Presidential Lottery (8 page)

When Joe Kelley, secretary to the commonwealth and organizer of the College, spoke he said, “It may well be that the ancient drumbeat that brings us together better served a distant day. But so long as we do not choose to revise it, we will continue to march to the measure of its thought.”

Governor Shafer was more blunt; he said, “However improbable, the constitutional fact is that you electors across the nation could upset the will of the American people as expressed last November 5, if you chose to disregard their mandate.

“The agony of those uncertain moments on election eve serve as sharp reminders that we must take positive action to safeguard our country against the specter of an undecided election. It is no reflection upon the grandeur of our Constitution to urge that we revise it in this area. The very generation that framed it moved swiftly to add the Twelfth Amendment in 1804 after the famous tie vote of the electors made impossible any choice between Burr and Jefferson.

“I will recommend that our General Assembly, when it convenes, lead the nation in a call to Congress for a constitutional amendment to abolish the Electoral College.”

At this point an assistant whispered to me, “He’s got guts. Telling us we’re no good and asking us to go out of business. But he’s right.”

As president of the College, I was required to say a few words setting the stage for what we were about to do, and when I rose to speak, the farcical nature of the day was forgotten and its gravity became real indeed. I said, “In recent years I have worked in many foreign countries, and as I
join with you here today to perform an important ritual, I think of my many friends abroad who would give much of what they own if only they could participate in a free election such as this, if only they could choose their leaders. As a member of the party that lost the election in November, I think it especially noteworthy that we can meet here under the protection of the majority party, with their governor to greet us amicably, with their employees to help us run our election. I have hundreds of friends abroad who would treasure the opportunity to contest an election, lose, and then be treated graciously by the victors. This is more remarkable than we might think.”

I then explained briefly why there would be so much careful ritual of recorded votes and oaths and certifications and attested copies and repeated signatures. “In 1876 the states were not so careful. Their records were sloppy and inaccurate and in due time were challenged, so that for four months the nation did not know who its President was to be. Tilden had apparently won in both the popular and the electoral vote, but the records of Florida, Louisiana, Oregon, and South Carolina were contested, and finally all were thrown to Hayes, who won primarily because men like us had not done their job properly.” We resolved that we would do ours in strict conformance to the law.

And then unfolded the pageantry of recording the vote six times, in most meticulous detail, so as to avoid a repetition of 1876. One of the six copies would go directly to the President of the Senate, two copies to the Secretary of the Commonwealth of Pennsylvania for filing, two copies to the
Administrator of General Services in Washington. The sixth copy had an interesting significance:

It had been found to be a good idea for one set of the records to be turned over to a judge who presumably could be trusted.

When the scratching of the pens had ended, when Emma Guffey Miller’s powerful voice echoed across the gilded chamber, “When are we going to eat?” and when our work had been legally sealed into bundles for transmittal to the proper authorities, I banged the gavel and announced that Pennsylvania’s Electoral College was adjourned,
sine die
, and as I left the rostrum I uttered a quiet prayer of thanks that this day had passed so uneventfully, when it could have been so destructive.

We had not yet left the capitol before a newsman advised us that in North Carolina the Republican elector, Dr. Lloyd W. Bailey, of Rocky Mount—who had said that he was proud
of his membership in the right-wing John Birch Society—had arbitrarily refused to vote for Nixon and had voted for Wallace instead. Even without the pressures of an inconclusive election, one of the Nixon votes had defected; with the pressures that I have been describing, many more Republican votes would have vanished. The Democrats, too, suffered. In Michigan the former state chairman of the party, Zolton Ferency, refused as a matter of principle to cast his pledged vote for Humphrey; in this case he did not vote for someone else but resigned from the College so that a substitute chosen on the spot could vote for Humphrey. Again, the intense battles that I have been referring to had not developed, but already there was arbitrary action. Is any further proof needed for the condemnation of this system?

Furthermore, if the election had been thrown into the House, do you suppose for one moment that our Representatives, who are only electors made large, would have been immune to the extreme pressures that would have been generated, when one man’s vote could determine the vote of an entire state, or perhaps the nation? There would have been a shambles beyond description. There was in the past and there would be in the future. Contemplating such an election in the House, a senior officer of that body said, “I hope to God I never see the day.”

In contemplating electoral reform and in trying to decide what pattern it should take, two definitions must be kept in mind. The United States functions under an electoral system, which has many good features; this system operates through an Electoral College, which has none. The definitions which I shall use follow:

This essay argues that in the electoral system there is much worth salvaging; in the Electoral College, nothing. Therefore I shall pay most attention to the derivation of the former.

GENESIS OF THE ELECTORAL SYSTEM

When the Constitutional Convention assembled in Philadelphia in 1787, scant support was found for the election of the
President by popular vote. (In this discussion I shall not mention the Vice-President. As Hugh Williamson of North Carolina explained in debate, “Such an officer as the Vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two be chosen at the same time.”)

The chief proponent of a popular vote was James Wilson of Pennsylvania, who argued that the President, the Senate, and the House should be elected by direct vote of the people so as to make them as independent as possible of each other. He was supported by Gouverneur Morris, also of Pennsylvania, who uttered the classic phrase, “If the President is to be the guardian of the people, let him be appointed by the people.” James Madison of Virginia gave his grudging assent, pointing out that all proposed systems had defects but this seemed the best, since the President was to act for the people, and not the states.

Opponents of a direct popular vote were relentless in their attack on the plan, pointing out the defects which made it suspect in that age. Elbridge Gerry of Massachusetts, who in the end would refuse to sign the completed Constitution and would campaign against its ratification because it did not square with his ideas of theoretical republicanism nor provide sufficient safeguards against democracy, argued, “The people are uninformed and would be misled by a few designing men.” Popular voting, he said, was radically vicious.

When the convention finally voted on the plan, the count was 2 to 9 against, with only Pennsylvania and Delaware in favor.

The proposal that elicited most support was one calling for Congress to elect the President. So many delegates and states considered this the only practical plan that it was generally supposed to prevail, and in four separate votes it did; it also appeared in the provisional draft of final recommendations and was about as close to being finally adopted as a proposal could have been without becoming an official part of the Constitution.

Reasons adduced in favor were obvious: most of the states chose their governors by this system; the Congress, being “the depository of the supreme will of the society,” ought naturally to appoint the executive, who would then be accountable to it; and the dangers of a popular vote of the people would be avoided.

Why did a plan so popular and so logical at that time finally fail when at one vote it passed unanimously, at another, 8 to 2, and again 7 to 4? It seems in retrospect that protracted debate, and especially the attacks by Gouverneur Morris and James Wilson, laid bare every weakness until in the end all saw that a President chosen by the Congress would perforce have to become subservient to Congress. One by one the defenders of such election drifted away and in the end a Committee of Eleven was appointed to arrange a compromise, but a last-ditch effort was made to force Congressional election onto the convention. This time it failed 2 to 8 and the concept was dead.

The Committee of Eleven was an able group representing all shades of political opinion in the convention, and it worked four days without interruption seeking a solution to the
impasse. It decided early not to return either to direct popular election or to choice by Congress. The alternative that was finally chosen seems to have been voiced first by James Wilson, who had concluded, when his plan of direct voting was defeated, that intermediary electors might be the solution. At any rate, the committee reported to the floor the plan under which we operate today. The compromise was five-fold, as outlined earlier: electoral vote, not popular; two votes for senators; one for each representative; winner must have a majority; inconclusive elections to the House.

It was a brilliant compromise; not only was it the solution to the convention impasse, later it would also aid conspicuously in obtaining from the states the ratification votes necessary to put the Constitution into operation. It was thus the rock of decision, the keystone without which all else would have been impossible, and it is enshrined in the success our nation has had in the difficult task of keeping a federal union of equals together and functioning. Technically the plan had many faults, as we shall see; philosophically it was impeccable.

In the public discussion of the proposed Constitution, and in the
Federalist Papers
which played so strong a role in winning support, there was surprisingly little discussion of the compromise method for electing a President. The Founding Fathers were well satisfied with themselves and felt that they had produced a system which would last indefinitely. It is true that in the final debates within the convention itself Madison had warned that election in the House carried certain built-in pitfalls, but corrections had been made to
accommodate his sharpest criticisms and he did not publicly repeat his attack. Hamilton confidently assured the public, “The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.”