Keep It Out of the House!

Mr. Bingham is Democratic congressman from the Twenty-third District of New York.

Our American Constitution has proved a durable document, but it has an Achilles’ heel that this year could cause us acute pain — and might even prove to be a fatal flaw.

Alexander Hamilton singled out the provisions governing the election of the President and Vice President as the only part of the Constitution which “received the slightest mark of approbation from its opponents.” Yet it is those very provisions which almost never worked as intended and which are potentially disastrous.

The Twelfth Amendment to the Constitution, which is a modification of part of the original Article II, provides that if no presidential candidate obtains a majority of the electoral college, the choice must be made from the top three candidates by the House of Representatives. The vote in the House is to be cast by states, with each state having one vote, and an absolute majority (or 26 states today) is required to elect. The Vice President is chosen by the Senate from among the two top candidates for that office.

Not since 1824 has the electoral college failed to produce a majority for a President or a Vice President, but it could easily happen this year because the two major candidates may be in a close finish and became the American Independent Party candidate, George Wallace, is expected to win in some states.

There are a number of plausible combinations of state results that could produce the impasse. Here is just one such combination, based on perfectly reasonable expectations: Wallace wins Alabama, Georgia, Louisiana, Mississippi, and South Carolina, for a total of 47 electoral votes; the Democratic candidate wins Arkansas, California, Connecticut, District of Columbia, Hawaii, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee. Washington, and West Virginia, for a total of 250 electoral votes; the Republican wins the remaining states for a total of 241 electoral votes. No one has the required 270.

Former Governor Wallace has made no secret of what he will do if the voters place such power in his hands. In the event of a deadlock, he says, he will offer his electoral votes to either major candidate who agrees in a solemn “covenant” to Wallace’s demands. “Covenant” is the Alabaman’s euphemism for a racist political deal, probably involving Southern veto power over future Supreme Court appointments and a decided slowdown, if not a halt, in federal efforts to push the pace of desegregation. If precedent is any guide, a step-up in federal bounty flowing South without strings would also be a part of the price.

Election impasse?

Tom Wicker of the New York Times has argued that no Democratic or Republican candidate could possibly make such a deal. I am not so sure, but let us assume that Mr. Wicker is correct and that no deal is made in the electoral college. The election then goes into the House, which would at the least mean a dangerous delay in starting the now very complicated process of arranging for the transfer of power from one Administration to the next.

It might also mean that the party defeated in electoral votes might win a majority of the state delegations in the House, as happened, for instance, in 1956.

An even more awkward contingency would be if the House of Representatives, like the electoral college, found itself deadlocked and unable to elect. This could happen if several state delegations were evenly split and therefore unable to vote, or if, with the state delegations fairly evenly divided between the major parties, three or four conservative Southern Democratic delegations were prepared either to support Wallace or to refuse to vote for the Democratic candidate.

The result would be severe uncertainty and unrest, causing acute problems at home and loss of confidence abroad. Again, as in the electoral college, Wallace would be trying to make a trade, and he might just succeed; or the deadlock in the House could continue past January 20, when the President’s term ends pursuant to the Twentieth Amendment. At that point, if the Senate had chosen a Vice President, he would become acting President.

Because of its different composition, the Senate might well choose a Vice President whose ticket had been second best in the popular vote and in the electoral college. Since next year’s Senate will probably be Democratic, they would presumably elect the Democratic choice for Vice President no matter what the House does.

A deadlock in the Senate is most unlikely, since it must choose from the top two vice presidential contenders, but such a frustrating contingency is not out of the question in a nip and tuck situation. An absolute majority (now 51 senators) is required to elect, and some senators might simply refuse to vote. Presumably, if both Houses were deadlocked, the Speaker of the House would then have to take over as acting President until the knot could be unraveled.

Orgy of deals

The possibilities for maneuvering in such situations as these are almost limitless. Twice in our history, when a presidential election was thrust into the House of Representatives, the result was in fact an orgy of wheeling and dealing, blatant manipulation, and pressure politics. Both elections nearly led to armed uprisings. And one of them gave the country a President who had secured a plurality neither of the electoral nor of the popular vote.

In the first case, the election of 1800, the deadlock occurred because the original Article II of the Constitution directed that each elector vote for two persons, but did not require that he specify which one was his choice for President. Thomas Jefferson, his party’s candidate for the top office, and Aaron Burr, his ostensible running mate, each received 73 electoral votes. But the unscrupulous Burr refused to concede the presidency to Jefferson and thus forced the election into the House, which deadlocked on the first ballot with 8 states for Jefferson (one short of the majority), 6 for Burr, and 2 evenly divided.

The power of determining the vote, and thus of shaping the future destiny of the nation, lay in the hands of obscure congressmen such as Joseph Nicholson, a critically ill member of the stalemated Maryland delegation, who cast his vote from a cot on the House floor to keep his state out of the Burr lineup, and young playboy James Bayard, Delaware’s single-member delegation, who vacillated agonizingly between Jefferson and Burr. The outcome was decided in Jefferson’s favor only after 35 ballots — and an unbelievable amount of maneuvering.

After this fiasco, the Constitution was changed by the Twelfth Amendment to read as it does today. But this did not prevent the absurdities of 1824-1825.

Early in December, 1824, with all of the electoral votes counted except Louisiana’s, the tally stood at 96 for General Andrew Jackson, 84 for John Quincy Adams, 41 for William Crawford, and 37 for Speaker of the House Henry Clay. Louisiana was considered a major Clay stronghold, and with its five votes he would have been one of the three top candidates to go before the House, where his power was supreme.

But Clay drew a blank from Louisiana. The state assembly, which was to choose the electors, was closely divided. Because two assemblymen favorable to Clay had a carriage accident on their way to the state capital, and two others simply neglected to show up, Clay did not get his majority in the assembly, and a slate of unfavorable electors was named. So the choice in the House was between Jackson, Adams, and Crawford.

When the House convened in February, 1825, the big New York delegation was at first evenly split with 17 members for Adams and 17 for Crawford. This situation neutralized a vote which Adams needed to control a majority of the state delegations. Once again, the partisan pressures focused upon a single wavering representative, Stephen Van Rensselaer of upstate New York. When the critical moment came, the election was decided by a discarded paper ballot, bearing the name of Adams, which Van Rensselaer took as a divine signal and dropped into the ballot box.¹

Jackson and his people were furious and charged that Adams had made a deal with Clay to win. When Clay turned up as Adams’ Secretary of State, Jackson spoke of “the Judas of the West” as receiving his “thirty pieces of silver.”

The recital of horrors that actually have occurred under our electoral system would not be complete without at least some reference to the sordid story of 1876 when backroom deals deprived Samuel J. Tilden of election and Rutherford B. Hayes emerged the winner in the electoral college by one vote, all three contested states — Florida, Louisiana, and South Carolina — having been adjudged to fall in the Republican column. The mess of pottage in this case for the Southern Democrats of the day who went along with Hayes included Cabinet appointments, restoration of “home rule” in the South (that is, rule by white Democrats), and public works, known then as “internal improvements,” and later as “pork barrel.” In those days it was merely inconvenient that the country did not know who its President would be until a few hours before his inauguration. Today the uncertainty would create grave problems.

Absurd and undemocratic

Surely a system for presidential election that contains a serious risk of such results should not be allowed to continue. The system is not only dangerous, it is absurdly undemocratic, since each state regardless of size has an equal vote in the House. This gives the smallest state, in the nation, with fewer than 300,000 inhabitants, the same voice as the largest state, which has more than 19 million. An evenly divided delegation has no vote at all, regardless of the size of the state.

To be elected President, a candidate needs the support of a majority of the delegations of any 26 states. To win the delegations of the 26 smallest states, he would need to control the votes of only 59 members — about 13 percent of the total membership of the House!

With the grave and unprecedented tensions that exist in our society today, and the widespread questioning of the validity of our democratic system, an unpopular, rigged, and undemocratic election of a President by Congress might well spark the revolution that is already building in our cities. Such a revolution would be likely to produce an even stronger counterrevolution with totalitarian overtones,

It is too late now for the Constitution to be amended before the November elections. But it has been my hope, and the hope of many others who are concerned about our constitutional Achilles’ heel, that the fears of this season would provide the needed incentive for a change in the Constitution.

There are various ways in which the amendment could be drawn. Some, including the New York Times editorially, are in favor of providing for the election of our Presidents by direct popular vote. This solution is attractive, but there are two main objections to it.

First, unless provision is made for a runoff contest, the election of a President by a plurality far short of a majority would be possible (like the election of President Thieu in Vietnam with 32 percent of the vote).

Second, such a constitutional amendment has been rejected often in the past and has little chance of adoption because the present electoral vote system is favored by a powerful coalition of forces. The small states like it because they are assured of at least three electoral votes. And the big states like it because, with their electoral votes going on a winner-take-all basis, they get special attention from the major parties. Because most of the big states are big-city states as well, many perceptive liberals, who want to see the federal government pay more attention to big-city problems, are opposed to giving up the electoral vote arrangement. Also in this political lineup, oddly enough, are the advocates of strong state authority, who fear — with some reason — that popular presidential elections would lead to stronger pressures for federal laws governing voting qualifications and similar questions now left to the states. Another kind of proposed constitutional amendment would call for the election of the President by a majority vote of a joint session of Congress if no candidate obtained a majority of the electoral college. This would certainly be an improvement over the existing system, in that each member rather than each state would have one vote. But making the President dependent on Congress for his election would still leave the door open for postelection political bargaining, and it ignores the fact that the voters may prefer a presidential candidate of one party while electing a Congress dominated by the other party, as in 1956. Moreover, the participation of the Senate in the choice is particularly questionable since two thirds of the Senate would have been elected in prior elections.

Run it off

The simplest way to avoid the dangers of the present system, and one that would not arouse the same opposition as the idea of a direct popular vote, would be to provide for a runoff election between the two top contenders if no presidential candidate received a majority of the electoral votes on the first goaround. This would not only prevent the election from being thrown into the Congress, but it would assure that the new President would be elected by a majority of the electoral votes (and in all likelihood the majority of the popular vote also). The runoff works well in a number of states which use it in party primary elections. And we urged the Vietnamese Constituent Assembly to adopt it for their presidential election and were chagrined when they did not.

The chief argument against such a system is that it will tend to discourage thirdor fourth-party candidacies. As one who believes that the two-party system has had much to do with the stability and strength of our democratic system, I am not greatly impressed by that argument.

In addition to the essential idea of a runoff, the proposed constitutional amendment and complementary legislation which I have introduced in the Congress contain two other elements. First, in order to assure an adequate period for the transfer of power to the new President, the date of the main election would be moved up three weeks, so that the runoff, if needed, could be held on the present election day.

Second, the archaic “electoral college” would be eliminated, without disturbing the present electoral votecounting system. This would do away with the potentially disruptive and dangerous power of electors to disregard the instructions of the voters who elected them.

In 1960, all eight of Mississippi’s electors and six of Alabama’s electors withheld their votes from both national candidates and cast them instead for Senator Harry Byrd of Virginia, who was not even a candidate. To prevent a similar occurrence in the future, and to make it impossible for a third-party candidate to bargain with his electoral votes, the slates of electors should be abolished. In their place, each state would be allotted the number of electoral votes corresponding to its representation in the House and Senate, and these votes would be cast automatically for the presidential candidate receiving the largest popular vote in that state.

Today, when most people could not name a single elector who represented their state in 1964, the electoral college, like the vermiform appendix, is no longer useful and may be hazardous. If the coming election does produce a deadlock in the electoral college and an ensuing mess of one sort or another, we can be sure that the Congress and the states will be sufficiently disturbed to pass and ratify a corrective constitutional amendment. Proposals such as that by Congressman Charles Goodell, Republican of New York, and Morris Udall, Democrat of Arizona, for a gentleman’s agreement that the House would elect whoever won a plurality of the electoral votes are ingenious but offer no reliable or permanent solution. But if no deadlock occurs, the problem is likely to be neglected for another four years — unless, of course, an aroused citizenry demands otherwise.