. originally provided in the Constitution, when the election fell to the House. If no person received a majority after the second ballot, from the two having the highest number of votes the Speaker should choose one by lot." Several, like the amendment reported by the Senate Select Committee on Elections in 1824, stipulated, in place of the vote being taken by States, that each Representative should have one vote, and after the first ballot a plurality should elect." Mr. Vallandigham's proposition, by which the country was divided into sections, provided in case the election devolved upon the House, the concurrence of a majority of States of each section should be necessary for a choice.“ (2) Another variation would have continued to give to Congress the duty of making a choice if there was no election, but a choice by joint ballot. Senator Dickerson repeatedly introduced an amendment which provided that in case no person received a majority of the votes of the electoral college, then from the highest number not exceeding three on the list of those voted for as President, the Senate and House in joint meeting should immediately, by ballot, choose the President. A majority of the votes of all members present should be necessary to a choice on the first ballot, after which a plurality of votes should elect." In the amendments introduced by Mr. Underwood of Kentucky, in 1838 and 1842, proposing the nomination of candidates by the State legislatures, and the election by a direct popular vote, provision was made, in case no person received a majority, for a joint convention of both Houses of Congress to elect the President or Vice-President by a viva voce vote from among those nominated for the office, a majority of votes present to decide." A similar method of deciding the election, in case no person received a majority of the votes given directly for President and Vice-President, has been frequently suggested, especially in recent years. In most instances a majority vote of the joint convention was to decide, but some required a two-thirds vote.* (3) A favorite device for avoiding recourse to Congress was the suggestion of a second election by the original electors. January 10, 1823, Senator John Taylor of Virginia proposed such an amendment, but the electors should vote for one of the two as President who should have received the greatest number of electoral votes at the first election. In case of a tie at the second election, then it should be the duty of the House of Representatives to choose one of them as President." This amendment was later modified in a new draft, which provided that instead of an election by the House, that both Houses of Congress in joint convention should select the President. In the amendments introduced at this same session of Congress by Mr. McDuffie of South Carolina and by Senators Hayne and Van Buren, a similar provision was made for a second meeting of the electors in case of no choice at the first electi." In Mr. McDuffie's resolution there was a peculiar provision that made possible for two Presidents to be elected. It provided that the Senate and House in joint meeting should canvass the vote cast by the electors at their second meeting, and if no one had received a majority the joint meeting, each member having one vote, should choose a President. "If there be two or more persons, each of whom have the highest number of electoral votes given at the second meeting, each one of them shall be chosen. If there be only one person having the highest number of electoral votes, less than a majority, one of the persons who has one of the two highest number of votes shall be chosen." Mr. Dromgoole of Virginia in subsequent years (1838 and 1845) twice presented an amendment similar to that introduced by Senator Taylor." (4) Two amendments presented in the same session of Congres, in 1826, made provision for a second choice of electoral colleges, the persons so chosen should, from the persons having the two highest number of votes at the first election, choose one, but the vote should be taken by States, each State having one vote." (5) In 1824 Mr. Livingston of Louisiana proposed an amendment for the elec tion of President by a direct vote given in districts. This amendment provided App., No. 551. 2 App., No. 534. 8 App., No. 903. See ante, par. 48. Ante, par. 39. Madison, in 1823, wrote liked the joint vote of the two Houses best. App.. Nos. 679. 724. Ante, par. 46. that of "the different remedies proposed" he Works, III, 334. As App., Nos. 743, 1078, 1314, 1439, 1441, 1569, 1624. 1640, 1735. that the citizens, at the same time they gave their vote for President and VicePresident, should also vote for an elector. In case no person was the choice of a majority of the whole number of districts, then the electors should assemble in their respective States and cast their votes for one of the two persons receiving the greatest number of district votes. In case of a tie, the one of the two who had the greatest number of votes of the electoral district should be President." In 1827, upon the instruction of the legislature of Ohio, and again in 1829, Mr. Wright of Ohio presented an amendment of a somewhat similar kind. It differed in that his resolution contemplated an election by a majority of the popular vote of the country, but the voters at the same time they voted directly for President and Vice-President were also to cast their ballots for electors equal to the number of Senators and Representatives to which their State was entitled. In case of no person receiving a majority, the electors having the greatest number of votes should choose the President and Vice-President from the two persons having the greatest number of the direct votes. In case of no election the choice should devolve on Congress." (6) Another proposition was for a popular election to follow the meeting of the electoral colleges, if there was no choice. The citizens of each State were to vote directly for one of the two highest candidates at the first election. The votes were to be taken by States, each State having one vote. This was presented by Mr. Hemphill of Pennsylvania, in 1826," and a somewhat similar plan was proposed in the following year." (7) Still another modification of the system of double election is included in an amendment introduced in 1826 by James Buchanan, then a member of the House. It provided that in case no election should be made by the electors, the States should choose the President from the two highest on the list, in such manner as the legislature thereof should direct, each State having one vote." The only proposition of the whole series which left the choice to the legislatures of the States was presented by Mr. Stevens of Virginia in this same year. In case of no election in the primary colleges, the legislatures of the respective States were to choose, by joint ballot, one from the three persons having the highest number of electoral votes." (8) A large number of the amendments proposing various ways in which a direct vote should be given for President and Vice-President contained provisions for a second election conducted in the same manner as the first, but the candidates were to be restricted to the two receiving the largest number of votes at the first election. These propositions were presented within a few years subsequent to the election of 1824," but the same plan was revived with the renewal of the introduction of resolutions for the election of the President by popular vote." (9) A modification of the last-mentioned plan, which received extended consideration in 1835–36, provided in case of no choice by the people at the second election, then the choice should be made by the House of Representatives.1 Still others, like the amendment urged by Senator Benton, and in later years by Andrew Johnson, stipulated that if the two candidates in the second election received an equal number of votes, then the person who had received the greatest number of votes in the greatest number of States should be President." Mr. Morton's proposition, which, like Benton's, proposed establishing the district system, made no provision for the case of two or more persons receiving an equal number of Presidential votes, as the committee which reported the measure were unable to agree upon any plan to cover this contingency. That provision of the Constitution which confers the choice of the President in case of no election by the electors upon the House voting by States has frequently been attacked and stigmatized as unjust, but the possibility of the choice of a "minority President" has never been more forcibly presented than by Mr. Morton, who showed that under the apportionment in force at that time (1875) it was possible App., No. 537. App., Nos. 598, 592. App., No. 561. In case of a tie the choice to be made as the present provisions of the Constitution direct. App., No. 580. App., No. 555. A similar provision in Mr. Tucker's amendment of 1828, App., No. 585 App., No. 573. As the one presented by Mr. Dayton of South Carolina, in 1826. App.. No. 574. App., Nos. 1104, 12276, 1283a. 1352, 1368. 1388, 1464, 1505, 1506, 1626, 1668, 1695 See ante, par. 42. A second election was to be held only in case no one received a majority of the votes. 1 App., Nos. 641, 654. App. Nos. 552, 601, 632, 765, 770, 813, 1240. Ante, par. 43. for forty-five members of the House of Representatives to elect a President against the wishes of the remaining two hundred and forty-seven members.' (10) Another favorite plan, in order that the choice might in no instance devolve upon Congress, made provision for successive elections until some one should be elected. This was first proposed in the thirties, but has frequently been urged since.* (11) Several of the proposed plans did away with the necessity of a second election by providing that a plurality of the electoral or popular vote, as the case might be, should elect, and the election was only to devolve upon Congress in the very remote case of a tie." 51. DISCUSSION OF SCHEMES FOR PRESIDENTIAL ELECTION All the proposed amendments affecting the election of President and VicePresident have now been considered. It may be well, however, to review some of the more important of them. We Although at the time of the adoption of the Constitution the electoral system excited little opposition, yet at no considerable interval since has it failed to be the object of attack. First it was early found necessary to perfect the system in some of the minor details by the adoption of the twelfth amendment. have already shown how the system has utterly belied the expectation of its framers, for the electoral college, instead of exercising its own unfettered will, has become a mere registering machine.' In the early years there were various amendments proposed to secure a uniform system of elections throughout the States. After many atempts to secure the choice of electors by districts had failed, nearly all the States by a sort of common understanding adopted the general ticket system, and this method, although voluntary, has been retained ever since, with the recent exception of Michigan,' and it seems to have become ingrafted upon the Constitution, or, as Professor Dicey would say, to have become one of the "conventions" of the Constitution. In the years immediately succeeding the election of 1824 there was a concerted effort to so amend the Constitution that the election of President should never again devolve upon the House. In the course of a few years the excitement incident to this election was allayed, and as there has been no case of an election by the House since, there has been no popular alarm over this complication. The dispute of 1876, when the decision was in doubt several months, turned rather on the method of canvassing the vote." Many of the plans have been obviously impracticable. To leave the choice of the Chief Magistrate to a direct popular vote of the entire country seems as unwise to-day as it did at the time the Constitution was framed. In addition to the vast premium placed upon fraud and intimidation, the excitement of the election under the present system would be greatly intensified. Furthermore, it would seem undesirable to entirely do away with the influence of the States in the election, owing to the long-established custom and the appropriateness of some recognition of the federal character of our Union. The system of electing the President by districts, either by the electoral system or without it, or with the two votes of each State given at large or otherwise, App., No. 1393, ante, par. 44. Record, p. 631. At that time forty-five members would control the votes of nineteen States. "Nevada with 42,000 population would have an equal vote with New York, having a population one hundred and four times as great." As at present constituted sixty-six members, representing twenty-three States, could elect the President in opposition to the will of the remaining two hundred and ninety-one members. Such a combination while possible is of course not probable. By Mr. McComas of Virginia, in 1836. App., No. 661. In the seventies by Messrs. Wright and Riddle. App., Nos. 1391, 1420, 1464. As Nos. 554, 1058; and the following: Four provided for the decision of the tie for the President by the House, for the Vice-President by the Senate, each member to have one vote. App., Nos. 1408, 1420, 1443, 1447. Two that the tie for either office be decided by the House. App., Nos. 1359, 1367, ante. par. 42. The following resolutions to amend the Constitution in regard to the election of President were introduced, but it has been impossible to classify them, as the text has not been found. App., Nos. 657. 658, 863. Since par. 42 was sent to press, resolutions from the legislature of Vermont (1818) favoring the district system have been found. App. No. 480b. The electors, however, are only bound by moral obligation and custom to cast their votes for the candidates previously designated. In the election of 1824 three of the Clay electors deserted him, "but for this defection Mr. Clay's name would have gone to the House of Representatives Instead of Mr. Crawford's, and possibly Mr. John Quincy Adams would never have been President." Stanwood, p. 86. Unsuccessful attempts were made to bribe one or more electors in 1876. Ibid., p. 330. See ante. p. 86, note 4. See Tiedman, The Unwritten Constitution of the U. S., chap. III. would manifestly come nearer to representing the popular vote than does the present system, especially if there was some assurance of a just and permanent arrangement of district boundaries." But without that assurance," which it would seem impossible to provide, there would still be the same danger of gerrymandering that there is in our Congressional elections. Of all the plans proposed, the district system has received the most favorable consideration in Congress. Not only did an amendment for the choice of electors by districts pass the Senate at four different times between 1813 and 1824, but in subsequent discussions some application of the district system to the choice of President has received the support of many of the leading statesmen of the country." The proposition for the distribution of the electoral vote of each State among the candidates in the proportion the electoral ratio shall bear to the popular vote of each candidate seems the fairest and most desirable of all the plans presented, as it retains the relative importance of each State, and at the same time secures to the minority its due proportion of the vote." The almost countless variety of the plans proposed is not only indicative of the dissatisfaction there is with the present anomalous system, but also shows that it would be next to an impossibility to secure the adoption of a new method of election, owing to the difficulty of uniting a sufficient number of the States in favor of any one plan. The fact that it was impossible to secure the indorsement of any one of the plans proposed in the years succeeding the contested election of 1876 by even one branch of Congress indicates that the adoption of a new system of electing the Chief Magistrate is improbable before the present method of amending the Constitution is itself changed. Since 1876 no proposition for a change of the method of electing the President has been brought to a vote in Congress, and since 1880 even the slight promise of success implied in & favorable report by a committee of either House of Congress, has been lacking. Likewise in recent years the general public has exhibited little interest in the matter. (The following is reprinted from "Selecting the President: The Twenty-Seventh Discussion and Debate Manual" (1953-54), vol. 1, edited by Bower Aly :) THE RESOLUTION OF ELECTORAL DEADLOCKS BY THE HOUSE OF REPRESENTATIVES By Paul J. Piccardt THE PROBLEM The Constitution of the United States, in the Twelfth Amendment, provides in part as follows: The person having the greatest number of [electoral] votes In 1801, Thomas Jefferson was elected President by the House of Representatives under the somewhat different provisions of the original Constitution, but the election of 1824 was the only one in the history of the United States that did not result in a majority vote by the electoral college. Table II, below, summarizes the vote by which John Quincy Adams was elected President. An account of the intrigue and maneuvering that accompanied these two House elections belongs properly to a study of the history of presidential elections; for the present it is sufficient to note that the outcome did not depend upon either the popular vote or the electoral vote. Once the election went to the House, it was not to be determined by the majority or even a plurality of the members there, but rather by a majority of the states. The constitutional requirements remain the same today. Despite the record of the electoral college in producing majority decisions ever since the days of the second Adams, it is evident from a study of the mathematics of presidential elections that the threat of a deadlock Paul J. Piccard did his work for the doctorate at the University of Texas. where he submitted a dissertation on the electoral college that provides the basis for this article. Recently a member of the faculty of the University of Alabama, he is now a Visiting Professor of Public Administration at the Florida State University. |