January 14, 1969
Page 685
ELECTORAL CHALLENGE
HON. WILLIAM D. FORD OF MICHIGAN IN THE HOUSE OF REPRESENTATIVES
Tuesday, January 14, 1969
Mr. WILLIAM D. FORD. Mr. Speaker, on Monday, January 6, this House rendered a decision on a historic challenge to the vote of a member of the electoral college.
That challenge, while it was overruled by the House of Representatives and the Senate, could well lead to reform of what is now widely recognized as an anachronistic and potentially dangerous procedure for electing our President.
The originator of the challenge was my good friend and colleague from Michigan, Congressman JAMES G. O'HARA. While I am sure he would have preferred to win the battle, he knew that either way the Congress decided, his action to contest the vote of the elector from North Carolina would dramatically demonstrate once again the potential danger of the electoral college system.
He was joined in this effort by Senator EDMUND S. MUSKIE, and they enlisted six other Senators and 37 Representatives -- including members of both political parties -- to join in the objection.
In this case there was only one "faithless" elector -- a man who chose to disregard the voters of his State and the ticket he ostensibly represented -- the Republican nominees for President and Vice President -- and cast his ballot for the third-party candidate, George C. Wallace.
While this single errant vote is of little immediate consequence, one can see that a substantial block of faithless voters could swing the election to a man who was not the popular choice of the electorate.
Thus the peril remains that electors, by either capriciously abandoning the candidate to whom they are pledged or by casting their vote at the candidate's whim in a political power play, could thwart the will of the electorate.
On Monday, the day that Congress counted the electoral college vote, the New York Times published an editorial in which it discussed the impending challenge by Representative O'HARA and Senator MUsKIE. The editorial declared that, while the elector chose to exercise the discretion that the Constitution gives presidential electors, "he was wrong in the sense that his action violated party pledges and disenfranchised those who voted for him."
The Times hopefully concluded that the challenge "should remind a nation which still seems to need reminding, that fundamental electoral reform is long overdue."
Mr. Speaker, I commend the effort of Representative D'HARA and Senator MUSKIE and include the editorial from the New York Times, "Electoral Challenge" in the RECORD:
ELECTORAL CHALLENGE
Representative James G. O’Hara and Senator Edmund Muskie -- acting with Republican as well as Democratic support -- plan to make an important challenge when Congress counts the electoral votes today. Viewed technically, their action may perhaps be viewed only as an effort to correct one wrong by committing another. It is, in a larger sense however, a challenge to the nation to get on with the business of electoral reform.
The two Democrats plan to challenge the electoral vote east in North Carolina by Dr. Lloyd W. Bailey, who was elected on a slate of electors committed to Richard Nixon, then became disenchanted with Mr. Nixon's initial appointments and switched to vote for George C. Wallace. Dr. Bailey chose to exercise the discretion that the Constitution gives Presidential electors. Yet he was wrong in the sense that his action violated party pledges and disfranchised those who voted for him.
Representative O'Hara and Senator Muskie will doubtless make this argument in their challenge.
Congress is empowered to count electoral votes, and the power to count implies the power not to count. In the elections of 1820 and 1832 several electoral ballots were rejected by Congress on technical grounds. In 1880 the ballots of Georgia's electors were not counted because they had been cast on the wrong day. In 1872 Horace Greeley, the Democratic nominee, died after the popular voting but before the Electoral College convened, and Congress refused to count electoral ballots cast for him on the ground they had been cast for a deceased candidate. A Congressional commission set up after the disputed Hayes-Tilden election chose between several competing slates of electors.
All of this gives some precedent to the move expected today. Never before, however, has Congress refused to count the ballot of an elector who simply disregards his pledge and votes his personal whim. This electoral discretion, enshrined in the Constitution, has formed the basis of unpledged elector and third-party movements. The two challengers would like to deny third-party candidates the leverage that Wallace planned to exercise by promising his electoral votes, in a deadlock, to whichever major candidate agreed to certain of his policies.
The challenge itself raises constitutional issues. Certainly any attempt to give the defecting elector's ballot to Mr. Nixon, as Representative O'Hara and Senator Muskie have indicated they plan, would raise grave doubts. Who would cast this ballot? How?
In the sense that the challenge runs contrary to the Constitution, it too, can be considered wrong.
While two wrongs of this sort cannot make a right, the challenge nonetheless should serve to alert the nation once again to the dangers inherent in the present Electoral College system for choosing Presidents and Vice Presidents. And, by their own admission, this is the challengers' main purpose. Their action should remind a nation, which still seems to need reminding, that fundamental electoral reform is long overdue.