been determined (two days before Inauguration Day) adversely to him by an Electoral Commission created by Congress.36

In 1888: Grover Cleveland received 48.66 percent of the popular vote and 42 percent of the electoral vote. On the other hand, Benjamin Harrison obtained a popular vote of 47.86 percent and an electoral majority of 58 percent. Harrison was elected President. Although Cleveland had about 100,000 popular votes more than Harrison, Harrison won pivotal states by small margins. A switch of a few thousand votes in New York would have swung the election to Cleveland.

Disproportion between popular vote

and electoral vote

The relationship between the popular vote and the electoral vote is such that, conceivably, a candidate could win the popular vote of eleven large states and one small state by a slight margin and therefore win the election, although having less than 25 percent of the total popular vote cast in the country. Several elections have underscored the fact that the number of electoral votes may be drastically unrelated to the popular vote.

In 1860 Stephen A. Douglas received 29 percent of the popular vote but only 4 percent of the electoral vote; in 1912 Woodrow Wilson received 42 percent of the popular vote and 82 percent of the electoral vote; in 1936 Alfred M. Landon received 37 percent of the popular vote but only 2 percent of the electoral vote (or, conversely, Franklin D. Roosevelt received 61 percent of the popular vote and all but eight electoral votes); in 1944 Franklin D. Roosevelt received 54 percent of the popular vote and 81 percent of the electoral vote.

In every election, millions of popular votes are cancelled out at an intermediate stage and are never reflected in any electoral votes. In 1928, for example, 2,089,863 Democratic popular votes in New York and 1,067,586 in Pennsylvania failed to yield even one Democratic electoral vote. In 1924 John W. Davis received 136 electoral votes in the states where he received about 2,000,000 popular votes. But he received no electoral votes for approximately another 6,000,000 popular votes. In 1932 Herbert Hoover received 15,761,841 popular votes, of which more than 13,600,000 were not reflected in any electoral votes for him. In 1944 Thomas E. Dewey received approximately

36 See pages 31-32, infra.

2,996,647 votes in ten states from which he received sixty-two electoral votes. In New York, on the other hand, he received 2,987,647 popular votes but no electoral votes.

In several elections a mere shift of the popular vote in one state would have swung the election to the other major candidate. In 1844 a switch of 3,000 votes in New York would have given the election to Clay, who would have had about 34,000 popular votes fewer than Polk. In 1884 a change of 600 popular votes in New York would have brought the victory to James G. Blaine, with over 23,000 fewer popular votes than Cleveland. In 1888, as noted, Benjamin Harrison won all of New York's electoral votes (and the election) by about 13,000 popular votes. In 1916 a so-called snub of California's Governor Hiram Johnson by Charles Evans Hughes supposedly resulted in Hughes' loss of the electoral votes of California and, as a consequence, of the election." Had Hughes carried California, which he lost by 3,806 votes, he would have won the election. Yet Wilson would have had over 583,000 more popular votes. In 1928 a shift of less than 500,000 votes in several states out of a national total of more than 36,000,000 would have given the election to Alfred E. Smith, who would have had approximately 5,000,000 fewer popular votes than Hoover. In 1948 a shift of about 17,000 votes in Illinois, 9,000 in California, and 3,500 in Ohio would have given Dewey seventy-eight additional electoral votes and the election, with Truman having over 2,000,000 more popular votes. In 1960 a change of about 4,500 votes in Illinois and 23,000 in Texas would have given the election to Nixon.

Wide differences between a candidate's popular vote and his electoral vote are possible under the present system even apart from the unit count because each state is assigned three electoral votes regardless of its size, because a state's total electoral vote remains the same whether one person or 10,000,000 people vote in the state, and because population changes which take place in a state after a census are not taken into account until the following census has been taken.38

37 Roseboom, supra note 35, at 385-86. The so-called snub involved Hughes not meeting with Johnson when Hughes was campaigning in California. However, there is compelling evidence that Hughes made numerous attempts to see Johnson. At one point, they were in the same hotel, but Hughes was not aware of it.

Election by the House

of Representatives and Senate

On several occasions in American history, one House of Congress has been assigned the role of selecting a President or a VicePresident.

1800

In the election of 1800, the Republican electors voted for Thomas Jefferson and Aaron Burr, intending Jefferson for President and Burr for Vice-President. Burr received as many electoral votes as Jefferson for President since under the original method of election there was no separate ballot for Vice-President. The lame-duck House of Representatives was required to choose between them for President.

On each of the first thirty-five ballots, eight states voted for Jefferson, six for Burr, and two were divided. The vote of nine states was necessary for a choice. On the thirty-sixth ballot, after almost a week of balloting, Jefferson received the votes of ten states and Burr the votes of four states. Two states (Maryland and Vermont), being evenly divided, cast blank votes.

Jefferson's election was assured when a Vermont Federalist absented himself for the thirty-sixth ballot and the Delaware, Maryland, and South Carolina Federalists voted blanks. This gave Vermont and Maryland to Jefferson since the Republicans were left to cast the votes of those states. Delaware and South Carolina, which had voted for Burr on each of the first thirty-five ballots, had no Republicans and therefore cast no votes on the deciding ballot."

Of the ten states that cast their votes for Jefferson, two had awarded their electoral votes to John Adams and three had divided their electoral votes among Jefferson, Burr, Adams, and Pinckney. In two of these five states, the electors were elected by popular vote.

The defect in the Constitution underscored by this election led to the adoption of the Twelfth Amendment and the requirement of separate ballots for President and Vice-President.

1824

In the election of 1824, as previously noted, the House of Representatives was required to choose the President when none of the candidates received a majority of the electoral vote. Adams was declared elected President on the first ballot, receiving the votes of

39 See Roseboom, supra note 35, at 44-47.

thirteen of the twenty-four states. Jackson won the votes of seven states and Crawford of four states.

In six of the thirteen states that voted for Adams, a change of only one vote in each of the state delegations would have deprived Adams of their vote. It is interesting to note that three of the thirteen states had cast all of their electoral votes for Henry Clay, three had cast a majority of their electoral votes for Jackson, and one had divided its electoral votes among the four candidates, with a majority for Adams. In only the last state mentioned were the electors selected by the legislature.

1836

In the election of 1836, Democratic candidate Martin Van Buren received 57.82 percent of the electoral votes (170 votes). His vicepresidential running mate, Richard Mentor Johnson, received only one-half of the electoral votes for Vice-President (147 votes). The remaining votes were divided among Whig favorite son candidates Francis Granger (77 votes), John Tyler (47 votes), and William Smith (23 votes). Consequently, the Senate had to choose the VicePresident from between Johnson and Granger.

At the time there were a total of fifty-two Senators. Three were not present for the voting. The names of the Senators were called in order, and they voted viva voce. Johnson was elected by the votes of thirty-three Senators as against sixteen for Granger. Among those who voted for Johnson were three Democratic Senators from two states that had awarded their electoral votes to Granger (and Whig presidential candidate William Harrison). The fourth Senator from these states, a Whig, voted for Granger. Granger, on the other hand, received the vote of one Senator whose state had given its electoral votes to Johnson (and Van Buren). Johnson received the votes of five Senators and Granger won two from states that had awarded their electoral votes to either Tyler or Smith. Three of the five who voted for Johnson were from two states that had cast their electoral votes for President for Whig candidate Hugh L. White.

1876

1876, Samuel J. Tilden won a

In the controversial election of clear majority of the popular vote. However, a dispute arose over

40

40 See Koenig, The Election That Got Away (American Heritage Oct. 1960); Haworth, The Hayes-Tilden Presidential Election of 1876 (Burrows Bros. Co. 1906).

which electors should be certified in four states. A Republican-controlled Senate and a Democratic-controlled House could not agree on which electors should be certified. After many weeks of discussion, Congress finally agreed to form a bipartisan Electoral Commission to resolve the controversy. Its membership consisted of five Senators, five Representatives, and five Supreme Court Justices. Eight of these members were Republicans, and seven were Democrats. Hayes, the Republican presidential candidate, became President by being awarded the disputed votes by a strict party vote of eight to seven. The outcome was not known until a few days before the inauguration.

Near misses

On other occasions in American history, a slight change of the popular votes in a few states for the winning candidate would have thrown the election into the House of Representatives. Thus, in 1948 a shift of less than 0.6 percent of the popular vote for Truman in two states would have devolved the election of President on the House. It seems likely, in view of the political alignment of the House at the time, that there would have been a deadlock in the balloting for President.

Death of a candidate

At present, there is no doubt about who would become President on January 20 if the winning candidate died after the counting of the electoral votes on January 6 and before Inauguration Day. Section 3 of the Twentieth Amendment provides that if a Presidentelect dies before the time fixed for his term to begin (January 20), the Vice-President-elect becomes President. In such a case, the new President would be empowered, under the proposed Twenty-fifth Amendment, to fill the resulting vacancy in the Vice-Presidency. Similarly, if the Vice-President-elect died, the President-elect, upon becoming President, would be authorized to fill the vice-presidential vacancy. The Succession Law of 1947 would apply in the event both the President-elect and the Vice-President-elect died before January 20.

The term President-elect is nowhere defined in the Constitution. It is clear, however, that until the electors meet in December to cast their votes, there is no President-elect. No provision is made in law for the death of a presidential candidate in the forty-one-day period between election day in November and the meeting of the electors in