The election campaign that precedes the vote is also a kind of festival of endless twists and turns, sudden changes, events and statements that are hard to predict, an unprecedented race for power that affects even those not normally concerned with American politics.
We should mention, however, that although statements such as 'all tricks allowed' are often made when analysing the campaign period in the United States, this is not entirely true. In the American legal system, specific procedures have been developed for electing the head of state. This system includes regulations, inter alia, on the requirements for a person to be eligible to stand for election, the manner in which a presidential candidate is selected and the subsequent election campaign, as well as the timing and methods of voting.
The following text is a brief introduction and summary of the most important elements of the above procedure, a certain "road map" of current events in the United States, which is also an introduction to our reflections in the following weeks as part of our ConLaw2024 series.
According to Article 2 sec. 1 of the United States Constitution of 1789, the President is elected for a term of four years. The wording of the aforementioned provision also mentions that only persons who were born in the United States, are at least 35 years of age and have resided in the US for fourteen years may be elected to office. Interestingly, the requirement in the Constitution to be born on US soil has been an obstacle for many popular politicians to run for the office of head of state – Arnold Schwarzenegger is one of the examples. He is an action movie star, who, in spite of the fact that he obtained US citizenship and was an active politician for many years (e.g. governor of the State of California), was unable to run in the race for the presidency because he was born in Austria.
An act to establish a uniform time for holding elections for electors of President and Vice-President in all the States of the Union of 1845, indicates that presidential elections will be held on the first Tuesday after the first Monday in November of the election year. This period is preceded by a series of activities related to the selection of the presidential candidate in the state primaries.
Although anyone who meets the pre-designated requirements can run for president, the political parties operating in the US select one candidate to participate in the campaign race for the White House. This election takes place as part of what is known as a primary, which is a popular vote in a given territory (primarily in individual states) to select delegates to the party convention, at which a candidate is elected. These votes – conducted on the basis of the relevant federal and state regulations – differ, among other things, in the way in which delegates are assigned (from proportional to winner-take-all principles), as well as in the sheer scope of delegate capacity (the so-called unpledged delegates are not assigned to a specific candidate).
The first vote is traditionally held in Iowa and often sets the tone for the entire primary campaign. The so-called "Super Tuesday", during which voting takes place in as many as 14 states, is another important moment at the primary stage.
Party authorities also have the option of organising caucuses at local level and may support a single candidate if, for example, the incumbent president is running for another term.
These party conventions, at which delegates select the presidential candidate, are usually held in July or August of the election year, with the proviso that the party convention of the incumbent president is held second. Although it is often known before the conventions who the candidate will be (as a result of a sufficient number of delegates having been selected to vote for the person), it is a great opportunity to build a specific political message, including the presentation of party unity. Specific provisions also provide solutions for situations where no candidate has obtained the required majority of votes.
The calendar of a "typical" election campaign provides for debates between candidates to be held in the autumn months as part of the ongoing election campaign. However, as the practice of recent years has shown, this custom is subject to changes, both in terms of the dates of such "confrontations" between the candidates and their number.
According to Article 2 sec. 1 of the U.S. Constitution, the election of the President is carried out through electors, appointed in the appropriate number in accordance with the relevant state/territorial laws (the regulation also covers the so-called District of Columbia). While the state authorities individually determine the rules for the appointment of electors and their voting powers – the rule is delegation based on the results of the general election – the constitutional regulation provides a requirement for the number of electors, i.e. it corresponds to the total number of senators and members of the House of Representatives that a state has. Election Day in the US is when the electors are appointed.
The Constitution states that the person with the most votes becomes president, provided that he or she has obtained the votes of an absolute majority of the designated electors. In the event that no candidate obtains such a majority / more candidates obtain such a majority, the election shall be carried out by the House of Representatives in accordance with the principles set out in the text of Art. 2 sec. 1 principles.
The 20th Amendment to the Constitution provides that the start of the US President's term of office is at noon on 20 January of the following year after the presidential election. The head of state is sworn in at a ceremonial inauguration in Washington, which in itself remains as interesting as the election campaign, further imbued with the symbolism of the event.
Text: Dr Jakub Stępień
Department of Constitutional Law, University of Lodz / Center for Anglo-American Legal Tradition, University of Lodz
ORCID: 0000-0003-0106-680