Presidential Lottery (9 page)

I am surprised that this group of keen politicians and social philosophers should have failed to anticipate the two rocks on which their plan would founder. First, they did not foresee the rise of political parties or the way in which they would destroy the effectiveness of the electors. Second, they did not guess that election by the House would work so poorly. This blindness on the part of the best leadership this nation has ever produced should give one pause if he thinks that in the next few years our current leadership will be able to come up with corrections that will end past abuses without introducing new. There could well be unforeseen weaknesses in our plans that would produce results just as unexpected as those which overtook the first great plan.

DEVELOPMENT OF THE SYSTEM

If one looks at our first three Presidential elections, one might conclude that the electoral plan had worked as proposed. In 1789 the electors did meet in their own states, they did consider the great men of our nation, and they did settle upon
George Washington, by a vote of 69 to 0. In 1792 they did the same, by a vote of 132 to 0. In 1796, when for the first time there was a real contest, the system still proved effective, for the electors met, studied the credentials of the grand figures still among them, and chose John Adams over Thomas Jefferson, by a vote of 71 to 68. It is true that factionalism and not philosophy dictated the choice between the two men, and it is also true that the debacle of 1800 was ominously presaged when certain leaders in Adams’ party entered into a cabal to give Thomas Pinckney of South Carolina the same number of votes as Adams, with the idea of making Pinckney President when the election went to the House. This was forestalled by the fact that Jefferson slipped into second position, thus eliminating Pinckney, but this produced its own unacceptable result: President Adams and Vice-President Jefferson were of different factions and not personally congenial.

The 1800 election magnified these weaknesses and proved certain aspects of the system were not only ineffective but also corrupting. Whereas Pinckney supporters in 1796 had lost in their gamble of forcing a tie vote which could have been used to deny Adams the Presidency, in 1800 Burr had engineered just such a vote and had nearly succeeded in this disreputable stratagem. Furthermore, when the brutal battle was over, Jefferson wound up with Burr as his Vice-President, a pairing that must have been intolerable to both men.

The principal reason the original electoral plan was producing so many unexpected results was that early in the life of our republic political parties emerged with an importance no one had foreseen, and electors quickly saw that if they
consolidated their vote behind their party’s choice, they would gain a considerable advantage, and this they did. The splendid original concept of men of high principle convening to pass upon the credentials of those who might lead the nation had swiftly degenerated into the practical maneuver of party hacks meeting to confirm the choice their party had already made. As early as 1800 every elector but one cast a straight party vote.

The fact that a noble concept should have failed was not exceptional; the fact that the failure was not corrected was. The Twelfth Amendment did eliminate the chance of another Adams-Pinckney or Jefferson-Burr misunderstanding as to who was running for what, but it continued the office of elector—already discredited—and made no significant changes in the procedure by which the House voted for President, although it did allow a choice to be made from the three top candidates instead of two, as before.

Starting in 1796 three parallel lines of accidental development determined the character of our election system, and not one was a result of either constitutional amendment or Congressional law. The vital processes I now speak of were the result of custom. When occasionally they were reinforced by state law, the statutes were of the most diverse nature.

Election of the electors.
Both the Constitution and the Twelfth Amendment leave the method of selecting electors to the judgment of the various states, and we have seen how varied that can be. At the start most states gave their legislatures the job of designating electors, but custom forced the rapid decline of this tradition. In 1800 ten states out of sixteen
used that method; in 1824, six out of twenty-four; and by 1832 the practice had practically vanished, only South Carolina clinging to this concept through the election of 1860. (When Colorado was admitted to the union in 1876 she allowed her legislature to pick her electors, as did Florida in that same year, but these were curiosities to be quickly abandoned.) Custom had dictated a significant change in the system.

Observe that insofar as the Constitution is concerned, any state is free to distribute its electors among the various parties as it wishes; in the early elections, if a given state wanted to split its electoral vote between Federalists and Republican-Democrats it was free to do so, and many did. For example, in 1800 the Pennsylvania legislature designated eight electors for Jefferson and seven for Adams. As we shall see shortly, the concept that all of a state’s electoral votes must go to the candidate who wins a bare plurality of the popular vote is a later innovation without constitutional sponsorship.

Also, in the early years those few states which did elect their electors often used the district plan, rather than choosing the entire ticket at large. Of the five states that elected in 1800, two did so at large, three by district; in 1824 it was twelve at large, five by district; and in 1836, twenty-five at large, none by district. However, as late as 1892 the Democrats in Michigan, tired of seeing that state’s 14 electoral votes go automatically to the Republicans, forced through a measure which provided for district election, which produced the results they sought, Republicans 9 to Democrats 5; but the state quickly saw that by thus splitting its vote it was
putting itself at a disadvantage compared to states which did not, and the experiment ended.

Electors bound to vote as their state voted.
The custom developed in the late years of the eighteenth century, was ironbound by 1804 and has been recognized in various state laws, as we saw in the opening chapter. At this date, in only sixteen states and the District of Columbia does election law make it clear that the elector is expected to vote as his state voted. To cite only two such laws:
Connecticut General Statutes
, 1967 revision: “Each such elector shall cast his ballots for the candidates under whose name he ran on the official election ballot.”
Nevada Revised Statutes
, 1965: “The Presidential electors shall vote only for the nominees for President and Vice-President of the party that prevailed in this State in the preceding general election.” The nebulous value of such law has been demonstrated earlier.

Winner-take-all distribution of electoral votes.
This is the most radical development within our electoral system and one that the framers of the Constitution seem not to have anticipated. Although there was much stated fear of domination by large states, the delegates did not foresee by what a relatively simple tactic this was to come about. Originally it was intended that the prudent electors of a state with five votes might divide 3 to 2 or even 2–2–1. When the votes of these separate delegations—who were not allowed to meet in union—were counted in Congress some months later, the name of the next President would be known.

It did not take long for a large state to see that if it prevailed upon its electors to vote as a bloc, its leverage would
be consolidated and magnified, which would be especially important if one of the candidates happened to be a resident of that state. Once one state made this discovery and acted upon it, all had to follow. By 1800 this principle was widely recognized; in 1804, of the ten states that chose electors by popular vote, seven allotted all their electors to the party that had won the election; in 1824 thirteen out of eighteen did so, and by 1836 it was a nationwide custom with few exceptions.

By 1836, therefore, the principal features of our haphazard system were determined and no changes have since occurred in the areas we have been discussing. Such amendments as we have had since the major revision provided by the Twelfth Amendment in 1804 have concerned other matters that required attention. The Seventeenth in 1913 stipulated the popular election of United States senators. The Nineteenth in 1920 gave the vote to women. The Twentieth in 1933 related to the terms of President and Vice-President and the convening of the incoming Congress. The Twenty-second in 1951 limited a President to two full terms. The Twenty-third in 1961 gave the District of Columbia electoral votes. The Twenty-fourth in 1964 barred poll taxes in federal elections. And the Twenty-fifth in 1967 clarified the question of Presidential succession and disability. But the fundamental electoral system was not affected by any of these. It is true that from time to time Congressional statute has clarified certain difficult technical points, and to see how this has occurred, let us look briefly at one election which produced reform.

THE STOLEN ELECTION

The chief characteristic of our system of electing a President has been pragmatism. When the Constitutional Convention first assembled, not a delegate, so far as we can now ascertain, was in favor of the plan that was finally adopted; it is possible that none had even considered it seriously, but out of pragmatic compromise it was born. Furthermore, most of its basic components were also compromises within the original. To take one example: as drafted, the basic compromise sent deadlocked elections to the Senate, but belatedly it was pointed out that to give this branch of Congress the right not only to confirm Presidential appointments but also to elect in the first place was to make the President a creature of the Senate. Even so, when doughty James Wilson proposed that right of election be moved to the House, he was defeated by a vote of 3 to 7. Next day Wilson was back with the observation that the plan as it then stood meant that “the President will not be the man of the people as he ought to be, but the minion of the Senate.” This time Wilson lost 4 to 6. How was the matter resolved? By a secondary compromise. Roger Sherman of Connecticut and Hugh Williamson of North Carolina proposed that the election go to the House, but that there each state would have but one vote. This pragmatic solution passed 10 to 1.

I am always refreshed when I read of the common-sense role played by James Wilson; of all the delegates he seems best to have anticipated the temper of the future. A fierce
proponent of the rights of the people, an adversary to all that would vest government in the hands of a few, he suffered more defeats of his individual proposals than almost any other delegate, yet in the end his larger ideas prevailed. After his work at the convention, he helped write Pennsylvania’s second constitution, served in Congress and on the federal Supreme Court, where he delivered several pace-setting opinions. He was a Scotsman, a graduate of St. Andrews University, and in the years when I attended that school, the students conducted an annual pageant in which the great men who had studied there in past centuries paraded in antique costume to inspect and advise the contemporary students. As an American, I was always given the job of impersonating Wilson, and thus was driven to discover something about the man whose body, dress, and manner I was assuming, and the more I found out, the more impressed I became with the solid pragmatism he had carried from Scotland to Pennsylvania.

I would suppose, therefore, that the genius of our election system has best been expressed when the nation has faced an election crisis, discovered an inadequacy, and moved swiftly to correct it. I think no man could successfully argue that the compromise devised by the convention was totally good; the defects were too many and too grave, the invitation to fraud too enticing. But at numerous climaxes the nation has patched the system, or allowed custom slowly to evolve new forms that have sufficed; and the advantage of the whole has been that it has worked. The stubborn pragmatism of James Wilson and his colleagues has allowed us to elect a series of reasonably
good Presidents in reasonable calm. But where troubles have arisen they have been corrected, and if we now do nothing in the face of the troubles I have been discussing, we shall be false to the spirit of our system. From time to time it needs patching; we are delinquent in our historical duty if we fail to apply the patches.