Rooting for the Electoral College
ROSENTHAL, ALBERT J.
A WRONG TIME FOR CHANCE Rooting for the Electoral College By Albert J. Rosenthal Former Attorney General Nicholas Katzenbach once facetiously told a Senate subcommittee that every fourth year a...
...Where a state delegation is evenly divided no vote is cast, making it even more difficult to attain a majority in the House...
...The Bar Association of the City of New York, which two years ago supported a different amendment, is also recommending direct popular vote...
...If urban interests cast the decisive vote under the present system, consideration of their preferences affects the selections of the party conventions...
...Let me begin by focusing briefly on the origins of our present system...
...Once elected, moreover, a President who hopes for re-election (or who, in his second term, hopes that his successor will be a member of his own party) is likely to be influenced by the political strength of those forces which might be decisive in the next Presidential election...
...Things can also go wrong without any of the Electors defecting from their parties...
...Resolutions to this effect have been repeatedly introduced, but none has yet come out of committee...
...These states have a total of 210 electoral votes—only 60 less than the 270 needed to elect a President—and with the possible exception of Texas, they are closely balanced between the two parties (in the last five Presidential elections, each backed one party three times and the other twice...
...An extended debate in the Senate ended with a vote of 48 for and 37 against, or 9 short of the necessary two-thirds...
...The belief that Eisenhower was more acceptable than Taft in these areas may well account for his narrow victory in the 1952 Republican Convention...
...So there ought to be no problem of conscience in opposing the direct popular election of the President?at this time...
...Their proposals included replacement of the one-state-one-vote rule for run-offs in the House by a Joint Session, with each Senator and Representative casting one vote...
...Opponents of the amendments countered by asserting that any advantage accorded the large states and their urban areas in the selection of the President served as a legitimate balance to the edge given the small states in the Senate and in assignment of electoral votes...
...Since Presidential leadership can influence the speed and dimension of the Federal government's response, we cannot afford to diminish the likelihood of commitment on the part of our Presidents to coping with these problems...
...But the most frequently voiced complaint against the Electoral College has not been addressed to these contingencies...
...But as of now, the best hope of the Negroes still rests in maximizing the political strength of the urban areas...
...The frustration of the popular will through the quirks of the electoral count, or Electors violating their mandate, would no longer be possible...
...But in the same Senate session that saw 48 out of 85 Senators voting in favor of the Daniel package, a proposal by Senator Lehman to substitute a direct popular vote was roundly defeated 17-66...
...They are still trying to reverse apportionment by constitutional amendment or the calling of a new Constitutional Convention, and to prevent districting by dilatory legislation...
...In other words we have no assurance that the popular favorite is actually that either...
...While a direct popular vote was still regarded as unrealistic because of the expected opposition of the small states, the existing method of election was attacked because in practice it gave too much power to the larger states...
...political editor of the Congressional Quarterly, reached the same conclusion...
...These efforts have so far failed by only narrow margins...
...For the interests favored by the present method of electing Presidents are precisely those most urgently in need of favorable attention from the Federal government today...
...And Senator Birch Bayh of Indiana, Chairman of the Subcommittee on the Judiciary, who sponsored the Johnson Administration's proposal the year before, currently favors a direct popular election...
...But the Presidency cannot be viewed in isolation...
...But other inequalities persist...
...This would seem to be the worst possible time to reduce their influence...
...The second principal argument for the proposed change is that it would prevent stolen or stalemated elections...
...This problem has been solved through the careful mathematical analysis of John F. Banzhaf III, published in the Winter 1968 issue of the Villanova Law Review, exploring the chances of an individual voter affecting the ultimate decision...
...and it may enable a George Wallace to stalemate the entire process...
...it may lead to a disputed election...
...In the end, his was the only switched vote, and since it represented a shift from Nixon to Byrd it did not even diminish Kennedy's electoral majority...
...The same factors may have helped Kennedy swamp Johnson and other Democratic hopefuls in 1960, even though they seem less effective in 1968...
...It was generally thought that because of the disproportion (Alaska had one electoral vote per 75,389 people in 1964, California only one per 392,-930), the small states would never ratify an amendment depriving them of their advantage—and it takes only 13 states to block adoption of an amendment...
...The Kennedy-Johnson proposal—to eliminate the Electors and count the electoral votes automatically—would dispose of the question of the Elector who broke his trust...
...It is possible that the choice of Truman over Byrnes to run for Vice President with Roosevelt in 1944 reflected this...
...The proposed amendments, they claimed, would reduce the chance of electing a President who ran behind in the popular vote...
...yet politicians and amateurs alike knew that somehow the influence of each large-state voter was greater than that of a voter in each small state...
...reduction of the portion of electoral votes needed for victory to something less than a majority...
...And the Federal Government is far and away the most effective possible source of such assistance...
...The danger of a George Wallace causing a stalemate by denying a majority to either major-party candidate can be reduced or eliminated in several ways: substitution, as in the Kennedy-Johnson proposal, of a Joint Session of Congress for the present one-state, one-vote method in the House...
...Lurking in these uncertainties is the nightmarish possibility of a disputed Presidency...
...Today, the ballots or voting machines in a majority of the states name only the candidates—not the Electors, for whom the people are theoretically voting...
...Significantly, it can be demonstrated that a popular vote registered under the Electoral College system might well be different in a direct election...
...Since 1948, political elements in the South have on several occasions sought to take advantage of this provision by electing enough Electors on a "States' Rights" or an uncommitted ticket to hold the balance of power in a close election...
...Even if a court ordered an Elector to vote for his party's nominees after he had voted otherwise, could or would a court try to nullify his vote...
...This was strongly recommended last year in the report of an esteemed group of constitutional and political experts, the Commission on Electoral College Reform of the American Bar Association, and endorsed by the House of Delegates of the Association itself...
...While it is not certain that all members of the House of Representatives would have voted in accordance with their party affiliations or other expressions of support, it is likely that on the first House ballot Truman would have carried 21 states, Dewey 20, and Thurmond 4, with three evenly divided...
...Even the Harris-Irwin plan might have fared better if Kennedy had had an electoral majority of two or three instead of 34 votes...
...they can be partly met by other means...
...Henry D. Irwin of Oklahoma, a Republican Elector, responded by sending out further solicitations on his own...
...at least, so advocates of reAlbert J. Rosenthal is a Professor of Law at Columbia University, specializing in constitutional law...
...That was, of course, before the Supreme Court started handing down its reapportionment decisions in 1962...
...Resolutions for the direct popular vote have been introduced in both Houses of Congress, with the advocates and the opponents of previous efforts at change apparently united in favoring this one...
...Supporters of each of these changes argued that it was unfair to have a comparative handful of votes in a few pivotal states control the allocation of large blocks of electoral votes...
...Anything that reduces the power of urban interests—and, presumably with it the position of Negroes—will decrease the chances for nomination of candidates sympathetic to those interests, and possibly the concern shown for them by an incumbent President...
...The Federal Government is not now doing a fraction of what it should do...
...So at least in one respect the argument had come full circle...
...Indeed, direct popular vote appears to have everything going for it...
...I think there is an important case to be made for the Electoral College, if not in its current form, then in a reformed version...
...All seven have a greater proportionate urban population than the country as a whole, and the percentage of Negroes in their metropolitan areas, already high, is rising...
...What is important is that the cities need help, financial help above all, but other kinds of assistance too...
...But if the choice must lie between a direct popular vote and no change at all, there is a great deal to be said for retaining the status quo...
...Is it sensible to alter the balance of power in a way that will probably cause it to do even less...
...When John F. Kennedy scored so brilliantly in the 1956 Senate debates, he pointed out that the advantages given the large-state and large-city voters in the election of the President were balanced by the disadvantages imposed upon them in the election of other officials...
...What had not been forseen by the Founding Fathers was the growth of political parties...
...Now, for the first time, there seems to be a good chance for adoption of an amendment calling for direct popular election...
...Are judicial remedies available, in Federal or state courts, to test the issue in the short time that would be available...
...But the simplest, and seemingly most democratic solution of all—direct popular election of the President by all the voters on a nationwide basis—until recently seemed politically impossible...
...The basic questions, though, remain unanswered...
...It has centered on the possibility that in a straight two-party election, the popular favorite could receive fewer electoral votes than his rival...
...Should the major-party candidates run a close enough race, he might succeed...
...The mathematics of the election process inevitably influences the selection of nominees...
...It would have required each state to choose between the two proposals for the allocation of its electoral vote, forbidding the general ticket method...
...It has been felt that fear of losing large blocks of electoral votes by antagonizing comparatively small numbers of urban, and particularly Negro, voters has given these groups a disproportionate influence...
...Soon after, a different proposal was offered by Senator Mundt...
...Seven of the eight largest cities in the country are located in the seven largest states —New York, California, Pennsylvania, Illinois, Ohio, Texas and Michigan...
...Some of the strength of this argument has been removed by the Supreme Court decisions prohibiting anti-urban bias in the apportionment of State Legislatures and in districting seats for the House...
...or provision for a run-off election between the two leading candidates...
...The strategy then would presumably be to negotiate a deal with one of the major party candidates, whereby he would promise not to further the civil rights of Negroes or appoint, say, an Attorney General or Supreme Court Justice opposed to certain Southern viewpoints...
...It is far from clear that the dangers in the present system outweigh the need for fully preserving the influences that might contribute to the quickest possible amelioration of urban and Negro disadvantages...
...form assumed in favoring other, less drastic revisions...
...A WRONG TIME FOR CHANCE Rooting for the Electoral College By Albert J. Rosenthal Former Attorney General Nicholas Katzenbach once facetiously told a Senate subcommittee that every fourth year a large part of the United States Information Service budget had to be devoted to explaining our method of electing a President to foreigners...
...perhaps Roosevelt would not have said "Clear it with Sidney [Hillman]," as he is reputed to have done, if the support of the big cities in the big states had been less important...
...In short, these are separate problems that can be solved separately, without eliminating the existing method of counting electoral votes...
...This change is an appealing one...
...Changing problems, changing regional attitudes, could neutralize or even reverse the factors I have mentioned...
...It called for dividing every state into districts (presumably corresponding to the number of Congressional Districts), each to pick one Elector, with the two Electors corresponding to the Senators to be chosen by the state at large...
...Could a "theft" of the Presidency be prevented if a sufficient number of Electors were induced to switch their support, or is the discretion of the Electors un-trammeled...
...The original plan called for each Elector to vote for two men, the one with the greatest number of electoral votes becoming President and the man in second place Vice President...
...Thus there is a strong possibility that the 1968 Presidential election will be the last to employ the Electoral College, and that a more truly democratic procedure will replace it...
...The lack of an executive was one of the shortcomings of the Articles of Confederation that made it necessary to call the Constitutional Convention...
...As one of several alternative proposals, Harris advocated a combination of Republican and Southern Democratic Electors behind a ticket of Byrd and Goldwater...
...They pointed out that a candidate who carried the biggest states by narrow margins could defeat an opponent with a much larger total popular vote concentrated in states with fewer electoral votes...
...It is somewhat frightening to speculate on what a better organized campaign to subvert Electors might have accomplished...
...The fact that there have been at most eight instances where Electors voted contrary to their mandates in more than 40 elections (all were accepted by Congress, but none affected the elections involved), might suggest that the risk was minimal?if not for a disquieting incident in 1960...
...But the concept of the Elector as a respected official, who might exercise his own judgment in casting his vote, was already dead: Electors were expected to vote automatically for their parties' candidates...
...Certainly if urban interests are to surrender their advantages in the Electoral College, they may rightly insist that the rural districts permanently release the edge they have had for so many years in other spheres...
...If, as in most of our history, there are only two parties strong enough to carry any of the states, one candidate will presumably win a majority in the Electoral College...
...The third-party strategy came closest to working in 1948, when the States' Rights ticket led by then Governor Thurmond of South Carolina corralled 39 electoral votes...
...Yet despite the protracted debate, creation of the Electoral College was so well received that Hamilton could write in No...
...In addition, because the proposals for direct popular vote generally require less than a majority for election (usually 40 per cent), or a runoff if the necessary percentage is not achieved, or both, the nightmare of a House stalemate brought on by third-party candidacies would be dispelled...
...These problems may well get worse before they get better...
...And the amending process itself is loaded in favor of the small states...
...Both by algebraic formulae and corroborating computer studies, the greater influence of the large-state voter is proved and quantified...
...But electoral votes for a third party candidate could deprive both major party candidates of a majority and throw the election into the House of Representatives...
...True, it is hard to quarrel with the notion that all voters should have equal say...
...It offers a more genuinely democratic method for electing the President, where each vote would count equally regardless of the state in which the voter resides...
...The amendment passed the Senate in 1950 by a vote of 64-27, well over the necessary two-thirds, but was bottled up by the House Rules Committee...
...The Constitution provides that each state delegation regardless of size then casts one vote, with a majority (26 votes) necessary for election...
...Yet until recently, most suggestions for changing the method of electing the President—the subject of more proposed amendments than any other provision of the Constitution —preserved the Electoral College...
...No subject caused more difficulty in the Convention than the manner of selecting the President...
...Or might the courts abstain on the ground that the decision should rest with the Joint Session of Congress which the Constitution prescribes for the counting of electoral votes...
...Undoubtedly, much of the support for these amendments was motivated by dissatisfaction in conservative and Southern quarters over the strong bargaining position of minority and labor groups concentrated in the large cities of the pivotal industrial states...
...It may frustrate the will of the majority of voters...
...In 1800, however, every Democratic Elector voted for both Jefferson and Burr, throwing the election into the House of Representatives...
...The doctrine of "one man, one vote," already applicable to State Legislatures and the House of Representatives, would then apply to the Presidency as well...
...If the present method of electing the President is not completely democratic, it can still find some justification in the fact that the inequalities roughly balance out countervailing inequalities in different parts of our political process...
...And certainly the cities themselves must lead the drive to obtain aid to solve their problems...
...In effect, this would have revived a practice followed in several states during the early days of the Republic—before they recognized that the relative influence of a state was greater when its electoral votes were cast in a block, on a winner-take-all basis, and the general ticket method became universal...
...Three agencies participate?the House, the Senate, the State Legislature—and in the last two states, not people, have equal influence...
...Achange in the manner of electing the President, it should be recognized, involves more than the possibility of turning the losing candidate into the winner or vice-versa...
...Then the change to direct popular vote will seem more acceptable...
...Urban and suburban "backlash" may weaken the pro-civil rights influence of the metropolitan areas, while a new generation of liberals in the less populous parts of the Midwest or even the South might assume the leadership of the civil rights movement...
...There is much more to the case against the latest proposed amendment, however, than a mere refutation of the arguments in its favor...
...Most obvious is the rule of "one state, two votes" in the Senate, frozen into the Constitution by express exemption even from the amending process...
...Hoping to remove the dangers of disobedient Electors without shifting the existing balance of power, Presidents Kennedy and Johnson both suggested amendments for eliminating the Electors as such but retaining the present method of allocating and counting electoral votes...
...It would offer an extension of democratic principles into a portion of political life where they have been diluted, prevent the theft of an election by unfaithful Electors, and significantly reduce the chance of a stalemate brought on by third-party candidacies...
...Shortly after Election Day, Lea Harris of Montgomery, Alabama, circularized the newly chosen Electors, urging that they withhold electoral votes from Kennedy and Nixon, and agree upon a compromise candidate acceptable to conservative sentiment in the South...
...Together, these issues represent the most serious domestic threat to the nation today, probably the most serious in a century...
...Now attention has been diverted to the American Bar Association proposal favoring direct popular vote, and there are signs that it is rapidly gathering strength...
...An exceptionally able study of the subject, The People's President, published this year by Neal R. Peirce...
...Following Jefferson's election, after a long deadlock in the House, the Twelfth Amendment substituted separate designation, and balloting, for the office of President and Vice President...
...Finally, in 1956, Senator Daniel offered a resolution aimed at attracting the backers of both Lodge-Gossett and Mundt...
...Moreover, opponents of equality in Legislative apportionment and Congressional districting have not accepted the Supreme Court's decision as final...
...Over the years, various proposals for modifying the system have been offered...
...The reason for this lies in the fact that every state is assigned a number of Electors equal to the number of its Senators and Representatives, giving even the least populous state three votes...
...68 of the Federalist Papers: "The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents...
...While this has not happened often, it has happened...
...The count would have been mathematical, the Electors as such being eliminated...
...Some have come close to achieving the two-thirds vote of both houses of Congress required for submission of constitutional amendments to the states...
...The proposal received widespread support, too, but not enough for adoption...
...Opponents stressed how infrequently this had happened...
...To change one while leaving the other untouched does not necessarily contribute to total equality among all voters...
...The skillful and vigorous opposition of Senator Paul Douglas and a first-term Senator named John F. Kennedy is credited for the defeat...
...We need not throw out the baby with the bath...
...A voter in Alaska has 74 times as much influence in the Senate as one in New York...
...They also asserted that the pro-rural apportionment of the State Legislatures and, through them of the House of Representatives, favored the smaller states...
...If we shift the balance of power in the nation so as to adversely effect precisely those interests in need of greater support, we must assume that we will not be able to shift it back again...
...Whether the present plight of the cities may be traced to the long-continued dominance of State Legislatures and Congress by rural interests is not important...
...But these can be dealt with independently...
...Similarly, the related matter of improving the plight of the Negro—economically, educationally, socially, psychologically —cries out for massive Federal action...
...In the event of a stalemate until January 20, the Vice President-elect would presumably assume the powers, though perhaps not the office, of President—provided, of course, that the corresponding deadlock for the Vice Presidency had meanwhile been resolved by the Senate...
...Analyzing several elections in which the popular favorite had won, they also showed that under either Lodge-Gossett or Mundt the opposite result probably would have ensued...
...Nevertheless, in my opinion the change would be unfortunate, perhaps even disastrous...
...More significant than the complexity of our Electoral College, however, are its dangers...
...A spate of newspaper columns has focused further attention on the question, and a Gallup poll shows 66 per cent supporting such an amendment, with only 19 per cent opposed, and 15 per cent without opinion...
...Despite the attention long focused on the question of relative strength, analysis had been hampered by the inability of observers to explain a notable paradox: When the electoral vote of a state was divided by its population, a single voter in a small state was represented by a larger fraction of an Elector than one in a large state...
...But a constitutional amendment, once adopted, is a very permanent thing...
...Only one has ever been repealed...
...Ithink the answer to that question is Yes...
...Had a few thousand Truman votes in any two of three very close states —Ohio, Illinois and California?gone to Dewey, Truman would have lacked a majority in the Electoral College...
...Part, although not all, of George Wallace's strategy is to try to capitalize on this weakness in our electoral process...
...Can a respectable case be made against it...
...Among its supporters are not only many former advocates of Lodge-Gossett and Mundt, but also some opponents...
...Following the close call of the Truman-Dewey election in 1948, Senator Lodge and Representative Gossett introduced an amendment that would have divided the electoral vote of each state in proportion to the division of its popular vote, carried to three decimal places...
...there are other powerful elements in our national political life...
...Interestingly, if either the Lodge-Gossett or Mundt amendments had been adopted by 1960, and assuming the same popular vote, Kennedy would have lost to Nixon...
...The risks of an unpopular choice, of unresponsive electoral votes, of a deadlock in the House of Representatives, cannot be ignored of course...
Vol. 51 • October 1968 • No. 20
