Presidential Lottery: The Reckless Gamble in Our Electoral System

by James A. Michener

  Had I been one of the Democratic commissioners in the 1877 contest, the Louisiana problem would have posed a dilemma, for I would have agreed with the Republicans that Congress had no right to go behind a state’s declaration, but I would also have known that unless Congress did, we Democrats would lose. I remembered this when Republicans in 1960 were crying for a Congressional investigation into the Illinois vote; what Illinois reported those votes to be established the fact, and if fraud had been committed, its correction lay not in Congress but in Illinois.

  One aspect of this haphazard election was to bear unexpected consequences. When Democrats in the House threatened to take action which would nullify the impending theft of the Presidency, a deal was proposed to silence them. If the southern Democrats would look the other way, Hayes would pledge that when elected he would end Reconstruction governments in South Carolina and Louisiana and withdraw federal occupation troops from all parts of the south. This was a sensible compromise in that the most pressing problem before the incoming President, whoever he might be, was the reconciliation of the Union, and of the two contenders, Hayes was best suited to accomplish this. The deal was struck, the bargain kept. Hayes got the Presidency. The south got back its governments. But what Hayes did not anticipate was that those governments quickly became lily-white; the principles of the Ku Klux Klan were allowed to dominate; the south became solidly Democratic; and the interminable suppression of the Negro was revived. It would be too much to claim that this was the result of a faulty election system, but it does reflect the kind of deal men are forced into when the system is inexact and vulnerable to negotiation.

  Equally germane to our present discussion is the timetable of the 1876 crisis. Constitutional questions arising from it were not settled satisfactorily until 1887, a delay of eleven years, in spite of the fact that correction involved mere law and not a constitutional amendment. At the end of this essay, when I speculate as to how rapidly we might correct the flaws made evident in 1968, this long delay will be a precedent; but so will the earlier crisis of 1800. The flaw uncovered in that election was so flagrant that corrective action of drastic dimension was completed within three and one half years (final vote on Jefferson-Burr, February 17, 1801; submission of a proposed amendment to the states, December 8, 1803; ratification by three fourths of the states, July 27, 1804; amendment effective, September 25, 1804, in time to govern the Presidential election held that November). This too is a precedent to keep in mind.

  TWO BIZARRE PROPOSALS

  Because the American people have got to face up to the reckless gamble they are taking with the Presidency, it is necessary now to explore two proposals that were made only semi-seriously during the 1968 campaign but which deserve serious consideration, since each was practical and in the future might tempt desperate men who want to grab the Presidency.

  When it became apparent that Wallace was going to siphon off a respectable number of electoral votes and perhaps prevent either Nixon or Humphrey from winning, it was proposed in various quarters that two alternative courses of action could make Nelson Rockefeller President. In the first case, suppose the division of votes to have been Nixon 248, Humphrey 248, Wallace 42, which would produce not only an inconclusive electoral vote but also a fairly balanced distribution of state delegations in the House, so that neither Nixon nor Humphrey could have counted upon a victory there, either.

  In this impasse a beautiful stratagem lay open to the Rockefeller forces: simply persuade the New York electoral delegation of 43 votes to cast them for Rockefeller, who would then wind up in third place in the electoral voting, one vote ahead of Wallace, and would be one of the three names sent to the House, the other two being Nixon and Humphrey, neither of whom had a probability of victory. Then, in the House, a deal could be struck between the deadlocked Republicans and Democrats whereby Rockefeller, who might prove acceptable to both, would be given the Presidency upon his pledge to conduct a bipartisan administration.

  In the second instance, imagine the vote to have been Nixon 234, Humphrey 234, Wallace 70, with an evenly divided House. New York’s electoral votes alone will not project Rockefeller into third place, but all that is required is for Pennsylvania to join the compact, and with her votes Rockefeller again winds up in third position, with two votes more than Wallace, and is again put forth to the House as a compromise candidate satisfactory to both parties.

  This is not preposterous. New York and Pennsylvania laws do not punish electors of their states for voting as they wish; they are not constitutionally bound by election results, and if they preferred Rockefeller to the alternatives, they could have voted for him, with the results as indicated. There may be readers who would have preferred Rockefeller to either of the two major candidates, but no man should be elevated to the Presidency by a trick of this nature. The simple way to protect ourselves is to revise our election laws.

  The second strange proposal preoccupied me from the moment I thought of becoming an elector, and I am surprised that not more critics of our system have been aware of its possibility. Article II of the Constitution first enunciated a principle which has never been altered. It consists of two clearly worded statements: The electors “shall make a List of all the Persons voted for … and transmit sealed … to the President of the Senate.” If the vote is inconclusive, “then the House of Representatives shall immediately choose by ballot.” In the Twelfth Amendment the two words immediately choose were reversed as a matter of style, but the basic law remained the same.

  The question is: to which Congress does the list of electoral votes go, the old one or the new? And which House is entitled to do the choosing? Prior to the election I showed this provision to the fifty men and women of whom I spoke earlier and asked them what the words meant. Half said, “Of course it means the Congress in being now”—that is, the 90th; the other half said with equal conviction, “Naturally it means the incoming Congress”—that is, the 91st. The question has never been adjudicated; only custom, written into law in 1934, has determined that it should be the incoming Congress which receives the electoral count and the incoming House that elects the President in case of deadlock. Any Congress has full authority to change that law.

  In this ambiguity, suppose that in the November, 1968, election the results had been inconclusive and, furthermore, that the House had switched from the Democratic majority in the 90th Congress to a Republican majority in the 91st. It would have been simple and legal for a disgruntled President Johnson, as soon as he saw what the alignments were, to summon a special session of the old Democratic Congress for the purpose of revoking the law of 1934 and establishing an earlier date for counting the electoral vote. By this simple device the votes of the Electoral College would have been delivered to the lame-duck Congress and certified by it, whereupon the Democratic House could have proceeded to “choose immediately” Hubert Humphrey as President.

  I grant that it would have been unwise for President Johnson to attempt this; I grant that it would have been a cynical attack upon our system thus to force upon us a President we might not have wanted; and I grant that Republicans in the Senate might have filibustered throughout December to repel the circumvention. But I also grant that under our present laws the effort would have been legal. I can easily foresee emergency situations in which this tactic could be used against the general welfare and the wishes of the people. It can easily be forestalled by a simple declaration in the next amendment as to which Congress has the authority.

  The point that must be stressed in any evaluation of our present system is that it is founded partly on the Constitution, mainly on inherited custom. There is no reason why we should not change the latter if it no longer serves us; nor is there any reason why we should not change the constitutional framework too, if it is proving faulty. I think we misuse patriotism if we fall back upon it as a reason for rejecting change in our Constitution, and I thank Neal R. Peirce for citing in his excellent book The People’s President, James Madison’s confessi
on on the matter we are discussing: “The difficulty of finding an unexceptionable process for appointing the Executive Organ of a Government such as that of the U.S., was deeply felt by the Convention; and as the final arrangement took place in the latter stages of the session, it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such bodies; tho’ the degree was much less than usually prevails in them.”* The convention was nodding when it approved some of the provisions in the great compromise, and they should be corrected.

  * Many subjects dealt with in this essay are developed in much greater detail in Peirce’s The People’s President (New York, Simon and Schuster, 1968), which reaches certain conclusions contrary to mine.

  IV

  CERTAIN SENSIBLE PROPOSALS

  It must be apparent to any serious student of our political system, and to even the most casual voter who has the best interests of his nation at heart, that we ought to take steps immediately to abolish both the Electoral College and the choosing of Presidents by the House of Representatives. On these two points there appears to be unanimity, but as to what we should do after these corrections have been made, there is considerable difference of honest opinion, and I should now like to explore both the proposals and the opinions, masking, if I can, my own preferences, which will be stated later.

  But before I proceed I must put forth certain fundamental principles which underlie anything I have to say about government, for these convictions, gathered for the most part from the writings and experiences of our Founding Fathers, have served me as guidelines through all my thinking on politics, both in this nation and in the others in which I have worked.

  I apologize for the intrusion of certain personal references. I write not as an author of books; I write as one who has been deeply concerned about the government of this nation and of all nations. In 1960 I served as a county chairman for Senator John F. Kennedy and campaigned for him across the country. In 1962 I ran for Congress in Bucks and Lehigh Counties in Pennsylvania, and lost, in part because I was up against a long-term incumbent who knew precisely what was required to hold onto his seat in his district, and in part because my opponent had a registration superiority of about 20,000 votes, which is a good thing to have in an election. In 1964 I campaigned on behalf of President Lyndon B. Johnson in three states, and in 1968 I not only worked vigorously for Vice-President Hubert H. Humphrey in a frantic airplane caravan but also wrote his official campaign biography.

  In 1967 I served as secretary to the Pennsylvania Constitutional Convention and helped engineer a revision which would bring Pennsylvania into the forefront of states insofar as a modernized, constructive constitution was concerned. In this enterprise I had the opportunity of working at close quarters with William Scranton, former governor, who provided our convention with the moral stability and leadership any such group requires; it was partly because of Scranton that Pennsylvania became the only recent state to achieve a complete reform of its constitution, New York, Maryland, Rhode Island, and others having tried and failed. I speak favorably of Scranton because when the time came for the voters of our state to accept or reject the new constitution, Chief Justice John Bell, of our Supreme Court, and his associate, Justice Michael Musmanno, leveled blasts against it of such weight and fury that it would have been defeated had not Scranton addressed the people of the state in these measured terms: “The charges made against the proposed changes by Justices Bell and Musmanno are the charges of two distinguished, nit-picking elderly statesmen who are interested not in the welfare of the state but in their personal prerogatives. If you voters decide to throw out the splendid work we have done for you, the best revision I am sure that this state could have produced, then you are out of your minds.” I cite these extraordinary words because I believe they could serve as copy-texts in the months ahead when proposals to change our system of electing Presidents are brought before the people for their acceptance or rejection.

  Finally, in 1968 I served as co-chairman of a special committee charged with submitting recommendations for the general overhaul of procedures by which the Pennsylvania legislature operates. I would hope that in the years ahead I would continue to find the energy to work in politics, for I consider it one of the most fruitful exercises of the human mind.

  The following are the three basic principles which have governed my attitude toward the mechanics of government, it being assumed that other principles of similar weight—such as justice, equality, economic stability, and a judicious respect for historical derivations—determined my attitude toward the moral aspects of government.

  Legitimacy. The more I see of nations and the manner in which they govern themselves the more convinced I become that a prime requirement of any good government is that it be legitimate, that its sources of power be clear-cut and aboveboard, that its citizens accept decisions as honestly derived. People must see for themselves that laws are honestly passed, that Supreme Court decisions are untainted, that Presidents are fairly chosen.

  In ancient days it was a priestly prerogative and obligation to bear public witness to the fact that kings descended legitimately one from the other, and great effort was spent to trace out lineages or associations whose authenticity would be apparent to the nation and accepted by it. The fact that in a democracy we do not rely upon our priests to perform this necessary function means not that the function is less obligatory but that it must be performed with scrupulous care by those into whose charge it falls.

  I must conclude, therefore, that one of the damning weaknesses of our present system of choosing Presidents is that connivings in either the Electoral College or the House could cast doubts upon the legitimacy of the succession. That is the best single reason for reform. Whatever new system we adopt must add to the visible legitimacy of our government.

  Two-party system. Our two-party system is infinitely better than any one-party system so far devised, and considerably better than any three-party system, or twenty-party. Although its roots extend backwards to Greece, its operational perfection is a unique contribution of the Anglo-Saxon political mind, and it functions. It seems to me, after long involvement in rather tough two-party politics, that anything which strengthens this system is good for America and anything which weakens it is bad.

  One of the things I have done in politics which seems now to have been more sensible than most came at the end of Hawaii’s first general election after the granting of statehood. It was a bitter brawl, a true confrontation between an old, good, powerful, paternal system of government that had run the islands well and autocratically for many generations, and a rambunctious, liberal, somewhat undisciplined, future-looking uprising of groups who no longer wished to be governed in the old patterns. My side lost. But in the days immediately after the heated battle I wrote a series of articles for the local paper, in which I pointed out that the Republican victors would be wise indeed if they found jobs and provided opportunities for the young Democrats who had lost. I advised this on the grounds that sooner or later Hawaii was going to have Democrats in government and it was better to have good ones than bad, to have men who had not been forced to make unwise commitments but who had earned their livelihood in responsible ways that bound them to the community. Today the young Democrats of whom I then spoke help govern Hawaii and sit in Congress to help govern the nation. Today I would tell them the same thing about Republicans; sooner or later Republicans will again be in power in the islands and it will be better for all if they are good Republicans rather than bad.

  The more rugged the party battles, the more those who participate in them approve our system of allowing our two parties to assume responsibility for the organizing of our political life. It would be senseless for us to flee the known dangers of the Electoral College only to create the greater dangers of a multi-party system. In order for American government to function, we require strong parties and must introduce no reforms which would weaken them. As a hard-working Democrat I have always felt m
ore at ease with a dedicated Republican than with a wishy-washy Democrat, because the former is essential to my own welfare, whereas the latter may do both me and my nation much damage.

  Federalism. Much of our national vitality has derived from the compromises worked out by our Constitutional Convention in 1787 whereby the rights of large and small states were kept in balance. I have lived both in states with few electoral votes, like Hawaii and Colorado, and in large ones, like New York and Ohio, and I know at first hand the inequalities of our system, but I cannot imagine a federal balance more adroitly assembled than ours. The delicate arrangements so painfully worked out should not be upset.

  From time to time I have been challenged by my friends regarding this principle of states’ rights, and I have myself questioned why a man so liberal in so many areas should in this critical one incline always toward the more conservative view. I believe it stems from my early admiration for Alexander Hamilton and John C. Calhoun, the cerebral senator from South Carolina, who, if he did not coin the phrase, first brought it to my attention: “The minority must be protected from the tyranny of the majority.” I know well how this principle led Calhoun into the successive follies of southern partisanship, nullification, and secession, and I know how Calhoun, hewing to the line of this principle, lost in the greatest philosophical debate our Congress has ever engaged in, that led by the federalist Daniel Webster against the states’-rights Calhoun; but I know also that the foundation of Calhoun’s thinking was sound and that he enunciated truths which are as vital today as when he spoke them. The main one, I think, was his concern over the tenuous relationships which bind our states and regions together.