By John D. Feerick

January 10, 2024, 9:00 AM

As this year begins many write and say that 2024 will be a testing year for our representative democracy, exposing its strengths and weaknesses.  The soul of our democracy, of the people, by the people, and for the people, is to be found in the Constitution of the United States.  It is the longest-running written Constitution in the history of the world, a model used by states for their constitutions and by countries throughout the world.  Historian Clinton Rossiter gave eloquent expression to the place of the Constitution in our society in his masterpiece, The Grand Convention of 1787, stating that it was “probably the most artfully constructed charter of Government the Western World has ever seen.”

I have been privileged in my life as a lawyer for more than sixty-two years to participate in constitutional reform causes, including succession to the presidency, the electoral college system of electing a President and Vice President, and the amending article of the Constitution.  I have expressed my views in books, articles, speeches, and testimony before congressional committees.  Among my writings were articles on the impeachment and presidential succession provisions of the Constitution.

Drawing on this background, I offer the following with regard to our system of electing and removing a President.

Electing a President

In Article II of the Constitution the Framers provided for a single executive to hold office for four years, to be elected by electors, chosen in such manner by the state legislatures, with the allocated number of electors equal to the whole number of Senators and Representatives to which each state is entitled in Congress.  By virtue of the Twenty-Third Amendment, the District constituting the seat of government shall appoint, in such manner as Congress directs, “A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State.” These electors shall be in addition to those appointed by the States, and “considered . . . to be electors appointed by a State” and “perform such duties as provided by” the Twelfth Amendment.

Article II, as amended by the Twelfth Amendment, makes clear that the “person having the greatest number of [electoral] votes” for President and Vice President shall be the President and Vice President, respectively, “if such number be a majority of the whole number of Electors appointed.”  If no one has a majority for President, then the House of Representatives “shall choose immediately, by ballot, the President” from the persons having the highest numbers, not exceeding three, on the list of those voted for as President.  The votes shall be taken by states, with each state having one vote, and a majority of all the states shall be necessary to a choice, assuming there was a quorum of a member or members from two-thirds of the States.   If no person has a majority of the electoral votes for Vice President, then the Senate shall choose from the two highest numbers on the list.  A quorum of two-thirds of the whole number of Senators is required and a majority of the whole number shall be necessary for a choice.

The Twelfth Amendment has other provisions: It directs electors to meet in their respective states and cast two votes for President and Vice President, one of whom shall not be an inhabitant of the same state as the other, and transmit to the Vice President as President of the Senate sealed lists of those for whom they voted, who, at a joint session of Congress, shall open them and the votes shall be counted.  A federal statute, the Electoral Count Reform Act, provides additional process requirements.

The use of presidential electors instead of the people casting direct votes for President reflected a hesitation by the Framers because of a lack of experience with a nationwide popular vote at the time of the Constitution.  As George Mason reflected:  “The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.” Elbridge Gerry said that the “ignorance of the people” would enable an organized group to select a President “in every instance, if the election be referred to the people.”  He opined that it would be like “referring a trial of colors to a blind man.” Others like James Madison, James Wilson, Gouverneur Morris, Daniel Carroll, and John Dickinson were of a different view on the subject, expressing favorable comments of a popular election.  In the end, they compromised on a system of electors casting the votes.

Indeed, nowhere in the text of the original Constitution was there an explicit provision conferring the right to vote on anyone other than the provision that appeared in Article I for elections to the House of Representatives.  In the first presidential election all the electors who cast votes for president were chosen by the state legislatures, and many legislatures did so as well in the second election.  By 1860, however, each state had arrived at a choice of the presidential electors by the people of each state on the basis of a statewide vote, a so-called general ticket or winner-take-all system. The qualifications to vote depended on state law.  It took a number of constitutional amendments to enlarge the franchise and change this landscape, namely, the Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments but state legislatures still remain a dominant presence in the qualifications of voters and in the mechanics of voting subject to the absentee provisions of federal law. Recent examples exist of state laws easing the requirements for voting and state laws restricting access to the right to vote in presidential elections.  

Twice in the history of the country, neither the electors nor the public played a direct role in the selection of a President, as the House of Representatives, under a one state, one vote formula had to choose the President in 1800 and 1824, and on another occasion, in 1836, the Senate had to choose the Vice President.

Under the current electoral system, a person may become President with fewer popular votes than his or her major opponent.  It provides, with the exception of state laws in Maine and Nebraska, that all of a state’s electoral votes go to the winner of the most popular votes in the state.  It suppresses all minority votes cast in a state by making it possible for a plurality of a state’s popular vote to cast all of the electoral votes of the state.  The existing landscape of state laws also makes it possible for electors in a majority of the states to vote against, if they choose to do so, the candidate of their own party they represented in the statewide voting.  And if no candidate receives the votes of a majority of the electors to be President, once again the House of Representatives must do so under a one state, one vote constitutional formula.  Additionally, the present system discourages voter turnout, as the electoral votes per state remain static no matter what the state popular vote might be, and the system places an undue premium on the effects of fraud, accident and other factors because all of a state’s electoral votes may turn on only a few popular votes.  As a bipartisan Commission of the American Bar Association noted in 1967, when a selection of the President by Congress seemed a distinct possibility, stated: “The electoral college method of electing a President of the United States is archaic, undemocratic, complex, ambiguous, indirect, and dangerous.”

To address criticisms of the system, many reform proposals have been advanced over the history of the country, including a direct popular vote for President, with a runoff election if no candidate received a certain percentage of the popular vote; a proportional vote, under which the electoral votes of a state are divided in proportion to the division of the popular vote in the state;  a district vote plan whereby state voters cast their votes in districts comparable to congressional districts, with the winner of the popular vote in the district receiving its electoral vote and the winner of the plurality vote in the state receiving two electoral votes corresponding to its entitlement to two Senators.  A unit plan abolishes the office of elector, awarding a state’s electoral votes to the popular vote winner in the state, and changes the contingent election to a joint session of Congress if no candidate receives a certain percentage of the electoral vote, varying between 40 percent and  50 percent under proposals advanced in years passed.

In this century, advocates of reform have proposed a national popular vote by using a popular alternative.  Based on the interstate compact provision of Article I of the Constitution, if states with a majority of the electoral votes agree that their chosen electors shall vote for the national popular winner, they are required to do so.  States agreeing to this plan, as a number have done, must do so by legislative action in their states.  Proponents of the plan, including the unforgettable Senator Birch Bayh of Indiana and students in a Fordham Law School clinic that I co-taught, reason that the Constitution does not mandate a particular method of electing the President and gives to the states an exclusive power, how to allocate its electoral votes.  Proponents of the plan point out that the Plan treats every voter equally, encourages voter activity in every state, and eliminates focusing a presidential election on a small number of “swing states” and a small number of the electorate, thereby avoiding a presidential candidate losing the election, as in 2000 and 2016, to a candidate who received fewer popular votes.

I suggest that the reasons for the electoral college system have vanished and that as a nation we can do better than using an archaic counting device.

Removing a President 

Succession Provisions

While the Constitution grants a President and Vice President a four-year term in office, ending at noon on the 20^th day of January, provisions are contained in the Constitution’s Twenty-Fifth Amendment for a Vice President to discharge the President’s powers and duties as an Acting President in a case of inability for the duration of the inability.  The provisions contemplate both a voluntary and involuntary option for cases of inability.  Moreover, were a President to resign from office, as in 1974, the Constitution provides for the Vice President to become President, serving for the rest of the President’s term.  A similar result would follow in case of the death or removal of a President after an impeachment trial.  A statutory line of succession buttresses the Twenty-Fifth Amendment, providing for a long line of succession where both the President and Vice President have died, resigned, or been removed, or where both are disabled.  The line begins with the House Speaker and then the President pro tempore, followed by the heads of the fifteen executive departments in the order of their creation.  The Twentieth Amendment contains succession provisions covering pre-inaugural contingencies involving the Presidency.

Impeachment Provisions  

The removal of a President from “office,” in contrast to an inability of a President, is limited to a process of impeachment involving both Houses of Congress.  The House of Representatives is granted “ the sole Power of Impeachment” and the Senate the “sole Power to try all Impeachments,” within the following framework:  “When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”  The Constitution in Article I further provides: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”   It further provides that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

As to what is impeachable, the Constitution in Article II, Section 4, states:  “Treason, Bribery, or other high Crimes and Misdemeanors.”  Treason is defined in Section 3 of Article III, but no help is provided with respect to the reach of “other high Crimes and Misdemeanors.”

A study I undertook more than fifty years ago, with the assistance of two research assistants, noted that the expression of “high Crimes and Misdemeanors” in common law impeachments “involved acts of a criminal nature, grave misuse of one’s official position, or treasonous-like conduct.”  The study also took note of early state constitutions, suggesting that the textual expression reaches “the abuse of power, or severe misbehavior, while holding an official position to the detriment of the Nation and the integrity of the Constitution.”

An update of this study in 2018, for a speech at Indiana Law School, reviewed the impeachment history under the Constitution of nineteen persons, including fifteen judges and two presidents, Andrew Johnson and William Clinton.  This number did not take note of President Nixon’s resignation from office after a majority of the House Judiciary Committee had voted articles of impeachment for claimed abuses of his powers. The study noted that of the 19 impeached “one, Senator William Blount, had no Senate trial due to lack of jurisdiction, and three others resigned either before the Senate trial commenced or before its completion.  Of the remaining fifteen, seven were acquitted after trials in the Senate, and eight, all judges were found guilty after trials.”

Subsequent to the update of 2018, two additional impeachments of former president Donald Trump must be added to this history. They resulted in Senate trials and acquittals in 2020 and 2021, with a majority of the Senate each time favoring removal of the President, but the votes fell short of the necessary two-thirds, or sixty-seven, votes.  The Senate majority in 2021 included votes from seven members of the Republican Party.

Conclusion

To conclude:  As I noted in my Indiana speech, as adapted for publication, in cases of “removal” of a President under the Constitution, from his powers and duties and office, “the removal is made difficult so as to respect the voice of the people in choosing a President.  In one case, that of inability, it takes a two-thirds vote of each House of Congress to remove a President from his powers and duties.  In the other, an impeachment trial, it takes a two-thirds vote of the Senate to remove a President from office.  Neither event has occurred in the history of the United States.