Presidential Lottery: The Reckless Gamble in Our Electoral System

by James A. Michener

  As early as May, 1967, he had outlined his Presidential strategy in an interview with the Richmond News: “I might not have any chance in the House. But before you go to the House you go to the Electoral College. If we held the balance of power, we may decide the question in the Electoral College because one party may have to make a concession to the people of our country, a solemn covenant to them.” Wallace went on to explain that he had used the phrase “solemn covenant” because “the word deal doesn’t sound too good.”

  “Godamightydamn!” Wallace cried later. “Wouldn’t it be sump’n if we win?” In Pittsburgh he spelled out the covenant that he would offer Nixon and Humphrey, if he succeeded in drawing off enough votes to wield a balance of power. Some of his ideas were reasonable, such as insistence on a better enforcement of laws; most were extraordinary, such as the abandonment of any type of civil rights legislation.

  Ed Ewing, a top Wallace aide, explained how the covenant was to work. Each man or woman across the nation nominated by Wallace to stand as one of his electors would sign a notarized affidavit that he would vote, not the way his state voted, but the way Governor Wallace directed him to vote. With these pledged votes that could be swung either to Nixon or Humphrey, Wallace could go to those candidates and ask, “What will you give me if I make you President?”

  Ewing pointed out that this was perfectly legal, because of our fifty states, only sixteen had laws requiring their electors to vote the way their state voted, and not one of these was a state where Wallace was likely to win. Furthermore, as we have seen, the laws were probably unconstitutional. “And anyway,” Ewing added, “there’s not much they could do after the fact.”

  Would Wallace’s daring plan have worked? Both Nixon and Humphrey volunteered that they would not accept a deal with Wallace. However, Professor James C. Kirby, Jr., of Northwestern University, a leading authority on electoral reform, pointed out, “Such promises are good intentions which may more easily be stated in August than honored in November. The major candidate who was otherwise certain to lose in the House would be under tremendous pressure to negotiate with Wallace.”

  In early September, when it had looked as if the Republicans would easily gain control of the House, so that if a close electoral vote did develop, Nixon would be assured of election by the new House, my Republican friends told me, “Nixon would never make a deal with Wallace, but Humphrey might.” In late October, when it seemed likely that the Democrats were going to retain control of the House, my Democratic friends told me, “Humphrey will never surrender to Wallace, but Nixon might.”

  My own conclusion was that in the forty days between the popular vote on November 5 and the electoral vote on December 16, pressures would become so tremendous and the stakes so compelling—the Presidency of the most powerful functioning democracy on earth, with all the prerogatives that position entails—that any man or party might be tempted beyond the breaking point. I expected a deal.

  In what I say next I speak only for myself, but I understand that other electors, both Republican and Democratic, were of similar mind. I found the idea of permitting one man to dictate who our next President should be so repugnant, even though it was legal, that I spent some time in late October tracking down a newspaper article I remembered having read prior to the conventions. I found it. It referred to a joint statement made on July 17, 1968, by Representatives Charles E. Goodell, Republican of New York, and Morris K. Udall, Democrat of Arizona. They proposed that the two major parties agree, in the event of the election’s being thrown into the House, that congressmen would pledge to vote for whichever candidate had won the popular vote, thus nullifying Wallace’s capacity to dictate the election. It was a good plan, an honorable one, a plan that would have risen to the occasion of a national crisis.

  But observe that Governor Wallace had anticipated just such a move; he intended not to let the election reach the House. He intended to settle the matter his own way in the Electoral College. And I intended to forestall him … also in the Electoral College.

  As soon as it became certain that Nixon had failed to win the required 270 electoral votes, and when it was known that the election was therefore vulnerable to dictatorship by Wallace, I intended to inform all Republican and Democratic electors that I was interested in a plan whereby we would decide the election in the College between Nixon and Humphrey and not risk domination by Wallace. Rather than allow one man to dictate who our President should be, I thought it better for the nation that the two parties decide between themselves what an honorable compromise might be and then encourage their Electoral College members to swing enough votes to either Nixon or Humphrey to secure his election.

  I realize the gravity of what I have just said, and I realized it at the time. I was proposing to install my judgment over tradition, and no man who knows history ever does that lightly. I was impelled by three clear motives. First, what I proposed was legal. There was absolutely nothing in law that forbade the maneuver I intended; indeed, the founders of our nation had expected that electors would behave precisely as I was proposing and only custom had developed a plan calling for their automatic subservience. Second, I was in no way personally pledged to any course of action, either by written oath, or spoken, or implied. I was as free an agent as a man could be. The Constitution required me only to act in conformance to its laws and my own good judgment, and this I proposed to do. Third, I was a loyal Democrat who had spoken till his voice was hoarse in defense of Humphrey when others had deserted him, and I had done my part in helping to keep Pennsylvania in the Democratic column. I was totally committed to a Democratic victory and I knew that if we could somehow wangle the election into the House we had a chance of winning there, but I also knew that Governor Wallace would do everything he could to forestall that; the chances of the election’s going to the House were remote and probably nonexistent.

  I was fortified in my conclusions by a conviction that grew each day: if I was able to see this problem so clearly, others of like mind must be seeing it too. I was convinced that across the nation potential electors in every state were weighing the same alternatives that I was and were reaching the same conclusions. If, as seemed unlikely, Humphrey were to win the popular vote and lead in the Electoral College vote, I felt certain that Republican electors would prefer to see their party and mine settle this matter between ourselves rather than subject our candidates to the pressures that Governor Wallace might apply.

  I did not then communicate my ideas to any other potential elector, for three reasons. First, I knew who none of them were, and there would be ample time following the election to make my intentions known. Second, were the November 5 election to prove inconclusive, I judged that newspapers, television, magazines, and other agencies of opinion would themselves launch the kind of program I proposed, and that communication among the electors would surely be constant and overpowering. Third, if you look at the canceled parts of Article II of the Constitution you will see that an early and abiding principle of the electoral system was that the electors must not meet at one central location, but “shall meet in their respective states,” the intention as stated in the debates being that this would prevent “cabal, intrigue, and corruption.” When this article was superseded by the Twelfth Amendment, the prohibition was repeated in the opening sentence, and I judged that this might be interpreted to mean that correspondence between the electors was also prohibited, and if conducted, would void any plan of cooperation between the parties. At any rate, I knew what I was going to do, and I hoped that other electors of similar persuasion knew what they were going to do, also.

  An overriding question haunted me then and now. Was what I proposed in any way unethical? Theoretically I had been chosen by Hubert Humphrey to help him win the Presidency; actually I had been nominated by Milt Berkes to help him keep the Democratic party strong, and these two obligations I proposed to respect. But I decided early that I would not be partner to any blackmail; I would not allow either myself or my party
to be placed in a position in which deals had to be made of a character not consonant with our political principles. Also, I was much influenced by the Constitution and its original intentions. That I might have suffered censure or even excommunication was much in my mind, especially when our local newspaper awakened its readers to the fact that this might be a very close election; in an editorial they pointed out that Bucks County was fortunate in its possible electors in that both the Republican and the Democratic were men of proved integrity who could be relied upon to vote the way the state had voted. At the moment the editorial appeared I was a man prepared to do exactly the opposite, impelled by my dedication to the principles of our government and my desire to protect them.

  What was it I proposed to do? If Nixon won the popular vote and led in electoral votes by a clear margin, I would recommend to my party leadership that they arrange a compromise with the Republicans and direct enough Democratic electors to swing to the Republican column to ensure Nixon’s election; I would volunteer to be a member of that group and to absorb whatever opprobrium fell upon us. If the Democratic leadership showed no interest in trying to achieve such a compromise with the Republicans, I would have been willing to try myself, backed up by the electors who I felt sure would feel as I did. If such a plan were achieved, I would vote in accordance with it. If Humphrey clearly won the popular vote and the electoral votes to go with it, I would propose that the Republican high command meet with the Democratic to work out a compromise, and when it was defined, direct enough of their electors to vote for Humphrey to elect him. If they refused to do this, I would have campaigned among the Republican electors to encourage them to do so on their own account.

  Finally, what do I mean by compromise? I mean just what this word has always meant in American politics since the days of the Constitutional Convention and the towering speeches of Henry Clay. I mean that if the Democratic party had ensured the election of Nixon, the Democratic party would have gained in return certain considerations as to Cabinet positions and a voice in the running of the Departments of State and Defense. I mean that if the Republicans had helped elect Humphrey, they would have been entitled to the same considerations.

  The question naturally arises, “Why was this kind of compromise permissible and the Wallace covenant not?” Two answers suffice. First, the provisions of any compromise which the two major parties might have worked out would have been in the great tradition of western democracy, according to which, for example, Franklin Roosevelt brought Republicans into his wartime Cabinet and Winston Churchill brought Labour into his. If our major parties do not know where the boundaries of decency and acceptance are, then we are already lost, so I must trust them. Governor Wallace’s proposals, on the other hand, were outside the traditions of our country and might have destroyed it through dictatorship or rebellion. Second, I believe that if a social organism is threatened with destruction, it has every right to defend itself. Stated bluntly, if Wallace intended to play the game he said he was playing, I intended to beat him to the punch.

  ELECTION

  Those who were with me on election night know with what apprehension I followed the returns. Connecticut was the first test case. If it went Republican, as many predicted, then the collapse of the Democratic party, which others had foretold, would be under way. Connecticut stood firm. It was going to be an election and not a rout.

  It was quickly apparent that the popular vote was going to be extremely close; at many points Humphrey led, and my restated conviction that Nixon would win with 309 electoral votes seemed ridiculous. Fairly early in the evening Pennsylvania went definitely Democratic, so that I was an elector.

  But then the long hell of the night commenced. New Jersey was lost, inexplicably, for it should have gone to Humphrey. Texas appeared to be safe for the Democrats, and at two in the morning most experts were predicting that the election would go to the House, for it looked as if California would swing to Humphrey.

  With each step closer to an inconclusive election I felt more anxiety, because the very alignments I had foreseen were coming into being. The only surprise was Wallace’s unexpectedly poor showing. I went to bed suspecting that the election would be deadlocked and that the contingencies I had been speculating upon would happen. The electors, that group of faceless men, would waken to find themselves at the center of a hurricane. Desolate in spirit I tried to sleep but could not, appalled that our democracy had allowed itself to fall into such a calamity when its avoidance would have been so simple. I swore then that whatever the result this new day brought, I would do what I could to abolish this ridiculous and unnecessary anachronism, for I saw then that the Electoral College serves no possible purpose except to invite the very kind of insecurity in which we were then embroiled. Any system which accidentally condones such a situation is immoral, but one which actively invites it is idiotic.

  I awoke at six, with the results still not determined and with the possibility of a deadlock strong. I was then assailed by the most contradictory reactions. On the one hand I hoped that Humphrey would win enough votes to throw the election into the House, if only to prove to the nation what a gallant fighter he had been and to rebuke those experts who had laughed at his chances of victory; on the other I realized that if he did manage to force a deadlock, the popular vote and electoral, too, would be so conspicuously in favor of Nixon that it was illogical to hope for the anguish and confusion that would follow. For technical reasons which I shall discuss shortly, it seemed likely that Nixon would win in the end, so that it might be better if he won now. I truly did not know what a sensible man ought to hope for at this juncture, but as the vote in Missouri, Illinois, and California clarified, I had a sense of deep relief in knowing that an abyss had been avoided. The plan I had devised would not be needed. Symbolically, as if I were acting for the nation, I went back to sleep reassured that the peril was past. Someone else could worry about the future.

  Of course, if the election had proved inconclusive, and if Wallace had managed to engineer a deal in the College, throwing his pledged electors here or there, an appeal would likely have been taken to the Supreme Court. Similarly, if my plan had succeeded, with the two major parties agreeing to a switch of votes, it too would have been challenged. There was the further possibility that the two houses of Congress might mistakenly try to apply the election law of 1887—discussed more fully on this page—in an effort to force electors to vote the way their states had voted; but I concluded that if I understood this law correctly, Congress would be impotent. For example, if the Wallace states adhered to the law and the ritual in certifying their electors, if the electoral votes were properly recorded and transmitted, Congress would be obligated to accept and respect those results; and if Congress in its willfulness chose to do otherwise, an appeal to the Supreme Court would almost surely mandate an acceptance of the votes as cast.

  Any appeal to the Supreme Court would have entailed incalculable delays. A constitutional crisis would have developed and we might not have known until well into January whether the manipulations in the Electoral College had succeeded or not. One thing is certain. Turmoil would have developed, and any foreign power who sought an excuse for attacking our troops in Vietnam, the dollar, or our position in the free world would have had a choice opportunity in the chaos we had brought upon ourselves.

  There remains the chance that in a period of grave anxiety the Court might have been bullied into going against the Constitution and the law of 1887 and devising some pretext for disqualifying either the switched Wallace votes or those resulting from the Republican-Democratic fusion plan; and this Court decision would have thrown the election into the House, with results that we shall examine next. It seems entirely probable that we would have reached January 20 without knowing whom to inaugurate as our next President. (Quite possibly the Senate, being securely Democratic, would have elected Edmund Muskie as Vice-President and he would have served well into February.)

  I cannot imagine a worse way to govern
a nation. I cannot imagine a plan more surely calculated than this one to produce chicanery, fraud, and uncertainty. If we persist in this reckless lottery, we deserve the anguish it must ultimately bring upon us.

  On one factual point I must insist. Governor Wallace was entitled to play his dangerous game of trying to decide, by himself, who our next President should be, because our election laws encouraged him to do so. The Republican and Democratic members of the Electoral College were also entitled to try to forestall him, because our election law is so damnably inexact. If the law is not changed immediately, in 1972 someone else may place himself in position to dictate, and others, with the good of their nation at heart, will have to oppose him.

  ELECTION IN THE HOUSE

  If our system of electing a President were rational, one would be justified in supposing, “Since we have escaped disaster in the Electoral College, the rest of the course must be secure.” Quite the contrary. If an inconclusive election does manage to scrape through the pitfalls I have just outlined, it is thrown into the House of Representatives, where abominable things can happen. The risk to the nation is no less; invitation to corruption is greater; and the general insecurity of our political life is deepened. To have these two monstrous systems back to back, so that in escaping one you are thrown into the other, is an insanity that should no longer be tolerated.

  When the vote in the Electoral College discloses that a Presidential election has been inconclusive, the three candidates with the highest electoral votes move to the House of Representatives, which chooses among them. The House can, as we shall see, pass over the man with the most electoral and popular votes and choose the second or third, so that the man chosen is a minority President in every sense of the word.