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1968 Electoral College - Its Defects and Dangers, The John D. Feerick Fordham University School of Law, [email protected]

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Recommended Citation John D. Feerick, Electoral College - Its Defects and Dangers, The, 40 N.Y. St. B.J. 317 (1968) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/293

This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE ELECTORAL COLLEGE- ITS DEFECTS AND DANGERS By John D. Feerick City

Election is in the air! The author's views on the Electoral College will provide some timely material for further discussion on the 1968 presidential election procedures.

N A FEW months we will witness the operation of the electoral college system of electing the President and Vice President of the . Due partly to the appearance of George C. Wallace's American Independent Party,' the 1968 election could be decided in the House of Repre- sentatives, where each state has one vote regard- less of its population. 2 The election seems certain to point up the perils in our present system and underscore the conclusion reached by the Ameri- can Bar Association Commission on Electoral College Reform: "The electoral college method of electing a President of John D. Feerick the United States is archaic, undemocratic, complex, ambiguous, indirect, and dangerous." 3 Somehow the electoral college has elections where: the popular vote managed to escape reform despite loser was elected President; electors 1 While Wallace may have difficulty Alaska, Delaware, Nevada, Vermont, and qualifying as a minor party candidate in Wyoming; the latter, California, Illinois, several states (e.g., Idaho, Ohio and Okla- New York, Ohio, and Pennsylvania. It homa), he is expected to qualify in a should be pointed out that the Twenty- substantial majority of the fifty states. Third Amendment gives the District of In the election of 1948, Senator Strom Columbia, whose population is greater Thurmond's States' Rights Party qualified than that of eleven states, no voice at all in slightly more than one-fourth of the in a contingent election. If an election states, while Henry Wallace's Progressive were thrown into the House of Representa- Party appeared on the ballot in almost tives, the twenty-six smallest states, with every state. Examples of other elections seventy-six Representatives (out of a total in which minor party candidates received of 435) and a total population of about electoral votes are in elections of 1892, thirty-one million (out of a national total 1912 and 1924. of about 180 million (based on 1960 cen- 2 It is interesting to note that the five sus) ), would be able to elect the President. smallest states, with one Representative 3 "Electing the President," Report of the each and a combined population of about American Bar Association Commission on 1,700,000, have the same voting power as Electoral College Reform (1967), pp. 3-4. the five largest states, with a total of 154 For the definitive work on the electoral Representatives and a combined population college system, see Peirce, The People's of 64 million. The former states are President (1968). NEW YORK STATE BAR JOURNAL

voted against their party nominees; slates or on what is commonly re- voters were deprived of the oppor- ferred to as a "general ticket," and tunity of voting for major party can- are voted for as a unit. The slate of didates; Congress was called upon the party that receives the greatest to choose the President or Vice Presi- number of popular votes in each state dent; and a shift of a few popular subsequently meet at their state votes would have thrown the election capitol to choose the President and into the House of Representatives or Vice President. 5 swung it to the other major candidate In order to be elected President or who had fewer popular votes. Vice President, a candidate must ob- Although our system of electing the tain the votes of a majority of the President is now under scrutiny by total number of electors chosen Congress, reform does not appear (at present 270 out of a total of 538). imminent. As in the case of presi- Under our system a candidate can win dential inability, a tragedy or near the Presidency by concentrating on crisis may be required before Con- and winning the electoral votes of gress finally takes action on the sub- eleven large states plus one small ject. The purpose of this article is to state (or the District of Columbia).6 discuss the principal defects and dangers of our system. latures has been characterized as "ple- nary." McPherson v. Blacker, 146 U.S. I 1. The Popular Vote Winner Could (1892). In the early days of our country, Lose electors were chosen by various methods, including by the legislatures themselves. Under Article II of the Constitu- It was not until 1832 that every state ex- tion and the Twelfth Amendment, the cept South Carolina had abandoned the method of selection by the legislatures. election of the President and Vice South Carolina discontinued it in the President is entrusted not to the 1860's. See Paullin, Political Parties and people but to electors chosen in the Opinions, 1788-1930, The Atlas of the His- manner prescribed by the state legis- torical Geography of the United States latures. Each state is allotted (1932). as This power of the state legislatures to many electors as it has Senators and designate the method of selection was used Representatives in Congress. All by the Michigan legislature in 1892, which states have at least three electors, electoral votes from a general ticket sys- corresponding to the two Senators tem to a district system. (See note 8, infra). The legislature was controlled by and at least one Representative to Democrates and its action was motivated which they are entitled under the Con- by a desire to split the state's electoral stitution. votes in the 1892 presidential election, Although it has not always been since the Republican ticket was expected the case to carry the state, The constitutionality and could be changed by the of this action was upheld by the Supreme state legislatures in the future, elec- Court in McPherson v. Blacker, supra. tors are popularly elected today in 5 The electors are selected on the Tues- every state and the District of Colum- day after the first Monday in November; bia.4 They usually run on party they meet on the Monday after the sec- ond Wednesday in December (or forty- one days after the November election); 4 Article II and the Twelfth Amendment and their votes are counted before a joint provide that electors are to be appointed session of Congress on the following Jan- in the manner prescribed by the state leg- uary 6. 3 U.S.C. §§ 1, 7, and 15 (1964). islatures. This power of the state legis- 6 The electoral votes of New York (43), AUGUST, 1968

While his popular vote nationwide actually was rejected by a majority of might be less than 25 percent of the the voters. total these twelve states would give The "winner take all" or "general him a majority of the electoral votes. ticket" aspect of the system, which is This disproportion between the popu- purely a product of state law, isolates lar vote and the electoral vote is due a candidate's popular votes in one to a number of factors. state from those cast for him in an- First, under the electoral college other state.8 Thus, in 1960 Kennedy system, the candidate who wins the received 2,377,846 popular votes in most popular votes in a state receives Illinois while Nixon obtained 2,368, all of that state's electoral votes. This 988 votes.9 Kennedy therefore re- is the "winner take all, loser take ceived Illinois' twenty-seven electoral nothing" feature of the system. It votes. On the other hand, Nixon re- cancels out at an intermediate stage ceived 1,175,120 popular votes in all popular votes cast in a state for Indiana and Kennedy 952,358 votes. the losing candidates. As Senator Accordingly, Indiana cast its thirteen Thomas Hart Benton of Missouri electoral votes for Nixon. What is stated in 1824: noteworthy is that on a two state basis, Nixon received a substantial "To lose their votes is the fate of all minorities, and it is their duty to submit; majority of the popular votes but less but this is not a case of votes lost, but than one-third of their combined elec- of votes taken away, added to those of toral votes. the majority, and given to a person to In every election millions of popu- whom the minority is opposed." 7 lar votes are never reflected in any electoral votes. In 1924, for ex- Indeed, the "minority" may in fact be ample, John W. Davis received 136 a majority because the popular votes electoral votes in the states where he of the losing candidates, when com- received about 2,000,000 popular bined, could represent a substantial votes. But he received no electoral majority of the popular votes cast in votes for approximately another the state. For example, in the 1948 election, the electoral votes of one- 8 The general ticket is not required by fourth of the states were cast for a the Constitution or federal law. It devel- candidate who had received only a oped so that each state could maximize its minority ability to influence the outcome of a presi- of each state's popular vote. dential election. See Peirce, supra note This was due to the appearance on 3 at 74-78. the ballot of minor party candidates 9 The sources relied upon for the popu- who, together with the losing major lar vote are: for the elections 1824 through party canidate, received a majority of 1916, Petersen, A Statistical History of the American Presidential Elections (1963); the popular vote cast in these states. for the elections 1920 through 1964, Consequently, in such states the can- Scammon, America at the Polls (1965). didate receiving the electoral votes Since presidential elections are decided on the basis of electoral votes, there is no national agency charged with compiling California (40), Pennsylvania (29), Illi- and certifying the popular vote cast for nois (26), Ohio (26), Texas (25), Michi- presidential electors. As a result, differ- gan (21), New Jersey (17), Florida (14), ences exist among the various sources as Massachusetts (14), and Indiana (13) to the popular vote. The sources used total 268. herein are regarded as the most authorita- 7Annals of congress, XLI, p. 170. tive. Peirce, supra note 3, at 302. NEW YORK STATE BAR JOURNAL

6,000,000 popular votes. In 1928, The popular vote cast in New Jersey 2,089,863 Democratic popular votes was substantially more than that cast in New York and 1,067,586 in Penn- in Texas; yet, Texas awarded twenty- sylvania failed to yield even one five electoral votes to the winning Democratic electoral vote. In 1932 candidates while New Jersey could Herbert Hoover received 15,760,684 only, give seventeen electoral votes. popular votes, of which more than In Alaska, 67,259 voters influenced 13,600,000 were not reflected in any the assignment of three electoral electoral votes for him. In 1944 votes, at a ratio of one electoral vote Thomas E. Dewey received approxi- for every 22,419 voters. In New mately 3,000,000 votes in ten states York, 7,166,275 citizens voted for from which he received sixty-two forty-three electoral votes, at a ratio electoral votes. In New York, on the of one electoral vote for every 166,- other hand, he received 2,987,647 657 voters. In 1960, 6,506,578 per- popular votes but no electoral votes. sons voted in California, at a ratio of A second factor that accounts for one electoral vote for every 203,330 the disproportion betaveen the popu- voters. lar vote and the electoral vote is that This disproportion between the each state is entitled to at least three popular vote and the electoral vote electoral votes regardless of size. As can be found in every presidential a result, the ratio of electoral votes election.'1 For instance, in 1964 to the population of the states (based President Johnson received 61.1 per- on the 1960 census) varies widely. cent of the popular vote and 90 per- It is one to 75,380 in Alaska; one to cent of the electoral vote. In 1944 170,129 in South Dakota; one to Franklin Delano Roosevelt received 294,781 in Oregon; and one to 392,- 53.4 percent of the popular vote and 930 in California. Although it would 81 percent of the electoral vote. In seem that the system favors the small 1936 Alfred M. Landon received states, the converse is actually the 36.5 percent of the popular vote but case, since the citizens of large states only 2 percent of the electoral vote. may potentially affect a greater num- Roosevelt, on the other hand, ob- ber of electoral votes.10 tained 60.8 percent of the popular A third factor is that a state's elec- vote and all but eight electoral votes. toral votes remain the same regardless In 1912 Woodrow Wilson received of voter turnout. Thus, in the 1964 41.9 percent of the popular vote and elections, the popular vote in Con- 82 percent of the electoral vote. necticut and South Carolina, each of The electoral college system has which has eight electoral votes, was governed forty-five elections and has 1,218,578 and 524,756, respectively. produced fourteen Presidents who did The voter turnout in Virginia, which has twelve electoral votes, was con- 11A related factor is that the electoral votes assigned to each state do not reflect siderably less than in Connecticut. population changes occurring between cen- suses. The number of Representatives to 10 For a well-reasoned analysis of the which a state is entitled is determined citizen's voting power under the electoral after the completion of the decennial cen- college, see Banzhaf, "Reflections on the sus. A presidential election which falls Electoral College; One Man, 3.312 Votes: in the same year as a census is governed A Mathematical Analysis of the Electoral by the apportionment based on the census College," 13 Vill. L. Rev. 304 (1968). or a decade before. AUGUST, 1968 not obtain a majority of the popular In the election of 1824 Andrew votes cast in the election. 12 Indeed, Jackson received 42.2 percent of the on at least three occasions the losing popular vote and 38 percent of the candidate had more popular votes electoral vote. than the winner. received 31.9 percent of the popular In the election of 1888 Grover vote and 32 percent of the electoral Cleveland received 48.6 percent of vote. Since no candidate received a the popular vote and 42 percent of the majority of the electoral vote, the electoral vote, while Benjamin Harri- election was thrown into the House son obtained 47.8 percent of the of Representatives and Adams was popular vote and 58 percent of the elected. Although Adams had fewer electoral vote. Although Cleveland popular and electoral votes than had about 100,000 popular votes Jackson, he was more successful in more than Harrison, Harrison was the political maneuvering in the elected President, having won key House of Representatives and there- states by small margins. A switch of fore was elected President. a few thousand votes in New York Although President Kennedy is would have given the election to generally considered to have received Cleveland. about 112,000 popular votes more In the election of 1876 Democratic than Richard M. Nixon in 1960, it presidential candidate Samuel J. Til- may be that Nixon actually had more den won a majority of the popular popular votes than Kennedy. The vote. He received approximately problem arises as to the proper 250,000 votes more than Rutherford method of counting the popular votes B. Hayes. Yet Tilden lost the election cast in Alabama. In that state the by one electoral vote (185 to 184) Democratic slate of electors consisted when the disputed electoral votes of of six unpledged electors, who eventu- four states were awarded to Hayes by ally voted for Senator Harry F. Byrd, an Electoral Commission created by 13 and five pledged electors, who eventu- Congress. ally voted for Kennedy. 14 The highest unpledged elector received 324,050 12 These Presidents and their popular popular votes while the highest vote percentages are: John Quincy Adams pledged received 318,303. In giving in 1824 (31.9 percent); James K. Polk in 1844 (49.6 percent); Kennedy a nationwide plurality of in 1848 (47.3 percent); James C. Bu- about 112,000, most authorities credit chanan in 1856 (45.6 percent); Abraham him with the 318,303 figure. It is Lincoln in 1860 (39.8 percent); Ruther- argued that this is unfair because ford B. Haves in 1876 (47.9 percent); James A. Garfield in 1880 (48.3 per- most, if not all, of the same voters cent); Grover Cleveland in 1884 (48.5 also voted for unpledged electors op- percent); Benjamin Harrison in 1888 posed to Kennedy. It is also said 47.8 percent); Grover Cleveland in 1892 that if the 324,050 unpledged votes (46.0 percent); Woodrow Wilson in 1912 (41.9 percent); Woodrow Wilson in 1916 and 318,303 pledged votes are both (49.3 percent); Harry S Truman in 1948 counted, then the Alabama Demo- (49.6 percent); and John F. Kennedy in cratic votes are counted twice. In 1960 (49.5 percent). 13For the story of how Tilden was robbed of the Presidency, see Haworth, Got Away (American Heritage, 1960). The Hayes-Tilden Presidential Election of See page 1, infra. 1876 (1906); Koenig, The Election That 14 See pages 320-321, infra. NEW YORK STATE BAR JOURNAL order that those votes be counted of its population. By House rules, only once, Congressional Quarterly the vote is awarded to the candidate has suggested dividing the 324,050 who receives a majority of the votes votes into eleven parts and awarding cast by the states delegation. 16 If the five-sixths (or 147,295) of them to delegation is evenly divided, the state Kennedy.15 When this is done, has no vote. To be victorious in the Nixon has approximately 58,000 House, the Constitution requires that more popular votes nationwide than a candidate obtain the votes of a ma- Kennedy. jority of all the states. A quorum In several elections a shift of the consists of a member or members popular vote in one or more states from two-thirds of the states. would have swung the election to the If no candidate for Vice President other candidate. In 1960 a change receives a majority of the electoral of about 4,500 votes in Illinois and votes, the Senate chooses the Vice 23,000 in Texas would have given President from the candidates with the election to Nixon. In 1948 a the highest two numbers. A quorum shift of about 17,000 popular votes for this purpose consists of two- in Illinois, 9,000 in California, and thirds of the whole number of 3,500 in Ohio would have brought Senators, and a majority of the whole victory to Dewey, with Truman hav- number is necessary to a choice. ing over 2,000,000 more popular Since the House selects the Presi- votes. In 1928 a shift of fewer than dent and the Senate the Vice Presi- 500,000 votes in several states would dent, there could be a President from have meant victory for Alfred E. one party and a Vice President from Smith, who would have had approxi- another. This is possible because the mately 5,000,000 fewer popular votes political composition of each body than Hoover. In the elections of might be different; the method of 1844, 1880, 1884 and before 1884 voting and the requirement for elec- a shift of a few popular votes in only tion differ in each; and the number one state would have made the popu- of candidates considered by each is lar vote loser President. not the same. Moreover, under pres- ent contingent election procedure, the 2. Congress Could Elect the President Senate could reach a decision while and Vice President the House deadlocked. If such a deadlock continued until January 20, Under Article II of the Constitu- the Vice President elect would, under tion, as amended by the Twelfth the Twentieth Amendment, act as Amendment, if no candidate for President until the House reached a President receives a majority of the decision and the President qualified.' T electoral votes when they are counted 16See I Congressional Debates 361, (i.e., January 6) the House of Rep- 490-510 (1824-1825), where the rules resentatives chooses the President adopted by the House of Representatives from the candidates having the top for the 1824 election are set forth and three numbers. In the voting, each debated. See Peirce, supra note 3, at state is entitled to one vote regardless 335-37. 17 The Amendment further provides that "Congress may by law provide for the 15 19 Congressional Quarterly 286 case wherein neither a President elect nor (1961). a Vice President elect shall have qualified, AUGUST, 1968

On four occasions in American Jefferson received the votes of eight history Congress has been intimately states, Burr of six states, and two involved in the election of the Presi- states were evenly divided. On the dent or Vice President. Each occa- thirty-sixth ballot, Jefferson received sion was marked by a high degree of the votes of ten states and won. His partisan politics and emphasized the election was made possible because undesirability of involving Congress members of the Federalist Party in in a contingent election. the delegations of the states which had In the election of 1800 Thomas been evenly divided either absented Jefferson and each re- themselves or cast blank votes. As ceived the same number of electoral a result, only Democratic-Republicans votes. The Democratic-Republican were left in those states and they electors voted for both Jefferson cast the votes of their states for Jeffer- and Burr, intending that the former son. Of the ten states voting for be President and the latter be Vice Jefferson, two had awarded their President.18 The lame duck House electoral votes to John Adams, and of Representatives therefore was re- three had divided their votes among quired to choose between them for Jefferson, Burr, Adams and Pinckney. President. For thirty-five ballots, The House of Representatives had taken over a one-week period without to choose the President again in the any adjournments, neither could ob- election of 1824. Andrew Jackson, tain the necessary votes of nine states. John Quincy Adams and William H. On each of the thirty-five ballots, Crawford were the candidates with the highest three numbers of electoral declaring who shall then act as President, votes. Adams was elected on the or the manner in which one who is to first ballot, receiving the votes of act shall be selected, and such person shall thirteen of the twenty-four states. act accordingly until a President or Vice Andrew Jackson received the votes President shall have qualified." The pres- ent succession law covers these contingen- of seven states and Crawford of four. cies, extending the line of succession to A change of only one vote in any of the Speaker of the House of Representa- six state delegations would have tives, then to the President pro tempore prevented Adams' election. It is in- of the Senate, and then to the members teresting to note that following the of the Cabinet in the following order: Secretary of State, Secretary of Treasury, election of 1824, a major effort was Secretary of Defense, Attorney General, made in Congress to remove the con- Postmaster General, Secretary of Interior, tingent election from the House. In Secretary of Agriculture, Secretary of 1826, the House itself passed a reso- Commerce, and Secretary of Labor. 3 U.S.C. § 19 (1964). lution to this effect by a vote of 138 18 The tie occurred because under the to 52.19 No action was ever taken in original Constitution there was no separate the Senate. balloting for President and Vice President. In the election of 1836 the Senate Each elector simply cast two votes. The chose the Vice President when no person with the highest number, if a ma- jority of the total number of electors ap- candidate for that office received a pointed, was elected President. The per- majority of the electoral votes. The son with the most electoral votes after choice was between the incumbent the President was chosen was elected Vice President. The Twelfth Amendment was adopted in 1804 so as to provide for sepa- 19 II Register of Debates (pt. II), 19th rate votes for President and Vice President. Cong., 1st Sess. 2003 (1826). NEW YORK STATE BAR JOURNAL

Vice President, Richard Mentor John- Thurmond received 39 electoral votes son, and Francis Granger. Johnson and 1,176,125 popular votes. Wallace was selected by a vote of 33 to 16. received 1,157,326 popular votes and It is noteworthy that he received the although he did not obtain any elec- votes of several Senators whose states toral votes, his presence on the ballot had given their electoral votes to in New York reportedly caused Tru- Granger. Similarly, Granger received man to lose New York while his the vote of a Senator whose state had absence from the ballot in Illinois was awarded its electoral votes to Johnson. allegedly responsible for Truman's Moreover, both Johnson and Granger success in that state. received the votes of Senators whose In the 1948 election, had there states had awarded their electoral been a slight shift of the popular vote votes to other vice presidential candi- in three states (California, Illinois dates. and Ohio), Dewey would have won, In the election of 1876 a question with Truman having more popular arose over the awarding of the elec- votes. Had there been such a shift toral votes of four states, each of in two of these states (as, for instance, which had sent double sets of elector of 16,807 votes in Illinois and 3,554 returns to the President of the Senate. votes in Ohio), the election would A Republican-controlled Senate and have been thrown into the House of a Democratic House could not agree Representatives. Who would have on which returns to accept. A bi- won in the House can only be sur- partisan Electoral Commission was mised, since no party had control of formed by Congress to resolve the the necessary number of state delega- controversy. The Commission, con- tions (i.e., then twenty-five). The sisting of eight Republicans and seven 1948 congressional elections had Democrats, awarded the votes to given the Democrats control of Hayes, the Republican candidate, by twenty-one state delegations; the Re- a strict party vote of eight to seven. publicans, of twenty; and the Dixie- On other occasions elections came crats, of four. Three state delega- within a hairline of being thrown into tions were evenly divided. Thus, if the House of Representatives. In the election had gone into the House, 1960 a change of 4,480 votes in the Dixiecrats would have held the Illinois and 4,491 in Missouri would balance of power and likely would have sent the election of President have been able to exact a price for to the House and that of Vice Presi- 20 votes. dent to the Senate. The 1948 elec- their tion was another such occasion, il- 20 As for the coming presidential elec- lustrating what can happen when tion, the 1968 congressional elections will there are strong minor party candi- determine the political alignment of Con- dates. The candidacies of Senator gress at the time the electoral votes are Strom Thurmond, whose intention it counted on January 6, 1969. In the pres- ent House of Representatives, the Demo- was to throw the election into the crats control 248 seats (including the New House, and Henry A. Wallace, made York 18th District of Adam C. Powell) that election extremely close. Truman and twenty-nine state delegations, while was elected President with 303 elec- the Republicans control 187 seats and toral votes and 24,179,345 popular eighteen state delegations. Three state dele- gations are evenly divided between the votes. Dewey received 189 electoral parties. All 435 seats in the House will votes and 21,991,291 popular votes. be up for election. Of the 100 Senate AUGUST, 1968

3. Electors Could Disregard the capitol forty-one days later to select Will of the People the President and Vice President. Although they are expected to vote When the people go to the polls in for their party nominees, there is November in each presidential elec- nothing in the Constitution which tion year, they vote for electors, and specifically binds them to do so. On the winning electors choose the the contrary, the evidence is com- President and Vice President in De- 2 pelling that the Framers of the Con- cember. ' In more than two-thirds stitution contemplated the electors as of the states, the names of the electors distinguished citizens who would do not appear on the ballot, but rather exercise intelligent and independent 22 the names of the presidential and vice judgment in casting their votes. presidential candidates. In all but The growth of political parties frus- one of the remaining states, the names trated this design and gave rise to our of the candidates and the electors are present system whereby each party set forth on the ballot. The voter nominates a slate of electors pledged normally must choose, as a unit, the to their party nominees. Most voters slate of electors of one of the parties. know little, if anything, about these In some states, however, the voter can electors, who, in most cases, receive choose between electors on different their position as a reward for past slates or write-in the name of an services, rendered the party. elector. Alabama is unique in that The pledged elector is so integral the names of the electors appear but a part of the present system that his not those of the candidates. defection or exercise of independent The electors who are chosen in judgment would be a serious threat each state must meet at their state to the stability of the electoral process. Despite practice, party loyalty oaths23 seats, the Democrats currently control and, in about one-third of the states, sixty-three and the Republicans thirty-six. the existence of laws (whose consti- Thirty-four Senate seats are up for elec- tion, of which twenty-three now belong to Democrats and eleven to Republicans. One 22 The author discusses this subject in seat is vacant as a result of the death of his article, entitled "The Electoral College: Robert F. Kennedy. At this writing, no Why It Was Created," 54 A.B.A.J. 249 successor has been appointed. See gen- (March, 1968). erally, 8 Congressional Quarterly 325 23 See generally, Nomination and Elec- (Feb. 23, 1968); "Suppose Nobody's tion of the President of the United States Elected President," Changing Times 13 (U.S. Sup't of Documents, January, 1968) (March 1968); "The Picking of the Presi- (contains state-by-state analysis of the rele- dent, 1968," The Saturday Evening Post, vant statutory provisions). In several March 9, 1968, p. 19. states an elector is required by statute 21 The method of nomination of electors to take a pledge or oath to vote for his varies from state to state. They are nomi- party's nominees (e.g., Alaska and Ore- nated by state committees of the political gon). In a majority of the states, how- parties, state party conventions, state pri- ever, the pledge is merely an implied one, maries, the presidential nominee, or the such as where the names of the candidates governor upon the recommendation of the and not the electors appear on the ballot state executive committees of the parties. and a vote for the former is deemed a See "Proposals to Reform Our Electoral vote for the party's slate of electors; or System," Legislative Reference Service, where the electors and candidates of each United States Library of Congress (April, party are listed as a group. Some states 1966); 46th Cong. Digest 263 (November, (e.g., Missouri and Oklahoma) make it a 1967). crime for an elector to break his oath. See NEW YORK STATE BAR JOURNAL

tutionality is in doubt) requiring elec- Constitution by the election of a con- tors to vote for their party nominees, servative coalition government." 25 some recent electors have violated Four years earlier, in the election their pledges and voted against the of 1956, the Democratic Party was 24 candidates of their party. the victim of the defection of an elec- In 1960 Henry D. Irwin of Okla- tor. W. F. Turner was elected a homa was chosen a Republican elec- Democratic elector in Alabama by tor in that state as a result of the virtue of the Democratic ticket of Republican ticket (Nixon and Lodge) Stevenson and Kefauver obtaining carrying the state by a substantial ma- 56.5 percent of the popular vote in jority of the popular vote. When the state. When the Alabama "elec- Oklahoma's "electoral college" met toral college" met in December 1956, forty-one days later, Irwin broke his Turner voted for Judge Walter B. party oath and voted for Senators Jones of Alabama for President. Harry F. Byrd for President and When his fellow electors pointed out Barry H. Goldwater for Vice Presi- that he was under an obligation to dent, neither of whom were candi- vote for Stevenson because he had dates. Irwin, relying upon his so- signed the party loyalty oath, Turner called constitutional freedom to vote replied: "I have fulfilled my obliga- for whom he pleased, said he wanted tions to the people of Alabama. I to insure "a return to respect for the am talking about the white people." 26 In the election of 1948 a Tennessee 46 Cong. Digest 263, 288 (November, elector running on both the Demo- 1967). 24 The question of whether a presiden- cratic and States' Rights tickets was tial elector can be compelled to vote for elected as a result of the popular vote his party nominees is in much doubt. in Tennessee for the Democratic There is considerable support for the view ticket. He cast his vote for the that electors are not legally obligated to States' Rights candidate who received vote for their party nominees. It is pointed only 13.4 out that in writing the Constitution, the percent of the popular vote Framers intended the electors to be free in the state. Although he had said agents; that when electors broke their he would vote this way prior to the pledges in the past, their votes were election, the Democratic voters had counted by Congress; and that several no opportunity to cast a vote for a state decisions have said in clear terms that electors cannot be compelled to vote full slate of Democratic electors who in a certain way. Opinion of the Justices, intended to vote for the party 2 7 No. 87, 250 Ala. 399, 34 So.2d 598 nominees. (1948); State ex rel. Beck v. Hummel, A problem related to that of the 150 Ohio St. 127, 146, 80 N.E.2d 899, 909 (1948); Breidenthal v. Edwards, 57 Kan. 332, 339, 46 Pac. 469, 471 (1896); 25 Hearings Before the Senate Judiciary contra, Matter of Thomas v. Cohen, 146 Subcommittee on Constitutional Amend- Misc. 836, 841-42, 262 N.Y. Supp. 320, ments on Nomination and Election of 326 (Sup. Ct., 1933). The Supreme Court President and Vice President and Qualifi- has never squarely passed on the issue. cations for Voting, 87th Cong., 1st Sess. See Ray v. Blair, 343 U.S. 214 (1952); 596 (1961) (hereinafter referred to as see generally, Kirby, "Limitations on the "Senate Hearings"). Power of State Legislatures over Presi- 26 , December 18, dential Elections," 27 Law and Contempo- 1956, p. 34. rary Problems, 505-509 (1962); "Pro- 27 For other examples of defecting elec- posals to Reform Our Electoral System," tors, see Wilmerding, The Electoral Col- supra note 21. lege 176-181 (1958). AUGUST, 1968 unfaithful pledged elector is that of homa took part in a movement de- the unpledged elector. Several south- signed to elect a President other than ern states have laws permitting the Kennedy or Nixon. The plan fo- election of unpledged electors who cused on getting the unpledged elec- are free to vote as they please. These tors and pledged electors of both electors run with the hope, if elected, parties to join together so that neither of using their votes in the electoral major candidate would be able to college to achieve certain objectives. obtain a majority of the electoral For example, their strategy may dic- votes. Although the plan was un- tate that they vote for neither major successful,29 it caused concern at the candidate so as to throw the election time. into the House of Representatives; In the 1964 election, the Demo- or that they make a deal with one cratic slate of electors chosen in the of the major parties and cast their Alabama primary were all unpledged. electoral votes for its nominees. As a result, the Democratic voters of The most conspicuous use of the Alabama were afforded no opportu- unpledged elector occurred in the nity in November 1964 to register a election of 1960. In the June 1960 vote for Johnson and Humphrey. Democratic primary in Alabama, five Since the Republican Party carried pledged and six unpledged electors the state, its slate of pledged electors were chosen. This combination slate became Alabama's "electoral col- was selected by the voters in Novem- lege" in December. ber rather than the Republican slate While defecting electors and un- of eleven pledged electors. In the pledged electors have not yet changed electoral voting on December 19, the outcome of an election, they could 1960, the five pledged electors voted do so in any election where the for Kennedy and Johnson while the electoral voting is close. six unpledged electors voted for Sena- tor Harry F. Byrd for President and 4. The Death or Withdrawal of Senator Barry H. Goldwater for Vice a Candidate Could Cause President. a Crisis Also in the 1960 election, separate Democratic slates of pledged and un- Under the electoral college system, pledged electors were run in Louisi- a number of contingencies can occur ana and Mississippi due to party quar- as a result of the death or withdrawal rels. The of a presidential or vice presidential pledged slate won in 2 0 Louisiana and lost in Mississippi. candidate. However, in Louisiana an unsuccess- ful attempt was made after the elec- A. Vacancy Before Election Day tion to suspend the state's electoral The death of a candidate before the laws and appoint independent elec- election is not provided for by law. tors. 28 The eight unpledged Missis- Both major parties, however, have sippi electors cast their votes for empowered their national committees President for Byrd. Following the November 1960 vot- 29 Senate Hearings 596-656. ing, Republican elector Irwin of Okla- 2'0 The author discusses this subject in detail in his book, From Failing Hands; The Story of Presidential Succession 270- 28 Senate Hearings 415. 275 (1965). NEW YORK STATE BAR JOURNAL to fill a vacancy occurring on the This contingency occurred during ticket. Alternatively, the Republican the election of 1872. Shortly after national committee could convene a the election Democratic presidential new national convention. If con- candidate Horace Greeley died. No gress saw fit, it could change the date one was appointed to fill the vacancy. of the election, since that is a matter When the electors met, Greeley's governed by federal statute. sixty-six electoral votes were scattered In the election of 1912, Vice Presi- among four candidates, except for dent James S. Sherman, who was run- three which were cast for Greeley ning for re-election, died six days himself. Since Greeley was not alive before election day. His name, along when the three votes were cast, they with Taft's, appeared on the ballot were not counted. Greeley's vice pres- throughout the country, and they re- idential running mate, B. Gratz Brown ceived three and one half million pop- of Missouri, received eighteen of the ular votes. It was not until after the sixty-six votes. Senator Thomas Hen- November voting for elections that dricks of Indiana, who had not even the Republican national committee been a candidate for the Democratic filled the vacancy. Its appointee, nomination, received forty-two of the Nicholas Murray Butler, then Presi- votes. dent of Columbia University, received the eight electoral votes that would C. Vacancy After Electoral College have gone to Sherman. In 1860 the Meets Democratic national committee filled Another area of uncertainty, which the vacancy which occurred when is in need of clarification, is the death Senator Benjamin Fitzpatrick of Ala- of a candidate in the period after the bama declined the vice presidential electors vote in December and before nomination after the convention had their votes are counted on January 6. adjourned. Herschel V. Johnson, a Undoubtedly, a debate would ensue former governor of Georgia, was in Congress as to whether the votes selected. of a dead man could be voted. This author is of the view that they should B. Vacancy Between Election Day be because of the Twelfth Amend- And Convening of the Electoral ment, which requires the President College of the Senate to count all electoral votes so long as the persons were Another contingency not provided alive when the votes were cast. The for by law is the death of a candidate counting is a non-discretionary act. in the forty-one day period between If this view be correct, Congress election day and the meeting of the would declare the President elect and electors in December. The procedures Vice President elect. If the Presi- of the political parties for filling va- dent elect had died, the Vice Presi- cancies would still be in effect. It is dent elect would become President on likely that the electors pledged to the Amendment.31 He would be empow- deceased candidate would vote for the new nominee, who, in the event 81 This Amendment provides that if a of the death of the presidential President elect dies before the time fixed for his term to begin, the Vice President nominee, probably would be his run- elect becomes President. See note 17, ning mate. supra. AUGUST, 1968 ered, under the Twenty-Fifth Amend- posedly resulted in Hughes' loss of ment, to nominate a person to fill California's electoral votes and, as a the vacancy in the Vice Presidency. consequence, of the election. Had Congress then would have to vote on Hughes carried California, which he the nomination. If a majority of each lost by 3,806 votes, he would have House approved, the nominee would won the election notwithstanding that become Vice President. Similarly, if Wilson would have had about 580,- the Vice President elect had died, the 000 more popular votes. President elect, upon becoming Presi- The intervention of presidential dent, would be so authorized to nomi- electors sometimes leads to confusion nate a person to fill the vacancy. or causes a state to lose some of its Congress has the power under the electoral votes. For example, in the Twentieth Amendment to provide for 1948 election, only the names of the the case of death of any of the per- electors of the Progressive Party ap- sons who would be considered in a peared on the ballot in Ohio. On the contingent election by the House or other hand, only the names of the Senate. No implementing legislation, Democratic and Republican candi- however, has ever been passed. dates appeared. Many thousands of voters were confused by this arrange- Conclusion ment and erroneously voted for some Progressive electors and either Tru- The defects discussed in this article man or Dewey. These votes subse- are not all that inhere in the present quently had to be invalidated. In system. The "winner take all" fea- several other elections, presidential ture gives excessive power to or- electors either failed to vote at the ganized groups, particularly in states appointed time or had their votes re- where there is effective two-party jected for technical reasons in the t3 competition, since they may be able electoral college. to swing the entire electoral vote of Another defect recently came to the state from one candidate to the public attention. This is the Twelfth other. This feature also places an Amendment's requirement that elec- undue premium on the effects of tors cannot cast their votes for Presi- fraud, accident and other factors, dent and Vice President for persons since a slight change in the popular both of whom are "inhabitants" of vote may influence the disposition of the same state as themselves. They all of a state's electoral votes. can vote for just one "inhabitant" The election of 1916 illustrates of their state. This provision was how the entire electoral vote of a based on the view of the Framers state may be determined by a minor that electors would be partial to citi- incident. In that election Charles zens of their own state and therefore Evans Hughes, while campaigning in would cast their two electoral votes California, failed to pay a courtesy call on California's Governor Hiram 2 33E.g., the elections of 1816, 1820, Johnson. This so-called snub sup- 1836, 1868 and 1880. See Memorandum on The Electoral College Prepared by the 32 The fact seems to be that Hughes Staff of the Subcommittee on Constitu- made numerous attempts to see Johnson tional Amendments of the Senate Judiciary in California. Roseboom, A History of Committee, 87th Cong., 1st Sess. 15-16 PresidentialElections 385-386 (1965). (1961). NEW YORK STATE BAR JOURNAL in favor of such citizens. It was electoral votes; the "proportional thought that if the electors were re- vote" proposal, which would divide quired to cast one of their votes for the electoral vote of each state among an inhabitant of another state, per- the candidates in proportion to the sons of national reputation would be division of the popular vote in the elected President and Vice President. state; the "district vote" proposal, The development of political parties which would divide each state into and nominating conventions have electoral districts comparable to con- made this requirment obsolete. In gressional districts, the popular win- order to get around the provision, it ner in each district would receive one has been suggested that one of a team electoral vote, and the popular winner of candidates from the same state in the state would receive two votes; could become an "inhabitant" of an- and "direct election," which would other state after the November voting abolish the electoral college altogether and before the electoral voting. It and provide for a nationwide popular is arguable that the spirit, if not the vote. Almost all of the electoral letter, of the Constitution would be proposals would abolish the office of violated by such a maneuver. The elector. real solution is to eliminate the provi- Whatever one's preference, it is sion altogether. clear that the need for substantial3 5 Because of the deficiencies in the reform of some type is urgent. present system, numerous proposals for reform are now pending in Con- 35 Direct election has been endorsed by gress 34 -the "unit vote" proposal, the American Bar Association and The Association of the Bar of the City of New which would write into the Constitu- York. See "Electing the President," supra tion the present practice whereby the note 3; and Comm. on Fed. Legisl. of candidate who wins the most popular N.Y.C.B.A., A Report on the Proposed votes in a state receives all of its Constitutional Amendment Providing for Direct Election of President and Vice 11See "Proposals to Reform Our Elec- President (1967). toral System, supra note 21. [End]

Live Under Law Let us for God's sake resolve to live under the law. -Johnson, Lyndon B., National television broadcast, Wednesday, June 5, 1968.