Thursday, February 13, 2020

Live-blogging the Fifteenth Amendment: February 9, 1869 (2) The Senate votes to reform the Electoral College

 - by New Deal democrat

As I mentioned several days ago, the Senate endured a pair of marathon sessions on February 8 and 9, 1869, and considered a variety of subjects. Perhaps most breathtakingly, they discussed further amending the Constitution to ensure that the winner of the popular vote was elected President.
Sen. Morton [Republican, Indiana]: I desire to renew the amendment I offered in regard to electing electors directly by the people.... It is very important. It will popularize the whole thing ...: 
Article XVI
“[As to the Electoral College,] each State shall appoint, by the vote of the people thereof qualified to vote for Representatives in Congress, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled to in the  Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States shall be appointed an elector; and the Congress shall have power to prescribe the manner in which such electors shall be chosen by the people.” 
Sen. Cameron [Republican, Pennsylvania]: I do not see how I can vote for that amendment. If he will allow the people to vote directly for President and Vice President, I will agree to any amendment he will offer for that purpose; but I cannot see what we shall gain by this proposed amendment. If the people are allowed to vote at once for President and Vice President and you count the votes all over the United States, that will come up to the notion which I have held for a long time on the subject, for I think the people ought to be brought directly in contact with the candidates for whom they vote.
Sen. Morton:... It is now left to the legislature. The legislature may elect the electors themselves.... This amendment requires these electors be appointed directly by the people, and leaves to Congress the mode of regulating that appointment....
Sen. Harlan [Republican, Iowa]: ... [is it] contemplated by the honorable Senator that an elector may be elected from each Congressional district, or by districts to be arranged by Congress in each State?
Sen. Morton: It gives the power to Congress to require election by districts; it leaves the manner of election to Congress just as it is now left in regard to Representatives.
Sen. Frelinghuysen [Republican, New Jersey]: [would] Congress [ ] not also have the power to provide by law for minority representation under that?
Sen. Morton: I suppose it would ....
Sen. Sherman [Republican, Ohio] : The only change, if I correctly read it, is that the Legislature shall not itself elect the electors, but it may either require them to be elected by a general ticket or by a separate district vote. 
.... Sen. Fessenden [Republican, Massachusetts]: It gives Congress the power to change it.

The amendment was passed, 37-19.

Sen. Edmunds [Republican, Vermont]:.... Now, it is asked that the state of Vermont shall surrender that right [to appoint Presidential electors] that belo ngs to her to Congress, who, according to their own predilections, may every four years district and redistrict that State and every other one where the majority in Congress can gain votes by it, in order to elect a part of her electors of a different political opinion from that of a majority of her people....

Sen. Morton: ... What interest can the [ ] States have in the continuation of the present anomalous condition of the Constitution on the subject of choosing electors it is impossible to see.... it is right everywhere to allow electors to be chosen by the people; and that is the substance of this provision. We know that the people everywhere desire this. The danger likely to result from the continuation of the present system has been shown on a prior occasion.... 

Sen. Buckalew [Republican, Pennsylvania]: ... the present condition of things in regard to choosing Presidents [is] in a deplorable light, and prove that there is danger ahead of difficulty in our country from the imperfect machinery of the electoral colleges. [He then discusses the election of 1824, in which Jackson won a plurality of the vote, but the House chose John Quincy Adams as President, and also the disproportionate number of electors won by the victor in 1828, 1852, and 1860].  ...[In] several other presidential elections  [1864 and 1868] ....  the popular majority, as reported, secured the result they desired. But this was fortunate or accidental rather than a certain result under our electoral system now constituted. The election of 1824 proves that a plurality as well as a minority candidate may suffer heavy loss of electoral votes and in fact be defeated. And the subsequent cases must convince us that there is danger of defeat in future elections even to majority candidates.  
The conclusion to be drawn from the facts in our political history is that at any time a candidate with a minority of the votes given to him by the people of the United States may have a majority in the Electoral College. ...[T]he committee examined the subject ... [and] acted wisely in recommending the proposition before us. It is in my opinion wise and timely ....

On third reading the proposition passed 39-16. The resolution for reforming the Electoral College under a Sixteenth Amendment, as well as the Fifteenth Amendment, passed by the required 2/3’s majority.

Source: Congressional Globe, 40th Congress, 3rd Session, pp. 1042-44.   

Ultimately we know that the proposal to enable the national popular vote to prevail in the Electoral College did not get included in the Fifteenth Amendment, nor was it passed on its own as the Sixteenth.

Of course the exact problem feared by Sen. Buckalew happened in 1876, as the popular vote winner, Samuel Tilden, with 50.9% of the vote, was passed over in favor of Rutherford B. Hayes, who had 47.9%. And twice in the last 20 years in our own time the situation has happened again, most disastrously in 2016.

But it is breathtaking to read the Senate, in 1869, foreseeing and grappling with the exact time bombs in the Electoral College that have detonated twice in our lifetimes, and passing a proposed amendment by a 2/3’s margin.

Note also the reiteration that Congress has the power to determine the manner of election of US Representatives,  by such method -e.g., general ticket voting or by districts -as they may choose, and the understanding that Congress could determine the boundaries of those districts, as well as the fear that a temporary majority in Congress could use gerrymandering of such districts to lock in electoral advantage in Presidential elections.

Utterly prescient.