Thursday, February 29, 2024

The Electoral College in 1868/1869

Gerard N. Magliocca

Building on yesterday's post about the new article on Reconstruction and the Electoral College, here is the background. In 1868, the Florida Legislature awarded the state's electoral votes to Grant. The Alabama Legislature passed a law to do the same thing, but the law was vetoed by the Governor. Then the Union Army pledged to protect Black voters at the polls in exchange for the abandonment of direct appointment by the state legislature. (Grant carried the state narrowly).

In response, a constitutional amendment was immediately proposed in Congress to establish uniformity and federal authority over the Electoral College. Here was the proposal, with the changes in italics:

Each State shall appoint, by a vote of the people thereof qualified to vote for Representatives in Congress, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust and profit under the United States, shall be appointed an elector; and the Congress shall have power to prescribe the manner in which such electors shall be chosen by the people.

This proposal received the necessary two-thirds vote in the Senate but did not pass the House. 

What's the upshot for Section Three and Trump v. Anderson? The Framers of the Fourteenth Amendment were well aware that states could use inconsistent standards in choosing presidential electors. Voices were raised to give the Congress a leading role in that process through another amendment. The proposal failed.  This reinforces the understanding at the time that the Electors Clause conferred broad authority on states and that inconsistent applications were not unconstitutional.


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