Ashbrook Center, April 2001; reprinted in Democracy and the Constitution: Landmarks of Contemporary Political Thought (AEI Press, 2006).
Andy Warhol once said that everyone has fifteen minutes of fame during a lifetime—or, at least, is entitled to fifteen minutes of fame. His began when he painted his picture of a box of Brillo, or of a can of Campbell’s tomato soup, and lasted for the rest of his life. Mine (such as it was) began on November 8, the day after the last election, and lasted for six weeks. During that period, I had at least a hundred telephone calls from reporters—mostly American, but a number of them foreign—with questions, generally “what if” questions, concerning the Electoral College.
For example, what if Florida is unable to appoint its 25 electors by December 18, the day electors meet in their various state capitals to cast their votes for president and vice president? Implicit in this question was another: would Al Gore then be president? The answer is yes. The Constitution (first in Article II, Section 2, and then in the 12th Amendment) says, “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.” Not the whole number of electors (538) but the whole number of electors appointed (513, 538 minus 25). Leaving aside Florida, Gore had 268 electors, more than the required 257, a majority of the 513 electors. (As it happens, the Framers of the Constitution anticipated the failure of a state to act, and added the word “appointed” to meet that situation. See the convention debates for September 5, 1787.)