From the WSJ Opinion Archives
ELECTION 2000
It's Happened Before
Bush wouldn't be the first "minority" president.
The Electoral College, currently on everyone's tongue, was not in anyone's mind when the delegates to the Constitutional Convention arrived in Philadelphia in May 1787.
Neither the Virginia plan, which James Madison brought along in his pocket, nor the New Jersey plan, which the delegates of the small states brought forward as a counterproposal, envisaged any such thing; both foresaw an executive picked by Congress. The honor for proposing the Electoral College belongs to Pierce Butler of South Carolina, an Anglo-Irish immigrant and plantation owner.
Butler feared that leaving the choice with Congress would encourage "cabal at home and influence from abroad." The delegates had before them a contemporary example of the latter--the king of Poland, elected by the nobility, who was frequently the creature of foreign powers who had paid off enough nobles. Dispersing the choice among the states, Butler argued, would limit such grim possibilities.
Domestic cabals and foreign bribery no longer loom as threats in our minds. We are instead concerned about an anomaly the Electoral College creates: the minority president, the candidate who wins a majority of the votes of the electors, without winning a majority vote of the people. Can minority presidents have legitimacy in a democratic age?
Minority presidents come in two kinds. Most common is the victor in a race with a strong third-party candidate, who finishes first in the popular vote but shy of 50%. Abraham Lincoln, Woodrow Wilson, Richard Nixon and Bill Clinton, on their first times out, each swept significant chunks of the Electoral College map (thanks to a split in the Republican Party in 1912, Wilson had an electoral-vote landslide), though their popular vote totals were all below 45%.
Lincoln suffered an immediate crisis of legitimacy: Eleven Southern states seceded rather than accept a Republican president. Yet the remainder of the union did not question his right to rule, and he won re-election, and the Civil War. Wilson, Nixon and Mr. Clinton all accomplished important things in their first terms--the income-tax amendment, the opening to China, and the North American Free Trade Agreement--and won re-election. In their second terms, it is true, they encountered disasters, ranging from Wilson's stroke to Monica Lewinsky, but these had nothing to do with the circumstances of their initial rise to power.
The other, trickier class of minority presidents is those who finish second in the popular vote as well--a situation that, until this week, had happened three times, all in the 19th century.
Four major candidates, all belonging to the triumphant Republican Party (ancestor of today's Democrats), contested the election of 1824. Gen. Andrew Jackson won, Secretary of State John Quincy Adams showed, Treasury Secretary William Crawford placed, and Speaker of the House Henry Clay came in last. Since no man won an electoral vote majority, the election was thrown to the House, where Adams prevailed.
Skip forward a half century. Democrat Samuel Tilden beat Republican Rutherford B. Hayes in the election of 1876, but disputed returns in four states were adjudicated by a special commission that awarded all the contested electoral votes, and the election, to Hayes.
Both Adams and Hayes suffered for their victories. Jackson's partisans howled that Adams had beaten their man only by making a deal with Clay, who became Adams's secretary of state. The "corrupt bargain" became a drumbeat for four years, making Adams's term a misery, and giving Jackson an easy victory in their rematch four years later. Hayes won only by striking a bargain of his own: agreeing to pull the Army out of Southern states and ending Reconstruction. Blacks lost the right to vote in the South for three generations, and the Republican Party lost a voting bloc.
The dark-horse winner of the election of 1888, however, fared better. Democratic reformers in New York City had picked an ill-timed quarrel with Tammany Hall; to regain its perks, Tammany made a deal with the New York GOP, throwing it the state's presidential vote in return for Republican help in retaking City Hall. Republican Benjamin Harrison carried New York and the election, even though the Democratic incumbent, Grover Cleveland, won more popular votes nationwide.
Harrison may blend into the anonymous facial hair of late-19th-century politicians, but he was in fact a capable president, one of the first to push effectively for imperialist expansion. By 1892, Tammany Hall had returned to its throne and Cleveland was able to win the presidency back. But no one had challenged Harrison's legitimacy.
That was 112 years ago. The Populist and Progressive reforms of the turn of the 20th century--initiative, referendum, recall, and popular election of senators--put politics on a nose-counting majoritarian base. The Electoral College escaped the reformers' notice. In tight multiparty races, like 1968, pundits talked of the possibility of elections being thrown to the House. But no one imagined a repeat of 1888--until this year. Whether America accepts such a result now will depend on the trade-off between populist sentiment and a willingness to abide by the rules of a game that everyone (at least in the Gore and Bush high commands) understood going in.
The Electoral College is not sacred simply because the framers thought of it. The framers thought of a lot of things, from the three-fifths rule to the prohibition against income taxes, that have gone by the board (sometimes wisely, sometimes not). But going to a direct popular election of presidents might create different problems.
Pierce Butler worried about foreign bribery. If the White House hangs on a straight popular vote, we will have to worry about vote fraud at home. Under the Electoral College system, attempts to steal a tight election have to be concentrated with great finesse in a handful of key states. (This, Richard Nixon believed, is precisely what the Kennedy campaign did to him in Illinois, Texas and Missouri in 1960.)
If everyone's votes are cast in a national pot, then in a close election any fraudulent vote anywhere, from the redwood forests to the Gulf Stream waters, is potentially valuable. There will be "motor voter" registration at border crossings. The distribution of cigarette cartons at homeless shelters, reported in Wisconsin this time around, will become a Big Tobacco industry all of its own. The dead shall be raised. Dirty pool is a tradition as old as the Framers. Their safeguards should not be lightly cast aside.
Mr. Brookhiser, senior editor at National Review, is author, most recently, of "Alexander Hamilton, American" (Free Press, 1999).
