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which electors should be certified in four states. A Republican-controlled Senate and a Democratic-controlled House could not agree on which electors should be certified. After many weeks of discussion, Congress finally agreed to form a bipartisan Electoral Commission to resolve the controversy. Its membership consisted of five Senators, five Representatives, and five Supreme Court Justices. Eight of these members were Republicans, and seven were Democrats. Hayes, the Republican presidential candidate, became President by being awarded the disputed votes by a strict party vote of eight to seven. The outcome was not known until a few days before the inauguration.

Near misses

On other occasions in American history, a slight change of the popular votes in a few states for the winning candidate would have thrown the election into the House of Representatives. Thus, in 1948 a shift of less than 0.6 percent of the popular vote for Truman in two states would have devolved the election of President on the House. It seems likely, in view of the political alignment of the House at the time, that there would have been a deadlock in the balloting for President.

Death of a candidate

At present, there is no doubt about who would become President on January 20 if the winning candidate died after the counting of the electoral votes on January 6 and before Inauguration Day. Section 3 of the Twentieth Amendment provides that if a Presidentelect dies before the time fixed for his term to begin (January 20), the Vice-President-elect becomes President. In such a case, the new President would be empowered, under the proposed Twenty-fifth Amendment, to fill the resulting vacancy in the Vice-Presidency. Similarly, if the Vice-President-elect died, the President-elect, upon becoming President, would be authorized to fill the vice-presidential vacancy. The Succession Law of 1947 would apply in the event both the President-elect and the Vice-President-elect died before January 20.

The term President-elect is nowhere defined in the Constitution. It is clear, however, that until the electors meet in December to cast their votes, there is no President-elect. No provision is made in law for the death of a presidential candidate in the forty-one-day period between election day in November and the meeting of the electors in December." Consequently, the electors would be free to choose anyone they pleased.

Only once has a presidential candidate died after the election and before the electors met. In the election of 1872, Democratic presidential candidate Horace Greeley won the popular vote of six states. Greeley died shortly after the election, causing his electoral votes to be scattered among four persons. Three were cast for Greeley himself, but they were not counted. This was because he was dead at the time the votes were cast so that he was not a "person” within the meaning of the Twelfth Amendment.

In the election of 1912, the incumbent Vice-President, James S. Sherman, who was running for reelection on the Republican ticket, died six days before the election. Shortly after the election, the national committee of the Republican party met and, pursuant to an authorizing resolution adopted at the previous party convention, nominated Nicholas Murray Butler to receive the eight electoral votes that would have gone to Sherman. The eight electors cast their votes for Butler.

The death of a presidential candidate after the meeting of the electors in December but before the counting of the votes has never occurred. It is in doubt whether this situation is covered by law. There is the view that the electoral votes cast for this candidate would have to be counted, since he was a "person” when the votes were cast. If he were the winner of the election, he would be declared President-elect, and Section 3 of the Twentieth Amendment would become operative. However, this vital matter should not be in doubt and therefore is in need of clarification.

41 The Democratic and Republican parties both provide for the death of a candi

date occurring either before the election or after the election but before the meeting of the electors. The national committees are authorized to fill a vacancy. Alternatively, the Republican national committee could convene a new national convention.

VII

Reform of the electoral

college system

It was not long after the adoption of the Constitution that proposals were introduced in Congress to reform the electoral college system of electing a President. Since then, hundreds have been introduced. Some have passed one House of Congress but not the other. Each Congress usually finds a number of additional proposals for reform. There seems to be general agreement that electoral reform is necessary but disagreement over what kind of reform.

The proposed amendments to the Constitution on the subject of electoral reform have fallen into four general categories: (1) district vote plans; (2) proportional vote plans; (3) unit vote or automatic electoral vote plans; and (4) direct election vote plans.“ The action taken on these various plans is noted below.

District vote plans

Four times between 1813 and 1824 the United States Senate approved constitutional amendments embodying some form of the district plan. In 1820 the House of Representatives voted ninety-two to fifty-four in favor of a district plan, but it was short of the twothirds vote necessary for a constitutional amendment. In 1826 a district proposal was defeated in the House by a vote of 102 to ninety. In 1876 it was recommended by a Special House Committee on Elections.

Proportional vote plans

In 1950 the proportional system was approved by the Senate by a vote of sixty-four to twenty-seven. A motion to suspend the rules and pass this proposal was rejected in the House by a vote of

42 For an excellent summary, see Proposals to Reform Our Electoral System,

Library of Congress Legislative Reference Service (1966).

210 to 134. In 1955 the Senate Judiciary Committee favorably reported this plan. In the following year an amendment to the proportional plan authorizing each state to adopt either the proportional plan or the district plan was offered in the Senate. This amendment was agreed to by a vote of forty-eight to thirty-seven. Since the vote was not sufficient to pass it as a constitutional amendment, the plan was recommitted to the Senate Judiciary Committee.

Direct election vote plans

A direct election plan was first introduced in Congress in 1826, and since then about one hundred such plans have been introduced. In 1950 when the proportional plan was approved, a direct election proposal, coupled with national nominating primaries, was rejected in the Senate by a vote of sixty to thirty-one. Senator Hubert Humphrey of Minnesota offered an amendment for direct election by itself. It was defeated by a vote of sixty-three to twenty-eight. In 1956 the Senate again rejected a direct election plan, which was coupled with nominating primaries. The vote was sixty-nine to thirteen. Direct election by itself then was introduced by Senator Herbert Lehman of New York. The vote against it was sixty-six to seventeen.

Congressional hearings

In 1961, 1963, and again in 1966, the Senate Subcommittee on Constitutional Amendments held extensive hearings on the subject of electoral reform. There was near unanimous agreement among the witnesses that the present system is in need of reform. Further hearings are scheduled for this year.

The Delaware lawsuit

On July 20, 1966, the State of Delaware, the first state to ratify the Constitution, moved in the United States Supreme Court for leave to file a complaint against the other forty-nine states and the District of Columbia. In its complaint Delaware asked the Supreme Court to “issue an injunction against continued use of the general ticket or state unit system as such.” Arguing that the present system of electing a President is unconstitutional, Delaware urged, among other things, that the state unit rule reduces many states and citizens to a second-class citizenship level in national politics.

Delaware suggested that the Court first decide the constitutionality of the present system and then "conduct separate and further hearings on the appropriate remedy." In its brief Delaware suggested that the district and proportional plans were two principal modes of reform that could be effected under the present system through state legislative action, a decree of the Supreme Court, or legislation by Congress. Delaware acknowledged that these alternatives were less than ideal in achieving one man, one vote for the Presidency, stating: “Ultimate correction of the conditions complained of may best be achieved by Constitutional Amendment. But unless this Court sees fit to 'open the door,' and point the way through equitable interim relief, as it did in the field of legislative apportionment, no Constitutional Amendment aimed at fair and just reform of the Electoral College is likely to come from entrenched political interests which are satisfied with a voting device that suits their purposes." Delaware suggested that "the ultimate result might be the submission of a proposed Constitutional Amendment for direct national election.

Following the bringing of this suit, twelve other states moved to be joined as plaintiffs along with Delaware-Arkansas, Florida, Iowa, Kansas, Kentucky, North Dakota, Oklahoma, Pennsylvania, South Dakota, Utah, West Virginia, and Wyoming. The state of New York opposed the motion, and on October 17, 1966, the Court, without any opinion, declined to hear the complaint.*

43

43 N.Y. Times, Oct. 18, 1966, p. 30, col. 4. On November 21, 1966, the Court

denied a request for reconsideration. N.Y. Times, Nov. 22, 1966, p. 28, col. 3.

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