Below The Beltway

Larry Sabato has shown a penchant in recent years for completely re-writing the United States Constitution notwithstanding the fact that it’s more or less functioned quite well over the past 219 years, and his latest Richmond Times-Dispatch column is no exception.

In it, Sabato goes after a little known part of the Constitution that has been used exactly twice in the 221 years since Madison, Franklin et al met in Philadelphia.

Specifically, Sabato’s ire has been raised by this portion of the Twelfth Amendment:

[I]f no person have such majority [of Electoral College votes], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

In other words, if no candidate gets a majority of the Electoral College votes needed to be named President, that number is 270 at the present time, then the House Of Representatives picks the next President from the top three candidates, with each state getting one vote. Two-Thirds of the states, or 34 states, are required for a quorum. The candidate who receives a majority of the vote of the states wins and becomes President.

There have been exactly two Presidential Elections that have been thrown into the House of Representatives in American history.

The first, the Election of 1800, occurred under the original method for Presidential election set forth in Article II of the Constitution. That election also included some of the most bitter rivals in American politics at the time — John Adams, Thomas Jefferson, Aaron Burr, and, though not a candidate a power behind the scenes, Alexander Hamilton. Finally, this election occurred at a time when the two-party system in general, and political parties specifically, were still an evolving institution in the United States.

The second, the Election of 1824, is similarly anomolous. This time, there were no less than four major candidates for President — John Quincy Adams, Andrew Jackson, Henry Clay, and William Henry Crawford. Moreover, all four candidates were essentially representing the same political party. The Democratic-Republican Party that Jefferson had founded had become so successful that it’s rival, the Federalists essentially ceased to exist (even John Quincy Adams, son of the last (and arguably only) Federalist President, had left the party of his family to become a Jeffersonian) and its replacement, the Whigs, barely existed as a functioning entity at the time and had not yet achieved major party status.

In other words, Sabato has gotten himself all worked up over an alleged “problem” that has only arisen twice in American political history, both occurring at times when the political future of the country was in a state of flux that we haven’t seen since, not even during the election that preceded the Civil War. The odds of it happening again are, arguably, infinitesimal.

So why is Sabato worked up about this ?

I’ll let him explain:

Think about what House selection of a president would mean today. Gargantuan California would have the same single vote in choosing the new chief executive as sparsely populated Wyoming, even though California has about 70 times the population. The votes of the mega-states of Florida, New York, and Texas could be cancelled out by the tiny populations of Rhode Island, South Dakota, and Montana.

Furthermore, large state delegations could internally deadlock via tie votes, and parliamentary maneuvers when the big-state delegations are polled could confuse matters further. Some large states might be deprived even of their single vote for the presidency.

Meanwhile, all the small states with single House members will be counted. The smaller the House delegation, the more likely the state’s House members will be able to reach agreement or at least finish their tally. All pigs would be equal, but in this odd Orwellian case, the tiny pigs would be more equal than the huge ones.

How could a president elected in this fashion govern effectively? If you thought the public reaction to the Supreme Court’s Bush v. Gore decision in 2000 was bitter, just wait until the unintended consequences of the Unit Rule provision of the Constitution come into play one day.

Well, first of all, the public controversy that surrounded the Election of 2000 in general, and the Supreme Court’s (legally and Constitutionally correct) decision in Bush v. Gore was pretty much entirely a creation of the media, the Gore Campaign, and the loony left. Once the Court had issued it’s decision and George W. Bush became the 43rd President of the United States, the “strife” that Sabato speaks of pretty much disappeared.

Why is it implausible to think that the same thing would happen if the House of Representatives was forced to perform it’s Constitutionally mandated duty in January 2009 and choose between Barack Obama and John McCain ?

To answer Sabato’s question, a President Obama or President McCain chosen in such a fashion would govern effectively because they would be the President of the United States and people would come to recognize that. We aren’t in a third world country and it’s been about 148 years since a bunch of sufficiently armed malcontents decided to go to war because they didn’t like how the election turned out.

So what does Sabato propose ?

The preventative answer is as obvious as it is simple. Abolish the Unit Rule, and let every congressman cast a ballot as he or she sees fit — a ballot for which each House member will be held accountable by constituents in the next election. This is far closer to the ideals of popular democracy than the distortion of democracy called the Unit Rule. The “one-representative, one-vote” system also approximates the well-established and widely accepted modern principle of “one-person, one-vote” for redistricting purposes.

Now Sabato’s idea probably makes sense to people who think that the only thing that matters in choosing the President, or any leader, is “who got the most votes,” but in the context of the federalist structure that the Constitution created, it makes perfect no sense whatsoever.

The states were, and should still be viewed as, more than just really large counties that are ruled from Washington. They’re separate entities with their own interests. The Founders recognized this when they created the Senate, which was originally made up of members chosen by state legislatures rather than voters (an idea whose time has returned in my opinion), the Electoral College, and the Unit Rule.

Adopting Sabato’s proposal would not solve any real problem — the fact that a Presidential election has been thrown into the House of Representatives only twice in American history in elections that did not follow what has come to be the historical norm indicates that no real problem exists, in my opinion, and his “solution” would only serve to further erode the distinctions between the states and the Federal Government and would help to further concentrate political power in Washington, rather than dispersing it among the several states.

Is it possible that, someday, we may have a Presidential Election so close and so anomalous that we end up with a 269-269 tie in the Electoral College and an election sent into a House of Representatives that turns into chaos ? Well, anything is possible, but the odds that it will happen are so remote, and Sabato’s proposed solution so unnecessary, that it’s not worth the risk of tinkering with a system that has worked just fine for the past two centuries.

Update: One other point about Sabato’s proposed solution. Turning the House vote into a one-representative-one-vote scenario would, it seems to me, create even more opportunities for corruption, deal-making, and hypocrisy. At least the requirement that the members of each state delegation come to some type of agreement for their state’s vote to counts makes it harder to buy votes from individual members.

H/T: Vivian Paige