The Electoral College: Time For A Change? – Part IV

With the national elections materializing in the next three weeks, how about this for a nightmarish scenario? –– A statistical tie in the Electoral College. Unlikely? Perhaps, but based on the very close race predicted by current polling results, a number of organizations such as the Huffington Post, Politico, CNN, The Los Angeles Times, Real Clear Politics, and others, all have postulated this result as conceivable. That these conjectures are credible can be inferred from the fact (as described in last month’s issue) that Jefferson and Burr tied in the vote for vice president. However, in the presidential election of 1824, a further complication arose when no candidate received a majority vote.

The Corrupt Bargain

In those days, candidates were customarily chosen in the proverbial back-room method of party politics––a closed caucus of party leaders would nominate their favorite. In this case the nominee was William Crawford of Georgia, a well respected former congressman, Secretary of War, and successful Secretary of State. Opposing him however, were three other well-known personalities –– Andrew Jackson, Henry Clay, and John Quincy Adams. Each of them was also challenging the caucus system that they and many others considered undemocratic.

The voting results were clearly in favor of Andrew Jackson who received 50 percent more popular votes than Adams. He also garnered 99 electoral votes to Adam’s 84. However, because no one received a majority, the vote proceeded to the House of Representatives as mandated by the 12 th Amendment of the Constitution. (That would be the same format used in a tied election.) Henry Clay was omitted from the voting process because he had received the fewest number of electoral votes, and only the top three candidates qualified.

While it was known that Clay disliked Jackson, prior to the vote in the House, a rumor circulated that to gain his support Adams had offered Clay the job of secretary of state. Clay denied this, but many of his supporters did endorse Adams thus depriving Jackson of the presidency despite Jackson’s previous win in both the popular vote and in the Electoral College. Clay did get that appointment, and although Jackson maintained that a “corrupt bargain” had been entered into, no bribery was ever proven. This action did, however, end Clay’s political career, and since Adams became an unpopular president, he lost in his effort to serve a second term –– to Andrew Jackson.

I believe there would be a public outcry if a similar scenario played out in the coming election. If a tie in the Electoral College forced the election into the House of Representatives, and the final vote in that institution gave the election to the candidate who lost the popular vote, I suspect a drive to eliminate the Electoral College would rise to a new pitch.

New Numbers

Dr. John Vile, a professor of Political Science, is one of the most preeminent and prolific authors on the Constitution in the world. In his Encyclopedia of Constitutional Amendments, he writes there have been more than 850 proposals offered in Congress to amend or abolish the Electoral College, the first as early as 1816. (In last month’s article I sited only 700 proposals). Can you imagine 850 failed attempts to change a portion of the Constitution with further efforts still in progress? That seems to be an exemplar for Albert Einstein’s definition of insanity: “doing the same thing over and over again, and expecting different results.”

However, in the aftermath of the 1968 election, the “insanity” charge came very close to being nullified by a major effort to replace the Electoral College with a direct popular vote. Although Richard Nixon had received an overwhelming victory over Hubert Humphrey in the Electoral College –– 301 to191 –– he had received only a little more than 500,000 more popular votes than Humphrey. (Ironically that was about the same number by which Gore beat Bush in the 2000 popular vote.)

Just after Nixon won, there seemed to be a groundswell of opinions favoring an amendment to the constitution that would eliminate the Electoral College in favor of a direct popular vote. At that point a Gallup poll measured an astounding 81 percent for an amendment with only 12 percent preferring the status quo. In addition, influential organizations such as the American Bar Association, the League of Women Voters, many Unions, the New York Times, and the Washington Post all favored the popular vote.

The Amendment That Almost Was

In September 1969, applicable legislation in the House of Representatives was passed by a lopsided vote of 339 to 30. President Nixon endorsed the proposal –– as did Lyndon Johnson –– and encouraged the Senate to pass the legislation. It appeared that prospects for its passage in the Senate were good. Also promising was a poll of state legislatures that suggested the amendment would meet the Constitutional mandate for approval by three quarters of the states.

On the surface, everything seemed to signal a dramatic and radical (excuse the pun) reconstitution of the Constitution’s decree that created the Electoral College some 160 years previously. However, no one appeared to have predicted that momentum for the proposal was about to diminish.

James Eastland of Mississippi chaired the Senate Judiciary Committee, and along with another member, Strom Thurmond, were both die-hard segregationists. For them, to have presidents elected by a national, popular vote was anathema. Joining the fray was Sam Ervin of North Carolina, another opponent of civil rights and the Voting Rights Act who initiated the dreaded congressional “F” word, “filibuster.”

For several weeks, they and their allies took the floor to block the legislation with a filibuster, arguing that direct elections produced instability and would undercut states' rights, harm the small states, destroy the two-party system, and encourage splinter parties, fraud, and intrusive national voting requirements. There is no question but that racial politics were also at play here.

Finally, almost one full year from the time that the vote in the House had passed, a motion for cloture, which would have ended the filibuster failed to receive the required assent of two thirds of those voting –– five votes short. The segregationists won their battle, little realizing that some thirty years later, if that vote for cloture had passed, leading to the approval of the direct popular vote, the election of 2000 would have ended differently, dramatically changing our nation’s history.

And the Beat Goes On

Over the 225 years that the Constitution has existed, and after 850 attempts to challenge the precepts of the Electoral College, that vote in 1969 came the closest to inaugurate a direct popular election initiative. The number of failures to achieve that goal is staggering, averaging 3.77 per year. Since the 1969 vote alone, by using that average, there have been exactly 200 attempts to do so.

“Nearly 11 years after the 2000 presidential election brought the idiosyncrasies of the United States' Electoral College into full view, 62% of Americans say they would amend the U.S. Constitution to replace that system for electing presidents with a popular vote system. Barely a third, 35%, say they would keep the Electoral College.” That’s a direct quote from a recent Gallup Poll website that also shows these parentages have shifted only imperceptibly since 2000.

The National Popular Vote

So if that’s the will of the people, let’s examine one proposal that appears to have the winds of public opinion behind it. The movement is called the National Popular Vote. There hasn’t been that much publicity about it, although it could become the new law of the election land by 2016 or 2020. The concept itself is so simple and obvious that it is a wonder that it took so long to evolve. It is simple because it avoids the main barrier over the years to change election law, the need to amend the Constitution.

It almost works by misdirection in that it recognizes that the states have Constitutional leeway to appoint and direct its electors in any manner it sees fit. Thus a state legislature can pass a bill mandating that instead of awarding its electoral votes to the winner of the election within the state, electors would cast all the votes for the winner of the national election.

Few people know that nine states have already passed legislation to initiate that type of plan, and bills have already passed the lower house in twelve other states. The nine states control 132 or 25% of the electoral votes, but a total of 270 electoral votes (51% of the 538 total) are required for the concept to become law.

The beauty of this proposal is that it does not dismantle the Electoral College, It merely changes the voting process at the state level (a move that most consider perfectly constitutional), and therefore the difficult amendment process is short-circuited.

So what do you think? Would you prefer to maintain the system devised 223 years ago by a group of men who could never have dreamt of the advances in transportation, instant communication, or the level of education we enjoy today –– or are you a Constitutional originalist convinced that the Founding Fathers could do no wrong?

In Part I of this series I quoted the famed journalist, critic, and satirist, H.L. Mencken. Here is another of his maxims that some may believe has already come true. If so, let’s hope it doesn’t recur.

“As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.”