Thomas Jefferson Counts Himself into the Presidency

Article — Volume 90, Issue 2

90 Va. L. Rev. 551
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The Constitution instructs the President of the Senate to “open” the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson’s problem was more serious. In 1801, Georgia’s electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution’s explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.

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  Volume 90 / Issue 2  

Information Costs in Patent and Copyright

By Clarisa Long
90 Va. L. Rev. 465

Thomas Jefferson Counts Himself into the Presidency

By Bruce Ackerman and David Fontana
90 Va. L. Rev. 551

Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts

By Derek S. Bentsen
90 Va. L. Rev. 645

“Happy” Birthday, Brown v. Board of Education? Brown’s Fiftieth Anniversary and the New Critics of Supreme Court Muscularity

By David J. Garrow
90 Va. L. Rev. 693