Alan Hirsch - A Short History of Presidential Election Crises: (And How to Prevent the Next One)

ABOUT THE AUTHOR

Alan Hirsch, Instructor in the Humanities and Chair of the Justice and Law Studies program at Williams College, is the author of numerous works of legal scholarship and many books, including For the People: What the Constitution Really Says About Your Rights (coauthored with Akhil Amar) and Impeaching the President: Past, Present, and Future. He received a J.D. from Yale Law School and a B.A. from Amherst College. His work has appeared in the Washington Post, Los Angeles Times, Washington Times, Newsday, and Village Voice. Hirsch also serves as a trial consultant and expert witness on interrogations and criminal confessions, testifying around the nation. He lives in Williamstown, Massachusetts.

ACKNOWLEDGMENTS

First, special thanks to Greg Ruggiero for his belief in this project and his help in bringing it to fruition. Also to the following for reading and providing thoughtful comments: Eric Hirsch, Sarah Hirsch, Joni Hirsch, Marjorie Hirsch, Howard Shapiro, Chris Merkling, David Shipler, and Alan Morrison. Evan Caminker, as is his wont, went above and beyond, reading and commenting on multiple drafts. Their numerous suggestions, large and small, have enriched this project.

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ONE

EARLY ELECTIONS

Elections are the lifeblood of a republic, and the election of the president, the nations most powerful public official, loomed largest for the Founding Fathers. The delegates who gathered in Philadelphia in 1787 for the Constitutional Convention discussed at length the process of electing the presidentthe issue came up on twenty-one different days and occasioned thirty separate votes.The Federalist, the influential collection of essays promoting ratification of the Constitution, addresses presidential elections in eight different essays, one of which (Federalist 68, by Alexander Hamilton) deals with it exclusively. Yet, for all that attention, the Constitution produced a mode of election that amounted to an accident waiting to happenand the wait wasnt long.

How could the framers get something so important so wrong? The answer, in a word, is parties. Or their absence. Political parties played little role in the framers thinking, because they didnt yet exist. Before long, however, they sprang up and dominated the political landscape. Absent parties, the Constitutions mechanism for electing the president made at least some sense. Each state, in proportion to its population, would get a certain number of electorsthe only people to cast ballots for president (with each state to determine how its electors would be selected). Each elector would cast two votes for president. The person receiving a majority of the electoral votes would become president; the runner-up would become vice president. Why not? A next-in-command is needed in case the president dies or otherwise leaves office, and who better than the person the voters hold in second-highest esteem?

To be sure, such a system would make no sense today. In 2016, it could have resulted in President Trump and Vice President Clinton, a rather infelicitous partnership. But at the nations creation, electors were not deciding between candidates from different parties after a competitive election. In fact, there were no candidates, no parties, and no competition. No one ran for president or even declared interest. The electors were simply expected to decide who would be the best man for the job. The second best personthe one receiving the second-highest number of voteswould become vice president. In the event no one received a majority of the electoral votes, the House of Representatives would choose the president.

This system worked reasonably well for the nations first two elections. In 1788, the sixty-nine electors unanimously voted in George Washington; thirty-four of the sixty-nine tapped John Adams with their other vote, easily surpassing the total (nine) of the third-place finisher, John Jay. It had always been assumed that the first president would be Washington, the Revolutionary War hero who presided over the Constitutional Convention. To no ones surprise, the second slot fell to Adams, the most important nonmilitary figure in the American Revolution. With the notable exception of the prickly Adams himself, who expressed bitterness that so many electors declined to support him, virtually everyone approved the result. The nation thus began with President Washington and Vice President Adams, a talented and public-spirited duo. They were re-elected in 1792, Washington again unanimously and Adams this time receiving the votes of seventy-seven of the 132 electors.

The broadly approved outcome of the first two elections masked two potential problems. First, what if all the electors had cast one ballot each for Washington and Adams? Under that plausible scenario, there would have been a tie for the presidency, throwing the election to the House. Foreseeing this possibilityor, worse, a few quirky electors omitting Washington, and Adams ending up presidentAlexander Hamilton lobbied some electors not to vote for Adams, so as to ensure Washingtons election to the top spot. But apart from Hamilton, who privately noted this defect in the Constitution, few worried about a tie, perhaps because such an occurrence would have been easily resolved: The House would have elected Washington president and Adams vice president. Not even Adams would have expected otherwise or protested the result.

So too, no one raised the risk of a second troubling scenario: What if the men to finish first and second were adversaries, leaving the president saddled with an antagonistic partner in office? (Adams was actually the rare Founder not enamored of Washington, but for the most part he kept his misgivings to himself.) But this problem, too, seems magnified through the prism of political parties. Absent such parties, the antagonism between president and vice president would be personal only, a circumstance that could be transcended through maturity and good will.

Thus, if the original method of selecting the president and vice president created the seeds of crisis because of a potential tie or a schizophrenic team, neither problem seemed likely to arise. But both would before long.

By the time Washington stepped down after two terms, political parties were clearly established. Adams and Hamilton led the incumbent party, the Federalists; Thomas Jefferson and James Madison led the opposition, the Democratic-Republicans (or Republicans for short). The bitter divide between these parties produced the first contested presidential election, in 1796. While it remained the case that no one formally declared their candidacy or campaigned openly, everyone understood Adams and Jefferson to be the respective choices of the Federalists and Republicans. South Carolinas Thomas Pinckney served as Adamss de facto running mate, while Aaron Burr was Jeffersons. Such designations were unofficial, and the voting mechanism remained the same: each elector would cast two votes for president (none for vice president) and the second-place finisher would become vice president.