Presidential Lottery (2 page)

The qualified elector, therefore, is free to vote precisely as he wishes, which was the original intent of the Constitution and which is its intent now. Look at the experience in recent years.

In 1948 Preston Parks of Tennessee happened to be nominated as an elector on two different slates, one for Truman, the other for Thurmond. Truman carried the state, but Parks decided that he preferred Thurmond and voted for him. Tennessee was powerless to prevent him from doing so, for he was a legally elected Presidential elector and could do as he pleased.

In 1956 W. F. Turner of Alabama was elected to vote for Adlai Stevenson, but when the time came to vote he cast his ballot for a local judge, Walter E. Jones. In explanation Turner said, “I have fulfilled my obligation to the people of Alabama. I’m talking about the white people.”

Oklahoma’s law punishing such behavior came about in this way: In 1960 Henry D. Irwin, pledged to Nixon, decided to strike out on his own and cast his ballot for Senator Harry Byrd. This caused a storm of protest, but Irwin explained that in his opinion the Founding Fathers of our nation were land-owners and propertied people who never intended that “the indigent, the non-property owners should have a vote in such a momentous decision” as the election of a President. Shortly thereafter Oklahoma established the requirement that a nominee elector must subscribe to a statutory oath that if
elected he will cast his ballot for his party’s candidate, or be liable to the $1,000 fine.

Actually, in the elections between 1820 and 1964 a total of 15,245 citizens served as electors and only four voted contrary to the will of their states. (A larger figure is sometimes cited, depending upon definitions.) The national attitude on this point was expressed vigorously by an outraged Pennsylvania voter in 1796. The state had gone for John Adams, but one of the electors decided on his own to vote for Thomas Jefferson. “Do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I choose him to act, not to think.” In general, electors have acted and not thought, but this does not establish a rule that they must always do so. The fact that this system is open to violent abuse is indeed an invitation to abuse.

In my case I was chosen to be an elector because I had worked hard for my party. I was passed upon by no public hearing, no primary vote, no board of qualifications, no review of my prior public service. My finest credentials were that each year I contributed what money I could to the party.

As to the offering of any pledge that I would vote the way my state voted, the official document previously cited surmised that since Hubert H. Humphrey, the nominee of the Democratic party, had personally chosen me as required by Pennsylvania law, it seemed “apparent that such electors must have pledged their loyalty to such Presidential nominee or he would not have selected them.” This assumption is wrong on two counts. Hubert Humphrey did not nominate me, no matter what the law provided; Milt Berkes did. And no
pledge of any kind was required, either verbal or written, and none was given.

I can say further that up to the convening of the Electoral College on December 16, 1968, I did not know the name of one elector from Pennsylvania, on either the Republican side or the Democratic. (I did tell one audience that I knew one of the Democratic electors, Philip Berman, an Allentown businessman of sturdy reputation, but I was wrong. It was his wife who had been chosen.)

I doubt if the voters in any state knew who the proposed electors of their party were, or cared. Electors have properly been termed “the faceless men,” and in any normal year it is appropriate that they remain so; but in an abnormal year their capacity to wreck our system is so tremendous that attention must be paid them.

OCTOBER

In late August any prospect that I might be an elector was remote, because then it seemed that the Democrats had no chance of winning the nation and less of taking Pennsylvania. Although I continued to worry about the general deficiencies of the Electoral College, I did so in an impersonal way, for they no longer involved me.

In September my chances diminished, because my home district happened to include a strong concentration of Wallace supporters and it seemed possible that Wallace and not
Humphrey would wind up in second place, a fear that was enhanced when the straw vote in our local high school showed Nixon winning but with Wallace pressing him in second position. Humphrey finished so far behind that students who had voted for him were conspicuous and were noted unfavorably by their companions. For some time I had believed that Nixon would win with 309 electoral votes, but my first doubt came one afternoon when Mrs. Place, my tennis-playing neighbor, told us on the courts, “I’m scared. Marketing today I met eleven people I know well. They were all for Wallace. What frightens me is this time last year they were Republicans.” She was the first in our area to foresee that the Wallace vote was going to hurt not the Democrats but the Republicans. She even feared that the defection might be great enough to keep Nixon from carrying Pennsylvania. So in late September I began once more to weigh seriously what might happen if Nixon did not win enough electoral votes to decide the issue on election day.

In early October things changed dramatically. I made an extended series of political speaking trips to major cities throughout Pennsylvania—places like Scranton, Wilkes-Barre, Chester, Hazelton—and it became quite apparent that if the Democratic party was dead, word of that fact had not reached the corpse. Wherever I went I was met by large crowds who wanted to talk politics, who wanted to work. At one point I spoke to seven fund-raising dinners in a row, some in strong Republican areas where in normal years our party could collect nothing, and at every one the hall was jammed, money was forthcoming, and enthusiasm was high.

After one such dinner at which four hundred more than expected had shown up, and had paid $100 a couple, I returned home and wrote, “I’m confused. Everything seems backwards. Normally a politician’s intelligence tells him he can’t win, but his emotions keep him hoping. In this campaign my emotions tell me our side can’t win, but my intelligence tells me that if so many people come out night after night, we’ve got to carry Pennsylvania and maybe even New York. There’s a strong chance that Nixon is not going to get his 270 electoral votes.”

In late October it became obvious that Humphrey would carry Pennsylvania and probable that Nixon would not get the majority required to win. Thus I would be a Democratic elector in precisely the kind of impasse I had feared. I spent many hours contemplating what I ought to do as a Democratic elector if the November 5 results did prove inconclusive.

Obviously, what I ought to do is what I had been nominated to do, cast an automatic vote for my party, throw the election into the House, and trust that fancy footwork among the Congressmen would enable us to salvage there the victory that had been denied us at the ballot box.

But this was not going to be a year for automatic votes, one way or the other, and I hope the reader will follow carefully what I am about to say, consulting frequently the table of election results given in
Appendix D
.

The significance of a deadlocked election was unavoidably clear to me, living as I did among strong Wallace supporters. If Wallace carried Alabama (10), Arkansas (6), Florida
(14), Georgia (12), Louisiana (10), Mississippi (7) and South Carolina (8), he would have a total of 67 electoral votes, and this could give him the balance of power in the election, because when the Electoral College met he could direct his electors to vote not for him but for either Nixon or Humphrey, whichever would promise him the most. One man—a small, clever, intelligent rabble-rousing judge from Alabama—could determine the destiny of this nation. It was not an attractive prospect.

We must now try to determine whether this threat was real or not. As to the risk that the election on November 5 might prove inconclusive, there could be no doubt; I feared it and so did everyone else who appreciated the possibilities. That Governor Wallace might wind up with a sizable block of votes which he could throw either way was probable. That Wallace could exercise any leverage if the election were thrown into the House seemed unlikely, in that no candidates for the House were running on the Wallace ticket nor were any publicly pledged to him; the decision there could be made apart from Wallace, so if he wished to exercise definitive leverage he had to do it promptly and in the Electoral College. Finally, since electors could do anything they pleased, and since Wallace would have a strong hold on his, I had to conclude that the Wallace threat was real, it was legal, and it could be accomplished. George Wallace could actually dictate who our President was to be. Furthermore, he had given adequate warning of his intentions.

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.