The Teachings of Elections Past

Posted on Categories Congress & Congressional Power, Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public

john_quincy_adams_-_copy_of_1843_philip_haas_daguerreotypePart Five of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In the run-up to Election Day, maps of the United States will be colored in as red or blue. This so-called “electoral map” is the focus of all the debate, particularly for the presidency, with pundits asking what color the “swing states” will shade. Of course, the maps don’t show green, purple, or even different tints of red or blue. There are only two colors, red or blue. So why is that?

Without getting too far in the weeds, as it were, and from a political science view, the shading is based on the “winner-takes-all” principle. One party wins and everyone else loses. When a party loses, that party is without representation. Weaker parties are pressured to join a more dominant party in hopes of gaining a voice. This leads to party-dominance. Voters learn that, because of party dominance, voting for a third party candidate is ineffectual to the result, and hence alignment into a two-party race between winners and losers.

And, in terms of the presidency, by devising a system of “electors” as opposed to popular vote, history teaches us that an indirect electoral-election scheme can lead to odd results.

The elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive at least a plurality of the nationwide popular vote. What did this mean? It meant that in 2000, Al Gore received 543,895 more popular votes than George Bush, yet lost the election. The same was true for Samuel J. Tilden (New York) losing to Rutherford B. Hayes in 1876 and Grover Cleveland (New York), the incumbent President, losing to Benjamin Harrison (Indiana) in 1888.

There is also tie-breaker history. Per the Twelfth Amendment, a candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency. If no candidate receives a majority of electoral votes in the election, the election is determined by the House of Representatives. The House chooses the President from one of the top three presidential electoral vote-winners. (A run-off vote for Vice President belongs to the Senate.)

As to a run-off presidential vote, this has happened only once since 1804.

In 1824.

Consider what happened in 1824. In the years prior, the Democratic-Republican Party had won the last six consecutive presidential elections, but, come 1824, the party failed to agree on a candidate choice for president. Splintering into four separate candidates, the equally splintered election results — perhaps inevitable — resulted in no-candidate achieving an electoral-majority in votes. The election then went to House of Representatives.

In a prior post I described the pre-Twelfth Amendment cabal that took place in the year 1800 when the House, having a decision to make on the presidency, tied on 35 consecutive voting ballots before Thomas Jefferson won on ballot number 36. The Twelfth Amendment, as ratified in 1804, was an attempt to change this.

Twenty years after the Twelfth Amendment became law of the land, the election of 1824 put the Constitution into action. Andrew Jackson had obtained the majority of the minority of electoral votes, meaning he had the most electoral votes yet had not obtained the majority of electoral votes to become President. Would the House then vote him into office? No. Under the guise of Party Politics 101 (and part of a much larger and contentious discussion that I will not get into), the House of Representatives voted and chose John Quincy Adams as the President. Jackson’s folks called this the “Corrupt Bargain”. He would be elected President four years later.

Fast forward to today’s modern election process. In the CBS television show Madame Secretary, a recent story-line has the sitting President, who lost the primary election (meaning his party was putting-up a separate candidate for election), debating a run as an independent.

Presumably the story-line of Madame Secretary will follow the tale of Ross Perot. In the 1992 election, Perot ran as an independent against the two-dominant party candidates, George H.W. Bush (the incumbent President and the Republican Party candidate) and William Jefferson Clinton (the Democratic Party candidate). The election result showed Clinton winning big . . . at least in terms of electoral votes. Clinton carried 32 states, receiving 370 electoral votes. Bush carried 18 states, receiving 168 electoral votes. Perot did not carry a single state, and received no electoral votes.

Digging deeper into the 1992 election, however, reveals more information. Clinton’s popular vote was just shy of 45 million, with Bush and Perot receiving over 39 million and 19 million votes, respectively. In election parlance, this meant that Perot’s popularity stretched across the county but he was not particularly strong in any one state. Whether votes for Perot were votes that would have been for Bush is food for political debate; the same debate, with different players, has been played out through many recent elections.

(For election background, the Federal Register website, www.archives.gov/federal-register/electoral-college/, explains the above concepts in more detail.)

The current election cycle is no different. To be sure, neither of the major party candidates have majority approval amongst all-voters, non-major candidates have a percentage of voter-approved popularity, and poll results, predicting the percentage divide, adjust daily.

What we do know is that, using history as a guide to this year’s election, the popular vote will be relatively close between the dominant parties, just as it was 2012 (Barack Obama’s 65 million votes to Mitt Romney 60 million votes), 2008 (Barack Obama’s 69 million votes to John McCain’s 59 million votes), and 2004 (George W. Bush’s 60 million votes to John Kerry’s 57 million votes).

History also tells us that the electoral vote may not follow the popular vote, as demonstrated by the 2000 election and recent results (2012 – 332 to 206; 2008 – 365 to 173; 2004 – 286 to 251).

We also know that, in theory, a multi-candidate race where candidates have strong regional appeal, as in 1824, makes it quite possible that no party will obtain an electoral majority.

But applying this theory to today’s election cycle is complicated, and the odds of a splinter candidate having broad regional appeal such as in 1824 — which, it should be noted, would culminate in the Civil War a few decades later — is statistically slim, and unlikely.

Like it or not, one of the major party candidates in the 2016 election will be the next President, and that result may or may not be the overall popular choice amongst voters.

Of course, such an “odd” result has not sat well with Congress. According to the Office of the Federal Register’s online materials, reference sources indicate that over the past 200 years, over 700 proposals have been introduced in Congress to reform or eliminate the Electoral College, and there have been more proposals for constitutional amendments on changing the Electoral College than on any other subject.

The larger question is whether a change to the electoral system, or the election law as it now exists, is needed.

Or, as I would frame the issue, is the 2016 election cycle, with the possibility of an odd-result and an unpopular President-elect, really what the framers intended in 1787 when drafting the Constitution of the United States?

And on this question you’ll have to view my last post which sums up the debate over “How Did We Get Here?”

Photo: John Quincy Adams

One thought on “The Teachings of Elections Past”

  1. This is an interesting article. It’s long past the time we eliminated the Electoral College and went to a majority of the vote system. The EC is outdated and it’s winner take all scheme is not fair to the candidates or those who vote for them.

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