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

To the House

The Constitution gives each state delegation in the House one vote, with a majority of twenty-six states required for victory. But the Constitution leaves open a plethora of questions that could determine the outcome. The three-day-old Ninety-seventh Congress convenes at 1 P.M. on January 6, 1981, to count the electoral votes cast on December 15, 1980, and has just two weeks in the event of an electoral deadlock to select a President before Inauguration Day. So the lame duck Ninety-sixth Congress would probably act between this November 4 and the Christmas recess to pass the rules governing that selection. A party that is losing power from the lame duck Congress to the new one, such as the Federalists of 1800, may write the rules to make it harder for the opposition to elect its candidate when the new House of Representatives meets to pick the President. For instance, would votes be by sealed ballot or by voice roll call? Voice voting would allow strategic switching by states that come late in the alphabet. Would individual votes be secret? Such secrecy would work to the disadvantage of representatives from single-district states, whose votes would necessarily be known, but it would greatly reduce the effect of bargains: who wants to deal when there is no way to know if the other side has welshed? Would the votes of a majority of a state's representatives or a mere plurality be required to cast a state's vote? Requiring majorities may leave large states -- where Carter, Reagan, and Anderson might all do well -- unable to cast a vote. Plurality voting in the House, on the other hand, runs the same risk as the Electoral College itself: by eking out a victory in enough states, a minority candidate could still out-total an opponent who enjoyed overwhelming support everywhere else. Under the House rules passed in 1800 and 1824, majorities were required, individual votes were recorded, and states voted by sealed ballot. But these precedents are not binding.

The Constitution requires that in the event of an electoral deadlock, the House must choose a President "immediately." Does this mean that the House must vote continuously, or can it pause for rest and other business? The Founders required an immediate choice so that there would be no time for deals to be struck, but if no choice results on the first ballot the House proceedings may, as one observer recalled of 1801, resemble a dance marathon more than an election: "The scene was now ludicrous. Many had sent home for night caps and pillows, and wrapped in shawls and great-coats, lay about the floor of the committee rooms or sat sleeping in their seats. At one, two, and half-past two, the tellers roused the members from their slumbers, and took the same ballot as before." The House voted for the twenty-seventh time at sunrise. After this heroic attempt to follow the Constitution to the letter, the representatives slowed to the pace of about a ballot a day, and James Bayard of Delaware claimed that promises made in the pauses between ballots won his vote and the election.

Perhaps the most dangerous possibility left open by the Constitution is that the lame duck Congress could try to move the time for counting electoral votes back to a date before January 3, when the new Congress convenes, so that the old Congress could choose the new President. A shift of 12,000 popular votes in 1948 would have switched enough electoral votes to send the presidential election to the House and the vice-presidential election to the Senate. That year, the Republicans lost their majorities in both houses of Congress. The outgoing Republican Eightieth Congress, with a "do-nothing" record that had become the central issue in Harry Truman's campaign for re-election, could have responded by moving up the date for picking among Democrat Truman, Republican Thomas Dewey, and States' Rights candidate Strom Thurmond. In any year, this tactic would surely stir popular protest, but a partisan Congress could decide to take the heat: the re-elected members are likely to be from safe districts; the lame duck members have little or nothing left to lose.

Fortunately, the background of the Twentieth Amendment strongly suggests that the loophole left by its language is plugged tight by its history: the whole point of that amendment's provision for the new Congress to convene seventeen days before the new President takes the oath was to prevent a lame duck Congress from selecting the President or Vice President. When history and principle are this clear, the silence of the Constitution's text becomes almost irrelevant. The document should be interpreted to forbid lame duck manipulation of the presidency, although a partisan Congress might decide differently -- and it is anyone's guess how far the courts would go to halt the lame ducks as they tramp across the spirit of the document for their own narrow ends.

The House decides

Because representatives would have so many options, voters in 1980 are likely to ask candidates for the House how they will vote if the choice of President goes to the House. Seeking a defensible answer, beleaguered House members will find no instruction in the Constitution and no guidance from the history of constitutional interpretation. In the long history of deadlocks and near-deadlocks, the members have invented five alternative standards for themselves.

1. Party lines. Many House members, left to their own preferences in selecting a President, would vote their party loyalty. The Democrats now hold 63 percent of the seats in the House. They control twenty-nine state delegations; the Republicans control twelve; nine others are evenly split. Whichever party controls the Ninety-seventh Congress may yet fear the voters' wrath if it selects its party's nominee despite his poor second-or third-place showing. One ABC News-Harris survey taken in August 1980 showed Reagan in first place nationally, with Anderson second and Carter third. What if the final vote shows a photo finish between Anderson and Reagan, with Carter still in third place? In 1801, the Federalists dominated the House and tried to elect the more nearly Federalist of the two Republican finishers. The Democrats in 1981 might do the same by rallying to Anderson.

2. Popular vote. In 1968, with George Wallace threatening to deny either Humphrey or Nixon an electoral majority, Representatives Morris Udall of Arizona and Charles Goodell of New York sponsored a bipartisan plan under which candidates for the House would pledge in advance that they would support the winner of the national popular vote. The Washington Post endorsed the idea, saying it would protect the presidency from charges that a corrupt bargain had delivered the nation's highest office to the highest bidder.

John Anderson was a member of the "People's Presidential Committee" formed by Udall and Goodell to promote the plan. Senator Henry Jackson seconded it. But Governors Ronald Reagan of California and Paul Laxalt of Nevada (now Reagan's campaign chairman) were both opposed. Reagan's tone was uncompromising: "I have too much faith in the people to shut someone out in the beginning. I have no intention that I would collaborate with the Democrats on anything." George Wallace called the plan "a conspiracy to circumvent the Constitution." Wallace's point had some merit: if the Constitution contemplated anything like a mechanical choice of the popular-vote winner when nobody wins and electoral majority, no House election would have been provided by the Framers. The popular-vote plan suffered most because the major party candidates, Humphrey and Nixon, would not commit themselves to it. As might be expected with any proposed pledge, neither wanted to sacrifice whatever advantages he imagined he might enjoy in an unpledged House election. On October 15, 1968, when it seemed clear to Nixon that he would carry a popular majority, he said he thought the popular-vote winner should be elected by the House. "If the man who wins the popular vote is denied the presidency," Nixon said, "the man who gets the presidency would have very great difficulty in governing." But five days later, Humphrey, who was certain the Democrats would control the House no matter how he fared, appeared on Face the Nation to say that he wanted the members of the House to be bound by no mechanical pledge and to pick the President they believed would be best for the country. He was sure such a President would "still have the capacity to govern," even if he had not won a popular plurality.

This time, the second-place finisher might bargain his way to the top of a House election. Whether he thereby purchases a crippled presidency will depend not only on his failure to obtain a popular plurality (such Presidents as Lincoln, Wilson, and Truman have governed successfully after such failure) but on whether he traded for the Oval Office as if it were a piece of local patronage.

3. District winner. To improve their chances in their own elections, many House candidates may promise in advance to support the presidential nominee who carries their district -- something conservatives have demanded for years, most recently in a plan proposed in August by the American Conservative Union. The criterion could be especially appealing because the winner of the national or state popular vote may not do well in a particular representative's district, and enough voters cross party lines for it to be a political liability in many cases for a representative to vote on a party basis in a House election.

Colorado's five-member House delegation typifies the resulting problem. It is divided three-to-two for the Democrats. Democratic Representative Tim Wirth, who faces a tough re-election fight in 1980, comes from a district that Jimmy Carter lost to Gerald Ford in 1976 by 37,000 votes. For political self-preservation, Wirth might feel forced to announce that he will vote the presidential preference of his constituents, thus probably giving Colorado's vote to Reagan in a House showdown even if Carter or Anderson carries the state on November 4. In fact, if the 1976 presidential election had gone to the House and all representatives had voted for the candidate who carried their districts, Carter would have had the support of 220 representatives and Ford 215. But because presidential selection in the House is by state and not by district, Ford would have won the presidency: although outvoted both in the popular total and in a majority of districts nationwide, Ford carried a majority of the districts in twenty-seven states and Carter in only twenty-three. House balloting guided by district winners thus emerges more as a temptation than as a goal.

4. Inspiration. There is a way for House members to vote that, in the long run, may be the safest of all -- the "Oh, my God!" system. It has been used only once. In 1825, John Quincy Adams needed the votes of thirteen states to be elected by the House. He had twelve states, but some of them were shaky and seemed inclined to shift to Andrew Jackson on later ballots. Adams needed a first-ballot win. The best hope for the thirteenth state was New York, whose thirty-four congressmen were split nearly down the middle: seventeen for Adams, sixteen for Crawford, and one undecided. Representative Stephen Van Rensselaer, a kindly old aristocrat, had promised to support everyone; he held the swing ballot in the decisive state. On the morning of February 9, 1825, the day of the House vote, Daniel Webster and Henry Clay, the two most persuasive men in America, cornered Van Rensselaer in the speaker's office and plied him with threats and oratory, demanding that he vote for Adams. The old gentleman held out.

When the House balloting began that afternoon, Van Rensselaer was still in a quandary. As the rest of the New York delegation passed their ballots to the teller, he bowed his head in prayer, seeking a sign from on high. He opened his eyes, and there on the floor was a ballot marked for John Quincy Adams. "Oh, my God!" Van Rensselaer snatched up the ballot and cast it as his own. So Adams was elected President. Not even the 1980 field of three "born-again" presidential candidates is likely to embrace reliance this time on such divine clues. But whether supposedly more "rational" methods are truly wiser is beyond the capacity of political and legal theory to say.

5. Bargaining. Representatives overwhelmed by the absence or multiplicity of heavenly hints and rational solutions alike may decide that self-interest is the better part of politics and vote for the candidate making them the offer they find hardest to refuse. And many representatives may each be in a position to deliver or withhold the presidency as their half of the bargain. In 1912, Teddy Roosevelt's Bull Moose party split the Republicans and finished second. If that election had gone to the House, each of thirty-two different representatives would have held the power to change an entire state's vote by switching his own. In the 1924 election, when Robert La Follette's Progressive party won 17 percent of the popular total, each of eighteen states pivoted on one vote; in those states, forty-five Democrats and twenty-five Republicans individually held the balance of power. In 1948, a Truman-Dewey-Thurmond runoff would have been required had 12,000 votes shifted in California and Ohio, and twenty-three state delegations would have turned on one member's vote; sixty-five Republicans and thirty-three Democrats each had the power to deliver an entire state. And if the Ninety-seventh Congress duplicates the Ninety-sixth, twenty-eight state delegations this time will be held by a one-vote margin and eleven state delegations by just two votes each.

Bargaining, of course, can be portrayed either as sensible compromise or as dirty dealing. Both Presidents elected by the House, Thomas Jefferson and John Quincy Adams, passionately denied that any deals were made. After Delaware's lone representative, James Bayard, gave Jefferson his 1801 victory, the new President kept certain Federalist officeholders, as Bayard had been promised, but insisted that he had made no promise to Bayard that he had to keep. Two years later, in congressional testimony, Bayard named the four offices that Jefferson had delivered as pledged. When Adams carried the House with Henry Clay's support in 1825, the appointment of Clay as secretary of state was quickly seen as proof of a "corrupt bargain." Clay had met with Adams for three hours at his home and had emerged as Adams's ally. No one can be certain what the two men said, but both of them must have been tempted to strike a deal, explicit or implicit. Adams had only to say that Clay was the logical choice for the State Department which was true. Clay, in turn, had only to state his feelings -- that he preferred Adams because he feared the alternatives: Andrew Jackson was a warmonger, and William Crawford had been crippled by a drug overdose during the campaign. Though they furiously denounced the charge that a "corrupt bargain" had been struck, Adams and Clay could never escape it.

Whether deals are made or not, a loser in the House will probably allege and the people will probably believe that the winner made one.

"Deal" is a bad word, but not all deals are created equal. Depending upon the observer's point of view, they can seem good or evil. If the 1948 election had been decided in the House, four southern states controlled by the Dixiecrats could have made a majority for either Truman or Dewey. The price they exacted would have been an immoral weakening of civil rights -- which was the price Rutherford Hayes gladly paid in 1877. But the Compromise of 1877 was not everywhere regarded as a hidden and awful bargain. The New York Herald called it an "open secret." The Memphis Avalanche insisted in an editorial: "There is no bargain in this movement. It is a policy." In 1980, women in the house could agree to support Reagan if, for example, he dropped his commitment to a constitutional amendment outlawing abortion. Deals are generally unpopular -- except with the people who are being dealt in. George Wallace called the deal he offered in 1968 "a solemn covenant."

A House divided

While a refusal to trade for votes may be noble, it may also leave us without an elected President. Many of the elections that nearly went to the House could have deadlocked in just this way. The 1860 election narrowly avoided a House decision among Republican Abraham Lincoln, Southern Democrat John Breckinridge, and John Bell of the Constitutional Union party. The House that year was split 17 to 15 in favor of the Democrats; one delegation was evenly divided; and the American party controlled the Tennessee vote. Without some bargain, there might have been no decision at all on the very eve of the Civil War. In 1912, when Woodrow Wilson prevailed against William Howard Taft and Theodore Roosevelt ran as an independent, the House was split 23 to 22 for the Democrats, with three delegations divided equally. In 1948, as in 1960 and 1968, the Democrats controlled the House, but only by virtue of southern delegations that could readily have voted for the more conservative candidate -- the Republican.

In 1981, it is entirely possible that the House could deadlock. Some strongly Democratic states, such as Massachusetts and New Jersey, could vote for John Anderson on November 4 and their representatives might feel compelled to go along. At the same time, the national shift to the right favors Republican House candidates this year. Republican leaders hope to gain at least thirty House seats in November. The July 1980 ABC News-Harris poll showed the Republicans leading the Democrats by 47 to 43 percent in the race for the House -- the first time since 1952 that the Republicans have been ahead. In six southern states, a gain of one Republican seat would give the Republicans a majority or divide the delegations evenly. As matters stand, with twenty-six states needed to elect, only twenty-one are now clearly Democratic, eight are narrowly Democratic, nine divide evenly, and twelve are Republican. These numbers show that 1981 could be the year when democracy deadlocks.

In 1801, the House voted thirty-five times without breaking the stalemate. In 1877, the debate in the House came within twenty-four hours of delaying the selection of a President until after Inauguration Day. If the House does not choose a President by noon on January 20, 1981, then the Vice President becomes Acting President. But if there is no electoral majority for President, there will probably be none for Vice President either, and the Senate will then have to choose the Vice President from among the top two finishers. As with the choice of a President by the House, all states would have the same number of votes. Indeed, voting in the Senate -- one vote per senator -- may be even less democratic than in the House, since two thirds of the Senate will have been elected in prior years.

The Senate has chosen a Vice President only once, in 1837. Virginia's twenty-three Democratic electors refused to vote for the Democratic vice-presidential candidate, Richard M. Johnson, because he had a longstanding romantic involvement with a black woman. Justice Catron wrote to Andrew Jackson that "the idea of our voting for him is loathed beyond anything that has occurred with us since we have begun to act in concert with our sister states on national policy." The Senate elected Johnson, but a President was already in office. If the presidency had gone to the House, and if there had been a deadlock, our Acting President in 1861 would have been Joseph Lane; in 1913, Thomas R. Marshall; in 1925, Charles W. Bryan; in 1949, Alben W. Barkley; in 1961, Lyndon Baines Johnson; in 1969, Edmund Muskie.

In 1981, the Acting President could be Walter Mondale -- or George Bush, or John Anderson's running mate. Indeed, Bush's chances in the Senate could be better than Reagan's in the House, since the Republicans need to win only nine seats from vulnerable Democratic incumbents to control the Senate. It is not likely, but there is more than an outside chance of a Republican Senate.

President for a day -- or for four years

One combined effect of the Twelfth and Twentieth Amendments is that the House could go on voting, with interruptions for other business and indeed with an infusion of new members in midterm, for four full years. Imagine an acting presidency subject to termination at any time until the House deadlock is finally broken. That would transform the American government into a quasi-parliamentary system. As matters stand in 1980, any disgruntled House member from any of twenty-eight states could threaten to switch his or her vote -- and thereby turn the Acting President back into a lowly Vice President again. The desire to be more than the spare tire of the executive branch could leave an Acting President open to constitutional blackmail. This seems at best a freakish approximation of parliamentary rule, and it would give unprecedented weight to the demands of the narrowest possible interests. But it is conceivable that even such a system could muddle through -- at least until the 1982 congressional elections, which would become hybrid parliamentary votes. Thus, a vote for Republican representatives would be a vote for Reagan; for Democratic representatives, a vote for Carter. Anderson might sponsor his own slate of independent candidates. Thus the deadlock could be broken -- or prolonged.

The succession

Because senators vote for Vice President individually rather than by state, the odds of deadlock in the Senate are slim, but it could happen there, too. The majority party in the Senate might want someone other than the top two vice-presidential finishers to act as President. To achieve that goal, thirty-four senators need only absent themselves so as to block a quorum. And even fewer abstentions, of course, could deprive both leading candidates of the 51 votes needed for a majority. At that point, the succession statutes would be triggered. House Speaker Tip O'Neill would be first in line if he was willing to resign from Congress, followed by the seventy-five-year-old Warren Magnuson, president pro tempore of the Senate, and then Edmund Muskie, Jimmy Carter's secretary of state.

In 1800, the Federalists considered a plan to refuse to vote at all for Jefferson or Burr and to appoint a Federalist president pro tempore of the Senate who would act as President indefinitely. But if Congress tries to change the succession statutes in this election season, the members will face the same two hurdles that frustrated the Federalists in 1800. In his role as president of the Senate until January 20, 1981, Vice President Mondale could rule any such scheme out of order, as Vice President Thomas Jefferson vowed he would do in 1800. And Carter, still President until noon on January 20, could threaten to veto any such statute, as John Adams would not pledge to do in 1800. The two-thirds vote needed to override him might prove impossible to muster.

The common sense of uncommon elections

In 1823, two decades after he was chosen President by the House, Thomas Jefferson wrote: "I have ever considered the constitutional mode of election ultimately by the legislature voting by states as the most dangerous blot on our Constitution, and one which by some unlucky chance will some day hit." That "unlucky chance" hit just two years later -- when John Adams was accused of buying the presidency from Henry Clay. And surely there are good reasons to question the wisdom of a procedure through which a candidate can win the presidency by carrying the votes of fifty-nine representatives from the twenty-six smallest states while losing the votes of the other 376 members -- fully 86 percent of the House. The five smallest states, with a combined population of just over 2 million and with only five representatives, would enjoy as much influence in a House election as the five largest states, with a combined population of over 72 million and 153 representatives.

But the conjuring of such horrors reflects theoretical possibilities, not political realities. Why would the small states band together? They have widely divergent interests. They span the continent from Alaska to South Carolina, from Maine to Arizona. Freakish coalitions cannot be ruled out; but constitutions designed to be fail-safe against the remotest contingencies are unlikely to prove fit for the workaday world.

In truth, what we have learned to live with in the presidential selection system is a complicated process, rich in possibilities for high statesmanship and low politics alike. Do the voters necessarily lose in this byzantine game? Must democracy get lost in it? Should we heed the demands to amend the Constitution to prevent House elections -- replacing them with popular-vote runoffs, or even replacing the Electoral College itself with some other system? Whatever the answer, the question is moot this election year. Realistically, no amendment could be ratified by November 4. But even if it could, experience counsels caution in changing the Constitution's fundamental design, moved by what are at worst hypothetical fears and contingent anxieties. The Electoral College persists despite repeated challenge both because we know how it works and because we know how it distributes power. That it is not congruent with pure democracy or majority rule is true enough, but certainly is not decisive. Majority rule was not an absolute principle of self-evident wisdom to the Founders, nor should it be for us. Apart from the Constitution's many substantive constraints upon majorities -- constraints such as those in the Bill of Rights -- it is worth recalling, with Walter Lippmann, that the Founders thought of the people "as having many dimensions in time, space, and quality ... The Founders sought to approximate a true representation of the people by providing many different ways of counting heads."

Choosing Presidents by popular vote, either initially or to break ties when no electoral majority has been won, would shift power away from urban states, with their concentrations of minority groups, at the same time that such states remain permanently under-represented, on a per capita basis, in the Senate. As John Kennedy argued in 1956 on the Senate floor: "It is not only the unit vote for the presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider all the others." Beyond that, any system that made presidential choices depend on national popular vote totals would put a premium on the size of a candidate's plurality in every city and town, encouraging both voter fraud and morning-after challenge. And holding a national runoff election between the top two finishers if no candidate achieves a minimum of 40 percent of the popular vote, as Senator Birch Bayh has proposed, would invite a proliferation of fourth and fifth parties, each trying to bootstrap its base of support into a berth in the two-way presidential sweepstakes. American politics could thus become a grotesque parody of European pluralism.

Nor is it clear that the House election procedure, rickety and peculiar as it seems, must ill serve the public will. In three-or four-way elections in which no candidate wins an electoral or popular majority, how can we know who the voters' second choices would have been? The House may be the best place for such second preferences to be determined. Moreover, in a year when the voters are divided and no one candidate can claim to "represent" most of the country, a House election can serve as a forum for compromise -- as a force for unity when an unqualified triumph for a minority faction would only increase the divisions that made a majority victory impossible in the first place. "Deals" that make national unity possible can be matters of policy and not personal advantage.

The experience of openly recognized division followed by deliberation and eventual reconciliation can itself be a source of release, catharsis, and reunion. Jefferson wrote after the crisis of 1800: "I am persuaded that weeks of ill-judged conduct here has strengthened us more than years of prudent and conciliatory administration could have done." Close presidential elections do not cause the tensions that divide us; they reflect these tensions and provide both a ritual and a forum through which the underlying conflicts can be mediated -- and even resolved.

In any case, it is pointless and counterproductive to declaim in advance that a House election would represent a constitutional crisis that voters should seek to avoid by casting their lot with the front-runner. Prophecies of crisis may easily become self-fulfilling, and no strategy to avoid such crisis is likely to be very secure anyway. Besides, campaigns have played on such fears too often. In 1924, editor George Harvey wrote an influential article in the North American Review arguing that Robert La Follette's third-party candidacy would throw the election into the House, which would deadlock, resulting in the election by the Democratic Senate of Charles W. Bryan, the younger brother of the "populistic and pacifistic" William Jennings Bryan, "who unquestionably would continue to act as his guide and counsellor." The Republicans developed a bizarre campaign cry: "A vote for La Follette is a vote for Bryan and a vote for Davis is a vote for Bryan. A vote for Coolidge is a vote for Coolidge." Coolidge won. In 1968, Richard Nixon deployed the same argument in the southern states -- a vote for Wallace was a wasted vote and, worse, a vote for Wallace might elect Humphrey by denying Nixon an electoral majority and leaving the election to the House.

The point is hardly to extol the virtues of presidential election by the House; any such election has its costs and risks. The point is simply to regain a measure of perspective. The strategy of winning votes by generating fear about the process itself not only makes the tragic view of a House election a self-executing perception; it could also scare a majority of voters out of casting ballots for the third-party or independent candidate who might represent their first choice for the presidency, and the best chance to revitalize the major parties and restore legitimacy and unified leadership to the national government. Afraid that their votes for the independent candidate they favor would actually be votes for the party candidate they like least, a majority may vote for the other party's nominee -- as a second best compromise. And afraid that votes for anyone but the front-runner would actually be votes for a House election, many may even vote for their third choice rather than their first or second -- to avoid getting the wild card of an Acting President.

In his 1933 presidential address to the Organization of American Historians, Professor John D. Hicks argued that "in a remarkable number of instances, third parties marked out in advance the course that later on the nation was to follow. The supporter of third-party tickets need not worry, therefore, when he is told, as he surely will be told, that he is 'throwing his vote away.' [A] backward glance through American history would seem to indicate that his kind of vote is after all probably the most powerful vote that has ever been cast." How ironic it would be if the exaggerated fear of an election by the House robbed us, in the end, of an election by the people.

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


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