Electoral Headaches

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When Ross Perot dropped like a stone out of the presidential race last July, he gave as his ostensible reason the fear that the contest would end up in the House of Representatives because no candidate could win a majority in the Electoral College. That, he claimed, would cause delay and disruption, which it was in the national interest to avoid.

Perhaps. We will now never know. But when Perot quit, there must have been sighs of relief from many representatives who saw themselves in a potential bind between voting for the candidate of their party or the candidate who had carried their state—supposing them to be different—or even the third candidate, who might be neither of the above. The Constitution would have left it entirely up to them.

If you’ve forgotten the rules, look at the Twelfth Amendment. It provides that the House should choose the President from the top three electoral vote-getters if no one has a majority. But it does so by the state. Each state delegation gets to cast a single vote, with a majority of states necessary to elect. Among the intriguing fancies spun before Perot withdrew was the desperate wooing of the representatives from the six states that have only one each.

We are spared such prospects, until at least 1996. But it still seems worthwhile to explain how we got a system of presidential choice so rich in bizarre possibilities. (It was even worse before the Twelfth Amendment, when each elector simply voted for two men, the overall winner to be President and the runner-up Vice President.) The Constitutional Convention was, in the words of the Pennsylvania delegate James Wilson, “perplexed with no part of the plan so much as with the mode of choosing the President.”

The perplexity was part of a general uncertainty about the office itself. Those who had gathered for the convention did not want a figurehead Executive, but neither did they like the idea of a mini-monarch. They did not want an Executive beholden to the people at large, the state legislatures, or the national legislature, but they did not want one completely independent of those bodies either.

After some debate a consensus gradually emerged for a single Executive, but there was no agreement on how long or how often he should serve and who should choose him. Roger Sherman, a practical Connecticut Yankee, claimed that term limitation would cheat the country of the benefits of experience. Delaware’s Gunning Bedford objected to a suggested seven-year term, which he said was too long for the young nation to have a bad choice “saddled” on it. As for election, Massachusetts’s Elbridge Gerry argued that the legislature should not do the job; term limitation or no, there would be “constant intrigue” with would-be candidates. But he emphatically rejected Wilson’s idea that “the people should choose.” They were “too little informed of personal characters in large districts and liable to deceptions,” said Gerry.

Not at all, according to Wilson. But he did agree to a two-step process and thereby planted a seed: voters in each district represented in the national legislature should vote for “electors of the Executive magistracy.” These would then meet to name someone not from their own ranks to the office. Neither Gerry nor Wilson won; the convention voted for the legislature to choose the Executive for seven years.

The question of the Executive was renewed after the convention adopted the “great compromise” of a two-house legislature: one to be based on population and the other to give equal representation to every state. The eloquent and witty Gouverneur Morris of New York attacked the idea of the legislature choosing the Executive. It would always result in an insiders’ choice, “like the election of the Pope by a conclave of cardinals.” He insisted that “if the people should elect they will never fail to prefer some man of distinguished character or services.” Not so according to Roger Sherman; they would always be short of information and would scatter their votes so that no one candidate would ever get a majority. It was at this point that Wilson planted still another idea that eventually stuck. If a popular election didn’t produce a winner with a majority, then the legislature might take over the job and pick from the list of popular favorites.

George Mason of Virginia and Gerry were still skeptical, and the normally sensible Wilson went so far as to propose choosing the electors from the national legislature by lot. All the members would draw blindly from a jar of balls. Those who got gilded balls would immediately choose the executive. No one would, under this plan, have a chance to electioneer for the job, since nobody would know beforehand who was going to be an elector.

Wilson admitted that his was “not a digested idea,” and it was in truth a sign of the convention’s desperate deadlock. “We seem to be entirely at a loss on this head,” said Gerry. He was ready to turn the problem over to the Committee of Detail, which would be named to take proposals so far adopted and compose a draft constitution during a ten-day recess. By the time it met, sentiment for the popular choice of electors was gaining ground for lack of an alternative.

When the recess began, the convention was still agreed on a single Executive to be chosen by the legislature for seven years; when the committee came back with a report to the weary delegates, it had an outline of a system for electing that Executive that was very close to the final version.