The Election of 1800 - The Most Messed Up Election in US History
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You might think that the 2000 Presidential election, between George Bush and Al Gore, complete with hanging chads and a unilateral proclamation from the Supreme Court declaring Bush as the victor, was the most messed up election in our history. Compared to the election of 1800, which ultimately resulted in the election of Thomas Jefferson as 3rd President of the United States, it was a walk in the park. Thanks to the way the President was elected, as written in the Constitution, that election became nothing less than a full-blown constitutional crisis, threatening to tear that document, and our nation, into shreds.
In this episode, I will give you a brief explanation of why this is so. The story has many twists and turns, thus a comprehensive explanation is beyond the scope of this podcast episode. I only want to stimulate your interest.
The original procedure for electing a President is written in Article 2, Section 1 of the Constitution.
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled 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.
The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose 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 every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.
Some important points that impact this story:
- Each state legislature, not the people, votes for the electors, who then vote for the President.
- Each state, independently of the other states, can make its own rules about how the electors are chosen. In 1800, there were 16 states. That meant 16 different procedures for electing the electors.
- The electors in each state then vote for President.
- Once that is done, the votes are talllied and sent to the Senate and the House of Representatives.
- In the presence of the President of the Senate (i.e., the Vice-President), the votes from each state are certified. Each state's tally needs to have the person's name and the number of votes.
- If a person has more than 50% of the vote, he becomes President.
- If nobody has a majority, and there isn't a tie between #1 and #2, the House can choose a President from the top 5 candidates. The votes are "taken by the states" - one state one vote.
- If there is a tie between #1 and #2, the House can choose a President from #1 and #2.
- No matter what, whoever has the second most votes of the electors becomes Vice President.
- If there is a tie for #2, the Senate chooses the Vice-President from the tied candidates.
You might think the Framers covered all the possibilities. Why did they come up with such an elaborate scheme? The reason: they feared direct democratic elections, equating that with mob rule. Their preference was representative democracy, where the people voted indirectly. James Madison, writing as Publius in Federalist 10, expressed it thus:
it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose.
Representative government would cure the problem of "factions", by which he meant special interests. At the time of ratification, it was assumed that George Washington, who seemed to be above faction, would become President. The Framers wished that similarly minded men who viewed the national interest as more important than petty party interest, would become President by the operation of the electoral mechanism they set up.
This vision worked for the first two elections, 1788 and 1792, when Washington was the clear winner and John Adams was his trusted Vice President. By the Election of 1796, however, the wheels were starting to fall off the horse. Two factions - the Federalists and the Republicans - for larger and smaller government - had emerged. By 1796 they had assumed the characteristics of political parties.
In the Election of 1796, the winner, John Adams, was a Federalist, and the runner up, Thomas Jefferson, was a Republican. By the electoral process set up in the Constitution, with one list to determine both President and Vice President, that meant that Adams became President and Jefferson became Vice President. Of course, if the originalist electoral college rules applied in 2000, either Bush would be President and Gore would be Vice President, or vice versa (depending on how many hanging chads you count). The result: the Adams administration was "divided government" with a vengeance. There was a possibility of war with either Great Britain or France. Adams and the Federalists were pro-British; Jefferson was pro-French. Some really ugly events, such as the Alien and Sedition Acts and the XYZ Affair, punctuated the Presidency.
All of this came to a head in the Election of 1800. Many of the scenarios the Framers thought of came to pass in this election. Some that they hadn't thought of also came to pass. Here's what happened:
- Thomas Jefferson, the Republican candidate, won the popular vote, like Al Gore in 2000. Would the electoral process make him President?
- Jefferson and Aaron Burr ran as the Republican "ticket". The plan was for Burr to become Vice President by having one Republican elector vote for another candidate as Jefferson's running mate. Unfortunately for the plan, the elector didn't do that. All the Republican electors cast their 2nd vote for Burr. The result: the electoral vote was tied, 73 to 73. By rule (sounds like an NFL referee did this one), the election was thrown into the House.
- The House was Federalist-dominated, because it was a "lame duck" House. Even though the Republicans had won the House, the Constitution mandated that the House meet from the first Monday in December, 1800. The next administration wasn't scheduled to start until March 4, 1801. In this case, the Federalist-dominated members had lost, but because of the electoral process they had the opportunity to choose the President and, perhaps, override the people's choice.
- Jefferson had an ace up his sleeve. As Vice President, he was President of the Senate. According to the process, the electoral votes were to be counted "in his presence". He did a bit more than just stand there while the votes were being counted. The Georgia electoral tally did not have the popular vote tally and could have been disallowed, resulting in a new election. However, Jefferson certified the Republican electors who, by happy coincidence, were pledged to him.
- Since the election was to be decided by the House, the Constitution allowed them to select from among the top 5 candidates. The House could have chosen a Federalist candidate such as Pinckney, Adams, or John Jay, instead of Jefferson.
- The election procedure, just for this, was "one state one vote". Since there were 16 states, 9 of them would have to agree. Only 8 states were in the Jefferson column. The first 35 ballots could not produce a 9 state majority.
- On the 36th ballot, thanks to the scheming of Alexander Hamilton of New York and Bayard of Delaware, the Federalists caved in to the popular vote and got their states to vote for Jefferson. The result was that Jefferson became President and Burr Vice President - just what the voters wanted. The scheming cost Hamilton his life. In 1803, Hamilton and Burr fought a duel. Hamilton purposely missed his first shot. Burr did not, fatally injuring Hamilton.
My main source for this is Professor Bruce Ackerman's excellent book, The Failure of the Founding Fathers, as well as the Wikipedia article on the Election of 1800. There's more to this tale. During this lame duck period, John Adams and the Federalists created new courts and packed them with Federalist judges, whom the Republicans called "midnight judges". Additionally, he appointed the Federalist Secretary of State, John Marshall, as Chief Justice - after John Jay, who had been Chief Justice earlier and had resigned, refused the honor. As a result, the judiciary was Federalist-dominated. This is the political background to the famous Marbury v Madison ruling, which established judicial review, and which I discussed in a previous episode.
As for the original Presidential electoral process, everyone was so horrified by the Election of 1800 - during the deliberations, Federalist militia from the North and Republican militia from the Southern states were preparing to fight - that a call for reform of the process went out. The result was the 12th Amendment, the main provision of which was to have two separate lists for President and Vice President. Eventually, electors became rubber stamps for the popular vote in each state. The 12th Amendment procedure is in effect today, and was the procedure in the election of 2000. Of course, in 2000, unlike in 1800, the electoral vote reversed the popular vote.