Electoral Headaches


Each state should appoint in whatever way its legislature chose a number of electors equal to the state’s total number of representatives and senators. These should meet in their respective states to vote for two “persons,” at least one of whom should not be from their own state. Then they should dissolve, leaving behind no group with an inside claim on presidential gratitude. At the national capital the presiding officer of the Senate should count the electoral votes. If there was a first-place tie, the Senate should break it; if there was no majority, the Senate should choose a President from the top five. The President should serve for four years, with no limits on re-election.

It was not quite the end. The small states, of course, liked the idea of the Senate making the choice, and they expected it to happen often. So too did James Madison and George Mason, and they didn’t like the prospect at all. Madison thought the electors would spend their time “making candidates”—that is, picking favorite sons for the Senate to consider instead of naming a President on their own. Mason simply believed that the Senate was too small and “aristocratic” a body (its members were to be elected by the state legislatures and not the people) to escape naming a President without intrigue and corruption.

At this point Georgia’s Abraham Baldwin correctly foresaw the coming communications revolution that would end the dilemma. The “increasing intercourse among the people of the states,” he said, would make it easier for “important characters” to be widely known and therefore for one of them to get a majority. James Wilson thought so too (only he called them “continental characters,” who would “multiply as we more and more coalesce”). So there would usually be a majority—but in case there was not, Wilson wanted the final choice to be in the House and not the Senate, which already had so much power over appointments, treaties, and impeachments.

Our system for picking a President shows the stamp of weary framers ready to compromise the irreconcilable to finish the Constitution.

The small states would not hear of that, and so the final battle of words on the subject stirred the muggy air in the Pennsylvania State House. Gerry’s last stab was a call for a committee of six senators and seven representatives, chosen by joint ballot of both houses, to resolve an election without a majority. George Mason was indignant at that; he would prefer “the Government of Prussia to one which will put all power into the hands of seven or eight men.” The entire fifth of September 1787 passed in what a diarist called “desultory conversation on … the mode of chusing the President.”

But on the sixth they finally got it right. It would be the House that did the final choosing if the electors gave no one a majority—but on the onestate, one-vote basis that suited the small states. Two-thirds of the states would be necessary to make a quorum. If there were a second-place tie, the Senate could name the Vice President, who would also become its presiding officer. Mason objected to that too, but it was pointed out to him that if the Vice President did not have that role, “he would be without employment.” So this final version was left to stand.

As noted, the Twelfth Amendment changed things by providing that the Vice President should be voted for separately, after the 1800 tie between Jefferson and Burr (see “The Abominable No. 2 Man,” September 1991.) It also reduced from five to three the number of candidates from whom the House should pick in a no-electoral-majority situation. That only happened once, in 1824, when John Quincy Adams was named over Andrew Jackson, who had more popular votes. In 1876, when three states submitted double and conflicting sets of electoral votes, a special joint HouseSenate electoral commission chose Rutherford B. Hayes (see “The Stolen Election,” July/August 1990).

It’s hardly a lovable arrangement, what with its basic distrust of direct democracy, its winner-take-all unfairness to minorities, its unreasonable inflation of the power of small states. But it was the best they could get, and that is not meant to be a critical statement. The Constitution is no less a wonderful document because some of its provisions, adopted in the convention’s last days, show the stamp of a body of weary men ready to compromise the irreconcilable rather than go home with principles intact but nothing accomplished. The world should do as well! All the same, the system of presidential choice as it stands is a potential booby trap. We are lucky that nobody stepped on it this time.