The ongoing debate concerning the presidential election has raised many important legal and constitutional questions, including several relating to Congress’s constitutional duties under the original language of Article II and the Twelfth Amendment. In response to numerous requests, we provided our initial legal view two weeks ago on one matter that we did not think was subject to serious controversy: how many electoral votes it takes to become President of the United States.

While we still believe it is unlikely that this issue will need to be resolved by Congress, and note that all the parties involved have expressed concern about meeting deadlines to prevent a default of Florida’s electoral votes, we nevertheless believe that it is important—if only for the sake of argument—to clarify: it takes 270 electoral votes to be elected President by the electoral college. A simple majority of electoral votes from states other than Florida is not sufficient.

Because we continue to hear some fanciful arguments to the contrary, we obtained the attached legal memorandum on the subject. The authors are distinguished constitutional scholars who have previously served in high government posts including the White House Counsel’s Office, the Department of Justice’s Office of Legal Counsel, and as Chief Counsel to Senate Majority Leaders Trent Lott and Bob Dole. We are further convinced of our initial view by this thorough examination of the constitutional text, the debates surrounding the drafting and ratification of the Constitution, the unbroken historical practice, and the governing statutory law.

We find four arguments particularly persuasive:

• Textual Analysis and the Framers’ Intent - The Constitutional Convention considered and rejected (on September 5, 1787) language that would have allowed a simple majority of those voting to elect the President. The Convention then chose to amend the language of Article II to use the words "a Majority of the whole Number of Electors appointed" to emphasize that an absolute majority of possible electors was necessary. In the same section of the Constitution, the appointment of electors by each state was made mandatory, whether or not the electors actually voted.

Joseph Story’s Commentaries on the Constitution of the United States (1833), which remains one of the foremost authorities on the Constitution, supports this conclusion: "The number of electors is equal to the number of senators and representatives of each state . . . . The person, having a majority of the whole number of votes, is to be president."

• Federal Statute Law - The provision of the United States Code (3 U.S.C. § 3) governing presidential selection makes the point clear, providing that "the number of electors shall be equal to the number of Senators and Representatives to which the several States are by law entitled."

• Historical Practice - No president, even during the Civil War, has ever been elected by the Electoral College with less than an absolute majority of the whole number of possible electors.

• Common Sense - Mainstream popular and academic opinion outside of the Washington beltway, based on longstanding tradition and widespread acceptance, regards the correct number to be a majority of all the states’ votes.

Even if these constitutional arguments were not dispositive, the primary argument of those advancing the contrary position was mooted on November 27, 2000 when Florida’s governor signed the "final ascertainment" of Florida’s electors and sent it to the Archivist of the United States. Florida has, therefore, "appointed" its 25 electors and they must be included in the denominator of any electoral tabulation. This is true regardless of whether another slate of electors for Florida might be designated or whether the previously appointed electors are prevented from meeting and casting their votes on December 18. Nothing can now change the fact that Florida’s electors have been appointed pursuant to the United States Constitution. If serious questions about Florida’s electoral votes still exist on December 12, the Florida legislature could intervene to ratify the state’s official electoral slate or it could attempt to designate a new slate, but the official certification showing the appointment of at least one slate will be delivered by the Archivist to Congress.

If no one candidate receives an absolute majority of the electoral votes because a state’s electors were prevented from casting their votes (or for some other reason) then, under the process of contingent election set forth in the Constitution, the President would be elected by the House of Representatives and the Vice President would be elected by the Senate.

In short, the argument that it takes only a simple majority of electors voting to elect the President, as opposed to a majority of the whole number, does not withstand constitutional scrutiny.

We hope you find the attached Legal Memorandum by Messrs. Lee Casey, David Rivkin, Darin Bartram, and Kyle McSlarrow to be informative and useful.

Edwin Meese III
Ronald Reagan Distinguished Fellow in Public Policy and
Director, Center for Legal and Judicial Studies

Todd Gaziano
Senior Fellow in Legal Studies

Matthew Spalding
Director, B. Kenneth Simon Center for American Studies

Nothing written here is to be construed as legal advice on any matter, as an attempt to create an attorney-client relationship, or as an attempt to aid or hinder the passage of any matter pending before Congress.

Published by The Heritage Foundation. Copyright The Heritage Foundation. Used by permission.