Birtherism and the Electoral College

States actually have constitutional authority over the selection of electors, not of the president.

Nick R. Martin at TPM has an interesting piece that details the interchange between the Arizona secretary of state (who is amusingly described as “birth curious” in the piece) and officials in Hawaii over the question of President Obama’s birth certificate:  Emails Show How Hawaii Stiffed Arizona Secretary Of State’s Birther Investigation:

On Monday, TPM filed a public records request for the correspondence between the Hawaii government and the Arizona Secretary of State’s Office. The results show Bennett and his staff grew ever more impatient with the slow pace of Hawaii’s response before the secretary finally took to a local conservative radio talk show on Thursday to voice his concerns.

The e-mail chain is interesting, and if anything underscore the frustration that Hawaii officials have with whole birther story and the numerous requests that have been filed for Obama’s birth certificate.

One particular exchange caught my attention (excerpts and emphases below):

From: Bennett, Ken
Sent: Thursday, May 17, 2012 3:12 PM
To: Jill T. Nagamine; Drake, Jim
Subject: RE: Request from the Arizona Secretary of State’s Office

Dear Ms. Nagamine:

As the chief elections officer for the State of Arizona and pursuant to Arizona Revised Statutes, sections 16-212, 16-301, 16-502, 16-507 and others, my office is tasked with quadrennially compiling a list of candidates for the Office of the President of the United States. This list is then officially “certified” by my office and transmitted to the fifteen counties for creation of the official ballots. The list is generated in the “ordinary course” of my office’s activities (every four years) and it is certainly made for a “legitimate government purpose” (elections).

Based on the above representation, I believe that my office has strictly and expressly complied with all of the elements found in Hawaii Revised Statutes, section 338-18(g).

[…]

From: Jill T. Nagamine
Sent: Saturday, May 19, 2012 3:38 PM
To: Bennett, Ken
Subject: RE: Request from the Arizona Secretary of State’s Office

Dear Mr. Bennett:

I am in receipt of your email dated May 17, 2012.

[…]

I asked you for legal authority that establishes your right to obtain verification, and your email of May 17, 2012 provides me with references to Arizona Revised Statutes 16-212, 16-301, 16-502, 16-507, and unnamed others. These statutes seem to deal with election of presidential electors, nomination of candidates for printing on official ballot of general or special election, form and contents of ballot, and presentation of presidential candidates on ballot, but none, as far as I can tell, establish the authority of the Secretary of State to maintain and update official lists of persons in the ordinary course of his activities. I researched other sections of the Arizona Revised Statutes and was unable to find the necessary authority.

I have reviewed the statutes in question, and have to agree with Ms. Nagamine’s assessment You can look for yourself here:  click).

The most relevant statute is 16-212:

16-212. Election of presidential electors

On the first Tuesday after the first Monday in November, 1956, and quadrennially thereafter, there shall be elected a number of presidential electors equal to the number of United States senators and representatives in Congress from this state.

Note what we should all know:  the voters in the state of Arizona elect electors not the president.  Really, the entire line of reasoning being proffered by the Arizona secretary of state demonstrate a conflation of electing electors and electing the president when they are, in fact, distinct.

The fundamental issue is this:  constitutionally the citizens of the United States do not vote for the president of the United States.  They vote for the electors who, in turn, vote for the president.   Even though most state ballots only list the candidates the voter is not voting for the candidate, but for the slate of electors (indeed, in AZ the electors are listed on the ballot—see here and statute 16-502 ).  As such, the states as political units in the process do not oversee the actual candidates for president.  This means that the states themselves may have no constitutional standing in requiring any kind of proof of eligibility of candidates (and hence no grounds for indulging, constitutionally at least, in birth fantasies).   I will allow that I am unaware of the statutes in all 50 states on this topic, although again:  the constitution does not appear to provide any authority over this topic.

It is also worth noting that for presidential nomination primaries, voters are actually voting to determine which delegates are to go to the party’s national convention, not for the candidates themselves.  So even in terms of the nomination of candidates (16-301), there really is no reason why the state would have jurisdiction over the issue of the qualifications of the party’ candidates for nomination or for the presidency itself.

This helps illustrate one of the bizarre facts about the electoral college:  the voters of the United States have no direct constitutional or legal linkage to the president whom we act like we elect.

I do understand that as a practical matter the convention delegates act as messengers for the voters in the states (more or less) and that electors have come to act, as a result of tradition for the most part, as messengers as well.  As such to vote for the electors is to vote, at least via proxy, for the candidate, however there is no direct connection between voter and POTUS.

And we like this system why, again?

Regardless, I find this to be somewhat ironic in the birther case:  they are arguing as if they have some profound and special understanding of the constitution and yet they don’t recognize that constitutionally the states have no control over the candidates for the office.

(This is a good time to remind everyone that the electoral college does not work as the Framers intended and really, after Washington’s elections, never did:  Looking to the Design of the Electoral College.  Why we continue to venerate it is beyond me).

FILED UNDER: Campaign 2012, Politics 101, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Eric says:

    I knew the basics of the electoral college, but after reading this blog and also the emails and the subtexts to each statute, this was giving my brain quite a bit of exercise. Too many statutes for just a basic concept of electing a president.

  2. al-Ameda says:

    And we like this system why, again?
    …and yet they don’t recognize that constitutionally the states have no control over the candidates for the office.

    Stephen, I could not agree more.
    Also, in the absence of an Electoral College, there would have been no Bush v. Gore Supreme Court fiasco either.

  3. merl says:

    they’re always banging the Bible and they have no idea what the New Testament actually says. For some reason they know parts of the Old.

  4. Gromitt Gunn says:

    The more I learn about US law, the happier I am I became an accountant instead.

  5. Scott F. says:

    IMO, electoral and campaign finance reform would do more than anything else to improve the sorry state of our politics and government. But, nobody’s running on those reforms. What’s up with that?

  6. PD Shaw says:

    I’m not sure I agree with this analysis. The state legislatures have fairly broad authority to provide for the manner in which the Presidential elections are conducted in their state (Art. II; Sec. 1; Clause 2) Under this authority, states have required electors to pledge their support to specific candidates and have barred electors who support minor third-party candidates.

    OTOH, the state legislatures cannot add to the qualifications in Article II of the Constitution, and they must give full faith and credit to the “public Acts, Records, and judicial Proceedings of every other State.” (Art. IV; Sec. 1)

  7. swearyanthony says:

    Is it just me that wishes that Hawaii had just posted back this link: http://www.youtube.com/watch?v=ZQg8JKo_3ZQ

    ?

  8. @PD Shaw:

    The state legislatures have fairly broad authority to provide for the manner in which the Presidential elections are conducted in their state

    Yes, the selection of the electors–it says nothing about the candidates for office. Indeed, the original design of the electoral college assumed that there would be no set candidates in advance of selecting the electors (indeed, while people “knew” who the likely candidates might be, it was considered untoward to campaign–or even to act interested publicly).

    The EC as designed was actually more of a nomination body than a selection body since the assumption was that the House would frequently choose the president. I would refer again to my post on the EC and the Federalist Papers: click..

  9. Ben Wolf says:

    It looks to me like Bennett is attempting to ingratiate himself with the most radical of the radical right for a possible gubernatorial run. Also it appears President-in-exile Arpaio has sent officers to Hawaii to threaten the Department of Health if it doesn’t comply. Maybe we should move the capitol to Phoenix.

  10. John D'Geek says:

    @Steven L. Taylor:

    And we like this system why, again?

    Because of this. (Okay, okay — the con arguments are here.)

    Personally, the thought of leaving POTUS up to California and New York City sends shivers up my spine.

  11. @John D’Geek:

    Personally, the thought of leaving POTUS up to California and New York City sends shivers up my spine.

    I suppose that might be a concern if a popular vote would, in fact, relegate selection of the president to just the citizens of two states. However, that’s not what a popular vote system would do.

  12. @John D’Geek: BTW, the answer to my semi-rhetorical question is that we like it because we venerate the constitution (well beyond logic) and because it is the system we were taught and therefore feel the need to justify and rationalize.

  13. Barry says:

    @Ben Wolf: “Also it appears President-in-exile Arpaio has sent officers to Hawaii to threaten the Department of Health if it doesn’t comply. Maybe we should move the capitol to Phoenix. ”

    If I were the Governor of Hawaii, those guys would find that their stay in my state was prolonged, and that the phrase ‘tropical paradise’ was no longer associated with ‘Hawaii’
    in their minds.