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Our Constitution doesn’t require a popular vote for president

I assume that any state that nowadays decided not to hold a popular vote would cause a big negative backlash. But, in this post-Trump moment, it’s possible that the Trumpiest of legislators may be wondering whether they could get away with it.

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy
Scene at the Signing of the Constitution of the United States by Howard Chandler Christy

We are going through a strange and unexpected (but in some ways not unprecedented) era in the history of American politics. The strangeness is mostly about Donald Trump and his supporters who, one might say, are so determined to “win” elections that they are willing to undermine basic features of the U.S. system of politics and elections, as evolved, to rig the system for Trump or whoever takes over the leadership of the Trumpist movement, whatever the heck that stands for and is or will become.

Hang on to that little aside in the sentence above, the one that said “as evolved,” so I can bring up, in my self-appointed capacity as both a history nerd and a Constitution nerd, a few lesser-known historical features of our system of politics and government.

Did you know, for example, that the United States Constitution, from its beginning and until today, does not require a popular election in connection with the choice of a president. The 1787 Constitution merely said (and still says):

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.

Note, there is no constitutional requirement of a popular vote involving the ordinary citizens of any state. In fact, many states in the early days skipped the popular vote. And that was perfectly constitutional. Legislatures in those states would just “appoint” a slate of electors who would cast the only votes that mattered (what we now call the “electoral votes”).

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I assume that any state that nowadays decided not to hold a popular vote in a presidential election year would cause a big negative backlash, bordering on scandal. But, in the immediate post-Trump moment, it’s possible that the Trumpiest of legislators may be wondering whether they could get away with it. Scandal or no, it would be consistent with the constitutional language, according to your humble and obedient nerd.

In fact, in states that in the early years did not hold a popular election for president, the electors (under the Electoral College system) would be chosen directly by the state legislatures without direct input from average citizen-voters.

Gradually, allowing at least the white, male property owners to cast a vote for a presidential candidate became the new normal (although still not a constitutional requirement). The last holdout was South Carolina, one of the 13 original states, which did not hold a popular election in connection with the choice of a president until the 1868 election, the 21st presidential election in U.S. history, in the strange days of so-called Reconstruction immediately after the Civil War. And that was almost a full century into the constitutional era.

But the Constitution, as I mentioned, has never been amended to require a popular vote in a presidential election year.

The normative pressure to hold such an election would be pretty powerful, and I have no idea how a state that tried to skip the whole messy and annoying popular election thing would fare. Poorly, I hope.

But as far as anyone can tell, the Trumpist element is not going away quietly. And in their efforts to rig things for Trump or whoever succeeds him in the leadership of his cult, they have not exactly felt bound by mere norms, including the norm of allowing the ordinary voters of each state to decide how its electoral votes would be awarded.

In fact, when you hear some of the buzz about those purplish red states in which Republican legislatures or state officials are concerned about what might happen next time, you can get the idea that a Republican-controlled Legislature, unhappy with the outcome of the 2024 vote in their state, might assert some weird version of their ancient right to ignore the voters and just award the state’s electoral votes to the Republican ticket even in contradiction of the outcome of the popular vote.

Is that where we are now?