Presidential Lottery (22 page)

The debate had not progressed far in the Senate before it became clear that over the weekend the sponsors of the challenge had done some homework regarding the law of 1887. They had found that whereas it provided a rather nebulous base for challenging a state’s report of its votes, it provided none whatever for challenging the right of an elector to vote as he preferred. Most specifically, once an elector had so voted, his vote could not be transferred to another candidate. Consequently, the high moral purpose of the challenge was abandoned; it was no longer two public-spirited Democrats fighting to give Richard Nixon another vote, for that was impossible. It now became a procedure for disciplining a refractory elector, and that too proved impossible.

Many speakers pointed out that whereas they were going to have to vote against the challenge, which meant that they were supporting the right of any elector to vote as he pleased, they were morally opposed to such behavior and would support legislation or amendment which would end the practice. Thus Muskie and O’Hara achieved much of their intention if little of their motion; legislators were publicly committing themselves to reform.

The salient victory, however, came in an unexpected quarter. Senator Everett McKinley Dirksen of Illinois, leader of the Senate Republicans, declared that in his opinion “electoral reform legislation is virtually inevitable” in Congress this
year. On the motion before the Senate, however, he voted against the Muskie challenge, pointing out that he did not intend to approach changes in the system of electing Presidents on a piecemeal basis. In each of these attitudes he seemed to reflect the opinions of many, in both the Senate and the House.

When the time came to vote, the two houses did what the law required: they accepted the North Carolina vote for Wallace as cast, the Senate 58–33, the House 229–169. However, as Muskie ruefully pointed out to a press conference after adjournment, “The elector has now been liberated to an extent that he has not been free to act in one hundred years.” This charge was misleading.

It has been the argument of this essay that the elector has enjoyed this freedom since 1789 and that at any point in that long and hazardous period the Supreme Court would have had to uphold the elector in his exercise of that freedom. But Muskie is correct in pointing out that Congressional action on January 6, 1969, did confirm the right and did establish a precedent which might mean that later instances of elector revolt need not be taken to the Supreme Court. Congress has settled the matter inadvertently, but in doing so, has merely confirmed what serious critics have suspected all along.

It now seems clear that if the November vote had produced a deadlock in the Electoral College, whatever maneuvers Governor Wallace might have engaged in to dictate a winner would have been upheld by Congress, and probably by the Supreme Court had the case gone so far. It also seems clear
that whatever maneuvers we Republican and Democratic electors might have devised among ourselves to forestall Wallace would also have been upheld.

The crucial significance of the Muskie challenge lay not in this clarification of Congressional and perhaps court attitude toward self-willed electors, but in its tacit invitation to mass revolt in the future. In the past, many electors must have felt inclined to vote as they pleased, but refrained through fear of unknown consequences; now they could be sure that there would be no consequences. I judge that when Congress voted to sustain the arbitrary North Carolina elector, our nation moved into a position two or three times more perilous than the one it had occupied the day before.

Therefore, in this essay I have not been speculating about abstract possibilities; I have been dealing with a deadly serious reality: the political security of our nation. If one seeks a compelling reason for immediate reform, the Congressional confirmation of the North Carolina vote provides it.

During a period of more than a year—from mid-August of 1967, when I debated in my constituency as a candidate to the Constitutional Convention, through mid-December of 1968, when I served as an elector—I had thought principally about the problems that face a free society when it seeks to govern itself. In the last four months I had thought only of the Electoral College and the potential election in the House
of Representatives, and in all that time of careful study I never read or heard or thought of a single argument in favor of retaining these two anachronisms.

They must be abolished. They must be abolished now. They must be abolished before they wreck our democracy.

ARTICLE II

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1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four years, and, together with the Vice-President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and
certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall chuse from them by Ballot the Vice-President.]
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The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No person except a natural-born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution,
shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.”

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2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective
Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

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3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

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4. The President, Vice President and all civil Officers
of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

AMENDMENT 12

(
Ratified July 27, 1804
)

The Electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall
be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.