Not quite 1960

By Theodore C. Sorensen
Monday, November 13, 2000; 12:00 AM

No, this is not the way it was in 1960. True, in the Kennedy-Nixon race, a two-term incumbent vice president battled his opponent down to the wire, with the lead seesawing during the long election night television tallies just as it had during that fall's intensive campaign, and a large number of states (18) were decided by less than 2 percent of the vote. Nineteen-sixty even had its own premature message of congratulations (to Kennedy from President Eisenhower) that had to be rescinded as an "accident," and Nixon refused to concede California, correctly predicting that absentee ballots would win it for him.

But much was different. Ideas and issues mattered more than money; foreign policy was seriously debated; first-time voters were genuinely excited; and a record high number and percentage of supporters and detractors of both candidates turned out on Election Day.

It is true that Vice President Nixon did not demand a recount in Illinois, despite allegations that Democratic voter fraud in Cook County was rampant, possibly even greater than Republican fraud downstate. Mr. Nixon patriotically stated (after some delay) that his decision recognized the need for national unity and stability during the Cold War. But, to put it in perspective, the following should be noted:

(1) Mr. Nixon decided to refrain from challenging the result only after, as stated in his memoirs, he had "looked into the legal aspects of the situation" and found no basis on which he could obtain a timely victory.

(2) A successful lawsuit switching Illinois from Kennedy to Nixon would not have ended Kennedy's electoral vote majority, even if Alabama's six "faithful electors" had joined their segregationist colleagues in voting for Harry Byrd. Kennedy's Texas margin was too large to reverse, even had a recount been available.

(3) Having trailed in the popular vote on Election Day (depending on how Alabama's vote was measured), Mr. Nixon was ill-positioned to claim, even if some ballots should have been ruled out, that the will of the American people had been thwarted.

Had massive voter irregularities in Illinois and elsewhere been found to have altered the national electoral vote result, reversing the verdict of the American people and depriving them of their most fundamental right, I have no doubt that Vice President Nixon or the U.S. Department of Justice--headed by Mr. Nixon's closest friend in Washington, William Rogers--would have brought a legal action, not as "sore losers" but under a constitutional obligation. I have no doubt that Kennedy himself would have preferred a prompt and impartial resolution of any well-grounded charge of that kind rather than take office under a cloud. I have no doubt that, for both men, long-term considerations of legitimacy and justice would have overridden any considerations of temporary tension and unpredictability.

In this country, in which extra innings and overtime ballgames are rarely halted in the interest of "finality," peaceful judicial remedies can settle serious constitutional conflicts without creating either "chaos" or a constitutional crisis except in the headlines. Kennedy was later to discover this in confronting resistance to educational desegregation. Nixon was to discover it in confronting Watergate. The courts have proven capable of acting quickly and decisively when necessary; and the American Constitution, as a wise U.S. senator observed in the pre-Civil War years when an inept James Buchanan vacillated in the White House, "provides for every contingency except a vacancy in the mind of the president."

But no massive irregularities were found in 1960, no challenge of the election result was appropriate, no delay was necessary. "A margin of only one vote would still be a mandate," said Kennedy. Even with a deeply divided Congress and country, he carried out that mandate--cautiously, incrementally, but fulfilling his every campaign pledge, including those on health, education, Social Security and unemployment. (Sounds familiar.) On measures of vital national interest, such as the comprehensive Civil Rights Bill and the Limited Nuclear Test Ban Treaty, he sought and obtained the support of responsible Republicans such as Senate Leader Everett Dirksen. His administration included talented Republicans such as Treasury Secretary Douglas Dillon.

Some objectives Kennedy achieved by executive action. Some, he realized, could not be obtained until he had won a second term with larger margins in both his own race and Congress. Sadly, he had no second term.

The writer, former special counsel to President John F. Kennedy, practices international law in New York City.

© 2000 The Washington Post Company