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Preface

It is always possible that an independent candidate for the presidency will deprive one or the other of the major party candidates of an electoral college majority. In 1980, when the pre-election polls showed John Anderson to have substantial popular support, this possibility gave rise to a number of journal articles purporting to describe what might happen “if nobody wins.” Some of these were highly imaginative, and not all of them, sober or imaginative, were accurate in all their details. For example, in an Atlantic Monthly piece, Laurence H. Tribe, a well-known constitutional lawyer, and Thomas M. Rollins, suggested that Congress might, as it did in 1876, appoint a commission to resolve electoral disputes. In 1887, however, Congress passed a law, still in force, to prevent a recurrence of the 1876 episode. Mistakes of this sort and the unavailability of an authoritative document on the subject led us, all political scientists associated with the American Enterprise Institute, to write this statement-or guide and offer it to the press and the general public. Because the system described depends on the interactions of the Constitution, federal and state statutes, and party and parliamentary rules, this study should be especially interesting to students enrolled in courses on the American political system.

The following persons contributed to this work or offered their counsel: Ann Diamond, Robert Goldwin, Evron Kirkpatrick, Michael Malbin, Thomas Mann, Norman Ornstein, Howard Penniman, Austin Ranney, Richard Scammon, and William Schambra.

Walter BERNS
Washington, D.C.

Introduction

We have avoided crises of succession in this country in no small part because the electoral college amplifies pluralities in the popular vote. This amplification gives us clear winners in spite of the "photofinishes” in the popular vote that have characterized many of our presidential elections. Nevertheless, it is always possible that a thirdparty candidate, by winning a state or two, may prevent either of the major party candidates from winning an electoral college majority. Recent changes in the law may well increase the number of thirdparty candidates: court decisions have made ballot access easier, and the Federal Election Campaign Act ensures public funding, in advance of an election, for any minor party that received at least 5 percent of the vote in the previous presidential election.

Third parties have not fared well in America because, in part, the voting procedure of the electoral college deflates the strength of minor parties and inflates the margin of victory of the winning party. By state law, all electoral votes (except Maine's) are awarded on a winner-take-all basis to the candidate who captures a popular plurality within that state. To have any electoral effect, then, a party must capture pluralities within states. A third party with an evenly spread national appeal, but lacking plurality support within any state, may find itself polling more than 20 percent of the popular vote without winning a single electoral vote. Millard Fillmore and the KnowNothings learned this when they polled 21 percent of the popular vote in 1856, but received only 2 percent of the electoral vote; similarly, William Howard Taft was the choice of 23 percent of the voters in 1912 but of only 1.5 percent of the electoral college.

Regional third-party challenges fare somewhat better in the electoral college, if only because they may win some states. In 1968, in the most successful third-party bid of the past half-century, George Wallace captured forty-six electoral votes, but the electoral college still operated to contain and deflate his challenge. After winning 13.5 percent of the popular vote, he captured only 8 percent of the electoral vote; some 4.1 million Wallace votes outside the states he carried had been “wasted."

The electoral college's deflation of votes for a third party imposes a psychological burden on its campaigns: somehow, voters must be persuaded that they would not be throwing away their votes, while the two major parties—and the history of third-party efforts—insist that the voters would be doing just that. Even Wallace's full-scale national effort failed to overcome this burden: he watched his support fade from a high of 23 percent, in a September opinion survey, to an actual popular vote of 13.5 percent, at least in part because of the wasted vote argument.

Wallace's express purpose had been to win enough electoral votes in that very close race to block a majority for Nixon or Humphrey in the electoral college. Then he planned to trade his electoral votes for policy concessions from one or the other of the major parties before the electoral college voted. It was feared, however, that the only result of his efforts would be to throw the election into the House of Representatives. In any event the strategy of deadlocking the vote in the electoral college is a ticklish one: a third party not only must capture some states, but also must be careful not to draw votes so that one of the two major candidates is the beneficiary of a landslide. Because of the unit-rule method of awarding state votes, the winner of the plurality of the national popular vote usually receives an amplified majority of the electoral votes. For example, John Kennedy won only 49.7 percent of the popular vote in 1960, but he won 56.4 percent of the electoral votes, even though Harry F. Byrd won fifteen electoral votes (eight in Mississippi, six in Alabama, and one in Oklahoma). This rule operates even when third-party challenges are strong and thus frustrates the strategy of throwing the election into the House. In the face of George Wallace's challenge in 1968, for example, Nixon received only 43.4 percent of the popular vote, but 55.9 percent of the electoral vote; and in 1980, when John Anderson won 7 percent of the popular vote, Ronald Reagan's 51 percent was translated into 91 percent of the electoral vote. In 1912—when Theodore Roosevelt mounted the most successful third-party challenge of this century-Woodrow Wilson eked out 42 percent of the popular vote but won 82 percent of the electoral vote. As a result of the amplified plurality rule, contingency elections are almost never necessary-indeed, none has been necessary since the election of 1824, which was held before the emergence of the unit rule and the two-party system.

Nevertheless, it is possible that a third party could succeed in 1984 or any other year where others have failed. The purpose of this guide is to set down, as succinctly as possible, the constitutional, statutory, and parliamentary rules that will govern, or otherwise affect, the choice of a president and vice president if the election of November 6, 1984, produces no clear majority in the electoral college. The discussion will focus on the four dates in 1984 significant to this choice:

· November 6, when, by federal statute, electors will be chosen or “appointed” (see provision for “Time of appointing electors," appendix B, p. 25)

• December 17, when the electors will meet in their respective states and give their votes for president and vice president (see provision for "Meeting and vote of electors," appendix B, pp. 26–27)

• January 6 (or 7) when the electoral votes are counted before a joint session of the House and Senate (see provision for "Counting electoral votes in Congress," appendix B, pp. 28–30)

• January 20, when, under Amendment XX of the Constitution (see appendix A, pp. 23–24), the president-elect, if there is one, and the vice president-elect, if there is one, will take office

A further word is required about two of these dates. Throughout this guide, we have referred to January 6 as the day when Congress will count the electoral votes and to January 20 as the day when the president and vice president will take office. In 1985, however, January 6 and January 20 fall on Sundays, which, since the adoption of Amendment XX in 1933, has happened only once, in 1957. In that year the problem was resolved as follows: Senate Concurrent Resolution 1, adopted unanimously (and, apparently, without debate) on January 4, 1957, fixed 1:00 P.M. on Monday, January 7, as the time the Senate and House would meet in joint session to open and count the electoral votes. They did so meet and counted the votes and declared the winners by the usual procedures. Presumably, Congress will act similarly in 1985.

The date and time for the ending of the president's and vice president's terms are fixed in the Constitution, however, and cannot be changed by mere act of Congress. The following account of how this situation was handled in 1957 is taken from the Congressional Quarterly Almanac, 1957:

President Eisenhower and Vice President Richard M. Nixon
began their second terms in office after a private, three-
minute swearing-in ceremony at the White House Jan. 20
and a public oath-taking at the Capitol Jan. 21. ... Only
about 80 persons, mostly relatives, close friends and high-
ranking White House officials, witnessed the Jan. 20 cere-

mony. The double oath-taking was deemed necessary be-
cause the constitutional inaugural date fell on a Sunday.
On orders from the President, no newsmen, radio or tele-
vision stations were permitted to record the private ceremony.
Only a Navy Department photographer photographed the

event. We can expect the principals of 1985, whoever they are, to follow this Eisenhower-Nixon precedent.

Note 1. Congressional Quarterly Almanac, 1957 (Washington, D.C.: Congressional Quarterly Inc., 1957), p. 43.

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