Rethinking Article II, Section 1 and its Twelfth Amendment Restatement: Challenging our Nation’s Malapportioned, Undemocratic Presidential Election Systems

Victor Williams, The Catholic University of America, Columbus School of Law
Alison M. MacDonald


This Article exposes the archaic nature and undemocratic character of our present presidential election systems, particularly in light of recent substantial developments in the area of franchise equality. This Article initially explores the history of Article II, Section 1, Clauses 2 and 3. It describes, in particular, how southern Convention delegates, who personally thrived on the institution of slavery and represented others who also did so, forced the compromise establishment of our bipartite constitutional scheme for presidential elections.

This Article next examines two applications of both prongs of the bipartite election process in American history. The presidential election of 1800 and the resulting ratification of the Twelfth Amendment are discussed. Additionally, this section analyzes the "stolen" election of 1824, offering it as an excellent illustration of the dangers abounding in both the electoral college and the default systems. In the next section, Perot's 1992 independent presidential campaign is discussed. Fourth, this Article conducts a philosophical analysis of Article II, Section I. It concludes that the electoral college and default congressional systems suffer from an antiquated quality, an unrepresentative republican nature, and a fractured federal character. Fifth, the work of the late Alexander Bickel, the leading electoral college apologist, is examined and criticized.

The Article then traces the Supreme Court's delineation of the constitutional right of "one person, one vote," which protects the fundamental democratic ideal that "one [person's] vote... is to be worth as much as another's." This constitutional doctrine, which, in contemporary analysis, is central to all issues of political participation, is contrasted with the significantly malapportioned, unit/winner-take-all electoral college process. This doctrine of franchise equality is also juxtaposed against the grossly malapportioned default system's "one state, one vote" requirement for the House selection of the President. In the last section, this Article summarizes the many practical problems that would be raised by a contemporary use of the default system for congressional selection of the President. It argues that the best solution to those problems, and to related constitutional concerns, rests with an Article V constitutional amendment to reform or replace the present electoral processes. Finally, this section examines two such proposed constitutional amendments that were introduced in Congress by Senate resolution in mid-1992 and briefly discusses additional proposals that were introduced by House resolution in January 1993.