form of personal power that might be categorized as a "constitutional dictatorship." The directly legitimized president, who concurrently serves as the leader of the most influential political party, has extended his authority over all three branches of government. Contrary to constitutional provisions, he has assumed the roles of both head of the executive and leader of the parliamentary majority, ultimately exerting influence over judicial bodies that are unable to operate independently because no branch of government is tasked with establishing the conditions necessary for an autonomous and impartial judiciary. The legal accountability of the president, as a fundamental republican principle, fails to yield the desired effect even in more developed constitutional democracies. The formal framework for holding the head of state accountable in Serbian national law suggests that the criminal accountability of the president for the gravest offense, namely "violation of the Constitution," is too readily subsumed under political accountability, as it is determined by the parliamentary political majority. When one considers the underdeveloped structure of the Serbian parliament, characterized by a weakened and largely ineffectual opposition, as well as the absence of the requisite conditions for the operation of an independent judiciary, it becomes apparent that the procedure for removing the president of the Republic is entirely unfeasible.

ABSTRACTDoes the art of crafting and amending a constitution lead to an internal consistency among constitutional provisions, and if so, what effect does that have on countries’ democratic performance? Drawing from theoretical claims on the separation of power and electoral legitimacy, this article develops a concept that identifies the institutional characteristics of consistency and inconsistency in the constitutional design with the example of the presidency. Empirically, this concept is focused on aligning or counterbalancing the mode of presidential election and the de jure power of the president. Based on a comparative perspective of republican parliamentary and semi-presidential systems, the article focuses on the empirical trends of consistent and inconsistent design and addresses their effect on democratic development. The findings show a balance between consistent and inconsistent design in terms of quantity. The influence on democratization varies considerably across different measures but I find significant support for a positive effect of inconsistency on liberal democracy, freedom, horizontal accountability and the rule of law.