Obama Is Not President Elect... Yet. [Constitutional Law]

11/05/2008 10:36:00 AM

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Photo of the Constitution of the United States of America. A feather quill is included in the photo.The Constitution of the United States is the supreme law of the United States of America and is the oldest codified written national constitution still in force. It was completed on September 17, 1787. Reading this morning's news reports, blogs and such I always like to take a look at the comments section to see what people have to say.  One major thing I noticed is that people seem to believe that Obama is now President.  Well, here's a shocker for you Obama folk;  He's not President, he's not even the President-Elect.  What he is, is the President-Delegate, and is not legally the President-Elect until after the Electoral Vote which is voted on December 15th, 2008, with the votes not being counted until January 6, 2009,  and not the President until after noon Inauguration Day on January 20, 2009. 

Just because a candidate won a popular vote as a result of Election Day, November 4th, does not mean he automatically becomes President.  There are still votes to be made in accordance with our Constitution.  And until January 20th, 2009, after noon Eastern Time, the President of the United States remains George W. Bush.

Read on to understand how one does become President after Election Day, November 4, 2008.


So what is the president-designate?  Well, first one is officially the president-elect only after being chosen by the Electoral College, but unofficially the person chosen in the November general election.  He is the presidential-designate until the Electoral College meets and elects the president.

The Electoral College consists of the popularly elected representatives who formally select the President and Vice President of the United States; since 1964 the electoral college has had 538 electors.  In 2008, it will make its selection on December 15.


map So how does this effect the Presidency?  Well "We the People" rather than directly voting for the President and Vice President, cast the popular vote or votes for electors.   Each state has a number of electors equal to the number of its Senators and Representatives in the United States Congress, which is based by the 2000 census.   Electors are technically free to vote for anyone eligible to be President, but in practice pledge to vote for specific candidates.  The ticket that receives the most votes statewide 'wins' a certain party's Electors.  So when you vote, you are not voting for President, but you are voting for pledged Electors to a specific candidate.  So thus when you vote, you are voting for the "popular vote".  From the popular vote determines how many Electoral Votes will be given to designated Electors to a certain party.

Forty-eight states and DC have adopted a winner-take-all popular vote where voters choose between statewide slates of electors pledged to vote for a specific presidential and vice presidential candidate.  The candidate that wins the most vote in the state wins the support of that state's electors.   For example, California has 55 Electoral votes. Since California went Obama or Democratic, that means that 55 Electors that represent California, will have votes that have pledged a vote for Obama.  In two other states, Maine and Nebraska, the used a tiered system where a single elector is chosen within each Congressional district and two electors are chosen by statewide popular vote.   

Thus, U.S. presidential elections are effectively an amalgamation of 51 separate and simultaneous elections (50 states plus DC), rather than a single national election.  This is based on our Constitution that was designed to be a mixture of state-based and population-based government.  The Congress would have two houses, one state-based (Senate) and the other population-based (House of Representatives) in character, while the President would be elected by a mixture of the two modes, giving some electoral power to the states and some to the people in general.


Article II, Section 1, Clause 2 of the Constitution states:

Each State shall appoint, in such a 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:  but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Article II, Section 1, Clause 4 of the Constitution states:

The congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Article II, Section 1, Cause 3 of the Constitution provided the original fashion by which the President and Vice President were to be chosen by the electors.  The primary difference was that each elector voted for two Persons for President, rather than one vote for President and one vote for Vice President.  After the choosing of the President, whoever had the most electoral votes, among the remaining candidates, would become the Vice President.

The design of the Electoral College was based upon several assumptions and anticipations of the Framers of the Constitution:

  1. Each state would employ the district system of allocating electors.
  2. Each presidential elector would exercise independent judgment when voting.
  3. Candidates for either office would not pair together on the same ticket.
  4. The system as designed would rarely produce a winner, thus sending the election to Congress.

However the Twelfth Amendment replaced Article II, Section 1, Clause 3 which allows electors to cast one vote for President and one vote for Vice President.

Electors chosen meet in their respective state capitals on the Monday after the second Wednesday in December, at which time they cast their electoral votes on separate ballots for President and Vice President.  In 2008, that meeting will be on December 15.

After voting, the electors complete the Certificate of Vote.  This document states the number of electoral votes cast for President and Vice President, and who received these votes.  Five copies of the Certificate of Vote are completed and signed by each Elector.  Multiple copies of the Certificate of Vote are signed, in order to provide multiple copies in case one is lost.  One copy is sent to the President of the U.S. Senate (the sitting Vice President of the United States) by certified mail.

The Certificates of Vote are collected by the Office of the Vice President and prepares them for the joint session of Congress.  The Certificates are arranged - unopened - in alphabetical order and placed in two boxes.  Alabama through Missouri are placed in one box, and Montana through Wyoming are placed in the other box.

The envelopes are not opened upon receipt or before they are put in the respective boxes.  The Twelfth Amendment mandates that the Congress assemble in joint session and federal law mandates that such joint session to count the votes and declare the winner take place on January 6 in the calendar year immediately following the meetings of the presidential elections.  The boxes are brought in, and each house appoints two tellers to count the vote.  If there are no objections, the presiding officer declares the result of the vote.

The thing to remember here however, is that just because a candidate won the popular vote, does not necessarily mean they will win the electoral vote.  This has happened in 1876, 1888 and 2000.  Electors who do not vote what they are pledged are called a  "faithless elector."

A faithless elector is one who casts an electoral vote for someone other than whom they have pledged to elect, or who refuses to vote for any candidate. 

There are laws to punish faithless electors in 24 states.  In 1952, the constitutionality of state pledge laws was brought before the Supreme Court in Ray v. Blair, 343 U.S. 214 (1952).  The Court ruled in favor of state laws requiring electors to pledge to vote for the winning candidate, as well as removing electors who refuse to pledge.  As stated in the ruling, electors are acting as a functionary of the state, not the federal government.  Therefore, states have the right to govern electors.

The constitutionality of state laws punishing electors for actually casing a faithless vote, rather than refusing to pledge, has never been decided by the Supreme Court.


PRESIDENCY (House of Representatives)
If for some reason no candidate for the Presidency receives a majority of the electoral votes, the House of Representatives is required to go into session immediately to vote for President.  In this event, the House is limited to choosing from among three candidates who received the most electoral votes.  Each state delegation votes en bloc - its members have a single vote collectively.  A candidate must receive an absolute majority of state delegation votes (currently 26) in order for that candidate to become the President-elect.  Additionally, delegations from at least two-thirds of all the states must be present for voting to take place.  The House continues balloting until it elects a President.

If however, no candidate for Vice President receives an absolute majority of electoral votes, then the Senate must go into session to elect a Vice President.  The Senate is limited to choosing from only the to two candidates to have received electoral votes (one fewer than the number to which the House is limited).  The Senate votes in the normal manner in this case.  However, two-thirds of the Senators must be present for voting to take place.

Additionally, the Twelfth Amendment states that a "majority of the whole number" of Senators (currently 51 of 100) is necessary for election. 

The only time the Senate chose the Vice President was in 1837.

If the House has not chosen a President-elect in time for the inauguration (noon on January 20), then Section 3 of the Twentieth Amendment specifics that the Vice President-elect becomes Acting President until the House should select a President.  If the winner of the vice presidential election is also not known by then, then under the Presidential Succession Act of 1947, the sitting Speaker of the House would become Acting President until either the House should elect a President or the Senate should select a Vice President.


However, just because a candidate wins the popular vote, does not mean that a candidate will still be president.  This has happened in 1876, 1888 and 2000.  This is not "stealing the vote", or changing the popular vote.  The popular vote remains the same (the people) however, electors changed their vote which has not been determined constitutionally illegal by the Supreme Court.

So thus, as of this exact moment, until the Electoral Vote has been completed, Barack Obama is only the Presidential Designate, not the President-Elect, or even President.

And what I find said, is that so many newspapers are reporting Obama as the President-Elect, and showing that they know nothing about the United States Constitution.  Have a look

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