October 1962 | Volume 13, Issue 6
It nearly Put Burr in the saddle in 1800
It failed to confirm the people’s choice in 1824, 1876, and 1888
It could have ditched Kennedy in 1960
No matter what the record books seem to say, John F. Kennedy was not elected President of the United States on November 8, 1960, by 34,221,485 votes over Richard M. Nixon’s 34,108,684. On that Election Day, 1960, John F. Kennedy merely won a popularity contest.
He was elected President on December 19, 1960, by 303 votes over Nixon’s 219.
He could have won the November popularity contest and still have lost the December election to his opponent. That has happened—to Grover Cleveland in 1888, for example.
He could have won the November popularity contest, missed election in December by getting fewer than the 269 votes he needed (albeit more than his nearest rival), and lost the Presidency in January Io Nixon. That, too, has happened, a couple of limes. (In 1876 Democrat Samuel J. Tilden won the November election by 264,292 votes, missed the December canvass by one vote, and eventually saw his Republican rival, Rutherford B. Hayes, inaugurated as President.)
Finally, Kennedy could have won the November contest, missed the December election by one or more voles, and seen his running mate, Lynclon B. Johnson, take the oath as President in his stead. That hasn’t quite happened in our history (though something like it very nearly did), but it could have this time. There were a number of consequential persons, including the governor of a sovereign state and editors of important newspapers, who were trying to make it happen. The constitutional and statutory conditions were favorable. Practical political considerations happened not to be.
On some future occasion they may be. It is pure luck that keeps tilings from going far awry under what is at best a caricature of democratic process. By reason of this system, the President and Vice President remain the only elective officials of the United States not chosen by direct vote of the people (a distinction senators shared with them until 1913).
The Electoral College, an American political curiosity, is established in Article II, Section I of the Constitution as revised, but only dubiously improved, by the Twelfth and Twentieth Amendments. The Electors “appointed” by the voters in their ballots on Election Day meet in their state capitals on “the first Monday after the second Wednesday in December next following their appointment” to elect the President and Vice President by two separate ballots. Their choice need not be that indicated by the voters in November. The two men they select need not even be of the same party.
Should a majority of the Electors fail to agree on any one candidate for President, then the choice devolves upon the House of Representatives, or (for Vice President in a similar case) upon lhe Senate. That is part of the clue to how Lyndon Johnson might have become President. The other part is that the Electors, once appointed, are completely free to vote as they wish, for any native-born man—or woman—over thirtyfive years of age, or for no one. It is their prerogative under the Constitution—it is their duty by the design of the framers of the Constitution—to vote as their judgment dictates. It fails to be diminished by any party pledge they may have given or any party “loyalty oath” they may have taken. No legal means exist to compel them to observe such a pledge, or to punish them if they break it—as some have done from time to time, including the year 1960.
Since the number of Electors is equal to the total of senators and representatives, which was 537 in 1960, the majority needed to elect was 269. The Electoral College cast 300 votes each for Messrs. Kennedy and Johnson and elected them; 219 each for Messrs. Nixon and Lodge; and 15 for Harry E. Byrd with 14 vice presidential ballots for J. Strom Thurmond and one for Barry Goldwater. (Hawaii’s three votes were still in question that day, but they were not material to the outcome. They were eventually cast for Kennedy and Johnson.)
The Kennedy-Johnson votes came from states in which the popularity contest gave them a plurality, no matter how slender. With one exception, they received all of the electoral votes from these states. With one exception, the Nixon-Lodge ticket received fill the electoral votes of every state whose voters gave them the edge, no matter how slight.
The first exception was Alabama, where six of the eleven Democratic Electors voted for Byrd and Thurmond, although the Kennedy ticket won more than fifty-six per cent of the popular vole. The other was Oklahoma, in which the Nixon ticket received fiftynine per cent of the popular vote but one Elector cast a motley Byrd-Goldwater ballot. Byrd’s and Thurmond’s remaining electoral votes came from Mississippi’s eight Electors, who had proclaimed their insurgency and voting intentions from the beginning, so that the people presumably knew whom they were voting for on November 8.
Between November 8 and December 19, these rebellious Electors, including the Governor of Mississippi, made energetic efforts in other southern states to persuade their colleagues to exercise their Constitution-given prerogative to vote independently ol the electorate’s indicated wishes. Had they prevailed on only thirty-five to withhold their presidential voles from Kennedy (whether or not they gave them to Byrd), no one candidate would have received a majority.
Immediately—the Constitution’s word—upon formall) learning of this situation after it convened on January 6, 1961, the House of Representatives would have had to go into session lo try to elect a Chief Executive. The constitutional rules governing this contingency require election by a majority of all the slates, each stale casting one vote, as decided by the majority of its delegation in the House.
The House lineup of states on that day was: Democratic majority in the delegation, 29 states; Republican majority, 17; tied, j. On a straight party division, then, Mr. Kennedy could have been elected in the House (limited in ils choice to the leading contenders “not exceeding three”). But it the congressional delegations of lour or more slates had followed the lead of the rebellious Electors and refused Mr. Kennedy their votes, he would not have had a majority of the fifty states and would not have been elected. Mr. Nixon could have won only if nine Democratic states had joined the seventeen Republican states to vote for him —a most unlikely development.
There would thus have been a stalemate. The rules would have kept the House voting, but if the four “anti-Kennedy” states had held out, the deadlock would have remained unbroken.
Now let us examine the situation with respect to the Vice Presidency. Our “rebelling” southern Electors might also have withheld their second-place ballots from Lyndon Johnson of Texas. In that case, the election of Vice President would have fallen to the Senate. Here a majority of all the senators, one vote per man, is needed to elect, with the choice restricted to the two top contenders. As there were 64 Democratic and 36 Republican senators, it is unlikely that Senator Johnson could have failed of election. Fourteen Democratic: senators would have had to go on record against him to deprive him of a majority.
Now we have Lyndon B. Johnson elected Vice President, a stalemate for President, and January 20 approaching. The Twentieth Amendment prescribes that “if a President shall not have been chosen before the time fixed for the beginning of his term … then the Vice President elect shall act as President until a President shall have qualified.” And that would have depended on how long the recalcitrant congressmen held out; it could have been to the end of their term—two years, and then two more, if they were re-elected. At any rate, on January 20, 1961, Lyndon Johnson would have been sworn in as President, and Senator Kennedy would have been sitting with the other senators, looking on.
When South Carolina’s Electoral College convened on December 19, its chairman spoke of the “crackpot correspondence” he and others had received urging their defection. He expressed the hope that “you haven’t been influenced by it.” His colleagues hadn’t, nor had any other Electors—with the exceptions already noted—in 1960. Political discretion dictated a wiser course. But if in 1860 it was conceivable that eleven states should secede from the Union against all political discretion, it is not inconceivable that in some not-too-distant election a group of Electors might see power or coercive advantage in this sort of maneuver.
In 1876, the strange workings of the electoral system were to bring the nation closer to civil war than it appeared to be in 1861 the day before Fort Sumter was attacked. With Tilden 264,292 popular votes ahead of Hayes and one disputed vote short of victory in the Electoral College, Congress ducked behind a wholly extra-constitutional device—an “Electoral Commission” —to solve an ugly dilemma. The atmosphere was such, wrote the historian Paul L. Haworth, that “probably more people dreaded an armed conflict than had anticipated a like outcome to the secession movement of 1860—61.” Only Tilden’s aloofness from the strife, and lavish promises made on Hayes’ behalf by his supporters, prevented an unhappy end when the commission, by a vote of eight to seven, chose Hayes. (The story of the Hayes-Tilden election is told in “The Election That Got Away,” A MERICAN H ERITAGE , October, 1960.) Installed in office, Hayes made good on his promises to the Democrats, which included withdrawal of federal troops and carpetbagger governments from those southern states in which they still remained. But nothing was done to insure against a recurrence of the near-shambles of that presidential election.
Supreme Court Justice Joseph P. Bradley, the Electoral Commissioner who cast the deciding vote that gave Hayes the Presidency, bitterly termed the Electors “party puppets.” As far back as 1823, Thomas Hart Benton, senator from Missouri, declared that “every reason which induced the [Constitutional] convention to institute Electors has failed. They are no longer of any use, and may be dangerous to the liberties of the people.”
The chief reason which induced the delegates to the Constitutional Convention of 1787 to institute Electors was a distrust of democracy held by many of them. A sparse handful (Benjamin Franklin, John Dickinson, Gouverneur Morris, James Wilson) argued for popular election of the Executive. But the greater number held with Roger Sherman that “the people at large” could never be “sufficiently informed” to make a proper choice. To leave it to the people would be as “unnatural,” scoffed George Mason, “as it would be to refer a trial of colors to a blind man.” Elbridge Gerry (later to devise the cynical “gerrymander” to give his party numerical advantage in the Massachusetts legislature) was not merely patronizing; he believed the evils of the times flowed “from the excess of democracy.”
But if the Founding Fathers were thus contemptuous of popular democracy, they were enamored of representative democracy. There is no paradox here if we understand that “representation” in their comprehension was not direct and instructed, but “virtual” and paternalistic, as in England. Elected legislators were considered to represent the interests not only of the gentry who elected them, but also of the “great unwashed” (as Edmund Burke first termed them) and of the unfranchised in their constituencies.
Dedicated to the principle of representative democracy on these terms, and to its corollary of legislative supremacy, the majority of the delegates voted first and last for appointment of the national Executive by Congress. Between first and last, they let themselves be persuaded to consider, and even adopt briefly, a do/en different methods. At the same time they tussled over the troublesome problems of how many persons the Executive should comprise, its tenure, re-eligibility, powers, and prerogatives. Discussion of each problem led to fresh consideration of the method of appointment, and construction of this part of the Constitution took more time and involved more debate than all the rest together. In the end the Fathers reverted to their original instinct: appointment of the President (as he was by now called) by the Congress.
But it wasn’t quite the end, as it turned out. A committee now took over the chore of polishing the rough product the Convention had fashioned. On the committee sat Gouverneur Morris, who had argued that under the plan decided on, the Executive would be the “mere creature” of the Congress; that this method would “result in executive dependence, and consequently in legislative usurpation and tyranny, as happened in England in the last century.” (He referred to the Cromwell protectorate.)
With him was James Madison, who had opposed legislative appointment because it did violence to his cherished doctrine of separation of powers. Together, Morris and Madison persuaded their colleagues to adopt the plan used by Maryland for electing its state senators—a body of electors. Each state would have as many Electors as it had senators and representatives, appointed “in such manner as the Legislature thereof may direct.” They would meet in their respective states, on a day fixed by Congress, and vote for two men (at least one being from another state) but make no distinction between them. If any candidate received a majority of the votes of the whole number of Electors, he would become President. The runner-up would be Vice President—an office newly devised.
The Florida Case—Before the Electoral Commission
In February, 1877, members of both houses of Congress, a specially chosen Electoral Commission, and privileged visitors all crowded into the Supreme Court Cliamber to hear argument over the counting of electoral voles for the disputed Tilden-Hayes election. The amazing painting by Cornelia Adele Fassett, showing more than 200 recognizable portraits of well-known Americans of the period, dramatizes the intense debate occasioned by the fact that the electoral return from Florida had been challenged by a second set of electoral votes from the same state. Eminent counsel had been retained by both Republicans and Democrats to present arguments for the certification of their respective Electors. The commission (seated in a row on the rostrum, beneath the press gallery) decided by a vote of eight to seven to certify the Republican Electors; and after similar decisions for several other disputed slates, the official electoral count went to Hayes, 185 to 184, despite his minority in the popular vote. The hey below identifies 64 of the most noteworthy figures, many of whom sat individually as models for the artist over a period of some two years.
Significantly, it was considered that not once in twenty times (one man thought not once in fifty) would the Electors give a majority to one man. After all, the country was large—there were thirteen states, some of them weeks of travel apart—and how would a man in, say, Georgia know the name, let alone the qualifications, of a candidate from Massachusetts? If no candidate received a majority, or if two or more were tied for first place, then the choice of President would fall to the House of Representatives; if there was a tie for second, the Senate would choose the Vice President. It was probably this proviso that reconciled the parliamentary supremacists to the scheme.
The conviction sustaining them all was that in any event the Electors would be the cream of the social, economic, and intellectual elite of each state, hence best qualified to exercise superior judgment, whether as Electors—if they could agree on one man, as they were sure to do in the case of George Washington—or as nominators, in which case they would be able to give the House a number of good men to choose from.
Alexander Hamilton was so captivated by this ingenious contrivance that he wrote (in the sixty-eighth Federalist , devoted to it) that “I hesitate not to affirm that if the manner of it be not perfect, it is at least excellent. … Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”
In the first election (1789), in which Washington was by common consent unanimously chosen to be Chief Magistrate, the Federalist leaders agreed that John Adams should be the choice of the Electors for Vice President. Adams had many virtues to qualify him for the post, but his chief asset was that he came from Massachusetts, which state was second only to Virginia in the number of electoral votes it commanded—and George Washington was from Virginia. (How many smoke-filled rooms have since then heard the balancing-off of candidates’ states of origin, to the disregard of their “other talents,” and the “different kind of merit” Hamilton had said a candidate would have to have to qualify for the high office of President?)
But Adams and Washington had suffered from some differences during the war, and so the latter had first to be sounded out on whether he found the former acceptable. And though Washington continued right through his Farewell Address to reprobate the “spirit of party,” he did not rebuke his friends over this show of it. Instead, he cautiously replied that “having taken it for granted that the person elected for that important post would be a true Federalist,” he was “altogether disposed to acquiesce in the prevailing sentiments of the Electors without any unbecoming preference, or incurring any unnecessary ill-will.” Washington had presided at the Constitutional Convention; he knew as well as anyone what the intent had been with respect to the freedom of Electors to make uninstructed choices.
As for Hamilton, he enjoyed a mutual antipathy with Adams, and he honored his warm regard for the obstacles placed in the way of cabal and intrigue by sending special messengers to New Jersey, Connecticut, and Pennsylvania to get Electors to withhold votes from Adams, on the pretext that Adams might obtain more votes than Washington, and thus become President.
Sic transeunt high ideals.
Not to be outdone by the Federalists, the Antifederalist leaders—notably Thomas Jefferson, Aaron Burr, and George Clinton—applied themselves diligently to unifying a collection of local factions and personal cliques into a national party. They determined early that whatever else a party may have in the way of program and personalities, it needs machinery. They constructed it. They also in due time abandoned the negative name, to become the “Democratic-Republican” (later shortened to Republican and in Jackson’s time changed to Democratic) party. By 1800 the machine—a tight ensemble of state organizations—was ready for road-testing. (Tammany Hall swung the balance that year, and remains a still-standing monument to Burr’s industry.) This apparatus delivered to the Jefferson-Burr ticket a solid package of seventy-three faithful, instructed Electors—a clear, safe majority.
One small—oversight? Whether on Burr’s part it was intentional or inadvertent will never be known; Jefferson thought the danger had been carefully forestalled. However it was, all seventy-three faithful Electors, directed by the Constitution to vote for two men, voted for both Jefferson and Burr.
So there was a tie. Whatever the later politicians desired, the framers of the Constitution had been clear in their intentions—that any man an Elector voted for should have an equal chance with any other candidate to be President. They did not even specify separate qualifications for vice presidential candidates. The Vice President (though many opposed having such an office at all) was to be simply the near-miss President. And if the Electors on their first try could not give the edge to one man, then they must leave it to the House.
And there the Jefferson-Burr tie went, to be received with diabolical glee. The majority was Democratic-Republican by six members, but the composition of the sixteen state delegations was such that the Jeffersonians dominated only an exact half of them; the Federalists controlled six, and two were evenly divided. Most of the Federalist congressmen had been defeated in the last elections and were limping out the remaining weeks of their expiring terms. Here was a Heaven-sent opportunity for them to heap disaster on their Antifederalist foes. They would try to make Burr President! This, they were sure, would destroy the Democratic-Republican party.
Hamilton was equally sure that it would destroy the nation as well. As soon as he realized their intentions, he went energetically to work among his fellow Federalists to avert the catastrophe. He hated but respected Jefferson; he hated and despised Burr.
At first his efforts seemed futile. The Federalist-controlled states went to Burr, preventing Jefferson’s election by one state. This deadlock prevailed for nearly a week, through thirty-five ballots. Finally it broke. No Federalist gave his vote to Jefferson, but enough of them refrained from voting at all to enable their Democratic-Republican colleagues to add two states to Jefferson’s total, and give him the Presidency. Burr became Vice President, and never thereafter anything else. For him, the incident spelled political doom. For Hamilton, the vehemence of his intervention against Burr led inexorably to his death at Burr’s hands three years later. For the Federalists, the blow from the new political party (fumble notwithstanding) was mortal.
An immediate consequence was the Twelfth Amendment, remedying two of the Constitution’s flaws that had been exposed. Electors were now required to give separate votes for President and Vice President. And of necessity, it now added the injunction that candidates for the latter office must have the same qualifications as those for the former.
These oversights were rectified sixteen years after the adoption of the Constitution; 129 more years were to elapse before the Twentieth Amendment would deprive congressional lame ducks of the capacity to do mischief whose consequences they would not have to bear. That later amendment would also shorten, but insufficiently, the perilous lapse of time between election and inauguration of a new administration.
Other defects remain, and efforts to correct them continue. The most determined reforms concern themselves with the electoral process itself. Some, however, attack the nominating system as well—now a hodgepodge of state-prescribed contrivances for choosing delegates to national party conventions.
The forerunner of this less-than-ideal system was even more objectionable; it was called King Caucus. This monster was born in that same election campaign of 1800, and its father was Alexander Hamilton. With his foes in the ascendancy, he was desperate for a means of curing the dissension—aggravated by the recent death of Washington—that was destroying his own party from within. He therefore urged the Federalist congressional leaders to move in and take control of the presidential election.
Congressional party caucus on legislative matters had already become habitual. By usage, majority decision had become binding on all. Now, at Hamilton’s insistence, this irregular but institutionalized device was to embrace the election of the Executive as well. The Federalist congressmen met in secret and nominated John Adams and Charles C. Pinckney. Their power not only to choose the candidates but to control the Electors is evidenced by the canvass: the Federalist Electors gave all their 65 votes to Adams. They did not blunder; Pinckney received only 64, although Hamilton, because of his old dislike for Adams, had urged their equal support.
Word of the secret meeting leaked out. The Democratic-Republican press noisily protested the “arrogance of a number of Congress to assemble as an electioneering caucus to control the citizens in their constitutional rights.” This pious condemnation did not, however, inhibit the Antifederalists in Congress. They also met in secret, to nominate Jefferson and Burr. By the following election, 1804, they were emboldened to dispense with stealth, and conducted their meeting with all the punctilio of a parliament.
Alas for high hopes! In the sixty-eighth Federalist , Hamilton had stressed that “the Executive should be independent for his continuance in the office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence.” (Gouverneur Morris had expressed the same concern in other words.) The bitter prophecy came true for—of all people—James Madison, Hamilton’s chief coauthor of the Federalist papers, and archadvocate of separation of powers.
The pressures that had been building toward the War of 1812 came to bear on President Madison as his first term drew to a close. He had no stomach for armed conflict, and he felt a peaceful solution could be negotiated. Had he persisted, the war might have been averted, since the British lifted the blockade for American ships on June 16, 1812. But the news did not reach Congress before the eighteenth, when, in response to Madison’s reluctant message, it voted a declaration of war.
It was a message extorted from Madison by the caucus. James Fisk, a Democratic-Republican congressman from Vermont, reportedly called on the President to say that the country felt provoked to war. If he resisted the “popular will,” the Federalists threatened to win the forthcoming election; with such a danger in mind, the caucus, Fisk said, would feel constrained to withdraw its support of Madison and choose a more warlike candidate. Madison did not resist the “popular will.”
Over the years since then, the weight of political reality has crushed, one by one, the frail hopes of the idealists among the Founding Fathers for the ineffable scheme they devised. If there remained a vestige of possibility that Electors might yet be chosen with an eye to their capacity to exercise superior judgment, it was made a mockery by the 1948 Electoral College of Michigan. Faced on their voting day with six vacancies in their ranks, the remaining thirteen Electors fell to the task, as prudence requires and the state law permits, of filling them. They descended to the streets of Lansing, rounded up half-a-dozen agreeable passers-by, and swore them in. Their qualifications? They belonged to the right party.
But we can still have it both ways. In that same year, 1948, one of Tennessee’s eleven Electors, “appointed” by the Democratic voters, refused his vote to the Democratic candidate, Harry S. Truman; he gave it instead to the Dixiecrat candidate who had received only onefourth as many votes as Mr. Truman. In Alabama eight years later, an Elector appointed on the ticket of Adlai E. Stevenson gave his vote to a local segregationist judge. Reminded of his party “loyalty oath” and his “moral duty,” he replied, “I have fulfilled my obligations to the people of Alabama. I’m talking about the white people.”
The Constitution was drafted by men who, when they wrote “We, the People,” were also talking about the “white people”—not in the Alabaman’s literal and contemptuous sense, but in the figurative and accustomed sense of the select. The franchise was largely confined to the propertied, and thus, in the context of the times, the better educated. This agrarian element was strong, and there, the Founders thought, power would remain in good hands.
That the United States would always be a small nation with a rural economy and a narrow suffrage—on such a misconception was the new Constitution based. Some of the delegates believed they were creating a union which in time would inevitably disintegrate into its component states; their hope was that unity would last long enough to teach the states how to live together peaceably. Others were convinced that the republic must inescapably develop into a monarchy; their hope was that by the time it did, the people would have succeeded in establishing safeguards against too despotic a rule. The men of vision and good will held as firmly as they could to their principles. But, as Franklin explained while considering the document, “several parts” of which he confessedly disapproved: “When you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. …”
The passing years have aggravated the defects and anomalies of the Electoral College. The once-rural economy has given way to an intensively industrial order, great open spaces to surging metropolises. Large segments of the once-stationary populace have been forced into peripatetic pursuits; we are a nation on wheels. Places once weeks and months of arduous travel apart are now only minutes or hours away by air, split seconds away by ear or eye. And the suffrage is now all but universal. What was in 1787 “if not perfect at least excellent” seems to many in 1962 inequitable, illogical, and unjustifiable.
The selection of members of the Electoral College is based, to begin with, on certain mathematical inequities. Some of them are merely the result of the federal system. As each state, however small, has two senators (Nevada’s 285,000 people wield as much power in the Senate as New York’s 16,000,000) and has, in addition, at least one representative, it consequently has at least three Electors. Each of Alaska’s three Electors in 1960 stood for fewer than 21,000 voters; each of New York’s forty-five Electors represented more than 161,000 voters. This seems to make an Alaskan voter worth eight times a New Yorker. In practice, on the other hand, each New York voter appears to exert fifteen times the influence in the election—assuming that the Electors fulfill their “moral duty,” and assuming also that the voter has voted for the winner in his state. For we come now to another bedeviling fact in the arrangement.
A candidate whose share of popular votes is one more than that of his nearest rival in any given state (though it may be, in a multiple contest, only a small minority of the total vote), receives all of that state’s electoral votes—all his Electors have been “appointed.” This is the unit or winner-take-all system. In New York this meant in 1960 forty-five votes. (The new reapportionment has reduced it to forty-three.) A candidate who (by any slender margin) may win the electoral votes of New York and eleven other large states may become President even if—to carry the example to extremes—his opponent wins one hundred per cent of the popular and electoral votes of the other thirtyeight states.
Only in the rare instance—it hasn’t happened since 1824—when the election falls to the House of Representatives (or the Senate for Vice President, which has occurred only once, in 1836) do the states have proportionate equality in the election of the Executive. Otherwise one candidate’s tiny plurality in a large state may cancel out substantial blocs of votes for an opposing candidate in a number of smaller states.
But what about the substantial number of votes for the opposing candidate in the large state? In Illinois in the 1960 election, out of four and three quarter million votes, Mr. Kennedy received only 8,858 more than Mr. Nixon. Yet this infinitesimal plurality (it could have been only one, rather than 8,858) sufficed to “appoint” Mr. Kennedy’s twenty-seven Electors. Two and a third million voters, it is sometimes argued, were thus in effect disfranchised. In reply, others hold that this is the fate of any minority, however large, in a democracy. But there is a rebuttal: the office at stake was not a state office. The President is the Chief Magistrate for all the people of the nation, wherever they may be. These more than two million votes for Mr. Nixon outweighed the Kennedy votes in half-adozen other states; would not justice demand that they be put in the balance?
Nor does it satisfactorily solve the problem to point out that for his part Mr. Nixon carried California’s thirty-two electoral votes by a margin also calculable only in fractions of a percentage point. If chance must be relied on to offset inequities by counterbalancing inequities on the other side, chance may equally be counted on to heap all or most of them on one side. We might as well flip a coin, or choose our Presidents by lot (a proposal several times seriously made, and once endorsed by Chief Justice John Marshall).
Choice by lot is one of the quainter alternatives among a thousand or more proposals offered to our eighty-seven Congresses. The most seriously regarded systems fall generally into three main classes: i) direct election of the Executive by the people at large, without regard to state lines; 2) election of the Electors by congressional districts, with two at large, in each state; 3) abolition of Electors and distribution of each state’s electoral votes among the candidates in proportion to their respective shares of the state’s popular vote.
Even the most ardent supporters of the first plan begin to despair of persuading small states (or large ones) to surrender the peculiar advantages they now enjoy. The third proposal has come closest to adoption in recent years. As the Lodge-Gosset amendment, it passed the Senate in 1950 with the required two-thirds majority, then died in the House. It was revived in 1956 by Senator Price Daniel of Texas with the impressive sponsorship of fifty-two other senators. To get it to the floor, he was forced in committee to accept a compromise proposal to let state legislatures, if they wished, adopt instead the congressional-district system.
How would each of these proposed systems have affected the outcome of the 1060 election?
If the Lodge-Gosset amendment had passed and been ratified by enough states in time for the 1960 election, the votes cast in that election, tallied by the new formula, would have given Kennedy only 266.070 electoral votes—three short of the absolute majority now required, but well above the forty per cent fixed as necessary for election in that amendment as ultimately refined. Nixon would have had 263.626. (Byrd would have received 3.118 and Faubus 2.756.)
But the hypothesis contains its own possible invalidation. In certain one-party states, large numbers of opposition voters are known not to exert themselves to cast hopeless ballots, since the dominant party wins all the electoral votes in the state anyway. An end to the winner-take-all system might end the apathy. Although this would also affect Democratic voters in heavily Republican states, the “lost” G.O.P. vote may be larger. Nixon might have gotten the three additional electoral votes he needed to beat Kennedy.
Had the 1960 votes been tallied by the second system, election of the Electors by the then-existing congressional districts, a device whose latest exponent has been Senator Karl Mundt of South Dakota, Nixon would have won resoundingly: 279 to 244 (14 unpledged, but of no consequence since they could not affect the outcome). But the Mundt plan calls for division of each state into electoral districts of similar size with respect to population. This requirement would inhibit gerrymandering even more effectively than the recent federal court rulings on apportionment; we are again thrown back on speculation for the possible outcome.
The least probable of the current proposals—direct election of the President by the voters without regard to geographical boundaries—if applied to the 1960 figures would have given Mr. Kennedy the Presidency by 118,550 votes out of nearly 69 million.
Which system would have been the best gamble for the Democrats, if they had been able to make a choice before the 1960 election? Certainly the method of direct election looked dangerous: it was widely predicted that the popular vote would be very close. Assuming that no considerable number of Electors would depart from tradition and ignore the popular choice in their states, the old system of the Electoral College no doubt looked safest to the Kennedy camp, although as Election Day drew near it became ominously clear that at least some southern Electors would indeed disregard the tradition. The Lodge-Gosset system, despite its built-in advantages for the Republicans in the “solid south,” at least would have protected the Democrats against the whims and vagaries of defecting Electors in the same region.
In view of this, there is some irony in the fact that the opposition that defeated the Lodge-Gosset amendment in 1956 was superbly led by the man who might four years later have been the victim of the anachronistic Electoral College—the junior (and freshman) senator from Massachusetts, John F. Kennedy. He skillfully led the attack that not only sent it back to committee, never again to emerge, but won away many of its sponsors.
Not the least interesting aspect of the debate was a seeming reversal of traditional attitudes. The crusade for change was pressed by conservatives of both parties; liberals on both sides of the aisle stood shoulder to shoulder against change. Defending status quo, liberal Senator Kennedy argued that no urgent necessity for alteration of the system had been proven. “No minority Presidents,” he asserted, “have been elected in the twentieth century.” (This was rather inaccurate, for Wilson in both his terms and Truman in 1948 had received less than half the popular vote.) “No elections have been thrown into the House of Representatives,” Kennedy argued further, “no breakdown in the electoral system, or even a widespread lack of confidence in it, can be shown.” Of course, that was four years before an Oklahoma Elector defected, and a governor and influential newspapers were inciting others to the same course, and an election involving Kennedy himself was won by 49.54 per cent of the popular vote over 49.09 per cent for the loser.
The restraints on the democratic process that stemmed from the Founding Fathers’ distrust of the people are being trimmed away by the march of history. The first cut resulted from the power-pull that developed early between the Jeffersonian agrarian and the Hamiltonian mercantile interests. Each side sought to increase its strength by extending the voting prerogative to those in its sphere of influence formerly considered less deserving. Next came the leveling effect of rigorous frontier life in the newly opening western lands; the inevitable universal manhood suffrage spread its effects “back home.” Since then, the Fourteenth, Fifteenth, Seventeenth, Nineteenth, and Twenty-third Amendments have vastly enlarged the rolls of those entitled in practice to exercise the sovereignty that all “the people” hold in theory. Finally, the Supreme Court decision in Baker v. Carr — the Tennessee reapportionment case—has led to a series of legislative and judicial moves that will further increase the balance of our voting system.
It is perhaps not too much to say, then, that in the foreseeable future yet another of the inequities imposed by archaic custom and the accident of state lines may be eliminated. The choice of their Chiei Executive by the citizens of the United States will be by direct popular election—one voter, one vote, no matter where he may be on Election Day. Then the best man—at least in one meaningful sense—will always win.