O C T O B E R  1 9 8 0  

by Laurence H. Tribe and Thomas M. RollinsJanuary 20, 1981. For the first time in history the Inaugural stand has been built on the West Front of the Capitol, facing Pennsylvania Avenue and the White House a mile away. But at noon, the time fixed for the Inauguration, a lone workman standing on the Inaugural platform sees only the normal traffic of a midwinter midday. The platform is ready, but there is no new President — none of the candidates carried a majority of the electoral vote on November 4, 1980.

Behind the West Front, the House of Representatives, as the Constitution provides, is trying to decide which of the top three candidates in the electoral vote should become the fortieth President. In fact, the House has been trying for over five weeks, without success, to break that deadlock. Ronald and Nancy Reagan are waiting across the river in Virginia in a rented house that once belonged to John and Jacqueline Kennedy. John and Keke Anderson are in their modest Bethesda home; he has been third in the House voting all along, but he still hopes to be the compromise choice. This morning, Jimmy Carter and Rosalynn moved out of the White House into the Madison Hotel and a unique political twilight: he is not quite President and not quite ex-President. 

Walter Mondale today becomes Acting President. Almost immediately after the electoral deadlock, the Senate carried out its constitutional duty and named him over George Bush for Vice President. (The House must select from the top three presidential finishers in the Electoral College, the Senate from the top two vice-presidential finishers.) Now Mondale has a presidency — of sorts. He will keep it — for a day or for four years — until the House makes up its collective mind. No one thought it appropriate for Acting President Mondale to be sworn in amid ruffles and flourishes from the splendor of the Inaugural platform. Instead, at noon, he takes his oath quietly, in private, with only one television camera permitted to film this unique ritual of American public life. He gives no Inaugural address; he only hopes, he says, that the House will soon finish its work.

That the odds of a House election seem high in 1980 is not just a function of Anderson’s strong showing in the polls; those odds will remain high and grow higher as the political gaps left by our major parties continue to widen. But before we rush to dismantle the present system, it would be wise to review the history that has brought us here. Like an impeachment, an election in the House is a tempting source of terror-mongering because it seems so alien: 155 years have passed since the House last chose a President in 1825, 179 years since the election of 1800 was decided on the thirty-sixth ballot by the House of Representatives. But that is not so long ago in a constitutional lifetime, and it is by borrowing the time-view of our most enduring political document that we can absorb the lessons of its experience. That experience teaches that our fears may be more a product of reflex than reflection, and that the system itself did not cause the crises linked with earlier deadlocks or near-misses. Each such crisis resulted from a fractured political consensus which the electoral system simply mirrored. Nor does history show that our forefathers have forsaken us by leaving behind what anyone would regard as an unworkable way to select a leader: no one disagreed or was distressed when George Mason predicted to the Constitutional Convention in 1787 that nineteen out of twenty elections would be decided by the House. And there is nothing unique about a President without a majoritarian mandate; nearly half our Presidents have lacked a popular vote majority.

The Electoral College, dominated by the large states, converts popular pluralities and even minorities into clear victories. The House and Senate have the same function one step removed: through a voting mechanism dominated by the small states, they turn electoral pluralities and even minorities into Presidents and Vice Presidents.

In its initial conception, that system was bottomed on the shakiest of political premises. The Constitution was written as if political parties were a scourge the nation must and would avoid; but the precursors of today’s parties in fact emerged as early as the first presidential election in 1789 — and immediately started to unravel the Framers’ design. Parties seized control of state legislatures and muted the voices of opposing minorities by adopting the winner-take-all systems now in use in every state: suddenly all of a state’s electoral votes, with only a rare stray here or there (like the Ford elector who cast his lot with Reagan in 1976), went to the winner of even the narrowest popular plurality. The Framers had expected that a district system, which would allow each state to divide its electoral vote, would be used. Instead, as parties organized the way electors would vote, they eliminated the scatter of votes that the Framers expected and quickly produced a system in which everyone expected elections to be decided before they ever reached the House.

Almost as quickly, this produced a crisis that made clear the need to amend the Constitution to provide for separate elections for President and Vice President. For the original plan had a fatal flaw that emerged with the rise of the parties. Since the electors could not designate which candidate they preferred for President and which for Vice President (the runner-up in electoral votes won the vice presidency), a host of dangers was created by party voting. If the opposition gave some unwanted extra votes to the vice-presidential candidate, or if malefactors within the party withheld votes from the presidential candidate but gave them to the vice-presidential nominee, a party’s presidential and vice-presidential candidates could be reversed. If the leading party threw away some of its vice-presidential votes to prevent a reversal of its candidates, the opposition could win the vice presidency. In 1796, Democratic-Republican Thomas Jefferson was in fact elected Vice President this way. And if no votes were thrown away and the opposition did not boost the votes of the vice-presidential candidate, then the two candidates’ totals could tie and the election would go to the House. This is exactly what happened in 1800, when the Democratic-Republican party ran Jefferson and Aaron Burr with the clear understanding that Jefferson, not Burr, was the presidential candidate. All seventy-three of the Republican electors voted for Jefferson and Burr — and then, in a context the Framers never intended, the House had to decide. Alexander Hamilton, who opposed Burr’s attempt to seize the presidency, was killed by Burr in a duel in 1804.

The operation of political parties had thus turned the game of presidential politics into a team sport. The players had to change the rules, and did so with the Twelfth Amendment, which reshaped the Electoral College in 1804: henceforth, electors would vote separately for President and Vice President. Two more recent amendments modified the system further. In 1933, the Twentieth Amendment specified that the new Congress would meet seventeen days before the new President’s Inauguration. By statute, the new Senate and House, not the lame ducks, pick the President and Vice President if the Electoral College produces no majority. The second change, a relatively minor one, came in 1961: the Twenty-third Amendment granted the District of Columbia the right to cast three electoral votes, although the District still has no representatives or senators and could not vote in any House or Senate election.

Disputed elections

The Constitution’s election rules may seem specific, but they leave open as many questions as they answer. And it is in the gray areas not illuminated by the Constitution that the battle for the executive branch may be fought again — and has been won before.

Some of those gray areas, potentially touching every election whether or not it goes to the House, hardly seem to be the stuff of which high political and legal drama are made. But in 1980, the election could turn on the seemingly innocuous constitutional mandate that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” Who counts the votes, and which votes count? Here, the Constitution is silent; yet the question could become crucial if a state’s electoral votes are disputed. The margin between Anderson and Reagan in a state such as Illinois could be a matter of a few thousand votes — narrow enough to invite the tombstone voting that was reported in Chicago in 1960. Or a Republican election board in a critical state could exploit a narrow margin between Anderson and Reagan to certify the state’s votes for Reagan. Congress would then have to decide somehow whether to recount the votes.

Although we have arrived at that point only once, in 1876, vote manipulation in presidential elections goes back to the very beginning. In 1800, Aaron Burr circumvented New York’s requirement that voters own a minimum amount of property by persuading landless Republicans to pool their funds and purchase enough as “joint tenants” to meet the requirement. The special magic of the joint tenancy was that each tenant, no matter how large the group or how small his contribution, “owned” the entire estate. The Federalists responded by locating a loophole in New Jersey law, which did not specifically exclude women from voting. They marched their wives, daughters, and any other females they could find to the polls and buried the male Republican vote.

By 1876, Jefferson’s Republicans had been transmuted into the post-bellum Democrats and the Federalists into the new Republican party, but vote fraud on both sides endured. And in 1876, the Republicans’ tactics almost started a second civil war. The election returns on November 7, 1876, showed that Democrat Samuel Tilden, the governor of New York, had won a landslide victory over Republican Rutherford B. Hayes. But the Republicans charged that the Democrats had won the votes of South Carolina, Florida, and Louisiana through force and fraud to intimidate and disqualify newly enfranchised black voters. The Democrats challenged one Republican elector in Oregon, leaving Hayes with 165 undisputed electoral votes and Tilden with 184, one short of the 185 votes he needed.

The Republican-dominated governments of the disputed states sent new electoral totals to Congress, showing Hayes the winner of every disputed contest. The Democrats in those states, two of which were ruled by rival Democratic and Republican governments, submitted electoral returns of their own showing Tilden to be the victor. The Constitution did not say which votes to count. To resolve the dispute, Congress established a fifteen-member Electoral Commission. The bill creating the commission required both the House and the Senate to vote on each commission decision; either house could thus delay the verdict past Inauguration Day. This provision gave both sides an incentive to bargain — and what the Republicans promised was nothing less than an end to Reconstruction in the South. Hayes also offered one or two Cabinet posts for the South, aid for a southern railroad, and increased spending in that region for internal improvements.

However, there were doubters and dissidents in the Democratic-controlled House. They launched a filibuster to prevent Hayes’s Inauguration by postponing beyond Inauguration Day any House vote on the commission’s ruling, which had awarded all twenty disputed electors to Hayes. The House session of March 1, 1877, just three days before the scheduled Inauguration, was described as “probably the stormiest ever witnessed in any House of Representatives.” The galleries were packed; members shrieked for attention; one representative jumped up and down on his desk in an incoherent rage; lobbyists swarmed the House floor. Representative William Levy of Louisiana then rose to announce that he had received “solemn” assurances that Hayes would withdraw federal troops from the South. After eighteen hours, the filibuster died out. At 4:10 on Tuesday morning, March 2, 1877, the count was completed: Hayes had won by 185 votes to Tilden’s 184. President Hayes promptly ordered an end to the federal occupation of the southern states.

The electoral crisis of 1876 mirrored a national crisis over the legacy of the Civil War. The Republicans traded away Reconstruction. Freed of federal interference, the South took its revenge. Blacks were disenfranchised and segregated. The crisis of race relations had been postponed to the next century. Eight decades after the Great Compromise of 1877, another Republican President, Dwight Eisenhower, had to send federal troops back to the South, to Little Rock, Arkansas, to force the integration of Central High School.

Except in cases as extreme as the one in 1876, political realities generally dissuade losing candidates from potentially bitter challenges to the electoral results. Yet challenges remain a real possibility, and there is no settled procedure for disposing of them. The need for improvisation has often been avoided only narrowly: no fewer than twenty presidential elections would have come out differently if less than one percent of the vote had shifted. The margin of victory can be all but invisible. A shift of 116 votes to Tilden in South Carolina in 1876 would have given him the one electoral vote he needed to defeat Hayes. A switch of 575 votes in New York in 1884 would have made James G. Blaine President rather than Grover Cleveland. Woodrow Wilson would have lost the election of 1916 to Charles Evans Hughes if Hughes had won the votes of 2000 more Californians.

Electoral bargaining

The popular vote counts for very little as a national total, but makes all the difference in the Electoral College, because a tiny margin in a few states can deliver a decisive block of electoral votes. Fifteen Presidents have won without a popular majority, but many of them have enjoyed comfortable majorities in the Electoral College. Or apparently comfortable majorities — for the system invites political dealing and electoral bargaining.

The invitation to bargain could be irresistible in a case where three candidates split the electoral vote, with no one receiving the necessary majority. What sort of bargain might be struck in a disputed or deadlocked election in 1980? One thing is clear: the public would not necessarily regard every possible bargain as a political deal. The Hayes-Tilden result was seen as the Great Compromise of 1817, which, like the Missouri Compromise of 1850, settled sectional differences without resort to civil war. But the 1877 bargain was elevated to the status of statesmanship because it centered on a single, overriding question that divided the nation. The Republicans could gain the presidency by yielding to the Democratic assault against Reconstruction.

Such bargains could be struck in 1980 without House or Senate involvement; a candidate might simply persuade the electors chosen to support him on November 4 to cast their ballots for someone else. Indeed, electors could do so on their own, since the Constitution makes them free agents. In every state, they run on a party or independent-candidate slate; but no pledge in advance to any party, to any candidate, or to the voters binds the electors after their slate has carried the state. They could even vote for someone who had not run in the November election — perhaps Gerald Ford.

The manipulation of electoral votes is as old as the history of the presidency — despite the Framers’ attempt to sequester the electors in separate state capitals, all voting on the same day. In the first four elections, electors made agreements to throw away votes to prevent the accidental election to the presidency of their vice-presidential choice. The failure of one Republican elector to do just that caused the crisis of 1800. In 1960, fourteen Democratic electors from Alabama and Mississippi and one Republican elector from Oklahoma cast their votes for Senator Harry F. Byrd of Virginia, who was not even a declared candidate for President. Democratic ballots in Alabama and Mississippi were “blind” — voters cast their votes only for parties, not for candidates. If the electoral count between Kennedy and Nixon had been closer, the Byrd electors could have negotiated their support for concessions on civil rights. Or they could have forced the election into the House, where southern delegations could have tipped the election either way.

In 1968, George Wallace publicly offered to barter with his electoral support. Wallace’s electors pledged in writing to vote as he told them to. In a celebrated press conference on February 19, 1968, he named his price for delivering the presidency to someone else: the criminal indictment of anyone advocating Viet Cong victory; the elimination of the federal antipoverty program; cuts in foreign aid to any nation that refused to support the United States in Vietnam; a tough stand on law and order; the repeal of all civil rights legislation; the appointment of “differently oriented” judges to the Supreme Court; and a return to the states of all power over housing, school, and hospital integration, over reapportionment, and over congressional redistricting.

As the campaign wore on, Nixon told reporters he was sure that neither he nor Hubert Humphrey would ever make a deal with Wallace. Humphrey, whose famous speech on civil rights at the 1948 Democratic convention had provoked Wallace and the Alabama delegation to walk out of that convention, insisted that he would never bargain with Wallace, saying: “If there’s any office in this country that ought to be above any kind of deal with Mr. Wallace … it’s the presidency. I’m a no-deal man.” On October 14, 1968, Humphrey’s campaign manager, Lawrence O’Brien, suggested that “secret negotiations” had already begun between Nixon and Wallace. Two days later, it was reported that emissaries of Nixon and Wallace were negotiating in New York — and that Nixon campaign manager John Mitchell was pushing the strategy. But because Nixon won decisively in the Electoral College, he never had to pay Wallace for the presidency.

In 1980, it seems unlikely that John Anderson would or could barter his independent electors to the highest bidder. But there are other possibilities. The Anderson electors could vote to put another candidate over the top rather than let the election go to the House. Indeed, they could seek a deal with at least a tint of statesmanship. They could offer to spare the nation a House election by trading votes for President in return for all of the Democratic votes for Vice President: the bargain could result in a Carter-Anderson administration. Or the Anderson electors could move the contest into the House, but with a new choice altogether. Anderson’s Massachusetts electors, for example, could vote for Edward M. Kennedy and put him in third place and the House runoff — even though he had not been a candidate in November.

Electors for any candidate could shift to prevent a deadlock as the deadline draws near. Because television admits all of them into a single, electronic Electoral College that the Framers never foresaw, electors on the West Coast have at least three hours on December 15 to decide whether to shift any of their ballots after all the electoral votes of the industrial Northeast have been cast in nominal secrecy — but almost certainly deciphered and broadcast within minutes by the media. Thomas Jefferson once argued that if the Electoral College did not reach a majority decision on the first attempt, it should be given a second try. In effect, television could give midwestern and western electors that chance — with plenty of advice on how to use it. Although few electors have been faithless in the past, few elections have been close enough in electoral votes to tempt electors to bolt.

The turbulent politics of 1980, which inspired cries for an “open” Democratic convention where delegates could vote their conscience, could lead finally to an “open” Electoral College where electors would abandon their pledges out of a higher fidelity to the national interest — or from less lofty motives. How many would resist the lure? By the time the electors meet in their state capitals in December 1980, more than a month after the November election, an uncertain America could be ready and enough electors could be willing to have an open Electoral College.

Either by betraying their trust or by keeping it, the electors may deny any candidate a majority, and the House of Representatives would ballot for a President for the third time in 180 years.

Continued…(The online version of this story appears in two parts. Click here to go to part two.)

Copyright © 1980 by Laurence H. Tribe and Thomas M. Rollins. All rights reserved. The Atlantic Monthly; October 1980; Deadlock: What Happens If Nobody Wins ; Volume 246, No. 4; page 49-62.