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Electoral Headaches

June 2024
6min read

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.

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.

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