How not to Elect a President

Election night 1968 almost produced the nightmarish spectacle of the most powerful nation on earth on the brink of constitutional chaos. If Illinois, California and Ohio hadn't tipped into the Republican column on the morning of November 6, no one can say with certainty what would have happened to this country.

The best we could have hoped for would have been the triumph of criminal greed among our national leaders. When the members of the Electoral College met on December 16, it seems likely that enough electors would have been influenced to switch their votes—through either outright cash bribery or the promise of special political favors—to produce an electoral majority.

Both acts happen to be felonies under Federal law, calling for long prison terms. But a nation without a President-elect, and with no idea as to how one would be chosen, presumably would prefer to have the office filled through the commission of a crime than to have no President at all.

If naked political deals did not resolve the crisis in the Electoral College, the full catastrophe would have been upon us. The election, as the commentators kept saying, would have been "thrown" into the House of Representatives. But few Americans have any idea what that would really have meant.

At best, the President would have been chosen without any regard for the popular will. For the election of President in the House of Representatives, each state has one vote, a complete denial of the "one man, one vote" doctrine that our courts enforce in all other elections. The first candidate to receive 26 votes would have been our new President. Deals and vote trading would certainly have been resorted to by all three contending factions at that point. With the Presidency at stake, who would have failed to use any weapon in the political arsenal? One candidate and his supporters had already spent a reported $20,000,000 in an attempt to win the Presidency on November 5. Is there any reason to assume the spending would not have continued until the battle was won?

And, at worst, after all this sordid chaos, we could still have ended up without a President-elect. The party split in the House is such that it is entirely possible that no candidate could have gotten the necessary majority.

The postelection House line-up was 26 delegations controlled by Democrats, 19 controlled by Republicans and five tied and thus unable to cast a vote. Technically, this could have produced a Democratic victory. But it is very doubtful that the delegations from the five states that supported Wallace would have voted for the Democratic candidate. If one or all of these delegations shifted to the Republican candidate or held out for Wallace, it would have created a stalemate.

With the House stalemated, the Senate would have proceeded with the election of a Vice-President. In the Senate, each member's vote is counted; Democrats have a clear majority and would have, presumably, been able to agree on an interim leader. But how much power would he have? Could he expect public support if he had to move quickly to put down some domestic disorder or meet a foreign crisis? Would the new Vice-President be able to prod the House into conferring the Presidency on himself?

Think of the pressures on all concerned: the three principal candidates, the leaders of the Armed Forces, the general public, the incum bent President, who would be properly reluctant to leave the nation without a duly elected commander in chief. Can you imagine the political crisis if we raced from one Presidential term to the beginning of another with no new President elected?

When we were freshly back from the brink of this crisis, public opinion was fired up with a demand that we reform our Electoral College system—a system that even the conservatively oriented American Bar Association has called "archaic, undemocratic, complex, ambiguous, indirect and dangerous."

The United States Chamber of Commerce called for the abolition of the Electoral College. The polls reported that 81 percent of the public favors abolishing the Electoral College and electing the President by direct popular vote.

Senators and Congressmen saw this trend in their daily mail. A schoolboy from New Richmond, Wisconsin, wrote me, "It's just plain undemocratic." A Racine housewife complained that "it seems very odd that the Electoral College is more important than we, the people." A Milwaukee businessman put his finger on the key issue: "We don't like to be passed on by some nameless individual who does our voting for us. The personal feeling of participation is the important point. Keep our country strong and the faith of the people firm in our Government."

When the 91st Congress convened, I labeled Electoral College reform as one of the hottest political issues; yet experienced Congressional observers viewed the prospect for reform as only fair to poor. It may seem astonishing that any reform supported by 81 percent of the people could fail, but the hard fact is that the public does not have a very good reputation for following through on such things. It would have been far more hopeful if this reform was supported by two or three determined special-interest groups. The professionals stick with a fight to the end. The public, no matter how aroused it may get at a moment of apparent crisis, soon goes back to its normal pursuits.

The worst thing that could happen would be the passage of an Electoral College revision bill that would not correct the problem and might make it worse. This is a distinct possibility. Powerful support exists among conservatives for a proposal that would merely eliminate the "winner take all" feature of Electoral College voting, so that each state's electoral vote would be cast in proportion to the popular vote in that state. The rest of the system would be left as it is. This "solution"—which President Nixon substantively endorsed last February in one of his first messages to Congress—would be most unfortunate. It would doom for a generation any hope of electing the President by a direct, popular vote. It would give inflated power to one-party states, which can deliver most of their electoral votes for a candidate, while the votes in the closely balanced states would be virtually canceled out. And it would perpetuate the scandalous system under which tiny states wield disproportionate influence in electing a President, because each gets two bonus votes to match its two Senate seats, without regard to population.

Instead of hammering out some possible compromise to placate all the contending factions, Congress and the public should take a long, hard look at what is wrong with the whole election system and then correct it.

To do less, it seems to me, is to aggravate the most serious problem facing this country—the increasing alienation of many of our people, especially our young people, from our democratic institutions. Rightly or wrongly, there are millions of people in this country who no longer believe that they have any significant voice in the destinies of this nation. Obviously, many things must be done to correct this problem, but one dramatic step toward solving it would be to restore the integrity (continued on page 260)How not to Elect a President(continued from page 142) of our Presidential-election system.

The President is the one man in our political system who is intended to represent all of the people, yet he is selected by the most restrictive and most undemocratic of methods. A special commission of the American Bar Association, after lengthy study, has listed the following defects in the Electoral College system:

1. It allows a man to become President even though he receives fewer votes than his opponent.

2. Since all the electoral votes of a state go to whichever candidate wins a plurality, the minority votes in that state are nullified—in effect, disfranchising millions of people.

3. Electors in many states are not required by law to vote for the candidate who carries their state. They can utterly defy the popular will.

4. The electoral vote that decides the election does not depend in any way on the turnout state by state—a situation that encourages voter apathy and fails to reward voter enthusiasm. (If you are a minority voter in a one-party state, what's the incentive to vote?)

5. The Electoral College system flagrantly disregards population. States get a minimum of three electoral votes, regardless of their size, and no allowance is made for population changes from election to election (except when a state's Congressional delegation is revised).

6. The system of election in the House, with one vote per state, is disgraceful and un-American.

That is a scorching indictment of an undemocratic system that should be replaced by a new procedure that guarantees the Presidency to the winner of the popular vote. A direct-vote process would put equal weight on every man's vote, thereby encouraging individuals to participate in the election and encouraging the national parties to seek the largest possible voter turnout.

Such a plan has been developed by the American Bar Association and has been introduced in the Congress by Senator Birch Bayh. As a safeguard, it provides that if no candidate received 40 percent of the popular vote, there would be a runoff election between the two highest candidates.

Surprisingly and encouragingly, the House version of Bayh's proposal easily passed its first major test last spring. It was approved in late April by the House Judiciary Committee—the first time since 1949 that the committee had submitted to the House at large a measure calling for the scrapping of the Electoral College system—and appeared to have the required two-thirds backing among House members. President Nixon has also made it clear that he will throw the weight of his office behind the campaign for ratification of a direct-popular-election reform, should one emerge from Congress. Yet many hurdles remain. If the amendment makes its way successfully through the other pertinent committees and is then approved by two-thirds majorities in each branch of Congress, it will still have to be ratified by the legislatures of three fourths of the states.

In the traditional American way, there will be many attempts to water down, compromise or completely subvert this reform all along the way. The above-mentioned plan of conservative Senators is the most formidable enemy of reform. But let's keep our eye on the ball. The prime failure in the present Electoral College system is its flagrant denial of one man, one vote. The U. S. Supreme Court enunciated this principle in a series of Congressional and legislative reapportionment cases—Baker vs. Carr (1962); Wesberry vs. Sanders (1964); Reynolds vs. Sims (1964); and Gray vs. Sanders (1963).

In one instance, the Court said:

Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal voice.

Obviously, the geographical constituency of the President is the entire nation, and all the citizens should have an equal voice in his selection. They do not today.

In another instance, the Court said:

Within a given constituency, there can be room for a single constitutional rule—one voter, one vote.

It is time to apply that "single consti tutional rule" to the Presidency.

The one man, one vote principle is a key to understanding Electoral College reform for another reason.

Americans have a reverence for the founding fathers and a reluctance to tinker with their work. Therefore, it is important to understand how public opinion and the weight of constitutional law have developed in this country in the almost 200 years since the Constitution was drafted.

The fact is, the reason we have the Electoral College system today is that the founders plainly and simply did not believe in popular elections. They quite literally lived in a different world. The general public was not educated. Communication and transportation systems were very primitive. America was an undeveloped country of 13 lightly populated states, whose leading citizens were anxious for the stability of a national Government controlled by the propertied and educated classes.

The framers of the Constitution had no intention whatsoever that the President be elected by the people. As Professor John D. Hicks says in his American-history textbook, The Federal Union:

The creation of an executive department caused the convention a great deal of trouble. Extreme conservatives were in favor of a single executive, chosen by Congress for life, or at least for a very long term. Some, however, felt that such a plan was too closely akin to monarchy…. Popular election seemed the natural alternative, but the judgment of the people was sorely distrusted by the great majority of the delegates, and this idea was hastily thrust aside.

If you read the minutes of the Constitutional Convention, you will see the hostility to popular election—completely understandable in those days but almost unbelievable in today's context.

Colonel George Mason of Virginia told the convention that "it would be as unnatural to refer the choice of a popular character for chief magistrate to the people as it would be to refer a trial of colors to a blind man." He utterly rejected popular election, saying: "The extent of the country renders it impossible that the people can have the requisite capacity to judge the respective pretensions of the candidates."

Another convention delegate, Hugh Williamson of North Carolina, put it very simply: "There are at present distinguished characters (prospective Presidents) who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own state, and the largest state will be sure to succeed. This will not be Virginia, however. Her slaves will have no suffrage."

Think how many things have changed in America since Mr. Williamson made those statements! Can we continue to maintain a system that was, at best, a compromise in his day?

The Electoral College system was a kind of last-minute compromise in the Constitutional Convention, designed to end a deadlock that was caused by hostility to the popular vote on the one hand and a sincere belief that Congress should not choose the President on the other. (The fear was that a President elected by Congress would be completely subservient to that body and, hence, a weak executive.)

I doubt, however, that those who are reluctant to tinker with the work of the founding fathers realize what a strange system they devised and how utterly for eign it is to today's beliefs.

As originally established, the electors—"appointed" in whatever manner each state decreed—really would select the President. There need not have been any popular vote at all. Furthermore, the electors originally were required to vote for two candidates for President. If anyone should receive the votes of a majority of the electors, he was to be declared elected President, while the candidate receiving the next highest number of votes, whether a majority or not, was to become Vice-President.

Again, Professor Hicks offers some insight into what was really intended, when he states, in The Federal Union:

It was assumed, however, that unless there were some outstanding candidate, such as in the first election General Washington was sure to be, an election by a majority of the Electoral College would be impossible, and each state delegation would merely cast its vote for some favorite son. [Then the election would go to the House, on a one state, one vote basis.] This involved a subtle compromise. [Since the House would choose from the five candidates with the most votes in the Electoral College], it appeared that the large states would ordinarily nominate the candidates, while the more numerous small states would hold the balance of power in the election to follow.

Obviously, if the Electoral College system were to function today as envisioned by the founding fathers, the nation would rise up in outrage. The Constitutional Convention really intended that the House should pick our President from nominees chosen by the Electoral College, a system that virtually every political observer today sees as chaotic and susceptible to widespread corruption. Remember that fact the next time someone argues against Electoral College reform on the ground that we shouldn't tinker with the work of our founding fathers.

As a matter of fact, the original constitutional plan for picking a President lasted only until 1804, when it was changed by the 12th Amendment. This directed that electors vote separately for President and Vice-President, and said that when the Electoral College failed to cast a majority vote for President, the House would make the selection from the top three candidates (originally, from the top five). This amendment also shifted the responsibility for picking the Vice-President from the House to the Senate. In 1933, the 20th Amendment further modified the original plan by providing that the Senate should proceed with the election of a Vice-President if no President is elected, and that he should serve as President until a President is chosen.

The challenge to those who believe in government by the people is to proceed to amend the Constitution to elect the President by direct popular vote. We will hear a lot of reasons why this should not be done. Let's examine them.

"It will weaken the two-party system." It will not. It will save it. The greatest threat to the two-party system now lies in the fact that third- and fourth-party candidates make an Electoral College majority hard to obtain. This gives can didates such as George Wallace, with as few as five states' electoral delegates, enor mous bargaining power—either in the Electoral College or in the House. A direct-popular-vote system, with a requirement that one candidate win 40 percent of the vote or face a runoff, would greatly discourage the entry of third-party candidates. There would be no point at which they could make a deal. They would work only with the electorate as a whole—which is the way government ought to operate.

"It would end our Federal system of government." It would not. The Federal system is firmly established in the U. S. Senate, where every state has two votes, regardless of its size. The Senate retains great powers, especially in foreign affairs and in confirming Presidential appointments, and continues to be almost universally accepted as an effective governmental institution. The fact is, the Electoral College system is irrelevant to the institution of Federalism, because its effect is so capricious. No one knows in advance how it is going to work, so governmental decisions cannot be influenced by it. Under the present system, a tiny shift of popular votes could have resulted in the election of Dewey instead of Truman, of Nixon instead of Kennedy and of Humphrey instead of Nixon. Was it a triumph of Federalism that those elections came out the way they did? Would it have been a triumph if they had been reversed? Of course not. It would merely have been a freak accident, as unrelated to Federalism as it would have been to the popular will. The Presidency today is really above the Federal system. The President is the one elected officer of the Federal Government who does not represent states or special interests. He represents people and the public interest.

"It would delay learning the outcome and would lead to massive recounts, subject to fraud." It might—and, again, it might not. Voting machines, computers and modern communications systems make it possible to tabulate a nationwide popular vote today far more quickly than we were able to compute the likely electoral vote even a decade ago. As for fraud, that is a strange argument from those who stand on the sanctity of the Federal system. Can't our states be trusted to take a fair vote for President, just as they do for Senators, Congressmen, governors, legislators, judges, and so forth? If this really is a problem, Congress might have to enact legislation to guarantee that all qualified citizens are allowed to vote. Personally, I think this whole argument on possible delay and fraud falls flat on its face. I would far rather risk a delay in computing the popular return in a close election than wait until mid-January to see what the House of Representatives might do. Any system runs the risk of delays and recounts. But only a popular-vote system guarantees that the public ultimately will win the election.

"Populous, industrial states would lose some of their present influence." This might prove true, although historically, many have expressed the exact opposite fear—that large industrial states would pile up big margins for their favored candidate and dominate the election. Recently, on the other hand, articles in The New Republic and other liberal journals have argued that the present Electoral College system has the desirable effect of forcing Presidential candidates to pay extraordinary attention to big cities and large industrial states, because their large chunks of electoral votes could easily decide an election. This argument contends that this helps offset the domination of the legislative branch by small states and rural areas. One obvious answer to this argument is that two wrongs do not make a right. Neither large nor small states should have extraordinary influence in choosing a President. A vote in Iowa should mean just as much as a vote in New York. The choice should be by people, regardless of where they live. By shifting to a popular-vote system, the small states would give up their unjustified bonus of two electoral votes (repre senting their two Senate seats) and the large states would give up the special attention they have received from candidates during campaigns.

"It would force democracy down the throats of the American people." That is an actual complaint, voiced by Loyd Wright of Los Angeles, former president of the American Bar Association, during a 1967 A. B. A. debate. This is the one criticism of Electoral College reform that makes sense. If you really are of that strange breed that hates democracy, you should oppose Electoral College reform. If you really believe (as Colonel Mason and Mr. Williamson did at the Constitutional Convention) that the people should not have a voice in picking the President, then you are on solid ground in opposing Electoral College reform.

Reform of the Electoral College system would be a great step forward for our developing American democracy. It would enable our President—whatever his party —to come out from the shadow of the political bosses and the state machines and walk the streets again as the chosen candidate of all the people.

But if reforming the election system is attainable, why stop there? Why not reform the nominating system as well, so that the people have a really meaningful choice between candidates who stir the imagination of the electorate and generate a strong personal following?

After the Republican and Democratic nominating conventions of 1968, which alternately bored and horrified the public, the Gallup Poll found 76 percent of the people in favor of junking the convention system.

The most logical substitute is a nationwide primary system. But a nationwide primary presents serious technical problems. The biggest single problem lies in narrowing the field of prospects, so that the top candidates would have hope of polling something near a majority of the votes cast in each party. There also is the problem of how candidates would finance nationwide primary campaigning without the support of the party organization that a candidate acquires along with a convention nomination. (This problem could be solved, I believe, through strict new controls on political spending, coupled with a requirement that television stations—which operate under a public franchise—be required to give free time to Presidential candidates.)

At the very least, Congress should set up some rules for the selection of con vention delegates. The present system is a disgrace.

In Wisconsin, partly because of the La Follette heritage, we have a tradition of making the public a full partner in government. Our convention delegates are selected in an open Presidential primary in which all of the major candidates are on the ballot and a citizen may choose to vote in either the Republican or the Democratic column. Delegates are elected from the state at large, as well as from individual Congressional districts. At the convention, delegates must vote for the candidate who won the primary, as long as he receives one third of the total convention vote or until he releases them.

Procedures followed in other states are, at the worst, scandalous and, at the very best, arbitrary and nonuniform. In Georgia, the governor appoints the state chairman of the party and he, in turn, chooses all of the convention delegates. Obviously, they are mere pawns of the governor. In Louisiana, the party's state central committee, elected four years earlier, when they don't even know who the candidates might be, picks the delegates with no participation by the public. In Texas, delegates are chosen at a state party convention that operates under the unit rule. Dozens of smaller units, presumably subservient to top party leaders, wield disproportionate influence in such conventions. I am informed that in Oklahoma and Missouri, at least some delegates were selected at local party conventions that were held in secret. In Indiana, I am informed, some delegates were selected in a district caucus at which the district party leader announced his choices and rammed them through in a total of 22 seconds.

Obviously, the public is not given any consideration when delegates are selected in this manner, and we at least open the door to the suspicion of bossism and possible corruption.

Following the 1968 conventions, I introduced a resolution to set up a 30-member blue-ribbon commission to propose to the Congress a new and better nominating system.

It might be that the best solution to the Presidential nominating dilemma would be this: Let primaries in each state pick convention delegates on a popular-vote basis and, at the same time, register the public's feelings toward the leading Presidential candidates. Then let the conventions meet—with their honestly elected delegates—and make the final choice of their candidates.

The 18-year-old vote would be the final stage in making the President of the United States a truly popular leader who can reunite this country and guide it through the perils of the future. We saw in the primaries of 1968 how young people can be turned on by Presidential politics. And we saw at the two conventions how they can be turned off again. As my colleague from New York, Senator Jacob Javits, argued in Lower the Voting Age (Playboy, February 1968), if we are really sincere in deploring the dropping out of young people from society, why not bring them back in again by making them full partners in the American system? Youthful interest in government invariably begins with the Presidency. Let's give them a piece of the action the minute they turn 18, and give them a real stake in the future.

These reforms, as I said at the outset, will not come easily. But I am convinced that they are necessary if the American system of government is to regain the confidence of the people—especially the young people—without which I do not believe the system can survive.

These reforms also are necessary if we are to get what I think the people crave but are failing to receive—strong, personalized Presidential leadership. The public becomes cynical when candidates cater to power blocs, when they make deals with political bosses, when they seem to rate the favor of interest groups higher than the public interest. Yet the public desperately wants to be led—by a man who has earned their confidence and fired their imagination.

If the American people will demand that this session of Congress set in motion the necessary reforms in the Presidential system, I think we can look forward to a future of strong, responsible Presidential leadership, and to a united nation ready to build itself a new and better future.