Presidential Lottery: The Reckless Gamble in Our Electoral System

by James A. Michener

  I am totally committed to the principle that Hawaii has inherent problems that are different from those of Vermont, and that each has a right to a fair hearing. I believe that the southwest region of our nation has problems which are unlike those of the Boston-to-Richmond belt, and that each must be given due consideration. That our general problems are overriding, no man in his right mind would deny, so that in any Webster-Calhoun debate one must come down firmly on the side of the former; but to ignore Calhoun’s fundamental truths about states and regions and minorities is to miss the whole point of American federalism.

  What this means in judging any proposed system for electing a President is that I look with suspicion at any proposal which would submerge the fifty individual states into a conglomerate mass, and I tend to prefer systems which take into account the fact that the Mississippi Basin has problems and attitudes rather different from those which operate in California, Oregon, and Washington. To return to an earlier distinction, the fact that I am appalled by the Electoral College and totally determined to do what I can to eliminate it does not mean that I am also opposed to the system of allotting to each of the states the electoral votes to which the latest census entitles them.

  When one considers the crises that have grown out of the problem of finding a just system of federalism in nations as disparate as India, Belgium, Nigeria, Indonesia, and even Spain—I am thinking of the Basques and Catalans—one is inclined to advise any nation which has developed a workable system to cling to it and not to modify it capriciously.

  With these principles in mind, let us look briefly at four proposals which comprise the major suggestions for reform, but in looking at them let us apply two critical questions which determine whether the plan meets the minimum requirements. Once satisfied on these basic points, we can proceed to consider the refinements. The two questions are:

  1. Does this proposed plan abolish the Electoral College?

  2. Does this proposed plan end the risk involved when inconclusive elections are thrown into the House of Representatives?

  If the proposed plan fails to pass the first test, it can hardly be worth considering; if it fails the second, it still has a chance, depending upon the ingenuity and practicality of the safeguards erected in event of a House election. If any plan fails both tests, it should be discarded at once, for it would merit no one’s support.

  FOUR SUGGESTED PLANS

  The automatic plan. The Electoral College would be abolished. The electoral system would be retained. House elections would be continued, but with marked improvements; under an alternate version they would be avoided by means of run-off elections.

  The only honest way to describe this plan is to say that it is our present system, purged of its more glaring weaknesses. Each state and the District of Columbia would continue to have such electoral votes as the census provided, and these would continue to be allocated among the candidates on a winner-take-all basis. There would continue to be a total of 538 electoral votes, with 270 still required for election. The crucial improvement here would be that each state’s vote would be transmitted automatically to Congress (via the Administrator of General Services in Washington) without the interposition of the faceless members of the Electoral College. Third-party candidates would thus be forestalled from dictating an election in the College.

  Under one version inconclusive elections would still be thrown into the Congress, but with such commendable improvements in voting procedure that the major disadvantages of Congressional election would be diminished if not altogether abolished. If no candidate received the necessary 270 electoral votes, the three top contenders would be presented to a joint session of the House and Senate in which each of the 535 members would have one vote, publicly recorded. The majority necessary for election would be 268 votes, and since three contenders would be involved, a situation might develop in which no man could win this necessary majority. A suggestion has been made that this impasse be avoided by the simple device of permitting a man to win with a bare plurality. In an extreme case the vote for the three contenders could wind up 179–178–178, and I wonder if such a minority choice would enhance the legitimacy of the Presidency or would, indeed, be tolerated by the nation.

  A further weakness of the Congressional election as the plan was originally proposed was that if the vote went to the joint session of Senate and House, the District of Columbia would be disfranchised, and since it has a greater population than eleven of the states (Alaska, Delaware, Hawaii, Idaho, Montana, Nevada, New Hampshire, North Dakota, South Dakota, Vermont, Wyoming), this could hardly be defended. A later version of the plan, however, corrected this by proposing that when the House and Senate convened, the electoral votes allotted to the District of Columbia (at present three) be awarded automatically to that candidate who had carried the District. The weakness of this is twofold: The District would have no living persons representing it in the give-and-take of the joint session, where human factors can be so crucial; and there could well be a situation in which the District had been carried by a candidate who did not place among the top three, in which case it would again be disfranchised. I am sure that adjustments could be made to solve this intricate technical problem and I do not judge it to be a disqualifying drawback. Certainly, voters in the District of Columbia have a right to share in electing the President.

  Under the latest refinement of this plan, House elections would be avoided by a twofold reform. A candidate could win if he led the field with 40 per cent of the electoral vote; and if no one gained that percentage, a run-off election would be held between the two top contenders. The first half of this innovation is most radical, in that 40 per cent of the electoral vote could be produced by a pronounced minority of the popular vote. Once again we would face the situation in which the candidate who had won the popular vote was denied the Presidency, and the principle of legitimacy would have been abused.

  If one now looks at the automatic plan with its various corrections, he sees that the virtues of this limited reform are many. It preserves the good parts of our traditional system while correcting the bad. It respects the federal compromise between small states and large. By emphasizing the vote in large states like California and Pennsylvania, it permits cities like Los Angeles and Philadelphia to exercise a legitimate leverage, which offsets the advantages that have customarily accrued to rural areas. Also, the winner-take-all feature discourages the growth of splinter parties. Some critics have depreciated my next point, but it is nevertheless one which makes much sense to me: the fact that a small difference in the popular vote is usually magnified into a more conspicuous difference in the electoral vote produces an illusion that the victor won by a more definitive margin than he actually won by, and this makes it easier for the loser to accept. Kennedy’s minuscule margin in 1960 was thus magnified, as was Nixon’s slightly larger margin in 1968, and in each instance I, for one, was gratified that the final results looked as clear-cut as they did. To such reasoning, Senator Margaret Chase Smith responds, “Of all the arguments made by the defenders of the Electoral College, I find this to be the most fatuous and guilty of sheer sophistry.” I of course would reply that I make it not in defense of the Electoral College, for which I could never say a good word, but of the electoral system, for which I could say many.

  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—especiall
y 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.