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It's a Mess, But We've Been Through It Before

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A popular majority was frustrated three times in the past. Democracy survived

The presidential election leaves us all baffled, bothered and bewildered. It should be some consolation, though, that this is not the first time the Republic has endured tight elections and confusing results. Nor is it the first time the winner of the popular vote has been denied the presidency. Nor is it the first time the Electoral College has been a source of trouble.

The Electoral College, a last-minute addition to the Constitution, distorts the popular vote. It is impossible to explain to foreigners. Even most Americans don't understand it. It produced its first election crisis in our very third presidential election 200 years ago. As originally formulated, the electors were not to vote separately for President and Vice President. The presidency went to the electoral-vote winner, the vice presidency to the runner-up. It was thus conceivable that a vice-presidential nominee could be elected President.

In 1800 Thomas Jefferson and Aaron Burr, the presidential and vice-presidential nominees of what was then called the Republican Party (which later became the Democratic Party), ended up in an Electoral College tie, with 73 votes each. The choice devolved on the lame-duck House of Representatives, with each state's delegation voting as a unit.

The Federalist Party had lost the presidency but retained a majority in the House. Most Federalists hated Burr less than they hated Jefferson and voted accordingly. On the first ballot, with nine states necessary for election, Jefferson had eight, Burr six; two were divided. Ballot after ballot followed, day after day passed, and a sense of crisis began to spread across the country. The whole succession procedure seemed to be failing.

Finally Alexander Hamilton, who deeply distrusted Burr, persuaded enough Federalists to go to Jefferson--"I trust," he said, "the Federalists will not finally be so mad as to vote for Burr"--that the House at last elected Jefferson on the 36th ballot. (Four years later, Burr killed Hamilton in a duel.) The crisis of 1800 led to reform: the 12th Amendment required that the Electoral College must thereafter vote separately for President and Vice President.

The next election imbroglio came in 1824. General Andrew Jackson won the popular vote over John Quincy Adams. He also led Adams in the Electoral College, but with the electoral vote divided among four candidates, Jackson fell short of the necessary majority. Once again the choice went to the House. This time, with the support of Henry Clay, a contender who had dropped out of the contest, Adams won on the first ballot--and soon made Clay his Secretary of State. The 1824 crisis produced charges of a "corrupt bargain" that facilitated Jackson's election in 1828.

The next succession crisis came a half-century later, in the aftermath of the Civil War. In 1876 the Democratic candidate, Governor Samuel J. Tilden of New York, won the popular vote. It appeared he had won the electoral vote too. But Southern states were still under military occupation, and electoral boards in Florida, Louisiana and South Carolina rapidly disqualified Democratic ballots in an effort to shift the Electoral College majority to the Republican candidate, Rutherford Hayes of Ohio. In 1876 as in 2000, both parties sent into Florida a posse of top lawyers and other notables. Among the Hayes advocates was General Lew Wallace, the author of Ben-Hur.

The Republicans controlled the Senate, the Democrats the House. Which body would count the electoral votes? To resolve the deadlock, Congress appointed an electoral commission. By an 8-to-7 party-line vote, the commission gave all the disputed votes to Hayes. This represented a supreme election swindle, and there was a season of great bitterness. As a final noble gesture, though, Tilden asked his supporters not to riot outside the Capitol.

Some Democrats threatened to obstruct the electoral-vote count in Congress. But the Compromise of 1877 appeased them by terminating Reconstruction and turning the South over to the ex-Confederates. Only three days before Hayes' Inauguration, the Electoral College by a single vote declared Hayes the next President. The nation, North and South, accepted the result with a surprising lack of indignation.

In both 1824 and 1876, the popular-vote winner was deprived of the presidency. But in neither case was the Electoral College to blame. The House of Representatives denied the presidency to Jackson, and the rigged electoral commission denied the presidency to Tilden.

The first time the Electoral College directly denied the presidency to the winner of the popular vote was in 1888. Grover Cleveland, running for re-election, beat Benjamin Harrison by 91,000 in the popular vote but lost, 233 to 168, in the Electoral College. It was a confusing election. Fraud tainted both results. Yet nearly 80% of eligible voters had gone to the polls, and though the popular-vote winner lost the presidency, no one in 1888 seems to have questioned the legitimacy of the result.

Before the 2000 election, the only case of Electoral College misfire occurred in 1888, but there have been seemingly murky elections in the years since. In 1916, when Woodrow Wilson sought a second term, the New York Times rushed to announce his defeat by 10 o'clock election night. Charles Evans Hughes, the Republican candidate, went to bed thinking he had won. Two days later, it became clear that Wilson had won after all.

In 1960, in another very close election, John F. Kennedy carried Illinois by only 9,000 votes. Given the skill of the Chicago Democratic machine in extracting votes from vacant lots and graveyards, the myth has arisen that Mayor Richard Daley stole the election from Richard Nixon. In fact, if Nixon had carried Illinois, Kennedy would still have won 276 to 246 in the Electoral College.

If George W. Bush is confirmed as winner of the Electoral College vote and the presidency, while Al Gore wins the nationwide popular vote, this result will undoubtedly revive the movement to replace the Electoral College with direct popular election of Presidents. This sounds plausible enough, but is it really a good idea?

The abolition of state-by-state, winner-take-all electoral votes would speed the disintegration of the already weakened two-party system. It would encourage single-issue ideologues and eccentric millionaires to jump into presidential contests. The multiplication of splinter parties would make it hard for major-party candidates to win popular-vote majorities. Cumulating votes from state to state, they could force a runoff if no candidate got more than 40% of the vote--and then could extract concessions from the major parties. The prospect of double national elections could be alarming to a bored and weary electorate, especially when the final prize might go to the candidate who came in second in the first round.

There is a simpler reform that would ensure the popular-vote winner a majority in the Electoral College: award a bonus of 102 electoral votes, two for each state and for the District of Columbia, to the winner of the popular vote. Under this reform, there would remain a temptation to bring moral pressure on individual electors to reject the decisions of their states and shift their votes to the popular-vote winners. This invokes the myth that the Founding Fathers expected the electors to be free agents. The evidence is that the Founders fully expected the Electoral College to execute the popular will in each state. And the problem of the "faithless elector" can easily be handled by abolishing individual electors while retaining the Electoral College.

The Republic has faced succession crises before--and the Star-Spangled Banner yet waves. There is no need to get too excited over this one.

Historian Arthur Schlesinger Jr.'s autobiography, A Life in the 20th Century: Innocent Beginnings, 1917-1950, is being published this month by Houghton Mifflin.


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Cover Date: November 20, 2000

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