How would the 1969 House election have gone? The balance of power as shown in the composition of state delegations gives no cause for thinking that it would have gone easily. Theodore G. Venetoulis, in his analysis of the House election system,* has a grimly amusing chapter containing nineteen pages of speculation on “1968—The Year No President Was Elected.” He carries his imaginary election through twenty-three deadlocked ballots, and as the capital prepares for the twenty-fourth, a snow begins to fall, as it had in a similar situation in 1801. Reading his account after the Nixon-Humphrey election, one realizes that he has not relied on fantasy. It all could have happened.
Looking at the problem of House election, Venetoulis concludes: “It is inevitable that any Presidential election thrust into the Congress is going to touch off a horrendous struggle that will strain the political ethics of our society. The Presidency of the United States must not be the product of insolent intrigue, malapportioned gimmickry, or crude coalitions fashioned out of despair, exhaustion, or blackmail.”
James Madison, even though he had helped draft the Constitution, had no illusions about the error of having inconclusive elections thrown into the House. In 1823 he had unequivocal thoughts on the mistake he and his colleagues had made: “The present rule of voting for President by the House of Representatives is so great a departure from the republican principle of numerical equality, and even from the Federal rule, which qualifies the numerical by a State equality, and is so pregnant also with a mischievous tendency in practice, that an amendment to the Constitution on this point is justly called for by all its considerate and best friends.”
If an amendment was needed in 1823—two years before the Jackson-Adams deadlock—how much more is one needed today. Fortunately, as we shall see, there are two quite simple escapes from this error, and each is easily attainable by amendment. First, when the electoral vote is inconclusive, a run-off election could be held immediately between the two top candidates, and this would produce a quick, final, and easily accepted solution. Second, if the nation does not want the expense and protracted anxiety of another nationwide election so soon after the first, the choice could be thrown into the House, but the Senate would meet with the House in joint session and each member of Congress would have one vote. Since there would be 535 members in all, 268 votes would be required for election, and the nonsense of permitting deadlocked states to have no vote at all would be ended, along with the injustice of allowing Alaska to have sixty-nine times the voting power of California.
I shall say more about these alternatives later, but with such easy solutions at hand, it is difficult to explain why we cling to a discredited procedure which might bring us much grief.
* As we shall see (this page–this page, this page–this page), the defection of a North Carolina elector cut Nixon’s vote to 301.
* The House Shall Choose (Elias Press, Margate, New Jersey, 1968).
II
THE FORTY-NINE STEPS
Even though I was determined to work for the abolition of the Electoral College, I felt that since I was an elected member I should treat the tradition with respect, but society conspired against me. Newspapers in the area conducted man-on-the-street interviews regarding the College, and the replies were comical.
One man said, “Every boy and girl should go to college and if they can’t afford Yale or Harvard, why, Electoral is just as good, if you work.”
A woman in Philadelphia said, “I’ve heard some very nice things said about Electoral. It’s here in the neighborhood somewhere. I think it’s that bunch of red-brick buildings about three blocks farther down.” And she pointed toward Independence Hall.
A sporting type said, “The guys at the bar poor-mouth Electoral somethin’ awful. Wasn’t they mixed up in a basketball scandal or somethin’?”
Another man spoke for the majority. “I think every kid should go to Electoral … whether they want to or not.”
In the course of several weeks I interrogated about fifty of my friends, a majority with college educations, and was surprised at the general ignorance I encountered. Not one understood the full complexity of the system. Most were uninformed on any but the grossest functions. And even those few who understood the principle of the College were astonished when I pointed out that as of that date, no one really knew for sure who had won the November election.
“Then why is Nixon picking a Cabinet?” was a frequent rejoinder. When I tried to explain that in order to run the system we had to take certain things for granted, I received incredulous stares the intent of which I preferred not to decipher.
What really irritated my panel, however, was my assurance that on November 5 no one—neither they nor I nor Richard Nixon—had voted for President, but only for this nameless group of electors who would later do the job for the nation. This they felt to be totally preposterous, and in certain cases I thought it best not to pursue the matter. I am sure those people remain convinced that I had it all backwards because they could remember as clear as day going into the voting booth and marking their vote for Richard Nixon. It was there on the machine in big letters and they had pulled the lever for him. I reflected that in their stubbornness they had much companionship. I would suppose that in this error they were joined by at least three quarters of our population, for our citizens would be appalled if they ever woke up to the fact that they had not voted for President.
Any system which induces such misconception is dangerous, because if in a close election the winner of the popular vote were to be deprived of the Presidency by manipulations in either the Electoral College or the House, there could be a disillusionment so vast that it might lead to large-scale disaffection or worse. And when one reflects that this risk is run on behalf of a College that is not needed and serves no creative function, the folly of retaining it becomes even more clear. It was with such gloomy speculations that I prepared to report to Harrisburg to play my role as a member of this curious institution.
On the morning of my departure a blizzard invaded the eastern part of the state, blowing in upon us from the Atlantic, and within a few hours it deposited on our roads some six inches of snow, laid down upon a foundation of ice.
Since it seemed unlikely that I would be able to reach the capital if I waited till mid-morning to depart, I rose at five and in the gloomy hour before sunrise, headed westward. Snow swirled through the darkness. The air was bitter. And gales whipped the snow into such deep drifts across our country roads that I felt certain I was going to be bogged down before I got fairly started.
Fortunately, a few farmers were out and their milk trucks had broken a trail which allowed me to reach a main road, but this headed directly into the storm, and although the road surface was cleaner, driving was even more hazardous than it had been on the back trails. My windshield was quickly caked with snowy ice, and when dawn began to break, gray and ugly and freezing, I was still only a few miles from home.
It was an unseasonable storm and therefore crippled a large area that might have been able to handle it more easily later in the winter. In the first hour I saw three cars badly disabled and concluded that I would have to turn off the road and wait till some service station opened where I could keep warm. I thought it unlikely that I would make Harrisburg.
And then I met a truck coming eastward. We both stopped, and the driver yelled, “What the hell goes on here?”
“Sudden storm.”
“Storm! This damned thing’s a blizzard. Look at the drifts.” He left his truck and stared down the barely visible road. “How long’s this been going on?”
“Five or six hours. Why? Hasn’t it been snowing where you’ve been?”
“Hell no!”
“Where’ve you been?”
“Harrisburg.”
When I smiled, he told me that up the road about twenty miles, at Allentown, the roads were clear. “You’ll have a straight run in to Harrisburg. No trouble.”
I told him he’d have plenty of trouble in the direc
tion he was headed, and we parted. He was right. After about forty more minutes of very difficult going, with some cars stranded and others in the ditch, I at last reached the point at which the storm had stopped, a line as clear as if drawn by a pencil, and from there the road was open and clear and bitterly cold. The snow would follow later, but on that day it would not catch up with me, so within a few hours I was in my hotel room in Harrisburg.
I had been summoned a day early to meet with those officials whose duty it would be to see that the procedures on Monday moved swiftly and legally. I was not quite sure why I had been asked to participate, but a splendid old parliamentarian for the Republican party, who would supervise the proceedings and get little joy from shepherding a bunch of Democrats, explained over the telephone that the electors had been consulted and they wanted me to serve as their president. What he and I decided on Sunday would be the procedure on Monday. He would wait for me in the capitol.
I put the phone down and considered the ambivalent moral position in which I found myself. That my peers had selected me to be their president was an honor which I appreciated, for I had stood with many of them in political wars and I was pleased that together we had helped carry our state for the Democratic party. But at the same time I recalled with painful clarity the course I had decided to follow had the Presidential election proved inconclusive. In those days, as danger threatened, I had determined to subvert the Electoral College in an effort to forestall either a Republican or a Democratic deal with Governor Wallace; now, the storm having subsided, I was being asked to lead that College in the routine performance of its constitutional duties. I wondered if I had a right to accept that leadership.
I walked the short distance to the magnificent capitol building, one of the grandest and most gracious in the fifty states. I had known the building since childhood, and its history had always fascinated me, for in addition to being beautiful, this capitol was also the most infamous in American state history, winning that honor by a nose over the notorious structure in Colorado.
In 1897, while the legislature was in session, the old capitol had burned right to the ground. It must have been a fine blaze, because we had prints of it in our classroom in primary school, with agitated firemen running here and there in dashing poses and accomplishing nothing. Quickly the legislature authorized $500,000 for a replacement, but the result was appalling. “Nothing but a warehouse!” some newsman protested when he saw the finished job, and this became the accepted verdict. It was a disgrace to the commonwealth, and the legislature, properly embarrassed, had promptly voted $4,000,000 to build a real capitol.
For those days the fund was ample, and the result was noble. The halls were spacious. The rotunda dominated the countryside. And the building looked so solid and clean and stable that everyone agreed the state had got even more for its money than the plans had promised.
In this mood of euphoria the legislature reasoned: “If the people wanted us to spend not $500,000 but $4,000,000 and if they wanted not a warehouse but a granite masterpiece, they would also like to see it well furnished.” So by one device or another, but principally by the trick of setting up personal companies which would sell chairs and rugs and lighting fixtures—companies which would be owned by the legislators themselves—these public servants managed to spend $9,600,000 at 1906 prices. Chairs were sold at $5,000 each. Chandeliers which were bought in New York for $40 were sold in Harrisburg for $3,000. Rugs were paid for at a rate that would have exhausted the looms of Samarkand and Bokhara, but the rugs that were delivered had been woven in Brooklyn. It was a steal of such magnitude that it set a lasting standard for the history books. “The Harrisburg capitol!” I heard again and again in my youth, and men who had sold brass spittoons at a price they would have brought if made of solid gold were pointed out to me as folk heroes, which they were, for so far as I knew then, no one connected with the vast swindle ever went to jail.
I remember when I first saw the result. It was about 1920, when the building was fourteen years old and I thirteen, and it seemed so handsomely proportioned, so ornately ornamented and with such splendid chairs and spittoons that I outraged my civics teacher by blurting out to our class, “It was worth every penny.”
Now, as I approached it for serious duty, I thought of that high-domed room, still captivating to schoolchildren, where the flamboyant murals of Violet Oakley had occupied my attention on that first visit. Around the inside of the dome Miss Oakley had painted the procession of the hours, all twenty-four of them, from midnight through high noon and back to midnight in one marvelous swirl of tall and graceful ladies, those for the night hours clothed in ominous black, those for daylight mainly naked. It was quite a performance.
The Electoral College was to meet, I was told, in the Senate Chamber, one of the finest small rooms in American government, a striking symphony of gold and green and dark blue. Staring at us here would be a somber Abraham Lincoln at Gettysburg, standing under the emblazoned words which he had spoken at that battlefield on November 19, 1863: “It is for us the living rather to be dedicated to the unfinished work.”
When I met with the officials I found that all was not well with the Electoral College. Of the twenty-nine Democrats elected to the membership, six had already phoned in to report that they were not going to make it to Harrisburg. That meant that we had to round up six substitutes, and this had been done by scanning the lists of men and women who held political jobs in Harrisburg, but no sooner had we adjusted the schedule so as to qualify these substitutes than a messenger arrived from Democratic headquarters with the news that two more were not going to make it. So we extended our list of substitutes to eight, choosing anyone who came to mind.
This arbitrary procedure did not surprise me, for on November 26 I had received a letter asking if I was going to bother to show up: “We have been advised by some of the Electors of their inability to serve. If you, for any reason, find you are unable to do so, we will appreciate hearing from you. A replacement will be made but this cannot be done before the time of the meeting of the Electoral College.”
Of the twenty-nine Democrats who had been elected to serve in Pennsylvania, only twenty-one would be with us. Absenteeism is an occupational disease in the Electoral College. In some states criers go up and down the halls asking if anyone wants to be a Presidential elector, and those who respond are sworn on the spot and by this accident attain a critical power. In Pennsylvania we managed a little more decorum. We did have a list of names, but no one had voted on them, no one had approved them, and from this list we picked people to select a President.
In 1948, when it came time for the Republican electors of Michigan to convene in Lansing, only thirteen of the nineteen bothered to show. According to custom, officials scurried through the capitol looking for anyone who would serve, and they came upon a Mr. J. J. Levy of Royal Oak, who was duly sworn. But when it came time to vote they had much trouble with Levy, because he insisted upon casting his ballot not for Dewey and Warren, who had carried Michigan, but for Truman and Barkley, who had lost by 35,000 votes. Argued Levy, “I thought we had to vote for the winners.”
I had little time to worry about the eight missing electors, for I was now handed the list of forty-nine separate steps through which we would move on Monday. I reproduce this archaic formula as Appendix E because I want the reader to appreciate the panoply that surrounds the Electoral College and to experience the emotions I did when directing the Pennsylvania electors through the ritual.
At first glance I was staggered by the complexity. Then I saw Step 22 and laughed. Then I saw Steps 38 through 41 and realized what a wealth of history and near-tragedy they summarized. Then I read the whole again, and said to myself, “What a confused set of rules contrived by men trying to control a function that is left completely without control,” because not one of these forty-nine ingenious rules would in even the slightest way have prevented Governor Wallace from disrupting the larger College of which we were a part, or kept me fr
om combating him in my own arbitrary way. Finally, I felt that deep sense of respect which any historian must feel when he comes into contact with the ritual by which a self-governing nation endeavors to safeguard its legitimacy. Complicated and foolish though these procedures may have seemed, they were the tradition of our nation and I intended supervising them with dignity, for if this was the procedure our nation had chosen, I would do what I could to ensure its respectful performance. But that night I went to bed more convinced than ever that this dangerous College, this time bomb lodged near the heart of the nation, must be abolished.