Presidential Lottery (13 page)

Finally, in spite of the blatant miscarriages to which I have already alluded—Adams-Jackson in 1824 and Hayes-Tilden in 1876—and in spite of the fact that fifteen of our Presidents have been elected with less than a majority of the popular votes, the fact remains that the system has worked. Pragmatically speaking, it has been a great success, having outlasted several hundred other governmental systems that have been tried in other nations in the period since 1789.

A surprising number of serious students of American history advise holding onto our present plan because in spite of its weaknesses it accomplishes much. Historian Carl Becker pointed out that the electoral system is a major factor in forcing both political parties to keep close to the middle of the road so as to pick up votes from all varied parts of the nation. It also prevents parties from taking exaggerated stands which might inflame certain levels of the population across the nation, producing a kind of political hysteria.

Clinton Rossiter, historian and educator, is another who is
dubious about change. He warns that “we should hesitate a long time before replacing a humpty-dumpty system that works with a neat one that will blow up in our faces.”

The most powerful voice in favor of keeping the electoral system was President John F. Kennedy, who while still a senator pointed out that it prevents any one region of the nation from attaining too much power and also retains a workable plan of checks and balances. On the whole, said Kennedy, it has given us “able Presidents capable of meeting the increased demands upon our Executive. No urgent necessity for immediate change has been proven.” In debate on March 5, 1956, he argued, “The point I want to make is that when all these factors are considered, it is not only the unit vote for the Presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider all the others.… I am very strongly opposed to any change in the Constitution at this time. The present system has served us well. Its advantages are well known. But the consequences of the proposed amendment, however desirable they may appear to be, cannot be foretold.”

Arguments against continuing the present system, even with the improvements suggested, are formidable and have been discussed at length in the preceding chapter. Critics stress the accidental derivation of the system, its winner-take-all tradition, the pusillanimity of the electors, the domination by the two parties, and the power accorded to minorities. They argue persuasively that a plan with so many defects
ought to be scrapped altogether in favor of a carefully worked out plan which reforms the entire system.

Opponents also advance certain technical objections to the present system. Conclusive legal results of a November election ought to be known more quickly than they can be now. It is ridiculous to postpone the electoral voting till mid-December, and the Congressional solution of deadlocked elections until January of the following year. A very telling attack is one whose merit will become clear when we study
Appendix C
and the explanations which accompany it; briefly, the present system, contrary to popular belief, produces a considerable advantage for large states and thus poses a threat to the federal system rather than being a prop for it.

One technical objection to the automatic plan merits careful consideration. If the kind of constitutional amendment which the advocates of this plan propose is adopted, a fundamental change will have been made inadvertently in our system without our having been aware of the consequences. The amendment would freeze into permanent form the winner-take-all tradition which is now merely the creature of the fifty state legislatures. To change the amendment would require approval of both the Senate and House by two-thirds majorities plus a ratification by three fourths of the states; to change the tradition as it now exists would require only action by the various legislatures, or the courts. This point will become of added significance when the data of
Appendix C
are explored, for then the inadvisability of freezing into permanent
form the source of grave inequity will be demonstrated.

The district plan.
The Electoral College would be retained. Inconclusive elections would continue to be thrown into Congress. But in each process innovative safeguards would be added to forestall fraud.

Each state and the District of Columbia would continue to have its allotted number of electoral votes, but they would be applied in a striking new way. In California, for example, the 38 votes corresponding to that state’s 38 House members would be decided not in a mass on a winner-take-all basis as at present, but separately in each of 38 districts, not necessarily identical with the Congressional districts. The two other votes, representing California’s two senators, would be decided at large from the entire state.

Note what a significant change this would introduce. In 1968 the popular vote was quite close in California—3,467,644 to 3,244,318—but because the Republicans finished 223,326 votes ahead, Nixon garnered all 40 electoral votes and Humphrey none. Had the state voted by districts, plus two votes at large, the count would probably have been 23 to 17 in favor of Nixon, even though California’s House delegation, elected from those same districts, divided 21 to 17 Democratic.

The problem of an irresponsible Electoral College would be avoided in an interesting way. Each would-be elector would take a pledge to vote the way his state voted, and since this provision would then become part of the Constitution, it could be enforced by law, whereas now it cannot be.
If he voted contrary to his pledge, such vote would be ignored and “counted as a vote cast in accordance with his declaration.”

To become President, a candidate would still have to win an absolute majority of the Electoral College—at present, 270 votes—but in the event that all the votes are evenly divided between two candidates—at present this would be 269 each—that candidate who had won the largest number of individual districts would be the winner. If more than two candidates split the electoral vote in such a way that no one had a majority, the inconclusive election would be thrown into the Congress, but with two distinct improvements. The Senate would meet with the House in joint session, as explained in the previous proposal, and all members would vote as individuals, an absolute majority being required—at present, 268 votes. (As the proposal now stands, no provision is made for the District of Columbia, hence the figure of 268, but, as discussed before, this could easily be rectified.) The second improvement is unique to this proposal. Since three candidates would be contending in the joint House-Senate session, a situation would be possible in which no one of them could win a majority; if on the first ballot such a deadlock developed, on the second ballot only the two candidates who had stood first and second on the first ballot would be voted upon, and this would produce a winner unless absentees or abstentions made a decision impossible, but rules for voting could be passed which would prevent such a tactic.

A major argument in favor of this plan is its long association
with American history. In the early years of our nation a number of states selected their electors on the district plan; Jefferson, Hamilton, Madison, J. Q. Adams, Jackson, Van Buren, and Webster all championed this idea. It was proposed often as a nationwide obligation and was passed by the Senate four different times between 1813 and 1824. In 1820 it failed to win House approval by only five votes. Left to their own free choice of methods for selecting electors, individual states continued to follow the district plan, Michigan returning to it as late as 1892. Of the three new proposals—district, proportional, direct—only the first has ever been a tested part of the American procedure for electing Presidents.

Proponents of the plan cite a long list of advantages that would flow from it. A President so chosen would more nearly reflect the total composition of the nation, in that each resident of each district would have the same vote as the resident of every other district in the nation, namely, three votes, two for the electors representing the two senators and one for the elector representing the representatives. In effect, the nation would be composed of 436 small states of comparable population and more or less comparable influence. (The total number of votes, of course, would be 538 because of the addition of 102 at-large votes—2 from each state and from the District of Columbia.)

It would diminish the importance of a few large states and would mean that a Presidential candidate might logically be chosen from almost any part of the nation. The two-party system would be encouraged in that no matter what the preponderance
of registration in a given state, there would always be a chance for the minority party to pick off an elector here and there, a possibility not available in the winner-take-all system.

The sponsors realize that the district plan would be an invitation for the various state legislatures to gerrymander—especially since districts need not conform to Congressional districts but can be drawn to taste—but a limited safeguard has been introduced forbidding the legislature from redistricting until a new census has been taken. The fact that district lines would be altered after most censuses, whether Congressional lines were followed or not, would make the selection of electors more responsive to population shifts, and this would be desirable.

Specifically, the district plan would diminish the influence of minorities centered in cities, since their swing votes would influence only the electoral vote of their district and not the total vote of their state. For this reason the plan has usually been considered advantageous to rural areas as opposed to urban, to small states as opposed to large, to the more conservative elements of our society as opposed to the radical.

There seems to be little doubt that in the 1950s when this plan was seriously revived, it would have been a most powerful weapon for controlling cities and augmenting rural strength, for in those days prior to the Supreme Court’s decision in
Baker v. Carr
and the enunciation of the one-man–one-vote doctrine, the Congressional districts of this nation grossly favored the rural areas and even more grossly penalized the
cities. If the districts of 1956 were still in operation, this plan would be an intolerable steal and no sensible large state or urban area would tolerate it; but with the new districts drawn in conformity to Supreme Court decisions, the old discrepancies have been largely eliminated and the district plan is to be taken seriously.

Opponents of the plan have been outspoken. They argue that in spite of pious avowals to the contrary, the gerrymandering of districts would become such a fine art that no court could keep up with the innovations. Only one who has lived in a notoriously gerrymandered district, as I have, can appreciate the cynical effectiveness of this device in controlling elections. I would judge that if you gave me and my Democratic cronies a free hand, we could gerrymander a swing state like Pennsylvania so that its 27 House seats in Congress, now divided 14–13 Democratic, would be divided under our plan into something like 16 Democrats to 11 Republicans, whereas a bunch of Republican experts could take the same census figures and come up with something like 15 Republicans to 12 Democrats. I shudder to think of what the Massachusetts or Texas legislatures could do to their states, and this plan seems an invitation to such skulduggery. The creative contribution of minority groups—forcing candidates to take them seriously, probably to the benefit of the nation—would be lost. Urban problems could more easily be shunted aside, since the cities would have lost much of their power, and splinter parties would proliferate, each hoping to win enough votes to strike a balance of power which could be exerted—if
not in the Electoral College, in the joint session of Congress.

One aspect of the plan is problematic. When pointing out that as defined at present the plan would disfranchise the District of Columbia whenever the election went to the Congress, I said with a certain optimism that this defect could be easily rectified. Now I am not so sure. When one considers the conservative nature of the sponsors of this plan, one gains the suspicion that they might not want to give the District, which contains a preponderant Negro population, any concessions and that the plan could well be used to deny the District rights to which it is entitled.

Finally, if it were imprudent to freeze into the Constitution the relatively mild provisions of the automatic plan, how much more so would be the continuance of constitutional authorization for the electors, which this plan would ensure?

The long-time champion of this reform has been Senator Karl Mundt, of South Dakota, who has said, “The Electoral College, operating under the rule of ‘winner-take-all,’ is, in my estimation, the most unfair, inaccurate, uncertain, and undemocratic institution of all.” He has argued persuasively through many years that his district plan will bring democracy back to the College.

The National Association of Manufacturers has supported this plan, as have the Daughters of the American Revolution, H. L. Hunt of Texas, and Senators Goldwater of Arizona, Thurmond of South Carolina, Tower of Texas, Hruska of Nebraska, Stennis and Eastland of Mississippi, Miller of Iowa, Williams of Delaware, Jordan of Idaho, and Hansen of Wyoming, among others.

The proportional plan.
The Electoral College would be abolished. The electoral system would be retained. Inconclusive elections would continue to be thrown into Congress, but with notable safeguards.

Each state and the District of Columbia would continue to have its apportioned electoral votes. They would be allocated, however, not on the winner-take-all system as at present but according to the proportional vote gained by each candidate, carried to three decimal places and disregarding the fourth. If this plan had been in operation in 1968, the California vote would not have been Nixon 40, Humphrey 0, Wallace 0, others 0; but Nixon 19.127, Humphrey 17.895, Wallace 2.687, others 0.288. These results would have been transmitted automatically to the Congress. The virtue of this plan is that it permits minority votes to exercise leverage rather than to be submerged in a one-party victory. Even if a minority party knows it cannot win the entire state, it can work hard for its fair share of the electoral votes. The drawback to the plan, of course, is that the opportunity this provides encourages third parties and even nineteenth and twentieth parties, each trusting that it will be able to pick up a few electoral votes here and there. Obviously, if enough minority parties in the fifty states picked up enough stray votes, most Presidential elections would be thrown into the House. Our elections would prove inconclusive and America would face the problem of fragmentation which has stricken so many other democracies.