This is bad enough, but the process of voting is even worse. Each of the fifty states is given one vote, with twenty-six being required for election. The disposition of a state’s vote is determined by a poll of the state’s delegation to the House. If the delegation has more Republicans than Democrats, the one vote would normally be cast for the Republican candidate. If the delegation is predominantly Democratic, the one vote would probably be Democratic. In case the state’s delegation happens to be evenly balanced—or in case some member is ill or absent, producing a tie—that state is totally disfranchised and has no vote. Obviously, in an election in which several states had tie delegations, enough votes might be immobilized to prevent an election.
It is difficult to describe the injustices and imbalances produced by this system. Suppose a close election in the House, with the vote of each state crucial. In the fall election Alaska, with its 1968 population of 277,000, would have been entitled to only one representative, so the vote of its delegation could not possibly be tied; but California, with a population of 19,221,000, would have had 38 representatievs, and its vote might stand at 19–19. In such an instance Alaska would have one vote, and California none. Or suppose that California’s delegation split 20 Republicans to 18 Democrats. Then Alaska would have one vote, and California would also have one, so that in choosing a President, Alaska would have something like sixty-nine times the leverage of California. These enormous discrepancies would be duplicated when comparing Nevada with New York, or Vermont with Pennsylvania.
In this system, 59 judiciously chosen House members representing the 26 smallest states can control the election, regardless of how 359 members from the 24 largest states vote. Using the 1960 census figures, the small 26 had a total population of only 31 million, but they could outvote the large 24 with a population of 149 million. This is minority power with a vengeance, and when the 1970 census figures apply, the discrepancies may be even greater.
Put even more bluntly, Alaska, Nevada, Wyoming, and Vermont, with a total population of about 1,467,000, according to 1968 estimates, would have four votes in choosing the President and would thus outvote California, New York, and Pennsylvania, with a population of more than 49 million, but with only three votes.
If the House system worked efficiently, we could tolerate the enormous advantage accorded the small states, and the regrettable disfranchisement of tie-vote states, but actually the system is a shambles and an invitation to fraud. Presidential elections have only twice wound up in the House, once in 1800 and again in 1824, and the performance each time was frightening. In the former year the party which later became the Democrats backed Thomas Jefferson for President and Aaron Burr for Vice-President, and this was so clearly understood that the electors did not specify which man was to hold which position, with the result that each got 73 electoral votes. Burr, a man without principle who would later be charged with betrayal of his nation, saw a chance to profit from the accidental development and grab the Presidency for himself. In a letter that was nobly worded and widely published he disclaimed any interest in that position: “It is highly improbable that I shall have an equal number of votes with Mr. Jefferson; but if such should be the result, every man who knows me ought to know that I should utterly disclaim all competition. Be assured that the Federal party can entertain no wish for such an exchange. As to my friends, they would dishonor my views, and insult my feelings by a suspicion that I could submit to be instrumental in counter-acting the wishes and expectations of the United States—and I now constitute you my proxy, to declare these sentiments if the occasion shall require.”
But behind the scenes Burr worked to the opposite purpose, lining up Federalist votes for himself and encouraging all who wished to defect from Jefferson, who maintained the gentlemanly aloofness for which he was noted.
The election went to the House, where, under the rules of that day, the choice would be made between the two top contenders, Jefferson and Burr. One hundred and six representatives were eligible to vote, representing sixteen states, with nine state votes being required for election.
The balloting started on Wednesday, February 11, 1801, in a snowstorm. Two representatives were absent, and two states had deadlocked delegations. The first ballot showed Jefferson 8, Burr 6, deadlocked 2. Jefferson had failed of election by one vote, and his gleeful opponents believed they could muster enough opposition to keep him from the Presidency.
Since the inconclusive vote established on the first ballot was to maintain throughout the election, and since it could have been duplicated in principle in 1969, it will be instructive to analyze what happened:
For Jefferson: New York, New Jersey, Pennsylvania, Virginia, North Carolina, Georgia, Kentucky, Tennessee—principally southern states with the addition of three big states in the north.
For Burr: New Hampshire, Massachusetts, Rhode Island, Connecticut, Delaware, South Carolina—principally New England states plus one border and one southern.
Deadlocked: Vermont, Maryland—two accidental ties.
New Jersey’s vote for Jefferson was extremely tenuous, since that state was divided three to two, with a swing man who was notoriously undependable; no one knew which way he would vote next and it was said that the New Jersey count should be recorded permanently as 2½ to 2½. The two ties were of interest in that Vermont’s was due to the personal disgust her two representatives felt for each other, while Maryland was prevented from voting for Burr only by the courageous presence of a man who was so near death that he was kept in a cot off the voting chamber. A crucial question before each ballot was, “Is Joseph Nicholson still alive?”
A second vote was taken, and the results stood the same. All that night the House balloted, twenty-five times, without a change in the stubborn line-ups. The two Vermont men refused to compromise, or even to speak to each other, and Joseph Nicholson continued to rise from what all judged to be his deathbed to prevent Maryland from going to Burr.
In the cold dawn of Thursday morning it became evident that the House was not going to settle this issue at one sitting, so in direct violation of the Constitution, which required them to stay till the job was done, they recessed till eleven that morning. At that hour the same results were forthcoming, so they recessed again.
At noon on Saturday the voting resumed, with the same result: Jefferson 8, Burr 6, deadlocked 2. No President.
The twenty-eighth ballot produced the same results, as did the thirtieth and thirty-first, but as the thirty-second was called, the dramatic break that all had waited for arrived. From the North Carolina delegation a gentleman rose, and in a voice quaking with emotion, announced that it was time for principle to overcome private interest and proposed to switch his vote from Burr to Jefferson. There were cheers and huzzahs until someone pointed out that since North Carolina was already for Jefferson, the switch signified nothing. Score on the thirty-second ballot: 8–6–2, with North Carolina voting for Jefferson, as she had done thirty-one times previously. The score on the thirty-third was the same, and the delegates broke up for a recess which would carry over Sunday.
It seems extraordinary, at this distance and with what we now know, that these congressmen were so reluctant to elect Thomas Jefferson, one of the noblest minds this nation has produced, but clung to Aaron Burr, one of the most mercurial and undependable, but the bitterness with which the Burr men opposed Jefferson is proved by the stubbornness of their vote.
A great deal of politicking took place over the weekend. Certain deals were proposed and rejected. Others struck the fire of imagination and promised possibilities, which never did materialize. There was talk of rebellion; there was fear of anarchy; and on Monday the voting resumed.
The thirty-fourth ballot revealed the same obdurate lines of resistance—8–6–2—but there was a rumor that the Maryland delegation might be prepared to break its deadlock, not through the death of Joseph Nicholson, who lived through to the bitter end, but because a Burr supporter felt that this travesty could co
ntinue no longer and threatened to vote for Jefferson. (Nicholson survived till 1817 and earned a place in history because one day he saw some lines scribbled by his brother-in-law and brought them to the attention of the public on the ground that they exhibited a fine patriotic sentiment. His brother-in-law was Francis Scott Key and the poem thus saved was “The Star-Spangled Banner.”)
The House, sensing that grave decisions were impending, recessed so that adversaries could consider their positions, and on Tuesday morning, February 17, 1801, when the House reconvened, there was again wild rumor that Maryland had broken its tie and would vote for Jefferson, but on the thirty-fifth ballot Maryland continued her deadlock. When the thirty-sixth ballot was called for, however, members saw with amazement that the issue had been decided for them in an unforeseen way: one of the two chairs in the Vermont delegation was empty, and it was the Burr supporter who was abstaining. His state could now vote Jefferson one, Burr none. A President had been elected. To make it certain, Burr men in Maryland also abstained, allowing that state as well to go for Jefferson. In Delaware and South Carolina the delegations were all Burr men; they agreed to withhold their votes from him but they were damned if they would vote for Jefferson, so they did not participate and their states were recorded as abstaining. Final vote: Jefferson 10, Burr 4, abstentions 2.
A major reason why the House had been able to hold the line for Jefferson through this parade of thirty-five deadlocked ballots was that Alexander Hamilton patriotically swallowed his personal hatred for Jefferson and led the fight against Burr, whom he knew to be inadequate. Said Hamilton at the beginning of the battle, “I trust the Federalists will not finally be so mad as to vote for Burr. I speak with intimate and accurate knowledge of his character. His elevation can only promote the purposes of the desperate and profligate. If there be a man in the world I ought to hate, it is Jefferson. With Burr I have always been personally well. But the public good must be paramount to every private consideration.” Three years later Burr killed Hamilton in a duel, occasioned in part by the bitterness of this election.
Some historians make the point that this House election of 1801 ought not to be used as a precedent for trying to anticipate what a House election would be like in this century, because the Twelfth Amendment, which came quickly upon the heels of this disturbing performance, altered the rules to correct some of the weaknesses which the Jefferson-Burr fight disclosed. This is sound reasoning, except that the aspects of the 1801 House election which I have been stressing—the confusions that grow out of the vulnerable system of allotting each state one vote—remain the same, and to that extent the analogy is pertinent. What happened in 1801 was exactly what we could have expected in 1969.
The second House election, however, would in other respects present a closer analogy, for the constitutional rules which governed it are identical with those that operate today; of course, each new Congress draws up its own by-laws at the beginning of its biennial session, and the 91st would have done this, so that certain of the housekeeping techniques might have been altered but not the basic voting principles.
In 1824 Andrew Jackson had nearly won the Presidency outright. He led by a large margin in both the popular and electoral votes, but since four candidates had fought the election, he failed to gain an outright majority of the electoral votes. Again the House had to choose a President. This time only one ballot was required, but it was a beauty. John Quincy Adams seems to have made a deal with Henry Clay, who had wound up in fourth place, whereby Clay would throw his votes to Adams in return for the post of Secretary of State. That was how it worked out, and Jackson, robbed of an election which should have been his, fulminated, “Was there ever witnessed such a bare-faced corruption in any country before?”
When our Constitution was framed, most of the delegates appeared to agree with the estimate of George Mason of Virginia, who predicted that “19 times in 20” the final choice of the President would be made in Congress. But the results of House election have been so turbulent and untrustworthy that few today would recommend that we retain the procedure.
A bizarre weakness of the plan is that with the House electing the President and the Senate the Vice-President—in its case, choosing from the top two candidates—the two could come from different parties, which in our system could create much havoc.
It was against this background that I contemplated the possibility that the 1968 election might be thrown into the House. By mid-October there was strong likelihood that this would happen; certain polls and responsible newspapers even suggested that Wallace was going to finish in second place and Humphrey a poor third. As I have explained, I intended to do all I could to settle the issue in the Electoral College, but I saw good reason why my effort would fail. Therefore, the possibility of a House election was to be taken seriously.
I hope that at this point the reader will study carefully Appendix D and construct for himself a list of the possibilities that could have emerged on election day, to produce an inconclusive result. The simplest contingency involves Illinois and Missouri:
If Nixon had lost these two states, which he could have done with a swing of only 67,481 votes in Illinois and 10,245 in Missouri, he would have had not 302* electoral votes but 38 fewer, or 264, which would have been insufficient for him to be elected. In other words, we came very close to a House election.
Since it is traditional for the incoming Congress to hold the election, it would have been the political division of the 1969 House that would have determined whether Nixon or Humphrey would be President, so its composition must be kept in mind throughout the discussion that follows (see table on this page–this page).
Since 26 states are required to elect a President, and since the 21 regular Democratic states plus the 5 southern states that went for Wallace but which have Democratic majorities would add up to that number, it might at first glance seem likely that Humphrey would have won. However, this implies several assumptions that are not necessarily valid.
Assumption 1. That the five Wallace states would vote Democratic. It is true that Wallace controlled no House members by having them as announced members of his party and running on his ticket; but he did control their sympathies, and there might have been enormous profits either to them personally or to their states if they voted Republican in order to deprive Humphrey of a victory. On the other hand, these southern states appreciate the advantages that accrue to them when a Democrat is in the White House and they would not lightly throw away that leverage. I doubt that one can estimate now how these states would have voted, but we do know that they would have been the focus of such dealing, such chicanery, such promises, and such log-rolling as we have not seen for a long time.
Assumption 2. That the 21 states in the Democratic column would have mustered all their delegates through twenty or thirty ballots. Kentucky, Nevada, Pennsylvania, and Tennessee would all have Democratic margins of one vote; illness or absence could immobilize these states and cast them into the deadlocked column. Of course, by the same reasoning, Republican majorities of one in the following states would have been equally vulnerable: Alaska, Arizona, Delaware, Vermont, Wyoming. It must be remembered, however, that in the early stages of the balloting the Republicans would have been in the passive posture of merely trying to prevent a Democratic victory, so that it would not have mattered if some of their states had fallen into the deadlocked column, since deadlocked states would have counted as votes against the Democrats. Of course, when it came time for the Republicans to try to put together 26 votes of their own to elect Nixon, any defection would have been fatal, but in general the possibility of deadlocked states would have hurt the Democrats more than the Republicans.
Assumption 3. That the deadlocked delegations would have remained deadlocked. The pressures on these split delegations would have been tremendous, and that they could have remained evenly balanced is doubtful. Remember that it was the unlocking of such delegations in 1801 that finally solved that impasse, and in a protra
cted series of indecisive ballots, it would probably again be the deadlocked delegations that would decide the issue.
Assumption 4. That Republicans would remain Republicans and Democrats stay Democrats through a long impasse. In 1801, key delegates withdrew their loyalty on the crucial ballot. This would probably have happened in 1969, too.
One can say with certainty that on the day it became clear that the 1968 election was headed to the House, a band of the most expert character analysts in the nation—the henchmen of the major parties—would have been studying each House member with a microscope, his family, his college deportment, his bank loans, his son’s addiction to drugs, his business interests, in order to find the weak spots in that man’s armor. And when those spots were found, a dozen prying fingers would be thrust therein to tear that man apart. It would require supermen to withstand these pressures.
In addition, there would have been the normal pressures of a troubled conscience: what ought a man who loves his country and his party do at this point? These are not light matters, but our election system seems to delight in placing men in positions where unusual and unnecessary pressures are thrust upon them.
Another factor which must be taken into account in calculating whether the apparent majority of Democratic states could have been delivered to Humphrey is the climate of opinion that would have existed at the time balloting took place. It would not have been conducive to a Humphrey victory. Television, still smarting from Chicago, would have continued to do all it could to discredit the Democrats. Its probing eye would have sought out every evidence of a break in Democratic ranks and exploded the rumor into fact. Meetings between negotiating delegates, supposed to be clandestine, would have been magnified into treachery. Newspapers which tended to support the Republican side, or did so outright, would have been justified in pointing out that since Nixon had won a plurality of the popular vote, however slight, he was entitled to the Presidency and that to deny him was treason. Gangs of young white people from the radical left would have descended on Washington to make one supreme effort to deny the Presidency to Humphrey, the inheritor of Johnson, and there would have been some ugly scenes, all reported instantly across the nation as proof of what might be expected if the Democrats won; but the solemn fact is that the election would have been conducted in the city of Washington, predominantly a Negro city, and when these citizens saw that all public pressures were being applied on the side of Nixon, a man who had ignored them in the campaign and against whom they had voted heavily (139,556 to 31,012), there would have been a great temptation to launch rallies and riots of their own, to offset what they saw happening on television. This tenseness would have been increased by the fact that whereas the Twenty-third Amendment awarded the District of Columbia three votes in the Electoral College, those votes would have been lost when the election went to the House, since the District of Columbia has no representation there. The vote would have been held in Washington, but with Washington itself excluded. Finally, the analogies that one would naturally draw between 1801 and 1969 would in one vital area not apply. Then it required days and even weeks for news of what was transpiring in Washington to reach the hinterlands; even Burr, staying in New York, was not informed until two days later at the best as to what the vote had been in crucial tests. Time and distance softened the impact; when unpleasant news did reach a distant city, what could the citizens do about it, since the fact was now history accepted by the capital? In 1969 the sharing of news is instantaneous, and if the seven days of suspense that characterized the 1801 election were to have been repeated in 1969, the anxiety would not only have been much more intense; it would also have embraced the whole nation. Because the frustration would have been instantaneous, those frustrated would have felt that they could do something about it, and I am apprehensive when I contemplate what form that action might have taken.