...con't Part Two
Anderson's Massachusetts electors, for example,
could vote for Edward M. Kennedy and put him in third place
and the House runoff -- even though he had not been a
candidate in November.
Electors for any candidate could shift to prevent a deadlock as
the deadline draws near. Because television admits all of them
into a single, electronic Electoral College that the Framers
never foresaw, electors on the West Coast have at least three
hours on December 15 to decide whether to shift any of their
ballots after all the electoral votes of the industrial Northeast
have been cast in nominal secrecy -- but almost certainly
deciphered and broadcast within minutes by the media.
Thomas Jefferson once argued that if the Electoral College did
not reach a majority decision on the first attempt, it should be
given a second try. In effect, television could give midwestern
and western electors that chance -- with plenty of advice on
how to use it. Although few electors have been faithless in the
past, few elections have been close enough in electoral votes to
tempt electors to bolt.
The turbulent politics of 1980, which inspired cries for an
"open" Democratic convention where delegates could vote
their conscience, could lead finally to an "open" Electoral
College where electors would abandon their pledges out of a
higher fidelity to the national interest -- or from less lofty
motives. How many would resist the lure? By the time the
electors meet in their state capitals in December 1980, more
than a month after the November election, an uncertain
America could be ready and enough electors could be willing
to have an open Electoral College.
Either by betraying their trust or by keeping it, the electors may
deny any candidate a majority, and the House of
Representatives would ballot for a President for the third time
in 180 years.
Go to this issue's Table
of Contents.
O C T O B E R 1 9 8 0
(The online version of this story appears in two parts. Click here to
go to part one.)
To the House
The Constitution gives each state delegation in the House one
vote, with a majority of twenty-six states required for victory.
But the Constitution leaves open a plethora of questions that
could determine the outcome. The three-day-old
Ninety-seventh Congress convenes at 1 P.M. on January 6,
1981, to count the electoral votes cast on December 15, 1980,
and has just two weeks in the event of an electoral deadlock to
select a President before Inauguration Day. So the lame duck
Ninety-sixth Congress would probably act between this
November 4 and the Christmas recess to pass the rules
governing that selection. A party that is losing power from the
lame duck Congress to the new one, such as the Federalists of
1800, may write the rules to make it harder for the opposition
to elect its candidate when the new House of Representatives
meets to pick the President. For instance, would votes be by
sealed ballot or by voice roll call? Voice voting would allow
strategic switching by states that come late in the alphabet.
Would individual votes be secret? Such secrecy would work to
the disadvantage of representatives from single-district states,
whose votes would necessarily be known, but it would greatly
reduce the effect of bargains: who wants to deal when there is
no way to know if the other side has welshed? Would the
votes of a majority of a state's representatives or a mere
plurality be required to cast a state's vote? Requiring majorities
may leave large states -- where Carter, Reagan, and Anderson
might all do well -- unable to cast a vote. Plurality voting in the
House, on the other hand, runs the same risk as the Electoral
College itself: by eking out a victory in enough states, a minority
candidate could still out-total an opponent who enjoyed
overwhelming support everywhere else. Under the House rules
passed in 1800 and 1824, majorities were required, individual
votes were recorded, and states voted by sealed ballot. But
these precedents are not binding.
The Constitution requires that in the event of an electoral
deadlock, the House must choose a President "immediately."
Does this mean that the House must vote continuously, or can it
pause for rest and other business? The Founders required an
immediate choice so that there would be no time for deals to
be struck, but if no choice results on the first ballot the House
proceedings may, as one observer recalled of 1801, resemble
a dance marathon more than an election: "The scene was now
ludicrous. Many had sent home for night caps and pillows, and
wrapped in shawls and great-coats, lay about the floor of the
committee rooms or sat sleeping in their seats. At one, two,
and half-past two, the tellers roused the members from their
slumbers, and took the same ballot as before." The House
voted for the twenty-seventh time at sunrise. After this heroic
attempt to follow the Constitution to the letter, the
representatives slowed to the pace of about a ballot a day, and
James Bayard of Delaware claimed that promises made in the
pauses between ballots won his vote and the election.
Perhaps the most dangerous possibility left open by the
Constitution is that the lame duck Congress could try to move
the time for counting electoral votes back to a date before
January 3, when the new Congress convenes, so that the old
Congress could choose the new President. A shift of 12,000
popular votes in 1948 would have switched enough electoral
votes to send the presidential election to the House and the
vice-presidential election to the Senate. That year, the
Republicans lost their majorities in both houses of Congress.
The outgoing Republican Eightieth Congress, with a
"do-nothing" record that had become the central issue in Harry
Truman's campaign for re-election, could have responded by
moving up the date for picking among Democrat Truman,
Republican Thomas Dewey, and States' Rights candidate
Strom Thurmond. In any year, this tactic would surely stir
popular protest, but a partisan Congress could decide to take
the heat: the re-elected members are likely to be from safe
districts; the lame duck members have little or nothing left to
lose.
Fortunately, the background of the Twentieth Amendment
strongly suggests that the loophole left by its language is
plugged tight by its history: the whole point of that amendment's
provision for the new Congress to convene seventeen days
before the new President takes the oath was to prevent a lame
duck Congress from selecting the President or Vice President.
When history and principle are this clear, the silence of the
Constitution's text becomes almost irrelevant. The document
should be interpreted to forbid lame duck manipulation of the
presidency, although a partisan Congress might decide
differently -- and it is anyone's guess how far the courts would
go to halt the lame ducks as they tramp across the spirit of the
document for their own narrow ends.
The House decides
Because representatives would have so many options, voters in
1980 are likely to ask candidates for the House how they will
vote if the choice of President goes to the House. Seeking a
defensible answer, beleaguered House members will find no
instruction in the Constitution and no guidance from the history
of constitutional interpretation. In the long history of deadlocks
and near-deadlocks, the members have invented five
alternative standards for themselves.
1. Party lines. Many House members, left to their own
preferences in selecting a President, would vote their party
loyalty. The Democrats now hold 63 percent of the seats in the
House. They control twenty-nine state delegations; the
Republicans control twelve; nine others are evenly split.
Whichever party controls the Ninety-seventh Congress may
yet fear the voters' wrath if it selects its party's nominee despite
his poor second-or third-place showing. One ABC
News-Harris survey taken in August 1980 showed Reagan in
first place nationally, with Anderson second and Carter third.
What if the final vote shows a photo finish between Anderson
and Reagan, with Carter still in third place? In 1801, the
Federalists dominated the House and tried to elect the more
nearly Federalist of the two Republican finishers. The
Democrats in 1981 might do the same by rallying to Anderson.
2. Popular vote. In 1968, with George Wallace threatening to
deny either Humphrey or Nixon an electoral majority,
Representatives Morris Udall of Arizona and Charles Goodell
of New York sponsored a bipartisan plan under which
candidates for the House would pledge in advance that they
would support the winner of the national popular vote. The
Washington Post endorsed the idea, saying it would protect
the presidency from charges that a corrupt bargain had
delivered the nation's highest office to the highest bidder.
John Anderson was a member of the "People's Presidential
Committee" formed by Udall and Goodell to promote the plan.
Senator Henry Jackson seconded it. But Governors Ronald
Reagan of California and Paul Laxalt of Nevada (now
Reagan's campaign chairman) were both opposed. Reagan's
tone was uncompromising: "I have too much faith in the people
to shut someone out in the beginning. I have no intention that I
would collaborate with the Democrats on anything." George
Wallace called the plan "a conspiracy to circumvent the
Constitution." Wallace's point had some merit: if the
Constitution contemplated anything like a mechanical choice of
the popular-vote winner when nobody wins and electoral
majority, no House election would have been provided by the
Framers. The popular-vote plan suffered most because the
major party candidates, Humphrey and Nixon, would not
commit themselves to it. As might be expected with any
proposed pledge, neither wanted to sacrifice whatever
advantages he imagined he might enjoy in an unpledged House
election. On October 15, 1968, when it seemed clear to Nixon
that he would carry a popular majority, he said he thought the
popular-vote winner should be elected by the House. "If the
man who wins the popular vote is denied the presidency,"
Nixon said, "the man who gets the presidency would have very
great difficulty in governing." But five days later, Humphrey,
who was certain the Democrats would control the House no
matter how he fared, appeared on Face the Nation to say that
he wanted the members of the House to be bound by no
mechanical pledge and to pick the President they believed
would be best for the country. He was sure such a President
would "still have the capacity to govern," even if he had not
won a popular plurality.
This time, the second-place finisher might bargain his way to
the top of a House election. Whether he thereby purchases a
crippled presidency will depend not only on his failure to obtain
a popular plurality (such Presidents as Lincoln, Wilson, and
Truman have governed successfully after such failure) but on
whether he traded for the Oval Office as if it were a piece of
local patronage.
3. District winner. To improve their chances in their own
elections, many House candidates may promise in advance to
support the presidential nominee who carries their district --
something conservatives have demanded for years, most
recently in a plan proposed in August by the American
Conservative Union. The criterion could be especially
appealing because the winner of the national or state popular
vote may not do well in a particular representative's district,
and enough voters cross party lines for it to be a political
liability in many cases for a representative to vote on a party
basis in a House election.
Colorado's five-member House delegation typifies the resulting
problem. It is divided three-to-two for the Democrats.
Democratic Representative Tim Wirth, who faces a tough
re-election fight in 1980, comes from a district that Jimmy
Carter lost to Gerald Ford in 1976 by 37,000 votes. For
political self-preservation, Wirth might feel forced to announce
that he will vote the presidential preference of his constituents,
thus probably giving Colorado's vote to Reagan in a House
showdown even if Carter or Anderson carries the state on
November 4. In fact, if the 1976 presidential election had gone
to the House and all representatives had voted for the
candidate who carried their districts, Carter would have had
the support of 220 representatives and Ford 215. But because
presidential selection in the House is by state and not by
district, Ford would have won the presidency: although
outvoted both in the popular total and in a majority of districts
nationwide, Ford carried a majority of the districts in
twenty-seven states and Carter in only twenty-three. House
balloting guided by district winners thus emerges more as a
temptation than as a goal.
4. Inspiration. There is a way for House members to vote
that, in the long run, may be the safest of all -- the "Oh, my
God!" system. It has been used only once. In 1825, John
Quincy Adams needed the votes of thirteen states to be elected
by the House. He had twelve states, but some of them were
shaky and seemed inclined to shift to Andrew Jackson on later
ballots. Adams needed a first-ballot win. The best hope for the
thirteenth state was New York, whose thirty-four congressmen
were split nearly down the middle: seventeen for Adams,
sixteen for Crawford, and one undecided. Representative
Stephen Van Rensselaer, a kindly old aristocrat, had promised
to support everyone; he held the swing ballot in the decisive
state. On the morning of February 9, 1825, the day of the
House vote, Daniel Webster and Henry Clay, the two most
persuasive men in America, cornered Van Rensselaer in the
speaker's office and plied him with threats and oratory,
demanding that he vote for Adams. The old gentleman held
out.
When the House balloting began that afternoon, Van
Rensselaer was still in a quandary. As the rest of the New
York delegation passed their ballots to the teller, he bowed his
head in prayer, seeking a sign from on high. He opened his
eyes, and there on the floor was a ballot marked for John
Quincy Adams. "Oh, my God!" Van Rensselaer snatched up
the ballot and cast it as his own. So Adams was elected
President. Not even the 1980 field of three "born-again"
presidential candidates is likely to embrace reliance this time on
such divine clues. But whether supposedly more "rational"
methods are truly wiser is beyond the capacity of political and
legal theory to say.
CON'T.... |
