Teaching With Primary Sources. Jerry Perry, State Bar of Texas

Teaching With Primary Sources Jerry Perry, State Bar of Texas 1

PRESIDENTIAL ELECTIONS I. ARTICLE II AND THE TWELFTH AMENDMENT II. NO MENTION ANYWHERE IN THE CONSTITUTION OF POPULAR VOTE IN PRESIDENTIAL ELECTIONS Article II, Section 2 Each state shall appoint, in such manner as the legislature thereof may direct, 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 or profit under the United States, shall be appointed an elector. A. Presidential elections from 1788-1820 no popular vote results: electors chosen by state legislatures in most states B. Election of 1824 first nationwide popular vote results: electors chosen by popular vote in most states III. ELECTORAL COLLEGE AND ELECTORAL VOTES A. Total Number of Electoral Votes = 538 One electoral vote for each United States Senator (100) One electoral vote for each United States Representative (435) Three electoral votes for the District of Columbia (3) Twenty-third Amendment (ratified in 1961) B. Since each state is constitutionally guaranteed two United States Senators regardless of population and at least one United States Representative, the minimum number of electoral votes for each state is three. At the present time, there are seven states which have only a minimum of three electoral votes. C. Needed to Win = 270 (A majority of 538) D. States with the largest number of electoral votes (2001-2011): 1. California -- 55 7. Ohio -- 20 2. Texas -- 34 8. Michigan -- 17 3. New York -- 31 9. New Jersey -- 15 4. Florida -- 27 10. North Carolina-- 15 5. Pennsylvania -- 21 11. Georgia -- 15 6. Illinois -- 21 TOTAL: 271 E. Eleven states today have enough electoral votes (271) to elect a president. F. Importance of the census every ten years 1. Remember: The number of members of the United States House of Representatives (435) is a fixed number which does not change even though the population of the nation grows. 2

2. Some states significantly decline in population in the ten-year period covered by a census and thus must lose seats in the House. Other states significantly increase in population and thus gain new seats in the House. This change in turn, using the formula noted above, results in either an increase or a decrease in the number of electors and electoral votes to which a state is entitled. 3. The following table shows what has happened with regard to the number of electoral votes for some of the fifty states as a result of several censuses: 1930 1940 1950 1960 1970 1980 1990 2000 Alaska -- -- 3 3 3 3 3 3 Arizona 3 4 4 5 6 7 8 10 California 22 25 32 40 45 47 54 55 Florida 7 8 10 14 17 21 25 27 Idaho 4 4 4 4 4 4 4 4 Illinois 29 28 27 26 26 24 22 21 New York Rhode Island 47 47 45 43 41 36 33 31 4 4 4 4 4 4 4 4 Texas 23 23 24 25 26 29 32 34 Vermont 3 3 3 3 3 3 3 3 IV. PRESIDENTIAL ELECTIONS PRIOR TO 1804 AND THE TWELFTH AMENDMENT A. Electors elected by state legislatures. B. Each elector voted two times but was not required to designate for whom he was voting for president and for whom he was voting for vice president. C. The person who received the most electoral votes became President if this was a majority of the total number of electoral votes. If no candidate had a majority or there was a tie, then the House of Representatives, voting by states (each state one vote) selected the president. D. The candidate with the second highest number of electoral votes automatically became vice president. E. In the nation s first two presidential elections 1788 and 1792 when there was only one political party (the Federalist), there was no problem. George Washington was unanimously elected president and John Adams, the winner of the second largest number of electoral vote, automatically became vice president. 3

F. In the election of 1796, problems began to appear. 1. For the first time, two political parties competed the Federalists and the newly formed party of Thomas Jefferson and James Madison, the Democratic-Republican Party. 2. The framers of the Constitution had provided no role for political parties and, in fact, had not even mentioned parties in the Constitution. 3. The Federalist Party nominated John Adams for president and Thomas Pinckney of South Carolina for vice president. The Republicans nominated Thomas Jefferson for president and Aaron Burr for vice president. 4. John Adams received 71 electoral votes (a majority) and thus was elected president. Thomas Jefferson received the second greatest number of electoral votes 68 and became vice president. Thus, for the only time in United States history, the nation had a president from one party and a vice president from another party. G. In the election of 1800, with two fully developed parties competing in what some have called the dirtiest campaign in history, the system failed. 1. The Federalist Party nominated John Adams for a second term with Charles C. Pinckney of South Carolina as his vice presidential running mate. Adams received 65 electoral votes and Pinckney, 64. 2. The Democratic-Republican Party nominated Thomas Jefferson for president and Aaron Burr of New York for vice president. (a) Each of the Democratic-Republican electors voted once for Jefferson and once for Burr, but recall that at this time they were not required to designate for whom they were voting for president and for whom they were voting for vice president. (b) As a result, the two men tied with 73 electoral votes each. 3. Adams thus became the first incumbent president seeking a second term to be defeated. However, since Jefferson and Burr, the two Republicans, had the same number of electoral votes, the Federalistcontrolled House of Representatives now had to choose between the two. 4. The Federalists did not want to vote for either man, and thus the choice was a difficult one. Finally, on the thirty-sixth ballot, the House chose Jefferson over Burr, who then automatically became vice president. (This was partly due, some scholars believe, to Alexander Hamilton who lobbied against Burr.) V. THE TWELFTH AMENDMENT (PROPOSED BY CONGRESS IN DECEMBER, 1803; RATIFIED BY ENOUGH STATES AND PROCLAIMED PART OF THE CONSTITUTION IN SEPTEMBER, 1804) A. A direct result of what happened in the election of 1800 B. One very important provision: Each elector has one vote for president and one vote for vice president. Voting by the electors for president and for vice president must be separate and distinct. Whoever wins a majority of the electoral votes for president becomes president. 4

Whoever wins a majority of the electoral votes for vice president becomes vice president. C. Another very important provision: The contingency election procedure 1. What happens if no candidate for president wins a majority of the electoral votes for president? a. The House of Representatives is called upon to choose the president. b. The House chooses from among the three candidates with the greatest number of electoral votes. c. Each state gets one vote, and a majority of the votes is necessary to win. 2. What happens if no candidate for vice president wins a majority of the electoral votes for vice president? a. The Senate is called upon to choose the vice president. b. The Senate chooses from between the two candidates with the greatest number of electoral votes. c. Each Senator gets one vote, and a majority of the votes is necessary to win. VI. FOUR DISPUTED ELECTIONS A. Election of 1800 previously discussed first of only two times the House of Representatives had to choose the president. B. Election of 1824 second and last time the House of Representatives has been called on to choose the president. 1. First nationwide popular vote results 2. Nation was in the midst of what has been called the Era of Good Feelings and had reverted to a one-party system dominated by the party of Thomas Jefferson: the Democratic- Republican Party. 3. There were four major, well-known candidates, all of whom were members of the Democratic-Republican Party. a. Andrew Jackson (Tennessee) b. John Quincy Adams (Massachusetts) c. Henry Clay (Kentucky) d. William Henry Crawford (Georgia) 4. The results were as follows: Popular Vote Electoral Vote Jackson 152,933 99 Adams 115,696 84 Clay 47,136 37 Crawford 46,979 41 5

Although Jackson thus won more popular votes and more electoral votes, he did not win a majority of the electoral votes. Therefore, under the Twelfth Amendment, the House of Representatives had to choose from among Jackson, Adams and Crawford. 6. Henry Clay threw his support to Adams, and largely as a consequence, the House chose Adams. C. Election of 1876 1. Took place during Reconstruction after the Civil War, a time of great confusion and chaos in the southern states. 2. The two candidates were Governor Samuel Tilden of New York for the Democratic Party and Governor Rutherford B. Hayes of Ohio for the Republican Party. 3. The results were as follows: Popular Votes Electoral Votes Tilden (D) 4,287,670 184 Hayes (R) 4,035,170 170 4. At that time, a majority of the electoral votes was 185. 5. Fifteen electoral votes from Florida, Louisiana, South Carolina and Oregon were in dispute. 6. Although Tilden won more popular votes and more undisputed electoral votes, because of the fifteen disputed electoral votes no one knew for certain whether Tilden or Hayes had won a majority of the electoral votes. 7. The United States Congress for the only time in history set up a special fifteen-member Electoral Commission whose sole function was to decide who had won the fifteen disputed electoral votes and thus who would be the new president. 8. This Electoral Commission had eight Republican members and seven Democratic members. By a vote of eight-to-seven the Commission awarded all fifteen disputed electoral votes to Hayes, thus giving him a majority of 185 and consequently making him president. Many presidential election scholars regard Tilden as the one man from whom the presidency was most definitely stolen. D. Election of 2000 1. There were two major candidates: Al Gore for the Democratic Party and George W. Bush for the Republican Party. 2. The final results were as follows: Popular Votes Electoral Votes Gore 50,996,116 266 Bush 50,456,169 271 Undeclared 1 6

3. While there were several states where the popular vote between Gore and Bush was very close, it was the vote in the State of Florida (where Bush s brother, Jeb, happened to be governor) which became the decisive and controversial aspect of the election. a. Whoever won Florida would be the president. b. In several Florida counties, there was much dispute over the form of the ballot. c. The final popular vote results in Florida were: Bush 2,912,790 Gore 2,912,253 d. After much arguing back and forth, recounting of the ballots in some counties, and a Florida Supreme Court decision allowing a recount, the United States Supreme Court (in Bush v. Gore), by a five-to-four vote, ended the controversy by forbidding further recounts. This decision, in essence, meant that George W. Bush became President of the United States. VII. VIII. IX. FOUR ELECTIONS WHERE THE INDIVIDUAL WHO BECAME PRESIDENT ACTUALLY LOST THE NATIONWIDE POPULAR VOTE A. Election of 1824 Andrew Jackson won more popular votes, but John Quincy Adams became president. B. Election of 1876 Samuel Tilden won more popular votes, but Rutherford B. Hayes became president. C. Election of 1888 Grover Cleveland won more popular votes, but Benjamin Harrison became president. D. Election of 2000 Al Gore won more popular votes, but George W. Bush became president. TWO IMPORTANT DATES A. Congress by law has set the date on which the people vote for a group of presidential electors in their individual states: The first Tuesday after the first Monday in November every fourth year (beginning in 1788). B. Congress by law has set the date on which the winning group of electors (the group which wins the most popular votes in that state) gathers in the state capitol to cast the state s electoral votes: The first Monday after the second Wednesday in December. HOW ARE THE PEOPLE WHO SERVE AS ELECTORS CHOSEN, AND WHO ARE THEY? A. The Constitution says nothing about how individuals who serve as electors are to be selected. B. In presidential election years, each of the two major political parties in each state holds a state party convention. At this convention one thing each party does is to choose the individuals who will serve as the party s electors for the state for that election. C. The individuals chosen are not typical, average citizens. On the contrary, they are usually long time party activists and loyalists who can thus be trusted to be faithful electors and not faithless electors. In other 7

words, they can be trusted to vote for the party s candidates if given the chance. 1. This is important because electors are not legally bound to vote for the presidential candidate for whom the greatest number of the people of their state voted. 2. This helps explain why throughout the history of presidential elections in the United States there have been so few faithless electors. X. AN IMPORTANT PROCEDURAL PART OF THE PRESIDENTIAL ELECTION PROCESS THAT IS NOT FOUND IN THE CONSTITUTION: THE SO-CALLED WINNER-TAKE-ALL PROCEDURE A. Forty-eight states and the District of Columbia have by their own decisions not because the Constitution requires it decided to award all of the state s electoral votes to the set of electors which wins the most (a plurality is sufficient) popular votes in that state. This is called winnertake-all. B. Although any state could decide not to follow this winner-take-all procedure, thus far only two states Maine and Nebraska have chosen not to do so. 1. In Maine and Nebraska, whoever wins the most popular votes in each United States House district wins the electoral vote for that district. 2. Whoever wins the most popular votes in the entire state wins the two electoral votes for that state representing the state s two United States Senators. 8

THE ELECTORAL COLLEGE DILEMMA THE WINNER TAKES ALL EFFECT CANDIDATE A CANDIDATE B Popular Vote Electoral Vote Popular Vote Electoral Vote Texas 50,000 34 49,000 0 Small 10,000 0 15,000 15 State TOTAL 60,000 34 64,000 15

ROLES AND POWERS OF THE PRESIDENT I. Seven roles of the President five constitutional and two extra-constitutional: (1) Chief of State; (2) Chief Politician; (3) Commander In Chief; (4) Chief Foreign Policy Maker or Chief Diplomat; (5) Chief Legislator; (6) Chief Economist; (7) Chief Executive or Chief Administrator II. III. IV. CHIEF OF STATE A. Symbolic or ceremonial role as head of nation or representative of the American people. Our king. Remember in many nations one person performs this role and another person performs the role of Head of Government B. Lots of pomp and ceremony associated with this role Hail To The Chief C. Examples of things a president does in his role as Chief of State: Declaring National Codfish Week or Grandparents Week Lighting the national Christmas tree Throwing out the first baseball to start the baseball season Buying the first box of Girl Scout cookies Greeting foreign visitors D. One very substantive (non-symbolic) thing the president does in this role: pardoning power 1. restores person to all civil rights 2. power is absolute: the president can pardon before trial (Ford s pardon of Nixon), during trial, or after trial 3. presidents often do this at end of term 4. two limitations: (a) can only pardon for offenses against the U. S., not for offenses against a state (b) cannot pardon someone who has been impeached, convicted, and removed from office CHIEF POLITICIAN A. Leader of his party B. Cannot be elected without party and cannot do job without support of members of party in House. Senate, governors, etc. C. National Chairman of Party is usually president s man D. Party convention dominated by president. Party platform usually says what he wishes E. Campaigns for party s candidates F. Patronage appoints party members to government positions COMMANDER IN CHIEF A. Appoints with Senate approval all officers of all branches of the armed forces. Determines who will boss and plan strategy. B. Can also dismiss (fire) top military commanders famous example: Truman MacArthur 10

C. Constitutionally, Congress is given the power to declare war, but the president as Commander in Chief can apparently involve the nation in war without a declaration of war by Congress. For example, Korea, Vietnam, or Iraq. D. In an effort to limit the president s war-making ability in 1973, Congress passed over President Nixon s veto the War Powers Resolution. It says: 1. The president can only commit troops abroad if there has been a declaration of war by Congress, if Congress passes legislation which authorizes sending troops abroad, or if there is an emergency created by an attack on the U. S., its property or its troops. 2. The president must report to Congress within 48 hours any emergency commitment of forces abroad. 3. Must remove forces after 60 days or 90 days unless Congress authorizes their continued presence abroad. 4. Law has been largely ignored. Some have argued that instead of limiting the president it actually authorizes 60-day wars. E. Three examples of presidential actions as Commander In Chief which were challenged in the courts 1. The Prize Cases (1863) (A) After southern forces attacked Ft. Sumter, President Lincoln unilaterally ordered a naval blockade of Southern ports (B) The Supreme Court upheld Lincoln s action in a broad interpretation of the president s war powers in the absence of a congressional declaration of war. 2. Korematsu v U. S. (1944) (A) FDR orders the military evacuation of all persons of Japanese descent living on the West Coast for fear of Japan s invasion of the U. S. even though they were U. S citizens and had not been charged with violation of any laws (B) The U. S. Supreme Court upheld the president s power 3. Youngstown Sheet and Tube Co. v Sawyer (1952) (A) Because of a threatened strike by the nation s steel worker unions which would have shut down all steel production in the U.S. in the midst of American troop involvement in Korea, President Harry Truman ordered the military seizure of all the nation s steel factories (B) The U. S. Supreme Court ruled that Truman had exceeded his power and ordered Truman to return the steel mills to their owners. F. The president can use his role and powers as Commander In Chief to help in the performance of his other roles such as Chief Executive. 1. For example, the president can send troops to help put down domestic disturbances or enforce the law here at home. 2. Examples: Eisenhower and Little Rock, Arkansas, 1957; Kennedy and University of Alabama, 1961-62 G. During war or threat of war, the president can impose martial law and replace civilian law and courts with military law and courts and suspend certain rights. 11

V. CHIEF FOREIGN-POLICY MAKER OR CHIEF DIPLOMAT A. The president is the director of the nation s foreign policy and has been such since the days of George Washington. Most of the major foreign policy documents in U. S. history bear the names of presidents: Washington s Farewell Address beware of entangling alliances ; the Monroe Doctrine no European or foreign presence in the Americas; Wilson s Fourteen Points; FDR s Good Neighbor Policy; the Truman Doctrine; the Eisenhower Doctrine; Carter and Salt II and the Panama Canal Treaty; Carter and the Arab-Israeli conflict; Bush and Saddam Hussein; Reagan and the German-Russian Wall; Clinton and the Arab- Israeli conflict B. President appoints all U. S. Ambassadors with Senate approval C. An exclusive power of the president: recognition of foreign governments by receiving ambassadors from those governments D. Negotiates treaties with other nations which then require ratification by a 2/3 vote of the Senate E. May also enter into executive agreements with other nations 1. No mention of these in the Constitution 2. More numerous now than treaties 3. Do not require Senate approval 4. Some famous examples: Gentlemen s Agreement between U. S. and Japan limiting Japanese immigration to U. S.; Destroyers for Bases agreement with Great Britain in World War II; Yalta and Potsdam agreements after World War II F. Presidential power in foreign affairs as addressed by the U. S. Supreme Court in U. S. v Curtiss Wright Export Corporation (1936) 1. Bolivia and Paraguay were involved in the Chaco Wars a battle over who owned a piece of land called the Chaco 2. President Roosevelt, without Congressional approval, ordered an embargo on the sale by anyone in the U. S. of weapons to either country 3. When the president s action was challenged in the U. S. Supreme Court, the Court upheld the president s act and ruled that in foreign affairs the president has certain inherent powers 4. The Supreme Court noted that in the external realm the President alone has the power to speak or listen as a representative of the nation. The Court went on to speak of the president as the sole organ of the federal government in the field of international relations a power which does not require as a basis for its exercise an act of Congress. VI. CHIEF LEGISLATOR A. Constitution requires the president to present State of the Union message to Congress. He also sends other messages. B. Most major legislation initiated by the White House and Congress then responds to it 12

C. President s veto power: not used that much by most presidents but usually successful when used. 1. usually the president gets what he wants simply by threatening a veto 2. president has no item veto must either veto the entire bill or sign the entire bill (a) In 1996 Congress passed the Line Item Veto Act giving the president an item veto (b) In 1998 in Clinton v City of New York the Supreme Court ruled that this act of Congress was unconstitutional. Only a constitutional amendment can give the president an item veto. 3. 1789-2010 Washington-George W. Bush, 1,494 vetoes (a) Washington-2; Adams-Jefferson-0; Madison-5; Reagan-39; George H. W. Bush-29; Clinton-36; George W. Bush-10 (b) (c) Most Vetoes-Franklin D. Roosevelt-372 Only two other presidents with over 100 vetoes: Cleveland- 346; Truman-180 4. Congress can try to override a presidential veto but this requires a two thirds vote of both houses and is rarely successful. (a) Total # of presidential vetoes overridden 1789-2010-109 (b) Washington thru W.H. Harrison-0 vetoes overridden First president to have a veto overridden-john Tyler (c) President with most vetoes overridden-andrew Johnson-15 (d) Recent presidents: Reagan-9 overridden; George H. W. Bush-1 overridden; Clinton-2 overridden; George W. Bush-3 overridden 5. The president has ten days to sign or veto a bill. (a) (b) If he does neither and Congress is still in session the bill automatically becomes law without his signature. If he does neither and Congress has adjourned within the ten days, the president can kill the bill by taking no action. This is called a pocket veto. VII. CHIEF ECONOMIST A. No specific economic powers given him by the Constitution. Most economic powers are given to Congress but Congress has frequently delegated economic powers to the executive. B. Some presidents throughout history have imposed wage and price controls C. President, with aid of the Office of Management and Budget, prepares a proposed Budget of the U. S. to which Congress then reacts. The president has tended to dominate budget making process. D. Council of Economic Advisors and Annual Economic Report To Congress E. Budget and Impoundment Control Act of 1974 Congress attempted to prevent the president from impounding funds (refusing to spend money appropriated by Congress). President who is not going to spend appropriated funds must report this to Congress and only if Congress agrees within 45 days can the president continue the impoundment. 13

VIII. CHIEF EXECUTIVE OR CHIEF ADMINISTRATOR A. Constitution says in Article II: executive power shall be vested in a President of the U. S. and he shall take care that the laws be faithfully executed. B. General view is that this constitutional language gives the president powers never fully defined. C. President relies on subordinates in the executive branch to enforce laws Congress passes. They interpret laws passed by Congress and decide how or whether to enforce them. D. Remember the president does not hire and thus cannot fire or give orders to most of those who work in the executive branch. They are hired through civil service. E. Executive Orders: President and other executive officers can issue these and they have the force of law. They implement and give administrative effect to parts of the Constitution, treaties, or acts of Congress. 1. They have been used to do many things but may be undone by a later president. 2. The use of executive orders has greatly increased in recent years. 3. Some examples of executive orders: (A) Truman s desegregating the armed forces (B) Kennedy s instituting an affirmative action program in federal (C) employment Clinton s returning abortion counseling to federally funded clinics and allowing the use of fetal tissue from abortions in federally funded research (D) George W. Bush s order repealing Clinton s order concerning abortion counseling F. Executive Privilege: Right of executive officers such as the president and his advisers to refuse to appear before or to withhold information from Congress or the courts 1. Limits on executive privilege went untested until the Watergate scandal in 1974 involving President Nixon and some of his subordinates 2. U. S. Supreme Court in 1974 in U. S. v Nixon unanimously ordered Nixon to turn over tapes from the Oval Office for use in a pending criminal case. The Court did also, however, rule for the first time ever that the president does have the right of executive privilege and that it must be given great respect even though it is not absolute and must yield to the demonstrated need for evidence in a pending criminal case. G. Presidential immunity from lawsuits involving alleged acts committed prior to becoming President: the U. S. Supreme Court, in Clinton v Jones, (1997) ruled that no such immunity exists. 14