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  2014 Dial Press Trade Paperback Edition

  Copyright © 1969 by Random House, Inc.

  Excerpt from Hawaii copyright © 1959 and copyright renewed 1987 by James A. Michener

  All rights reserved.

  Published in the United States by Dial Press Trade Paperbacks, an imprint of Random House, a division of Random House LLC, a Penguin Random House Company, New York.

  DIAL PRESS and the HOUSE colophon are registered trademarks of Random House LLC.

  Originally published in hardcover in the United States by Random House, an imprint and division of Random House LLC, in 1969.

  eBook ISBN 978-0-8041-5160-3

  The quotations (in Chapter V and Appendix C) from “One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College,” by John F. Banzhaf, III, are reprinted with permission from Villanova Law Review, Vol. 13, No. 2, pp. 314–315, 317, 329–332. Copyright 1968 by Villanova University.

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  CONTENTS

  Cover

  Title Page

  Copyright

  I THE AVERTED CHAOS

  II THE FORTY-NINE STEPS

  III HOW THE SYSTEM GREW

  IV CERTAIN SENSIBLE PROPOSALS

  V WHAT MUST BE DONE NOW

  APPENDICES

  A The Constitution of the United States of America

  1. ARTICLE II

  2. AMENDMENT 12

  3. AMENDMENT 20

  4. AMENDMENT 22

  5. AMENDMENT 23

  6. AMENDMENT 25

  B Proposed Amendments to the Constitution

  1. THE AUTOMATIC PLAN

  2. THE DISTRICT PLAN

  3. THE PROPORTIONAL PLAN

  4. DIRECT POPULAR VOTE

  C The Banzhaf Studies

  1. THE AUTOMATIC PLAN

  2. THE PROPORTIONAL PLAN

  3. THE DISTRICT PLAN

  4. DIRECT POPULAR VOTE

  D 1968 Presidential Election Results

  E Pennsylvania Electoral College Procedure

  Dedication

  Other Books by This Author

  About the Author

  Excerpt from Hawaii

  I

  THE AVERTED CHAOS

  On election day 1968 the United States once again played a reckless game with its destiny. Acting as if we were immune to catastrophe, we conducted one more Presidential election in accordance with rules that are outmoded and inane. This time we were lucky. Next time we might not be. Next time we could wreck our country.

  The dangerous game we play is this. We preserve a system of electing a President which contains so many built-in pitfalls that sooner or later it is bound to destroy us. The system has three major weaknesses. It places the legal responsibility for choosing a President in the hands of an Electoral College, whose members no one knows and who are not bound to vote the way their state votes. If the Electoral College does not produce a majority vote for some candidate, the election is thrown into the House of Representatives, where anything can happen. And it is quite possible that the man who wins the largest popular vote across the nation will not be chosen President, with all the turmoil that this might cause.

  In 1823 Thomas Jefferson, who as we shall see had long and painful experience with this incredible system, described it as, “The most dangerous blot on our Constitution, and one which some unlucky chance will some day hit.” Today the danger is more grave than when Jefferson put his finger on it.

  To understand how ridiculous our system is I invite you to follow my adventures last autumn and to see for yourself how close our nation came to turmoil, if not actual disaster.

  In late August my phone rang and a voice I knew well and favorably asked, “Michener, you want to be a Presidential elector?”

  It was Milt Berkes, Democratic chairman for my home county, representative in the Pennsylvania lower house, and the hardest-working politician I know. When I ran for Congress, Milt was my campaign manager, and later when I was required to introduce him at public meetings I said, “Milt used my money to learn about politics. He used his own to get elected.” Our friendship had gone beyond politics, for I liked this former Philadelphia schoolteacher who had moved out to the suburbs to make a good life for his family.

  “Well, how about it?” he asked.

  At the moment I was sick in spirit over the debacle at Chicago and wanted no involvement with politics, but as a historian and as one who had worked hard in the practical politics of Pennsylvania, I sensed that the 1968 election was going to be of special significance. I therefore agreed to serve, even though I knew that I was heading for a potential confrontation of grave consequence.

  I make this statement carefully and conscientiously: When I accepted the nomination I already knew what might happen in the fall election and I was aware of the part I could be forced to play if Pennsylvania went Democratic and thrust me into the Electoral College. Nevertheless I replied, “Sure.”

  All across America similar phone calls were being made. “Hey, Joe! You wanna be an elector?” “Sure, why not?”

  It was as simple as that. Men and women were being chosen for one of the potentially most complex responsibilities in our political life simply because they had contributed money to the party, or had been loyal ward leaders, or were known as reliable party hacks.

  If you look in Appendix A, at Article II of the United States Constitution, Section 1, paragraph 2, you will see that it says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

  There are three steps in the process of becoming a duly elected elector—nomination; pledge to vote the way the state has voted; November election—and the fifty state legislatures have come up with a variety of alternatives for each.

  Nomination. If one took into account the various refinements in this process he would end with a group of startling variations, but they would tend to cluster around certain agreed-upon procedures. In many states conventions of the party nominate (e.g., California, Ohio). In other states the state committee chooses (Georgia, New York). In one the electors are nominated by a small executive committee (District of Columbia). Some states do not nominate but choose by state primary (Arizona, Alabama). In one state electors may be chosen “in any manner prescribed by the by-laws of the party” (Alaska). In another the governor of the state nominates, on recommendation of the political parties (Florida). In one a variety of alternatives is offered (Kentucky). In one each party may nominate two groups, one pledged, the other unpledged, and these compete in a primary (Mississippi). And in my state, Pennsylvania, the Presidential candidates chosen by the national conventions are required to name the specific electors they want to vote for them in the Electoral College if their party carries the state in November.

  Pledge to vote the way the state has voted. Here again the practices vary. Some states require pledges; others do not. Some claim that a pledge has been presumed when a man offers his name in the primary of his party; others require a signed document. One official summary of the variations concludes, “In Pennsylvania, where electors are nominated by the Presidential nominee, it seems apparent that such electors must have pledged their loyalty to such Presidential nominee or he would not have selected them.”

  Actual election. In this area there are fewer variations. Most states do not list the names of the electors of each party on the ballot but agree that a vote for the President and Vice-President will be automatically interpreted to mean one vote for each of the allotted electors (e.g., Colorado, Wisconsin). Other states print the names of the electors on their ballots (Idaho, No
rth Dakota). In two states ballots are provided with lists of pledged and unpledged would-be electors (Alabama, Mississippi). And in one the individual parties are given discretionary choice as to whether they want the names of their electors on the ballot (South Carolina).

  In addition to the above variations in procedure, the individual states also give their electors special instructions, whose terms vary enormously, but Oklahoma’s is unique: “Any person elected as Presidential elector … after taking and filing the oath or affirmation prescribed … who violates said oath or affirmation by either failing to cast his ballot [for his party’s candidates for President and Vice-President] or by casting his ballot for any other person shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than $1,000.” Because this question will become important later, it should be explained now that whereas Oklahoma could quite properly fine any errant elector up to $1,000, it could not compel him to vote right in the first place, nor could the wrong vote, once cast, be corrected. States may cajole (Massachusetts) or exhort (Nevada) or threaten (New Mexico) or fine (Oklahoma) but they cannot force the elector to vote in any way other than in accordance with the dictates of his conscience—or the terms of whatever deal he may have arranged. Once he is officially and legally elected to his position, he can do what he likes, and no one can stop him in advance, even though he might be punished later. Specifically, there is no provision for a writ of mandamus, and if one were issued, it could not be enforced.

  The qualified elector, therefore, is free to vote precisely as he wishes, which was the original intent of the Constitution and which is its intent now. Look at the experience in recent years.

  In 1948 Preston Parks of Tennessee happened to be nominated as an elector on two different slates, one for Truman, the other for Thurmond. Truman carried the state, but Parks decided that he preferred Thurmond and voted for him. Tennessee was powerless to prevent him from doing so, for he was a legally elected Presidential elector and could do as he pleased.

  In 1956 W. F. Turner of Alabama was elected to vote for Adlai Stevenson, but when the time came to vote he cast his ballot for a local judge, Walter E. Jones. In explanation Turner said, “I have fulfilled my obligation to the people of Alabama. I’m talking about the white people.”

  Oklahoma’s law punishing such behavior came about in this way: In 1960 Henry D. Irwin, pledged to Nixon, decided to strike out on his own and cast his ballot for Senator Harry Byrd. This caused a storm of protest, but Irwin explained that in his opinion the Founding Fathers of our nation were land-owners and propertied people who never intended that “the indigent, the non-property owners should have a vote in such a momentous decision” as the election of a President. Shortly thereafter Oklahoma established the requirement that a nominee elector must subscribe to a statutory oath that if elected he will cast his ballot for his party’s candidate, or be liable to the $1,000 fine.

  Actually, in the elections between 1820 and 1964 a total of 15,245 citizens served as electors and only four voted contrary to the will of their states. (A larger figure is sometimes cited, depending upon definitions.) The national attitude on this point was expressed vigorously by an outraged Pennsylvania voter in 1796. The state had gone for John Adams, but one of the electors decided on his own to vote for Thomas Jefferson. “Do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I choose him to act, not to think.” In general, electors have acted and not thought, but this does not establish a rule that they must always do so. The fact that this system is open to violent abuse is indeed an invitation to abuse.

  In my case I was chosen to be an elector because I had worked hard for my party. I was passed upon by no public hearing, no primary vote, no board of qualifications, no review of my prior public service. My finest credentials were that each year I contributed what money I could to the party.

  As to the offering of any pledge that I would vote the way my state voted, the official document previously cited surmised that since Hubert H. Humphrey, the nominee of the Democratic party, had personally chosen me as required by Pennsylvania law, it seemed “apparent that such electors must have pledged their loyalty to such Presidential nominee or he would not have selected them.” This assumption is wrong on two counts. Hubert Humphrey did not nominate me, no matter what the law provided; Milt Berkes did. And no pledge of any kind was required, either verbal or written, and none was given.

  I can say further that up to the convening of the Electoral College on December 16, 1968, I did not know the name of one elector from Pennsylvania, on either the Republican side or the Democratic. (I did tell one audience that I knew one of the Democratic electors, Philip Berman, an Allentown businessman of sturdy reputation, but I was wrong. It was his wife who had been chosen.)

  I doubt if the voters in any state knew who the proposed electors of their party were, or cared. Electors have properly been termed “the faceless men,” and in any normal year it is appropriate that they remain so; but in an abnormal year their capacity to wreck our system is so tremendous that attention must be paid them.

  OCTOBER

  In late August any prospect that I might be an elector was remote, because then it seemed that the Democrats had no chance of winning the nation and less of taking Pennsylvania. Although I continued to worry about the general deficiencies of the Electoral College, I did so in an impersonal way, for they no longer involved me.

  In September my chances diminished, because my home district happened to include a strong concentration of Wallace supporters and it seemed possible that Wallace and not Humphrey would wind up in second place, a fear that was enhanced when the straw vote in our local high school showed Nixon winning but with Wallace pressing him in second position. Humphrey finished so far behind that students who had voted for him were conspicuous and were noted unfavorably by their companions. For some time I had believed that Nixon would win with 309 electoral votes, but my first doubt came one afternoon when Mrs. Place, my tennis-playing neighbor, told us on the courts, “I’m scared. Marketing today I met eleven people I know well. They were all for Wallace. What frightens me is this time last year they were Republicans.” She was the first in our area to foresee that the Wallace vote was going to hurt not the Democrats but the Republicans. She even feared that the defection might be great enough to keep Nixon from carrying Pennsylvania. So in late September I began once more to weigh seriously what might happen if Nixon did not win enough electoral votes to decide the issue on election day.

  In early October things changed dramatically. I made an extended series of political speaking trips to major cities throughout Pennsylvania—places like Scranton, Wilkes-Barre, Chester, Hazelton—and it became quite apparent that if the Democratic party was dead, word of that fact had not reached the corpse. Wherever I went I was met by large crowds who wanted to talk politics, who wanted to work. At one point I spoke to seven fund-raising dinners in a row, some in strong Republican areas where in normal years our party could collect nothing, and at every one the hall was jammed, money was forthcoming, and enthusiasm was high.

  After one such dinner at which four hundred more than expected had shown up, and had paid $100 a couple, I returned home and wrote, “I’m confused. Everything seems backwards. Normally a politician’s intelligence tells him he can’t win, but his emotions keep him hoping. In this campaign my emotions tell me our side can’t win, but my intelligence tells me that if so many people come out night after night, we’ve got to carry Pennsylvania and maybe even New York. There’s a strong chance that Nixon is not going to get his 270 electoral votes.”

  In late October it became obvious that Humphrey would carry Pennsylvania and probable that Nixon would not get the majority required to win. Thus I would be a Democratic elector in precisely the kind of impasse I had feared. I spent many hours contemplating what I ought to do as a Democratic elector if the November 5 results did prove inconclusive.

 
Obviously, what I ought to do is what I had been nominated to do, cast an automatic vote for my party, throw the election into the House, and trust that fancy footwork among the Congressmen would enable us to salvage there the victory that had been denied us at the ballot box.

  But this was not going to be a year for automatic votes, one way or the other, and I hope the reader will follow carefully what I am about to say, consulting frequently the table of election results given in Appendix D.

  The significance of a deadlocked election was unavoidably clear to me, living as I did among strong Wallace supporters. If Wallace carried Alabama (10), Arkansas (6), Florida (14), Georgia (12), Louisiana (10), Mississippi (7) and South Carolina (8), he would have a total of 67 electoral votes, and this could give him the balance of power in the election, because when the Electoral College met he could direct his electors to vote not for him but for either Nixon or Humphrey, whichever would promise him the most. One man—a small, clever, intelligent rabble-rousing judge from Alabama—could determine the destiny of this nation. It was not an attractive prospect.

  We must now try to determine whether this threat was real or not. As to the risk that the election on November 5 might prove inconclusive, there could be no doubt; I feared it and so did everyone else who appreciated the possibilities. That Governor Wallace might wind up with a sizable block of votes which he could throw either way was probable. That Wallace could exercise any leverage if the election were thrown into the House seemed unlikely, in that no candidates for the House were running on the Wallace ticket nor were any publicly pledged to him; the decision there could be made apart from Wallace, so if he wished to exercise definitive leverage he had to do it promptly and in the Electoral College. Finally, since electors could do anything they pleased, and since Wallace would have a strong hold on his, I had to conclude that the Wallace threat was real, it was legal, and it could be accomplished. George Wallace could actually dictate who our President was to be. Furthermore, he had given adequate warning of his intentions.