The Constitution of the United States of America: Analysis and Interpretation Part 172

[30] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); In re Tyler, 149 U.S. 164 (1893). As stated by Justice Harlan in Fitts _v._ McGhee, 172 U.S. 516, 529-530 (1899), "There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an unconst.i.tutional statute, from committing by some positive act a wrong or trespa.s.s, and a suit against officers of a State merely to test the const.i.tutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State." _See also_ North Carolina _v._ Temple, 134 U.S. 22 (1890).

[31] _See_ 123 U.S. 443; and 172 U.S. 516.

[32] 154 U.S. 362 (1894).

[33] 169 U.S. 466 (1898).

[34] 209 U.S. 123 (1908).

[35] 123 U.S. 443 (1887); 172 U.S. 516 (1899).

[36] For cases following Ex parte Young, _see_ Home Telephone & Telegraph Co. _v._ Los Angeles, 227 U.S. 278 (1913); Truax _v._ Raich, 239 U.S. 33 (1915); Cavanaugh _v._ Looney, 248 U.S. 453 (1919); Terrace _v._ Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925); Ma.s.sachusetts State Grange _v._ Benton, 272 U.S.

525 (1926); Hawks _v._ Hamill, 288 U.S. 52 (1933). These last cases, however, emphasize "manifest oppression" as a prerequisite to issuance of such injunctions. _See also_ Fenner _v._ Boykin, 271 U.S. 240 (1926), where an injunction to restrain the enforcement of a State law penalizing gambling contracts was denied. The rule of Ex parte Young applies equally to the governor of a State in the enforcement of an unconst.i.tutional statute. Continental Baking Co. _v._ Woodring, 286 U.S.

352 (1932); Sterling _v._ Constantin, 287 U.S. 378 (1932). Joseph D.

Block, "Suit Against Government Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1078 (1946), points out that Ex parte Young is enunciating the doctrine that an official proceeding unconst.i.tutionally is "stripped of his official ... character" has given impetus to the fiction that the suit must be against the officer as an individual to be permissible under the Eleventh Amendment. Two recent cases in which Ex parte Young was followed are Alabama Comm'n _v._ Southern R. Co., 341 U.S. 341, 344 (1951); and Georgia R. _v._ Redwine, 342 U.S. 299, 304-305 (1952).

[37] 123 U.S. 443 (1887). _See also_ Larson _v._ Domestic and Foreign Corp., 337 U.S. 682, 687-688 (1949).

[38] 49 Stat. 1096 (1936).

[39] Worcester County Trust Co. _v._ Riley, 302 U.S. 292 (1937); _see also_ Old Colony Trust Co. _v._ Seattle, 271 U.S. 426 (1926).

[40] Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939). _See also_ Missouri _v._ Fiske, 290 U.S. 18 (1933).

[41] 106 U.S. 196 (1882).

[42] 167 U.S. 204 (1897).

[43] Johnson _v._ Lankford, 245 U.S. 541 (1918); Martin _v._ Lankford, 245 U.S. 547 (1918).

[44] Smith _v._ Reeves, 178 U.S. 436 (1900).

[45] Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912).

[46] 322 U.S. 47 (1944).

[47] Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946).

[48] Lincoln County _v._ Luning, 133 U.S. 529 (1890); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911).

[49] Great Northern Ins. Co. _v._ Read, 322 U.S. 47, 54 (1944); Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946).

[50] Smith _v._ Reeves, 178 U.S. 436 (1900). _See also_ Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Chandler _v._ Dix, 194 U.S.

590 (1904).

[51] Clark _v._ Barnard, 108 U.S. 436, 447 (1883); Ashton _v._ Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936).

[52] Farish _v._ State Banking Board, 235 U.S. 498 (1915); Missouri _v._ Fiske, 290 U.S. 18 (1933).

[53] Murray _v._ Wilson Distilling Co., 213 U.S. 151, 172 (1909), citing Smith _v._ Reeves, 178 U.S. 436 (1900); Chandler _v._ Dix, 194 U.S. 590 (1904). _See also_ Graves _v._ Texas Co., 298 U.S. 393, 403-404 (1936).

AMENDMENT 12

ELECTION OF PRESIDENT

Page Purpose and operation of the amendment 942 Electors as free agents 942

ELECTION OF PRESIDENT

Amendment 12

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March[1] next following, then the Vice-President shall act as President, as in the case of the death or other const.i.tutional disability of the President.[2]--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person const.i.tutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Purpose and Operation of the Amendment

This amendment, which supersedes clause 3 of section 1 of article II, of the original Const.i.tution, was inserted on account of the tie between Jefferson and Burr in the election of 1800. The difference between the procedure which it defines and that which was laid down in the original Const.i.tution is in the provision it makes for a separate designation by the Electors of their choices for President and Vice President, respectively. The final sentence of clause 1, above, has been in turn superseded today by Amendment XX. In consequence of the disputed election of 1876, Congress, by an act pa.s.sed in 1887, has laid down the rule that if the vote of a State is not certified by the governor under the seal thereof, it shall not be counted unless both Houses of Congress are favorable.[3] It should be noted that no provision is made by this Amendment for the situation which would result from a failure to choose either a President or Vice President, an inadequacy which Amendment XX undertakes to cure.

Electors as Free Agents

Acting under the authority of state law, the Democratic Committee of Alabama adopted a rule requiring that a party candidate for the office of Presidential Elector take a pledge to support the nominees of the party's National Convention for President and Vice President and that the party's officers refuse to certify as a candidate for such office any person who, otherwise qualified, refused to take such a pledge. One Blair did so refuse and was upheld, in mandamus proceedings, by the State Supreme Court, which ordered the Chairman of the State Democratic Executive Committee to certify him to the Secretary of State as a candidate for the office of Presidential Elector in the Democratic Primary to be held on May 6, 1952. The Supreme Court at Washington granted certiorari and reversed this holding.[4] The const.i.tutional issue arose out of the Alabama Court's findings that the required pledge was incompatible with the Twelfth Amendment, which contemplated that Electors, once appointed, should be absolutely free to vote for any person who was const.i.tutionally eligible to the office of President or Vice President.[5] This position the Supreme Court combatted as follows: "It is true that the Amendment says the electors shall vote by ballot.

But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors--contemporaries of the Founders--would have hesitated, because of const.i.tutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the const.i.tutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the const.i.tutionality of a pledge, such as the one here required, in the primary. However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an a.s.sumed const.i.tutional freedom of the elector under the Const.i.tution, Art. II, -- 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconst.i.tutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from partic.i.p.ating but must comply with the rules of the party. Surely one may voluntarily a.s.sume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary.

Ala. Code, t.i.t. 17, -- 145. Even though the victory of an independent candidate for elector in Alabama cannot be antic.i.p.ated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice. We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal const.i.tutional objection to the requirement of this pledge."[6] Justice Jackson conceding that "as an inst.i.tution the Electoral College suffered atrophy almost indistinguishable from _rigor mortis_," nevertheless dissented on the following ground: "It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice.

If custom were sufficient authority for amendment of the Const.i.tution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to const.i.tutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Const.i.tution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions."[7]

Notes

[1] By the Twentieth Amendment, adopted in 1933, the term of the President is to begin on the 20th of January.

[2] Under the Twentieth Amendment, -- 3, in case a President is not chosen before the time for beginning of his term, the Vice President-elect shall act as President, until a President shall have qualified.

[3] 3 U.S.C.A. -- 17.

[4] Ray _v._ Blair, 343 U.S. 214 (1952).

[5] Ibid. 218-219.

[6] Ibid. 228-231.