How Jefferson Counted Himself In

When we began our research on the 1800 election, we feared that the electoral ballots from that year had been destroyed during the War of 1812, when the British set fire to much of Washington. In fact the ballots survived: we discovered them in the recesses of the National Archives, and we can now reconstruct with some degree of certainty what really happened, and what Jefferson did, in February of 1801. The story certainly gives one pause—less, perhaps, for what it says about Jefferson's behavior than for what it says about a still unaddressed flaw in the Constitution.

Today the idea that a President and his Vice President could hail from competing parties is wholly alien. But the Founders had inadvertently made it rather easy for this to happen. When the Constitution was drafted, the two-party system had not yet emerged, and no one especially wanted parties to arise at all. In fact, most of the political theorists on whom the Founders drew had equated party division with factional strife; republics died when leaders factionalized, culminating in the despotic rule of Caesars or Cromwells.

Factions in the United States, the Founders believed, were most likely to arise from geography, and specifically from the tendency of electors to vote their local interest rather than choosing men of "continental character," like George Washington. The challenge in framing the Constitution was to engineer a way to keep a state's electors from banding together to vote for a favorite son. The solution the Founders came up with was this: give two votes to every elector, but permit him to cast only one vote for a citizen from his own state. To prevent electors from casting only one vote—for a favorite son—and leaving the other ballot blank, the Founders invented the vice presidency. With a second spot on the ticket available, the electors would not be likely to let a ballot go to waste. "It's true that George Washington is an out-of-stater," the Founders imagined them thinking, "but I might as well vote for the best man for the job, because the Constitution gives me the opportunity to cast two votes. And I still get a chance to cast a ballot for our hometown guy, the honorable John Q. Squire, who will have a chance at the vice presidency." Having created the vice presidency, the Founders had to create a job description for it. So they decided that the Vice President would serve as president of the Senate; the position would be mainly ceremonial, but he might be called on to break a tie among the senators.

The Founders blundered three times here. First, it did not occur to them that candidates would run for the presidency on competing national-party tickets, so they never imagined the scenario that elected the Federalist Adams and the Republican Jefferson in 1796. If this system had still obtained in 2000 (it didn't because the process was changed with the adoption of the Twelfth Amendment, in 1804), then Al Gore might have been George W. Bush's Vice President.

The second blunder was to authorize a Vice President, as president of the Senate, to preside over electoral-vote counts for a presidential election in which he himself might be running. This meant that Adams in 1796 (when, as Washington's Vice President, he was running against Jefferson) and Jefferson in 1800 (when, as Adams's Vice President, he was running against Adams) were in a position to preside over their own election results, putting them in a situation where they might have been tempted to elect themselves to the presidency by manipulating the vote count.

The Founders compounded this error with yet a third mistake. The Constitution isn't clear on the vote-counting process. Here's all it says: "The President of the Senate shall, in the Presence of the Senate and the House of Representatives, open all the Certificates and the Votes shall then be Counted." But what happens if the Senate president discovers a legal difficulty in a ballot submitted by a state? Although he is assigned to "open" the ballots, he is not expressly authorized to make a final judgment on the validity of the votes; and although vote-counting occurs in the "presence" of the two houses, they are not expressly granted any sort of decision-making authority in the event of a dispute. The Founders failed to provide clear rules for how to proceed in this situation—a high-stakes moment when passions might flare. The vote-counting ritual could easily end with a disputed ruling from the chair, bitter protest from Congress, and no clear decision on who had won election as the next President of the United States.

It didn't take long for these problems to become evident. In 1796, for instance, important newspapers reported that the four electoral votes from Vermont—for Adams and Thomas Pinckney, of South Carolina—were invalid, for a variety of technical reasons. It mattered tremendously whether these reports were true: Adams led Jefferson by three electoral votes—he would lose the presidency if the Vermont votes were found to be invalid. On February 8, 1797, when Adams presided over the vote count, a cloud of suspicion still hovered over the Vermont ballot. It was an unfortunate time for a controversy to break out. This was only the third presidential election in U.S. history, and the first to be seriously contested. Adams's dual role as president of the Senate and leading presidential candidate placed him in an awkward position: anything he did might be interpreted in the light of his own self-interest. If he was seen to have counted himself into the presidency by accepting some technically flawed ballots, the legitimacy of the 1796 election would be called into doubt and the Constitution would be off to a very bad start. Jefferson, for his part, took the statesmanlike high ground, writing to James Madison from Monticello,

In other words, Jefferson was saying, let the will of the electors prevail; even if there were legal problems with the ballot, it should be counted for Adams, since he was clearly the state's choice.

On vote-counting day in 1797 the Annals of Congress recorded that after Adams reported the tally (71 votes for Adams, 68 for Jefferson, 59 for Pinckney, 30 for Aaron Burr, and so forth), "the President of the Senate then sat down for a moment" before rising to address Congress again. Four years earlier, when Adams had presided over his first vote count as Vice President (but when there had been no ballot controversy), the Annals had recorded nothing about his pausing to sit down. Adams's decision to sit appears to have been deliberate. It seems likely that he had doubts about his power as president of the Senate to resolve disputed questions unilaterally—and that he gave the Republican opposition a chance to raise objections. But the Republicans followed Jefferson's instructions and refused to indulge in legalistic quibbling. Hearing no objection, Adams declared himself the nation's second President.

When the votes were tallied, Jefferson and Burr each had 73; Adams had 65, Pinckney 64, and Jay one. According to the Constitution, a tie vote is thrown to the House of Representatives. Much has been written about the series of thirty-five deadlocked ballots (orchestrated by Federalists) in the House, which ended only when Congressman James Bayard, of Delaware, finally defected on the thirty-sixth ballot from the Federalist coalition that supported Burr, giving Jefferson the presidency.

This was exquisite melodrama. But we have discovered that a quieter though no less real constitutional drama occurred earlier. Under the rules of the Constitution an election would not move to the House until after a formal count of the electoral ballots from each state. Jefferson, as president of the Senate, presided over the count scheduled for February 11, 1801.

During the nineteenth century mysterious lore enshrouded this vote count: something (or so rumor and recollection had it) had been amiss with the Georgia ballot that year, which was cast for Jefferson and Burr; and something in Jefferson's behavior during the formal count had been strange. The first report of a hitch appeared in a Philadelphia newspaper, the Aurora, the day of the count. At "half past 3 o'clock, P.M.," the Aurora reported, the tellers (who were appointed by Congress to help Jefferson with the vote count) "declared there was some informality in the votes of Georgia, but believing them to be the true votes, reported them as such." The leading Republican paper of its era, the Aurora would be unlikely to invent a story that cast doubt on the legitimacy of Jefferson's election. Its report was subsequently copied verbatim by newspapers of many different political leanings in Boston, New York, Philadelphia, and Savannah.

Was something in fact wrong with the Georgia ballot? Was there a chance that it had been tampered with before reaching Jefferson?

Georgia was notorious for shady dealings. Many of its leading politicians had recently been bribed in a land deal. Jefferson would have known this, and would have had good reason to be suspicious if something about the Georgia ballot appeared amiss. Newspaper accounts from the time focused on the tellers' decision to ignore irregularities in the Georgia ballot. But the Constitution does not even mention the tellers, let alone give them any authority over such matters. It was up to the president of the Senate to determine what would happen next. Did Jefferson, then, ignore serious irregularities in the Georgia ballot when presiding over the vote count?

If he did, the implications for the 1800 election were significant: the loss of Georgia's four votes would have left Jefferson and Burr with only 69 votes each—and this would have made a big difference in the subsequent proceedings. As it then stood, the Constitution laid out two kinds of runoff. The first occurred when two tied first-place candidates each received votes from a majority of the electors; in that situation only the tied candidates would enter the runoff. The second occurred when the tied candidates failed to collect a majority of the votes; in this situation they had to compete in a runoff of the top five finishers from the original vote. In 1800 there were 138 electors voting—meaning that the magic number was 70. If Jefferson and Burr had dropped from 73 to 69 votes, then Jefferson would be competing not just with Burr but also with Adams, Pinckney, and Jay.

In the two-man runoff that actually occurred, the Federalists supported Burr because he was their only means of stopping Jefferson's election, not because he was their candidate of choice. (Under the Constitution each state casts a single vote in the runoff, as determined by a majority of its House delegation. The runoff continues until a candidate wins a majority of the states. Since there were sixteen states in the Union in 1800, nine votes were required to win.) As noted, Jefferson beat Burr on the thirty-sixth ballot. But a five-candidate runoff would have had a different dynamic. Under the most likely scenario the Federalist states would all have voted Federalist indefinitely, because their man Adams would still have been in the running, and the deadlock would have continued long past thirty-six ballots. It is likely that at some point Charles Pinckney, the Federalists' vice-presidential candidate, would have emerged as a compromise candidate palatable to the Republicans. Not only had Pinckney been a war hero during the Revolution and a delegate to the Constitutional Convention, but he was an avowed moderate, and had opposed his own party when it passed the oppressive Alien and Sedition Acts, in 1798. Perhaps most important, he was a South Carolinian; this made him acceptable to many of Jefferson's supporters, the bulk of whom were from the South.

Thus if Jefferson did in fact ignore irregularities that should have invalidated the Georgia ballot, the historical consequences were profound: had that ballot been tossed out, Charles Cotesworth Pinckney, not Thomas Jefferson, might well have become the third President of the United States.

If Davis's account is to be believed, Jefferson quickly glossed over the irregularities in the Georgia ballot and counted himself into the presidency. But should we believe this? As Davis himself concedes, his account comes to him thirdhand from an anonymous congressman who heard it from Senator Wells, a teller at the proceedings. Like many hearsay reports, this one contains some errors. Davis exaggerates in claiming that the Georgia ballot failed to contain any "signature of any person whatsoever." And in fact the outside of the envelope—though not the ballot itself—includes the signatures of the electors and the statement "We do certify the within to contain the votes of Us the electors on behalf of the state of Georgia for a President and Vice President of the United States." But Davis is right in reporting blatant legal defects with the ballot, and his larger account squares roughly with what the Aurora published at the time. Nevertheless, we should be cautious in dealing with the more melodramatic aspects of his report. Wells was a Federalist, and therefore inclined to be prejudiced against Jefferson. Furthermore, Davis was a longtime Burr loyalist and an active Jefferson-hater. It would be wrong to give his story, standing alone, too much credence.

But the basic outline of Davis's account is supported by a second source, one who held no anti-Jefferson bias. In 1876 Senator Hannibal Hamlin, who had served as Abraham Lincoln's first Vice President, described the event as follows, demonstrating that Jefferson's actions had survived as part of the oral tradition on Capitol Hill for three quarters of a century:

But after this the incident dropped from memory.

Article II of the Constitution contains plain instructions for each state's presidential electors: "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." Georgia's electoral ballot dramatically failed to comply with the requirements of Article II and the norms established by the uniform practice of all the states in all the early elections. Georgia's ballot should have looked like all the rest. It didn't.

Consider Tennessee's ballot. Like Georgia, Tennessee was on the frontier and had little access to legal expertise. Nevertheless, its ballot, like all the others cast in early presidential elections, was in perfect conformity with the Constitution's instructions: the top half of the ballot contained the certification by the electors; the bottom half contained their signatures and the required list of persons voted for and number of votes for each.

When Jefferson and the tellers looked at Georgia's ballot, however, they saw something very different: it contained a "list," but nothing explicitly identified Jefferson and Burr as the persons voted for. Indeed, it isn't even clear that the document is an electoral ballot, let alone one that was "signed" and "certified" as such. These violations may seem technical; a reasonable person looking at Georgia's ballot might interpret the electors' intention as being to vote for Jefferson and Burr. But another reasonable person might disagree; without the explicit statement that these were "the Persons voted for," it's possible that the paper was never intended as an electoral ballot. That is why the Constitution demands that these formal requirements be met precisely—to prevent someone in Jefferson's position from having to make a judgment call about electors' intentions.

Not only did Georgia's ballot look very different from all the others in 1800, but there was something particularly suspicious about it. Every other state's envelope contained a second document, called a certificate of ascertainment, which was signed by the state's governor and confirmed that the electors had actually been selected by the state they represented. (This requirement had been added by a 1792 statute.) But Georgia's envelope contained only a single sheet of paper; the defective "ballot" was written on the back of the certificate of ascertainment. The fact that the Georgia ballot was different from all the others would have immediately suggested the possibility that it had been tampered with. Given the corruption in Georgia politics, it was conceivable that Georgia's four electors had prepared a proper ballot and put it into the envelope with the certificate of ascertainment, only to have some devious character remove their ballot and write in four votes for Jefferson and Burr on the back of the certificate.

A more benign interpretation is that the unconstitutional Georgia ballot was the product not of malfeasance but, rather, of simple incompetence. Georgia, after all, was a frontier state without much legal talent. And the newspapers had consistently placed Georgia in the Republican—that is, the Jeffersonian—column in their reports of election results. If any of the state's electors had actually voted for the Federalists Adams and Pinckney, it's hard to believe they would have remained silent as they saw their votes publicly misrepresented as being for Jefferson and Burr.

Yet at the moment of decision in Washington, how could Jefferson or anyone else know for sure whether the votes were legitimate? On the one hand, Georgia's ballot plainly violated the formal requirements expressly laid down by the Constitution. And given recent political shenanigans in Georgia, it was possible that some shady dealing really had taken place—that the real ballot had been replaced by a fraudulent one. On the other hand, that state had a basic right to participate in the election of the nation's highest officer. Would it really serve the nation's constitutional values to disqualify an entire state merely because of a lawyer's mistake? And dispatching a fact-finding mission to Georgia's capital, then Louisville, would have taken too long: the trip from Washington took at least a week during the best of times, but this was the middle of a snowy winter, and only three weeks remained before the inauguration. Any judgment Jefferson made about the legitimacy of the Georgia ballot would have to be based on probability, not certainty.

Jefferson was also confronted by uncertainties about his institutional authority. As noted, the Constitution refers to both the Senate president and the two houses of Congress in describing the vote count. But the text fails to state clearly who should decide questions about contested ballots. If Jefferson were to raise questions about the Georgia vote from the chair, he might plunge the proceedings into a morass of bitter legalisms: the Federalists, a majority in both houses, might have insisted on the right of Congress to decide; the Republicans, meanwhile, would most likely have vigorously defended the authority of the Senate president to make the final judgment. A constitutional and political crisis loomed.

Regarded in its historical context, however, Jefferson's decision may well have been made out of more than shabby self-interest or overweening ambition. Jefferson found himself in an impossible position—charged, in effect, with judging his own case. But that was the Founders' fault, not his.

Until Jefferson opened the Georgia envelope, he had every reason to believe that he and Burr had won that state's electoral votes; that's what the newspapers had been reporting. Moreover, the members of Georgia's congressional delegation —two of whom were Federalists—were present on the vote-counting day. Surely they would have raised a noisy objection if they believed their state's votes had been placed in the wrong column. Moreover, Jefferson's guess about the Georgia electors' true intentions proved to be correct. We have gone on a fact-finding mission to the Georgia archives, and have found that the defects in the state's ballot were merely the result of frontier lawyering. There is no doubt that the electors intended to vote for the Republican ticket. Thus if Pinckney or Adams had emerged as President from a five-way runoff, he would quickly have confronted a severe legitimacy crisis.

When placed in a larger context, then, Jefferson's decision was consistent with his thinking that it was wrong for the Union to elect a "Pseudo-president." Recall that in 1796 he had expressed to Madison his belief that even if some technical problem were to be found with the Vermont ballot, "substance should prevail over form" and Adams should be President. Boxed into a difficult position by the poor planning of the Founders, Jefferson did the right thing by counting himself into the presidency.

Over the years these powers have been limited—but not entirely eliminated—by legislation. A nineteenth-century statute makes it clear that the president of the Senate must obey the instructions of the House and the Senate as long as those chambers can agree on the proper course of action. But what happens if a state submits conflicting electoral votes and the two houses can't reach consensus on which slate should be counted?

Consider the following scenario. It's the election of 2008, and Jeb Bush and Hillary Clinton are in a dead heat in a race for the White House. Florida has installed computerized voting equipment, but the shiny new machines suffer a series of technical breakdowns and produce questionable vote counts. As in the 2000 election, different branches of Florida's government find themselves at loggerheads: the secretary of state certifies a Bush victory, but the state supreme court instructs the Florida governor (Jeb Bush's successor) to certify a Clinton triumph. Both Republican and Democratic electors solemnly assemble in Tallahassee and send their rival electoral votes—duly certified by members of Florida's executive branch, as the law requires—to Washington, D.C.

The U.S. Supreme Court refuses to arbitrate, declaring that Bush v. Clinton raises "political questions" best resolved by the political branches. But these questions are not so easily resolved: the midterm elections of 2006 have returned control of the Senate to the Democrats while making the House even more solidly Republican. The two chambers predictably deadlock on the Florida vote. All eyes turn, then, to the constitutionally designated superintendent of the proceedings, the president of the Senate—none other than, say, Vice President Dick Cheney, or perhaps Vice President Wesley Clark.

The sitting Vice President finds himself in much the same situation Jefferson encountered in 1801. He turns to the nineteenth-century statute, which blandly instructs the president of the Senate to count the electoral ballot certified by "the executive" of the state. But what happens when two conflicting ballots have been signed by an executive officer? The statute doesn't say. What should he do?

He should invoke the spirit of Jefferson and use his position's extraordinary powers to ensure that the "choice of the people" emerges from the proceedings and that no candidate (himself potentially included) manages to exploit the weaknesses in our constitutional design to become a "Pseudo-president."