Читать книгу A Short History of Presidential Election Crises - Alan Hirsch - Страница 9

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EARLY ELECTIONS

Elections are the lifeblood of a republic, and the election of the president, the nation’s most powerful public official, loomed largest for the Founding Fathers. The delegates who gathered in Philadelphia in 1787 for the Constitutional Convention discussed at length the process of electing the president—the issue came up on twenty-one different days and occasioned thirty separate votes.¹ The Federalist, the influential collection of essays promoting ratification of the Constitution, addresses presidential elections in eight different essays, one of which (Federalist 68, by Alexander Hamilton) deals with it exclusively. Yet, for all that attention, the Constitution produced a mode of election that amounted to an accident waiting to happen—and the wait wasn’t long.

How could the framers get something so important so wrong? The answer, in a word, is parties. Or their absence. Political parties played little role in the framers’ thinking, because they didn’t yet exist. Before long, however, they sprang up and dominated the political landscape. Absent parties, the Constitution’s mechanism for electing the president made at least some sense. Each state, in proportion to its population, would get a certain number of “electors”—the only people to cast ballots for president (with each state to determine how its electors would be selected). Each elector would cast two votes for president. The person receiving a majority of the electoral votes would become president; the runner-up would become vice president. Why not? A next-in-command is needed in case the president dies or otherwise leaves office, and who better than the person the voters hold in second-highest esteem?

To be sure, such a system would make no sense today. In 2016, it could have resulted in President Trump and Vice President Clinton, a rather infelicitous partnership. But at the nation’s creation, electors were not deciding between candidates from different parties after a competitive election. In fact, there were no candidates, no parties, and no competition. No one ran for president or even declared interest. The electors were simply expected to decide who would be the best man for the job. The second best person—the one receiving the second-highest number of votes—would become vice president. In the event no one received a majority of the electoral votes, the House of Representatives would choose the president.

This system worked reasonably well for the nation’s first two elections. In 1788, the sixty-nine electors unanimously voted in George Washington; thirty-four of the sixty-nine tapped John Adams with their other vote, easily surpassing the total (nine) of the third-place finisher, John Jay. It had always been assumed that the first president would be Washington, the Revolutionary War hero who presided over the Constitutional Convention. To no one’s surprise, the second slot fell to Adams, the most important nonmilitary figure in the American Revolution. With the notable exception of the prickly Adams himself, who expressed bitterness that so many electors declined to support him, virtually everyone approved the result. The nation thus began with President Washington and Vice President Adams, a talented and public-spirited duo. They were re-elected in 1792, Washington again unanimously and Adams this time receiving the votes of seventy-seven of the 132 electors.

The broadly approved outcome of the first two elections masked two potential problems. First, what if all the electors had cast one ballot each for Washington and Adams? Under that plausible scenario, there would have been a tie for the presidency, throwing the election to the House. Foreseeing this possibility—or, worse, a few quirky electors omitting Washington, and Adams ending up president—Alexander Hamilton lobbied some electors not to vote for Adams, so as to ensure Washington’s election to the top spot. But apart from Hamilton, who privately noted this “defect in the Constitution,”² few worried about a tie, perhaps because such an occurrence would have been easily resolved: The House would have elected Washington president and Adams vice president. Not even Adams would have expected otherwise or protested the result.

So too, no one raised the risk of a second troubling scenario: What if the men to finish first and second were adversaries, leaving the president saddled with an antagonistic “partner” in office? (Adams was actually the rare Founder not enamored of Washington, but for the most part he kept his misgivings to himself.) But this problem, too, seems magnified through the prism of political parties. Absent such parties, the antagonism between president and vice president would be personal only, a circumstance that could be transcended through maturity and good will.

Thus, if the original method of selecting the president and vice president created the seeds of crisis because of a potential tie or a schizophrenic “team,” neither problem seemed likely to arise. But both would before long.

By the time Washington stepped down after two terms, political parties were clearly established. Adams and Hamilton led the incumbent party, the Federalists; Thomas Jefferson and James Madison led the opposition, the Democratic-Republicans (or Republicans for short). The bitter divide between these parties produced the first contested presidential election, in 1796. While it remained the case that no one formally declared their candidacy or campaigned openly, everyone understood Adams and Jefferson to be the respective choices of the Federalists and Republicans. South Carolina’s Thomas Pinckney served as Adams’s de facto running mate, while Aaron Burr was Jefferson’s. Such designations were unofficial, and the voting mechanism remained the same: each elector would cast two votes for president (none for vice president) and the second-place finisher would become vice president.

Adams prevailed in a tight election, receiving seventy-one electoral votes to Jefferson’s sixty-eight. Some scheming produced ticket-splitting, such that Pinckney received only fifty-nine votes and Burr just thirty. The result was that, while Adams won the presidency, Jefferson, rather than Adams’s running mate Pinckney, was elected vice president. The Adams-Jefferson administration consisted of a president and vice president from different parties. And though they had been co-revolutionaries and close friends, Adams and Jefferson differed markedly in their political philosophies. Indeed, ten months prior to the election, in a letter to his wife, Abigail, Adams prophesied that he and Jefferson as president/vice president (in either order) would produce a “dangerous crisis in public affairs” because the two were in “opposite boxes.”³

For the first time, the Constitution’s mechanism for electing the president and vice president had proven problematic, producing an administration potentially at war with itself. “The Lion & the Lamb are to lie down together,” observed Hamilton, who detested both lion and lamb (Adams and Jefferson). “Sceptics like me quietly look forward to the event—willing to hope but not prepared to believe.”⁴

Some Federalists were more pessimistic and looked to prevent a recurrence of the lion/lamb problem that resulted from electors voting only for president. They proposed constitutional amendments that would require electors to vote separately for president and vice president, which would actually make it easier to elect a united administration. The proposals went nowhere, but the concern that triggered them proved justified: Over the next four years, Vice President Jefferson opposed (with various degrees of openness) many of the policies of President Adams.⁵

The resistance of his own vice president proved a headache for Adams, but not an existential threat to the nation. The Adams-Jefferson intra-administration discord paled in comparison to the crisis created by the next presidential election, in 1800. In that rematch between Adams and Jefferson, the Constitution’s flawed process produced the other potentially catastrophic scenario that the framers had inadvertently made likely: a tie. Not a tie between the parties’ respective presidential candidates, but rather a tie between one of them (Jefferson) and his running mate (Burr).

As in 1796, it was understood that Jefferson was the presidential candidate and Burr his junior partner, but there remained no mechanism for electors to distinguish between their two choices. Rather, as before, they cast two votes for president (and none for vice president). In 1796, many Republican electors had voted for Jefferson but not Burr. That changed in 1800, because Republicans learned from the Federalists’ mistake. Recall that in 1796 twelve Federalist electors did not use their second vote on Adams’s running mate Pinckney, allowing Jefferson to sneak in to the vice presidency. In 1800, every Republican elector cast one vote for Jefferson and one for Burr, giving them seventy-three electoral votes each. Adams received sixty-five, and his unofficial running mate, Charles Pinckney (cousin of his previous running mate, Thomas), sixty-four. One Federalist elector was smart enough to vote for someone other than Pinckney and thus avert a tie in the event the Federalists won. There was talk of a few Republican electors doing the same. However, because of concern that too many electors would do so, thereby allowing Adams to secure the second spot, none did. Republicans over-learned the lesson of 1796. Professor Akhil Amar succinctly captures the result: “Even though almost all Republicans electors had in their minds voted for Jefferson first and Burr second, on the formal paper ballots these two candidates emerged as equals.”⁶

Recall our speculation that a tie between Washington and Adams would have been unproblematic: The House of Representatives would have elected Washington president without much fuss. Ideally, the Jefferson-Burr tie would have produced a similarly uncontroversial result. After all, no one doubted that Jefferson was the top of the ticket, the man the Republican electors wished to make president.

But the combination of two circumstances prevented the easy resolution: 1) Aaron Burr was a conniver who wanted to be president; and 2) Federalists wanted anyone but Jefferson as president. They calculated that the notoriously nonideological Burr would work with them if he were indebted to them. Burr did nothing to discourage such calculations, declining to renounce interest in the top spot.

The Constitution dictates that, when a presidential election is thrown to the House, the voting goes state by state, with each state receiving one vote, and a majority of the states needed for victory. On the first ballot, eight states tapped Jefferson and six chose Burr, while Vermont and Maryland deadlocked. (Every Federalist representative voted for Burr.) That left Jefferson one short of the nine states needed for victory. One week and thirty-five ballots later, the stalemate remained—despite extensive backroom maneuvering, including efforts by the Federalists to extract promises from Jefferson in exchange for their votes. Alexander Hamilton, a leading Federalist and enemy of both Jefferson and Burr, let it be known that he regarded Jefferson as the lesser of the two evils. Even so, as the March 4 date for the president’s inauguration rapidly approached, there was a real prospect of the nation without a leader.

Before the thirty-sixth ballot, however, James Bayard, Delaware’s sole representative, announced that he would switch from Burr to Jefferson to end the crisis. Bayard ended up abstaining instead, leaving Delaware in neither candidate’s column. However, a few Federalist House members from Maryland and Vermont who previously supported Burr followed Bayard’s lead and abstained. That gave Jefferson those states, and ten states total, breaking the deadlock and averting disaster.

The election of 1800 belied Alexander Hamilton’s confident claim that the Constitution set forth a method of selecting the president that safeguarded against “tumult and disorder.”⁷ But the Founders knew a constitutional crisis when they saw one, and looked to amend the Constitution to prevent a recurrence. The Twelfth Amendment was proposed in December 1803 and ratified in June 1804, in time to govern the 1804 election. The amendment is roughly 370 words (a page and a half, typed), much of it confusing or peripheral. But it did the heavy lifting in a few sentences: “[The electors] shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President. . . . The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed. . . . The person having the greatest number of votes as Vice-President, shall be the Vice-President.”

By separating the votes for president and vice president, the amendment promised to avert repeats of the untoward scenarios from the two previous elections. It would now be possible for a party’s presidential and vice presidential nominees effectively to run as a ticket, without fear of them ending up tied for president, à la 1800, and without someone from the opposing party sneaking in to become vice president, à la 1796.

It worked as planned in 1804. The 162 electors who voted for Jefferson for president cast a separate ballot for his running mate, Governor George Clinton, for vice president. Unlike in 1800, when Burr received presidential votes along with Jefferson, Clinton received no presidential votes: no inadvertent tie, no crisis in the House. And unlike 1796, when Jefferson and Adams were forced together into a schizophrenic administration, now Jefferson and his vice president served harmoniously.

Unfortunately, while the Twelfth Amendment prevented repeats of the 1796 and 1800 fiascos, its drafters failed to anticipate other ways in which a presidential election might go off the rails. Just twenty years later, the election of 1824 produced another constitutional crisis. The problem stemmed from the provision that, if no candidate receives a majority of the electoral votes, the president shall be determined by the House of Representatives. To be sure, that provision also contributed to the crisis in 1800, but for a different reason: In 1824, the failure of any candidate to receive a majority resulted not from a tie but rather from a multicandidate field—four candidates with significant support.

When it comes to the scenario in which no candidate receives a majority of the electoral votes, the Twelfth Amendment simply imported the language of the original Constitution (apart from one tweak, noted next chapter). Accordingly, the possibility of a deadlocked House, and all the mischief and chicanery that could bring, remained. In 1824, the nation paid the price for that provision: When none of the four candidates received a majority of electoral votes, the election went to the House, where it was eventually resolved in a fashion so dangerous that it risked fomenting rebellion.