Dan Quayle does not have to be the next Vice President. Just ask the Framers of the Constitution, who devised the Electoral College precisely to deal with the current predicament. In fact, the post of Vice President could fall to Senator Bob Dole or even Senator Lloyd Bentsen.
Under the electoral system, the voters on Election Day select 538 delegates - "electors" - who meet Dec. 16 to vote for the President and Vice President. If neither candidate gets a majority, the task falls to the House and Senate, respectively.Of course, members of the Electoral College cannot pick just anybody. The Constitution restricts their choice to those individuals who are at least 35 years old, United States citizens by birth and not yet dead. Additionally, electors may not vote for two residents of their own state. For example, the 29 electors from Texas may not vote for George Bush and Lloyd Bentsen; the other 397 Republican electors have no excuse.
Those who revere the doctrine of original intent know that the electors were never supposed to be a rubber stamp. In Federalist Paper No. 68, Alexander Hamilton wrote that the President and Vice President should be chosen by persons "most capable of analyzing the qualities adapted to that station, and acting under circumstances most favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice."
The Founding Fathers foresaw neither the emergence of the party system nor the trend toward requiring prospective electors to pledge support to their party's ticket. (About half the states have such laws.) Some faithless modernists who eschew original intent - "liberals" we might call them - have gone so far as to suggest that such pledges divest electors of their constitutional prerogative.
History teaches otherwise. Recent elections have featured the exploits of electors true to the spirit of Samuel Miles who, in 1796, abandoned his pledge to Thomas Jefferson. In 1956, an Alabama elector, W.S. Turner, cast his ballot for a local judge instead of Adlai E. Stevenson. Four years later, Henry Irwin forsook his pledge to Richard M. Nixon and Henry Cabot Lodge. Solitary electors also bolted in 1948, 1972 and 1976.
Most scholars agree that pledge laws are probably unenforceable because the Constitution provides for electors voting, which implies freedom to act.
Precedent also exists for organized, rather than random, exercise of electoral discretion. Consider what happened in 1836, the last time a sitting Vice President was elected to the White House. Martin Van Buren won 170 of 294 electoral votes. However, 23 electors thought his running mate, Richard Johnson, unworthy of the Vice Presidency and withheld their votes from him. Denied a majority in the Electoral College, Mr. Johnson became Vice President only by winning election in the Senate.
This year, the electors could give a majority to Senator Bentsen or choose a qualified Republican like Senator Dole or repeat the events of 1836 when the Senate made the decision.
In a few weeks, the Electoral College will face the question: Should Dan Quayle be a heartbeat away from the Presidency? The answer must be no. It wouldn't be the first time he brought home bad news from college.
(David A. Kaplan is senior writer for The National Law Journal and Gary S. Simon is a New York lawyer.)