Presidential Lottery: The Reckless Gamble in Our Electoral System

  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.

  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.

  * Confining themselves to a more limited problem, Irving Mann and L. S. Shapley of the RAND Corporation concluded that the distribution of power in the present electoral system roughly coincides with the population power of the state and that therefore no state or region is discriminated against. Values of Large Games, VI. Evaluating the Electoral College Exactly. RAND Corporation, May, 1962.

  * In correspondence with the writer, Mr. Banzhaf pointed out that the problem of my home county, which had stumped me, was relatively simple. If you have a one-member district of 50,000 population contrasted to a four-member district of 200,000 population, with all members voting independently of each other, the weighted advantage of a voter in the four-member constituency is approximately 2.000 times (twice) that of his neighbor who votes for only one member.

  APPENDICES

  APPENDIX A

  THE CONSTITUTION OF THE UNITED STATES OF AMERICA

  ARTICLE II

  SECTION 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.]*

  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.”

  SECTION 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.

  SECTION 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.

  SECTION 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.

  AMENDMENT 20

  (Ratified January 23, 1933)

  SECTION 1. The terms of the President and Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

  SECTION 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

  SECTION 3. 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. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice-President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice-President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice-President shall have qualified.

  SECTION 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice-President whenever the right of choice shall have devolved upon them.

  SECTION 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

  SECTION 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

&nb
sp; AMENDMENT 22

  (Ratified February 27, 1951)

  SECTION 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

  But this Article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

  SECTION 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.

  AMENDMENT 23

  (Ratified March 29, 1961)

  SECTION 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

  A number of electors of President and Vice-President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice-President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.