Presidential Lottery (21 page)

In the early days of December rumors would have flooded this nation; intricate calculations would have been made each hour, and the threat of what Wallace might do, or the extent to which the Republicans might be indebted to him in case he threw the victory to them, would so have haunted the Democrats that they would probably have concluded, “It is better for us to make a deal with Nelson Rockefeller,” and I suppose that this would have been proposed by the party leaders.

I can say this. As I stood on that rostrum on December 16 waiting for the last elector to sign, I could not state with certainty how even I would have voted had Nixon died, and I felt fairly certain that few of the electors before me could have predicted their votes either. There would have been an insane scramble for votes, and no man can say in retrospect how his character would have reacted to the pressures to which he would have been exposed.

A worse situation could have developed. Had Nixon died late in the interval, the Republicans would not have had time to assemble in formal convention. Hectic telephone and telegraph consultations would have had to suffice. At best the decision would have been peremptory and little calculated to enlist popular or electoral support; at worst it would have appeared as an unwarranted dictatorship which would have repelled certain of the electors. Each tendency which I have noted as potentially disruptive to the 302 electors in case a convention selected the substitute would have been magnified if the candidate had been dictated, and I seriously doubt
that the Republicans could have held their electors in line.

In either case, the uncertainty of the last two weeks prior to the convening of the Electoral College would have been extraordinary and the outcome would have been a lottery, predictable by no one.

The point I wish to make is not that the system is complex and open to error; many excellent systems have those defects. The peculiar weakness of this system, and one which totally disqualifies it, is that the vital decisions are made by members of the Electoral College bound by no law, no tradition, no restraint, and little common sense. We place our destiny in the hands of men and women who are not even nominated or elected seriously. It is unfair to both the nation and the electors to impose upon them such obligations and temptations.

In what follows, I have attempted to codify the curious mélange of law and custom that governs the contingencies that might arise during a national election. I think these ought to be kept in mind when one tries to decide what changes we should make in our election system, and I shall divide the summer, fall, and winter of an election year into the four crucial periods which comprise it.

Nominating convention in July or August to election day in November.
No law states what would happen if either a President-nominate or a Vice-President-nominate were to die or withdraw before election day, but both the Republican and Democratic parties have adopted clear-cut procedures to cover such eventualities. (Note that this is not a hypothetical problem. In 1860 the Democratic party legally nominated Senator Benjamin Fitzpatrick of Alabama to be Vice-President,
but after the convention had adjourned and its members dispersed, Fitzpatrick refused to accept the nomination and the party was left without a candidate.)

The rules of the two parties are different. The Republican party authorizes its national committee to fill the vacancy, with each state or territory’s delegates empowered to cast the same number of votes it had at that year’s nominating convention. Alternatively, the national committee may choose to summon a new convention, should such a step seem preferable, and if the vacancy has occurred early enough in this period to permit the reconvening of the convention. The mood and temper of the political situation within the party and nation would also be taken into account in choosing between these two alternatives.

The Democratic party provides only the first option, that the national committee shall have the power to fill the vacancy, with each state or territory having its allotted votes.

Both national committees retain the right to fill a vacancy in the Presidential spot by the simple device of moving up the Vice-President-nominate and designating a new candidate for the Vice-Presidency. For example, had the Democrats won in 1968 and had Humphrey died, they could have elevated Edmund S. Muskie to the Presidential spot and then chosen a new Vice-President, and I suppose the Democratic electors would have accepted this.

This group of arrangements seems simple, workable, and just. Should death or vacancy occur a few days before the election, there would of course be chaos, but I do not see how
this could be avoided in any system; that party on whom the blow fell would have to adjust to it as best it could. Incidentally, in 1860, when Senator Fitzpatrick threw the Democratic nomination back into the teeth of the party, the leaders calmly selected someone else in accordance with the procedures outlined above for that party.

And in 1912 Vice-President James S. Sherman, after he had been legally nominated by the Republican party and was running for re-election, died a few days before election. The Republican National Committee, meeting in crash session, designated Nicholas Murray Butler as his replacement, a substitution which was amicably accepted both by the voters and the Republican electors, who had earlier been pledged to Sherman.

I would assume from these precedents, and from the clarity of the bylaws governing the two major parties, that accidents within this period can be handled expeditiously and in a manner which the public will accept. There is no federal law, however, sanctioning these procedures and perhaps there ought to be, except that most of the operations of our political parties are not the subject of public law.

Election day in November to the vote of the Electoral College in December.
It seems clear beyond contention that should a President-designate die or withdraw in this period, the electors would be free to vote for whomever they wished. Eligible citizens of the entire nation, irrespective of party, would be possible candidates, but obviously every effort would be made to keep the electors committed to voting for
whomever the party officials nominated. Those nominations would be made in accordance with the rules cited earlier, in view of the fact that legally the election had not been completed in November and would not be until the Electoral College had met. If the substitute designated by the party were reasonably acceptable to the electors, it would be logical for them to support the party, for to do otherwise would bring down upon them a heavy burden of opprobrium. But it must be repeated that under our system these faceless electors, chosen arbitrarily and at random, would have the obligation to elect a President and the freedom to choose whom they wished. This is an extraordinary delegation of powers that not one American in a hundred thousand realizes he has made.

Vote of the Electoral College in December to vote-counting and certifying in Congress on January 6.
Should a President-elect die or withdraw during this period, there would be debate as to what should happen. Some have argued that the Greeley precedent would apply and that Congress would again refuse to count votes belonging to a dead man, but the analogy is not good. Greeley died before the Electoral College met, so that the electors were voting for a man they knew to be dead; in the case represented by this paragraph, the electors would have voted for a living man, who had subsequently died, but who was entitled at the time of voting to all votes cast on his behalf. Most constitutional experts believe that the language of the Twelfth Amendment supersedes this tradition and gives Congress no choice but to
count all electoral votes cast, provided the man voted for was alive when the electoral ballots were cast. The House of Representatives committee report endorsing the Twentieth Amendment sustains this view but has not the force of law. Congress, this report said, could exercise no discretion in the matter and would declare that the dead candidate had received a majority of the votes. The operative law would then be the Twentieth Amendment, Section 3, which states: “If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice-President-elect shall become President.” Mark Gruell, Pennsylvania’s parliamentarian, has made a study of these problems, and states, “Under present law, the electoral votes must still be counted and declared in Congress. It would therefore be the President-elect who had died, and the Vice-President-elect would become President.” Furthermore, when the Vice-President-elect did take office as President, he would be authorized under the Twenty-fifth Amendment to nominate a new Vice-President. The ambiguities that arise in this time period could easily be clarified.

Vote-counting and certifying in Congress on January 6 to inauguration on January 20.
Here the laws are clear without question. Should the President-elect die in this interval, the foregoing provisions of the Twentieth Amendment would elevate the Vice-President-elect to the Presidency. Should the Vice-President-elect die in this interval, the Twenty-fifth Amendment authorizes the new President, upon taking office, to nominate a new Vice-President, subject to confirmation by
the House and Senate. The admirable clarity of this law should be extended to the entire process, and this could easily be done.

Whatever conclusion one reaches in trying to fathom the constellation of incongruities in this lottery, he must in the end decide that this is the silliest instrument of self-government that sensible men could devise; and it stands out with special prominence because the rest of our system is so rational.

I think it peculiar that free men would hesitate to change something palpably wrong out of respect for the Founding Fathers of this nation, when those Fathers, finding themselves faced by a part of their invention that did not work, had no hesitancy in initiating steps to junk it, and this within twelve years of when they launched the system. The first election held under the plan adopted by Washington, Madison, Hamilton, and Franklin took place in 1789, and since Washington was elected unanimously, there was no problem. The 1792 election was equally smooth, and in 1796, when everyone understood that John Adams was intended to succeed, the system once more functioned, but in 1800, as we have seen, the Jefferson-Burr election resulted in chaos, and within the quickest possible time the very men who had framed the election system altered it, offered the nation an amendment, and rammed the change through in time for the 1804 election.

If the Founding Fathers were alive today, if they could see the idiotic mess into which their invention of electors and House elections has led us, they would abolish both before the 1972 election was held. They would whip up an amendment
and campaign for it across the nation, because to do otherwise would be illogical, and they were not illogical men.

It was with these thoughts that I watched this tangled election come to its fumbling conclusion. As the year ended I gave thanks that what could have ended so poorly had ended so well. But on Friday, January 3, 1969, a dramatic event erupted, proving to me that the election was not going to end as peacefully as I had thought, and proving to the American people just how great the peril was through which they had been passing.

On this day Senator Edmund S. Muskie, Democrat of Maine, and Representative James G. O’Hara, Democrat of Michigan, announced that they intended to institute a procedure which would dramatize for the American people the perils inherent in the Electoral College.

Their strategy was this. When the reports from the states were opened in the joint session of Congress on January 6, they intended to invoke a never-before-used clause from the election law of 1887, which had come into being to correct the abuses uncovered in the Hayes-Tilden deadlock of 1876. Under this law, they would challenge the renegade electoral vote cast by Dr. Lloyd W. Bailey of North Carolina, who had run on the Republican ticket, been elected on that ticket, but who had decided on his own initiative to ignore the mandate of the voters and to cast his vote not for Nixon, who had carried North Carolina (627,192 Nixon; 496,188 Wallace; 464,113 Humphrey), but for Wallace.

Thus two Democrats would try to force an elector to vote
for a Republican instead of for a third-party candidate, and in so doing would focus the attention of the nation upon a glaring weakness in our electoral system. In this respect their action was a laudable illustration of high-minded and unselfish statesmanship.

But apparently they were unaware that the 1887 law gave Congress no authority to challenge the propriety of an electoral vote once it had been cast, duly recorded and accurately reported to Congress. Therefore, what Muskie proposed was that Congress adopt illegal procedures to correct an evil which existed only because Congress had refused for so many decades to tackle election reform.

It was also amusing to hear him castigate Dr. Bailey as “the faithless elector.” Faithless to what? To the Constitution? No, because this document allows the kind of procedure which Dr. Bailey had followed. Faithless to the laws of North Carolina? No, because the majority of our states (including North Carolina) have refused to try to bind their electors, the suspicions being great that such efforts would be illegal and fruitless. Faithless to tradition? No, because in recent years it had become common for electors to vote contrary to the way their states had voted, and in this freedom they had been confirmed both by popular opinion and by lack of prosecution. I judge that what Senator Muskie must have meant was faithless to what Congress vaguely intended but was too indifferent to enact into law, and to such shadowy precepts one should be faithless.

On January 6, 1969, Congress met in joint session to receive from the fifty states and the District of Columbia their reports
as to how their electors had voted. As planned, Muskie and O’Hara challenged the North Carolina vote, and as spelled out in the 1887 law, the two houses promptly separated to weigh the challenge. The discussion was enlightening.