The plan provided in the federal constitution for the choice of the chief executive is complicated and in some ways unsatisfactory. The plan prescribed by the constitution is for each state to 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 " (Art. II, § 1, ¶ 2). But in Amendment XII the details have been changed, and it is provided that the electors chosen in each state shall meet in their respective states and ballot on the question of the election of a president and a vice-president; that a certified return of the ballots cast shall be transmitted to the seat of government, directed to the president of the Senate; that the president of the Senate, in the presence of the Senate and the House of Representatives, shall open the certificates "and the votes shall then be counted," and that the person having the greatest number of votes for president shall be the president, if he has received the votes of a majority of the whole number of electors chosen. If no person has received 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 immediately choose the president by ballot, voting, however, by states, the representation from each state having one vote, and to constitute a quorum for this purpose, two-thirds of the states must be represented, and a majority of the states shall be necessary to a choice. It is further provided that if the choice of president devolves upon the House of Representatives, and no choice is made before the fourth day of March following, then the vice-president elect shall act as president. The vice-president is chosen in substantially the same way, save that if no one person has received the votes of a majority of the presidential electors, then the choice shall be made by the Senate, from the two highest numbers on the list.

Congress is authorized to determine the time of choosing the presidential electors in the respective states and the day on which they shall give their votes, which day shall be the same throughout the United States (Art. II, § 1, ¶ 3), and by statute (1792) the Tuesday next after the first Monday in November was fixed by Congress as the day of popular voting. Another statute (1887) provides that the electors of each state shall meet and give their votes on the second Monday in January next following their appointment, at such place in each state as the legislature thereof shall direct.

The practical working of the plan is this: that the states provide for the choice of presidential electors by popular vote, rarely by districts, almost invariably by general ballot for the whole electoral college throughout the state. As the choice of a president is a party matter, this method results, save in very exceptional cases, in the choice of all electors for the state nominated on the ticket of the party which secures the greatest number of votes; hence all the electors from a state will cast their votes for the person designated by the national convention of the party which secures the largest popular vote in that state. The electoral vote of a state is occasionally divided, however, when for some local reason one or more of the candidates for the office of presidential elector nominated by the dominant party have been defeated, although their associates on the same ticket have been elected.

The evident intention in the framing of the constitutional provisions was to secure a body of presidential electors who should exercise a discretion in the choice of a suitable person for president; but as a matter of fact no such discretion has been exercised since 1792. There might be contingencies, however, under which the electors would vote for a different person than the candidate on the ticket of their party, either by failing to carry out the implied obligation to express the preference of the voters, or, as happened in 1872, if the party candidate should die before the time when the boards of electors are required to cast their ballots. But even if no such contingency occurs, the result will not necessarily be the same as though the voters in each state cast their ballots directly for president; and it has several times happened that the candidate for president receiving a majority of the electoral votes was not the candidate who would have been chosen had the election been by national popular vote.

In the election of 1877, when Mr. Hayes as the candidate of the Republican party and Mr. Tilden as the candidate of the Democratic party had received the votes of the electors chosen by the respective parties, a question was raised as to the legality of the returns from certain of the states, and the result depended upon whether certain returns should be recognized as lawful. On this occasion a compromise measure was passed by the two houses in accordance with which an extraconstitutional electoral commission was created to determine what returns should be counted; and as a result Mr. Hayes was declared the president. Provision has since been made by statute (1887) for another method of counting the electoral vote. Whatever difficulties may arise on the subject must be settled by the two houses of Congress, in whose presence the president of the Senate is directed to count the returns. No question relating to the result of the election can be raised in the courts.