Presidential Lottery (5 page)

I hope that at this point the reader will study carefully
Appendix D
and construct for himself a list of the possibilities that could have emerged on election day, to produce an inconclusive result. The simplest contingency involves Illinois and Missouri:

If Nixon had lost these two states, which he could have done with a swing of only 67,481 votes in Illinois and 10,245 in
Missouri, he would have had not 302
^*
electoral votes but 38 fewer, or 264, which would have been insufficient for him to be elected. In other words, we came very close to a House election.

Since it is traditional for the incoming Congress to hold the election, it would have been the political division of the 1969 House that would have determined whether Nixon or Humphrey would be President, so its composition must be kept in mind throughout the discussion that follows (see table on
this page
–
this page
).

Since 26 states are required to elect a President, and since the 21 regular Democratic states plus the 5 southern states that went for Wallace but which have Democratic majorities would add up to that number, it might at first glance seem likely that Humphrey would have won. However, this implies several assumptions that are not necessarily valid.

Assumption 1.
That the five Wallace states would vote Democratic. It is true that Wallace controlled no House members by having them as announced members of his party and running on his ticket; but he did control their sympathies, and there might have been enormous profits either to them personally or to their states if they voted Republican in order to deprive Humphrey of a victory. On the other hand, these southern states appreciate the advantages that accrue to them when a Democrat is in the White House and they would not lightly throw away that leverage. I doubt that one can estimate now how these states would have voted, but we do
know that they would have been the focus of such dealing, such chicanery, such promises, and such log-rolling as we have not seen for a long time.

Assumption 2.
That the 21 states in the Democratic column would have mustered all their delegates through twenty or thirty ballots. Kentucky, Nevada, Pennsylvania, and Tennessee would all have Democratic margins of one vote; illness or absence could immobilize these states and cast them into
the deadlocked column. Of course, by the same reasoning, Republican majorities of one in the following states would have been equally vulnerable: Alaska, Arizona, Delaware, Vermont, Wyoming. It must be remembered, however, that in the early stages of the balloting the Republicans would have been in the passive posture of merely trying to prevent a Democratic victory, so that it would not have mattered if some of their states had fallen into the deadlocked column,
since deadlocked states would have counted as votes against the Democrats. Of course, when it came time for the Republicans to try to put together 26 votes of their own to elect Nixon, any defection would have been fatal, but in general the possibility of deadlocked states would have hurt the Democrats more than the Republicans.

Assumption 3.
That the deadlocked delegations would have remained deadlocked. The pressures on these split delegations would have been tremendous, and that they could have remained evenly balanced is doubtful. Remember that it was the unlocking of such delegations in 1801 that finally solved that impasse, and in a protracted series of indecisive ballots, it would probably again be the deadlocked delegations that would decide the issue.

Assumption 4.
That Republicans would remain Republicans and Democrats stay Democrats through a long impasse. In 1801, key delegates withdrew their loyalty on the crucial ballot. This would probably have happened in 1969, too.

One can say with certainty that on the day it became clear that the 1968 election was headed to the House, a band of the most expert character analysts in the nation—the henchmen of the major parties—would have been studying each House member with a microscope, his family, his college deportment, his bank loans, his son’s addiction to drugs, his business interests, in order to find the weak spots in that man’s armor. And when those spots were found, a dozen prying fingers would be thrust therein to tear that man apart. It would require supermen to withstand these pressures.

In addition, there would have been the normal pressures
of a troubled conscience: what ought a man who loves his country and his party do at this point? These are not light matters, but our election system seems to delight in placing men in positions where unusual and unnecessary pressures are thrust upon them.

Another factor which must be taken into account in calculating whether the apparent majority of Democratic states could have been delivered to Humphrey is the climate of opinion that would have existed at the time balloting took place. It would not have been conducive to a Humphrey victory. Television, still smarting from Chicago, would have continued to do all it could to discredit the Democrats. Its probing eye would have sought out every evidence of a break in Democratic ranks and exploded the rumor into fact. Meetings between negotiating delegates, supposed to be clandestine, would have been magnified into treachery. Newspapers which tended to support the Republican side, or did so outright, would have been justified in pointing out that since Nixon had won a plurality of the popular vote, however slight, he was entitled to the Presidency and that to deny him was treason. Gangs of young white people from the radical left would have descended on Washington to make one supreme effort to deny the Presidency to Humphrey, the inheritor of Johnson, and there would have been some ugly scenes, all reported instantly across the nation as proof of what might be expected if the Democrats won; but the solemn fact is that the election would have been conducted in the city of Washington, predominantly a Negro city, and when these citizens saw that all public pressures were being applied on the side
of Nixon, a man who had ignored them in the campaign and against whom they had voted heavily (139,556 to 31,012), there would have been a great temptation to launch rallies and riots of their own, to offset what they saw happening on television. This tenseness would have been increased by the fact that whereas the Twenty-third Amendment awarded the District of Columbia three votes in the Electoral College, those votes would have been lost when the election went to the House, since the District of Columbia has no representation there. The vote would have been held in Washington, but with Washington itself excluded. Finally, the analogies that one would naturally draw between 1801 and 1969 would in one vital area not apply. Then it required days and even weeks for news of what was transpiring in Washington to reach the hinterlands; even Burr, staying in New York, was not informed until two days later at the best as to what the vote had been in crucial tests. Time and distance softened the impact; when unpleasant news did reach a distant city, what could the citizens do about it, since the fact was now history accepted by the capital? In 1969 the sharing of news is instantaneous, and if the seven days of suspense that characterized the 1801 election were to have been repeated in 1969, the anxiety would not only have been much more intense; it would also have embraced the whole nation. Because the frustration would have been instantaneous, those frustrated would have felt that they could do something about it, and I am apprehensive when I contemplate what form that action might have taken.

How would the 1969 House election have gone? The balance
of power as shown in the composition of state delegations gives no cause for thinking that it would have gone easily. Theodore G. Venetoulis, in his analysis of the House election system,
^*
has a grimly amusing chapter containing nineteen pages of speculation on “1968—The Year No President Was Elected.” He carries his imaginary election through twenty-three deadlocked ballots, and as the capital prepares for the twenty-fourth, a snow begins to fall, as it had in a similar situation in 1801. Reading his account after the Nixon-Humphrey election, one realizes that he has not relied on fantasy. It all could have happened.

Looking at the problem of House election, Venetoulis concludes: “It is inevitable that any Presidential election thrust into the Congress is going to touch off a horrendous struggle that will strain the political ethics of our society. The Presidency of the United States must not be the product of insolent intrigue, malapportioned gimmickry, or crude coalitions fashioned out of despair, exhaustion, or blackmail.”

James Madison, even though he had helped draft the Constitution, had no illusions about the error of having inconclusive elections thrown into the House. In 1823 he had unequivocal thoughts on the mistake he and his colleagues had made: “The present rule of voting for President by the House of Representatives is so great a departure from the republican principle of numerical equality, and even from the Federal rule, which qualifies the numerical by a State equality, and is so pregnant also with a mischievous tendency in practice, that an amendment to the Constitution on this
point is justly called for by all its considerate and best friends.”

If an amendment was needed in 1823—two years before the Jackson-Adams deadlock—how much more is one needed today. Fortunately, as we shall see, there are two quite simple escapes from this error, and each is easily attainable by amendment. First, when the electoral vote is inconclusive, a run-off election could be held immediately between the two top candidates, and this would produce a quick, final, and easily accepted solution. Second, if the nation does not want the expense and protracted anxiety of another nationwide election so soon after the first, the choice could be thrown into the House, but the Senate would meet with the House in joint session and each member of Congress would have one vote. Since there would be 535 members in all, 268 votes would be required for election, and the nonsense of permitting deadlocked states to have no vote at all would be ended, along with the injustice of allowing Alaska to have sixty-nine times the voting power of California.

I shall say more about these alternatives later, but with such easy solutions at hand, it is difficult to explain why we cling to a discredited procedure which might bring us much grief.