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April 18, 2016

New York Law Journal

By: Jerry H. Goldfeder

The presidential election season has many people scratching their heads, even those who normally follow politics and we are not referring to the candidates’ pronouncements or personalities.  We are talking about the complicated and inconsistent set of laws and rules that govern how we nominate and elect the president of the United States.

Let’s start at the beginning.  During the hot, humid summer of 1787, the Founders grappled with whether to have a chief executive, how long the term should be, whether he (all male at the time) should be term limited, and how to select him.  We had just fought a long and grisly war against King George III, and the  13 colonies jealously guarded their boundaries, prerogatives and status.  With that as context, the constitutional convention debated whether the President should be elected by the Congress—an option that was rejected as reducing the executive to a creature of the legislature—or by the citizens directly (or, more precisely, those permitted to vote).

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