Presidential Lottery: The Reckless Gamble in Our Electoral System

by James A. Michener

  SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.

  AMENDMENT 25

  (Ratified February 10, 1967)

  SECTION 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

  SECTION 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

  SECTION 3. Whenever the President transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

  SECTION 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President Pro Tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

  Thereafter, when the President transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President Pro Tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

  * Revised by 12th Amendment.

  APPENDIX B

  PROPOSED AMENDMENTS TO THE CONSTITUTION

  1. THE AUTOMATIC PLAN

  [Text of proposed amendment to the Constitution, introduced Jan. 3, 1969, by Rep. Hale Boggs (D., La.) and others.]

  Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and together with the Vice President chosen for the same term, be elected as provided in this Constitution.

  The President and Vice President shall be elected by the people of each State in such manner as the legislature thereof may direct, and by the people of the District constituting the seat of the Government of the United States (hereafter in this article referred to as the “District”) in such manner as the Congress shall by law prescribe. The Congress may determine the time of the election of the President and Vice President, which day shall be the same throughout the United States. In such an election, a vote may be cast only as a joint vote for the election of two persons (referred to in this article as a “presidential candidacy”) one of whom has consented that his name appear as candidate for President on the ballot with the name of the other as candidate for Vice President, and the other of whom has consented that his name appear as candidate for Vice President on the ballot with the name of the said candidate for President. No person may consent to have his name appear on the ballot with more than one other person. No person constitutionally ineligible to the office of President shall be eligible to that of Vice President. In each State and in the District the official custodian of election returns shall make distinct lists of all presidential candidacies for which votes were cast, and of the number of votes in such State for each candidacy, which lists he shall sign and certify and transmit to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the electoral votes shall be computed in the manner provided in section 2.

  Section 2. Each State shall be entitled to a number of electoral votes for each of the offices of President and Vice President equal to the whole number of Senators and Representatives to which such State may be entitled in the Congress. The District shall be entitled to a number of electoral votes for each such office equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State. In the case of each State and the District, the presidential candidacy receiving the greatest number of votes shall be entitled to the whole number of the electoral votes of such State or District. If a presidential candidacy receives a plurality of at least 40 per centum of the electoral votes, the persons comprising such candidacy shall be the President-elect and the Vice President-elect. If no presidential candidacy receives a plurality of at least 40 per centum of the electoral votes, a run-off election shall be conducted, in such manner as the Congress shall by law prescribe, between the two presidential candidacies which receive the greatest number of electoral votes. The persons comprising the candidacy which receives the greatest number of electoral votes in such election shall become the President-elect and the Vice President-elect.

  Section 3. The Congress shall by law provide procedures to be followed in consequence of the death or withdrawal of a candidate on or before the date of an election under this article, or in the case of a tie.

  Section 4. The twelfth article of amendment to the Constitution, the twenty-third article of amendment to the Constitution, the first four paragraphs of section 1, article II of the Constitution, and section 4 of the twentieth article of amendment to the Constitution are repealed.

  Section 5. This article shall not apply to any election of the President or Vice President for a term of office beginning earlier than one year after the date of ratification of this article.

  2. THE DISTRICT PLAN

  [Text of proposed amendment to the Constitution, introduced Jan. 15, 1969, by Sen. Karl Mundt (R., S.D.) and others.]

  Section 1. Each State shall choose a number of Electors of President and Vice President equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be chosen an Elector.

  The Electors assigned to each State with its Senators shall be elected by the people thereof. Each of the Electors apportioned with its Representatives shall be elected by the people of a single-member electoral district formed by the legislature of the State. Electoral districts within each State shall be of compact and contiguous territory containing substantially equal numbers of inhabitants, and shall not be altered until another census of the United States has been taken. Each candidate for the office of Elector of President and Vice President shall file in writing under oath a declaration of the identity of the persons for whom he will vote for President and Vice President, which declaration shall be binding upon any successor to his office. In choosing Electors the voters in each State shall have the qualifications requisite for Electors of the most numerous branch of the State legislature.

  The Electors shall meet in their respective States, fill any vacancies in their number as directed by the State legislature, and vote by signed ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice P
resident; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, the number of votes for each, and the name and electoral district, if any, of each Elector who cast his vote for each such person, which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted. Any vote cast by an elector contrary to the declaration made by him shall be counted as a vote cast in accordance with his declaration. The person having the greatest number of electoral votes for President shall be the President, and the person having the greatest number of electoral votes for Vice President shall be the Vice President, if such numbers are a majority of the whole number of Electors chosen. If two persons have the same total number of electoral votes, which number is one-half of the whole number of Electors chosen, the person having the greatest number of votes cast by Electors chosen from electoral districts shall be President, or Vice President, as the case may be.

  If no person voted for as President has such a majority, then from the persons having the three highest numbers of votes for President, the Senate and House of Representatives together, each member having one vote, shall choose immediately, by ballot, the President. A quorum for such purpose shall be three-fourths of the whole number of the Senators and Representatives, and a majority of the whole number shall be necessary to a choice. If an additional ballot is necessary, the choice on the second ballot shall be between the two persons having the highest numbers of votes on the first ballot.

  If no person voted for as Vice President has such a majority, then the Vice President shall be chosen from the persons having the three highest numbers of votes for Vice President in the same manner as herein provided for choosing the President. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.

  Section 2. The Congress shall have power to carry this article into effect by appropriate legislation. The Congress may provide by law for the determination of questions concerning breach of faith by Electors in the casting of electoral votes, and for the case of the death of any of the persons from whom the Senate and the House of Representatives may choose a President or a Vice President whenever the right of choice shall have devolved upon them.

  Section 3. This article supersedes the second and third paragraphs of Section 1, Article II, of the Constitution, the Twelfth Article of Amendment to the Constitution, and Section 4 of the Twentieth Article of Amendment to the Constitution.

  Section 4. Electors appointed pursuant to the Twenty-third Article of Amendment to this Constitution shall be elected by the people of such district in such manner as the Congress may direct. Candidates for Elector and Electors of such district shall have the same obligations, and shall perform the same duties, as candidates for Elector and Electors of the several States under this article.

  Section 5. This article shall take effect on the 4th day of July following its ratification.

  3. THE PROPORTIONAL PLAN

  [Text of proposed amendment to the Constitution, introduced Jan. 15, 1969, by Sen. Sam J. Ervin, Jr. (D., N.C.) and others.]

  Section 1. The Executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected as provided in this Constitution.

  The office of elector of the President and Vice President, as established by section 1 of article II of this Constitution and the twelfth and twenty-third articles of amendment to this Constitution, is hereby abolished. The President and Vice President shall be elected by the people of the several States and the District constituting the seat of government of the United States. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that the legislature of any State may prescribe lesser qualifications with respect to residence therein. The electors in such District shall have such qualifications as the Congress may prescribe. The places and manner of holding such election in each State shall be prescribed by the legislature thereof; but the Congress may at any time by law make or alter such regulations. The place and manner of holding such election in such District shall be prescribed by the Congress. Congress shall determine the time of such election, which shall be the same throughout the United States. Until otherwise determined by the Congress, such election shall be held on the Tuesday next after the first Monday in November of the year preceding the year in which the regular term of the President is to begin. Each State shall be entitled to a number of electoral votes equal to the whole number of Senators and Representatives to which such State may be entitled in the Congress. Such District shall be entitled to a number of electoral votes equal to the whole number of Senators and Representatives in Congress to which such District would be entitled if it were a State, but in no event more than the least populous State.

  Within forty-five days after such election, or at such time as Congress shall direct, the official custodian of the election returns of each State and such District shall make distinct lists of all persons for whom votes were cast for President and the number of votes for each, and the total vote of the electors of the State or the District for all persons for President, which lists he shall sign and certify and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. On the sixth day of January following the election, unless the Congress by law appoints a different day not earlier than the fourth day of January and not later than the tenth day of January, the President of the Senate shall, in the presence of the Senate and House of Representatives, open all certificates and the votes shall then be counted. Each person for whom votes were cast for President in each State and such District shall be credited with such proportion of the electoral votes thereof as he received of the total vote of the electors therein for President. In making the computation, fractional numbers less than one one-thousandth shall be disregarded. The person having the greatest number of electoral votes for President shall be President, if such number be at least 40 per centum of the whole number of such electoral votes. If no person has received at least 40 per centum of the whole number of electoral votes, or if two persons have received an identical number of electoral votes which is at least 40 per centum of the whole number of electoral votes, then from the persons having the two greatest numbers of electoral votes for President, the Senate and the House of Representatives sitting in joint session shall choose immediately, by ballot, the President. A majority of the votes of the combined authorized membership of the Senate and the House of Representatives shall be necessary for a choice.

  The Vice President shall be likewise elected, at the same time and in the same manner and subject to the same provisions, as the President, but no person constitutionally ineligible for the office of President shall be eligible to that of Vice President of the United States.

  The Congress may by law provide for the case of the death of any of the persons from whom the Senate and the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of death of any of the persons from whom the Senate and the House of Representatives may choose a Vice President whenever the right of choice shall have devolved upon them. The Congress shall have power to enforce this article by appropriate legislation.

  Section 2. This article shall take effect on the tenth day of February next after one year shall have elapsed following its ratification.

  4. DIRECT POPULAR VOTE

  [Text of proposed amendment to the Constitution, introduced Jan. 15, 1969, by Sen. Birch Bayh (D., Ind.) and others.]

  Section 1. The people of the several States and the District constituting the seat of Government of th
e United States shall be the electors of the President and Vice President. In such elections, each elector shall cast a single vote for two persons who shall have consented to the joining of their names on the ballot for the offices of President and Vice President. No persons shall consent to their name being joined with that of more than one other person.

  Section 2. The electors in each State shall have the qualifications requisite for the electors of members of the Congress from that State, except that any State may adopt less restrictive residence requirements for voting for President and Vice President than for members of Congress and Congress may adopt uniform residence and age requirements for voting in such elections. The Congress shall prescribe the qualifications for electors from the District of Columbia.

  Section 3. The persons joined as candidates for President and Vice President, having the greatest number of votes shall be declared elected President and Vice President, if such number be at least 40 per centum of the total number of votes certified. If none of the persons joined as candidates for President and Vice President shall have at least 40 per centum of the total number of votes certified, a runoff election shall be held between the two pairs of persons joined as candidates for President and Vice President who received the highest number of votes certified.

  Section 4. The days for such elections shall be determined by Congress and shall be the same throughout the United States. The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations. The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed by the Congress for such elections in the District of Columbia.