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ELECTING THE PRESIDENT

MONDAY, MARCH 10, 1969

U.S. SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, 'D.C. The subcommittee met, pursuant to call, at 10:05 a.m., in room 2228, New Senate Office Building, Senator Birch Bayh, presiding.

Present: Senators Bayh (presiding), and Hruska.

Also present: Larry A. Conrad, chief counsel; Clyde Flynn, minority counsel; Burnadette McGorarty, clerk, and Diane Meyer, assistant clerk.

Senator Bays. Our subcommittee hearings will be reconvened.

Senator HRUSKA. I ask unanimous consent that a statement prepared by me be inserted in today's hearings; and immediately following it there be inserted President Nixon's February 20, 1969, message to the Congress on electoral reform.

Senator BayH. It is so ordered.

I also ask that the statement of Senator Frank Church be included in the record as if read following the material referred to by Senator Hruska.

STATEMENT OF HON. ROMAN L. HRUSKA, A U.S. SENATOR FROM

THE STATE OF NEBRASKA Senator HRUSKA. Mr. Chairman, I have long been an advocate of reform of the electoral college. Nine years ago, I first testified before this subcommittee on the subject when it was under the chairmanship of the distinguished Senator from Tennessee, the late Estes Kefauver. I had the pleasure of serving with you, Mr. Chairman, during the subcommittee hearings on this same subject in 1966. My close association with the reform effort has taught me two things: there is near unanimity in the Congress and in the Nation that changes are needed in the electoral system; and there is serious division on how it should be changed.

The President of the United States has appraised the situation realistically. In his message to Congress, dated February 20, 1969, he voiced serious doubt as to the success of any amendment that would abolish the casting of electoral votes by States. Mr. Chairman, I agree. Such an amendment would not pass the Congress, and it certainly woulld not be approved by three-fourths of the States. Therefore, I applaud the President for taking a pragmatic approach and laying down guidelines for a workable solution.

Some will say that the President's recommendations represent only a half-step. My initial reply is that the choice is either to make the advance the President has recommended or to make no improvement at all.

Furthermore, I reject the idea that the President's recommendation represnts only a half-step. It is important, in our consideration of 2/2/2/2/2/2ņēm⧧ÒòÂ?Â2Ò2Â2âÒ/2/2/22/òēģ–2\/2\/2\/22/2ņģ22–2ūti2/2 LẦti the Nation's history the electoral system has chosen a President of the United States, and forty-six times this event was marked by an orderly transfer of executive power. This is a remarkable record which demonstrates the basic stability of our presidential election system.

There are faults in the present system, however, and the recent presidential election reminded the Nation of them. In December, despite the established custom, an elector, selected by voters favoring Richard M. Nixon, disregarded the wishes of those who chose him and cast an electoral ballot for another candidate. Under the Constitution of the United States, the Congress was powerless to do anything about it. This procedure should be corrected.

As President Nixon suggested, this can be achieved by abolishing the individual elector while still retaining the electoral vote system which allocates two votes to each State regardless of size, in addition to one electoral vote for each congressional district within that State.

Although hindsight proved it exaggerated, there was considerable fear in the fall of 1968 that no candidate would receive a majority of the electoral votes. Under such a situation, there could have been an attempt to barter the Presidency, or the decision would have been made by the House of Representatives, with each State casting one vote. Either alternative was distasteful to the majority of Americans. There needs to be a better solution.

As the President's message suggested, the first step is to lower from a majority, to a plurality of 40 percent, the number of electoral votes necessary to win the Presidency. This would, in all probability, elimi. nate any chance that the President would not be chosen by the electoral college. The President also suggested use of a runoff election if there should be a deadlock.

Finally, there was fear last year that the electoral vote winner would not receive a plurality of the popular vote. This possibility was shattered by the 500,000 vote margin received by President Nixon. In fact, only once in history did the man who received the electoral majority not receive the popular plurality. That was in 1888 when Benjamin Harrison defeated Grover Cleveland. However, the possibility does exist under the electoral system, and the probability of electing a non plurality President is aggravated by the present unit voting or "winner-take-all” system used in every State. A few votes in a particular State can determine how all of that State's total electoral vote will be cast. This distortion of the popular vote is unjustifiable.

President Nixon recommended a system of allocating the electoral vote of each State and the District of Columbia in a manner that more closely approximates the popular vote than does the present system. This could be done either by a proportional plan or a district plan.

Each of the major faults of the present system can be corrected by the recommendations contained in the President's message to Con

gress. Each of these shortcomings can be corrected without destroying the electoral framework now written into the Constitution.

The federal system as represented by the electoral college distribution of votes, with each State receiving two votes plus a number equal to the number of Congressmen it has, is not an unfair system and is not an archaic or outmoded system. The reasons that dictated the Federal compromise dictate that it be retained today. There are still divergent interests between the heavily populated States and the smaller States. On a one-man, one-vote basis the smaller States are outmanned and outvoted.

The use of the federal system in the electoral college did not surrender control of the Presidency to the small States, however. It struck a reasonable compromise. Electors of the President would be chosen not on the basis of one man, one vote and not on the basis of one State, one vote, but on the basis of a combined approach. This does not mean that my State of Nebraska can control a presidential election because it has two more electoral votes than warranted by its population alone. It does mean, however, that a number of States, with a similarity of interest, by mustering 30 or 40 additional votes can manifest a need to be recognized in the political system and in the selection of the President. This need to be heard existed in 1789 and it exists today. That is why it is both realistic and fair to continue an electoral system where federalism plays a role.

Viewed in this light, the President's recommendations on electoral reform represent a complete and proper solution to existing electoral problems. They attack and solve each problem individually. This approach is far wiser than sweeping away an aspect of federalism in a system that, by and large, has served the country well.

I am, and have been for a number of Congresses, a cosponsor of Senate Joint Resolution 12, the district plan of electoral reform. Senator Mundt, the author of the bill, will discuss its terms with the subcommittee. However, I declare at this time, Mr. Chairman, my willingness to meet with other members of this subcommittee and the Senate in an effort to agree upon a constitutional amendment along the lines laid down by the President in his message to Congress.

It is my sincere hope, Mr. Chairman, that with the information which will be furnished by the witnesses who appear before the subcommittee, and those who have come over the years, this subcommittee can fashion a resolution which can be reported to the Senate; a resolution which will receive the requisite two-thirds vote of the Congress and ratification by three-fourths of the States.

THE WHITE HOUSE_MESSAGE ON ELECTORAL REFORM To the Congress of the United States:

One hundred and sixty-five years ago, Congress and the several states adopted the Twelfth Amendment to the United States Constitution in order to cure certain defects—underscored by the election of 1800—in the electoral college method of choosing a President. Today, our presidential selection mechanism once again requires overhaul to repair defects spotlighted by the circumstances of 1968.

The reforms that I propose are basic in need and desirability. They are changes which I believe should be given the earliest attention by the Congress.

I have not abandoned my personal feeling, stated in October and November 1968, that the candidate who wins the most popular votes should become President. However, practicality demands recognition that the electoral system is deeply rooted in American history and federalism. Many citizens, especially in

our smaller states and their legislatures, share the belief stated by President Johnson in 1965 that “our present system of computing and awarding electoral votes by States is an essential counterpart of our Federal system and the provisions of our Constitution which recognize and maintain our nation as a union of states." I doubt very much that any constitutionall amendment proposing abolition or substantial modification of the electoral vote system could win the required approval of three-quarters of our fifty states by 1972.

For this reason, and because of the compelling specific weaknesses focused in 1968, I am urging Congress to concentrate its attention on formulating a system that can receive the requisite Congressional and State approval.

I realize that experts on constitutional law do not think alike on the subject of electoral reform. Different plans for reform have been responsibly advanced by Members of Congress and distinguished private groups and individuals. These plans have my respect and they merit serious consideration by the Congress.

I have in the past supported the proportional plan of electoral reform. Under this plan the electoral vote of a state would be distribtuted among the candidates for President in proportion to the popular vote cast. But I am not wedded to the details of this plan or any other specific plan. I will support any plan that moves toward the following objectives: first, the abolition of individual electors; second, allocation to Presidential candidates of the electoral vote of each State and the District of Columbia in a manner that may more closely aproximate the popular vote than does the present system; third, making a 40% electoral vote plurality sufficient to choose a President.

The adoption of these reforms would correct the principal defects in the present system. I believe the events of 1968 constitute the clearest proof that priority must be accorded to electoral college reform.

Next, I consider it necessary to make specific provision for the eventuality that no presidential slate receives a 40% or more of the electoral vote in the regular election. Such a situation, I believe, is best met by providing that a run-off election between the top two candidates shall be held within a specified time after the general election, victory going to the candidate who receives the largest popular vote.

We must also resolve some other uncertainties: First, by specifying that if a presidential candidate who has received a clear electoral vote plurality dies before the electoral votes are counted, the Vice-President-elect should be chosen President. Second, by providing that in the event of the death of the Vice President-elect, the President-elect should, upon taking office, be required to follow the procedures otherwise provided in the Twenty-Fifth Amendment for filling the unexpired term of the Vice-President. Third, by giving Congress responsibility, should both the President-elect and Vice-President-elect die or become unable to serve during this interim, to provide for the selection-by a new election or some other means of persons to serve as President and Vice President. And finally, we must clarify the situation presented by the death of a candidate for President or Vice-President prior to the November general election.

Many of these reforms are noncontroversial. All are necessary. Favorable action by Congress will constitute a vital step in modernizing our electoral process and reaffirming the flexible strength of our constitutional system.

RICHARD Nixon. THE WHITE HOUSE, February 20, 1969.

STATEMENT OF HON. FRANK CHURCH, A U.S. SENATOR FROM THE

STATE OF IDAHO Senator CHURCH. Seldom, Mr. Chairman, are we in the Senate afforded the opportunity to respond to so clear an expression of "the will of the people", as in the case of the electoral reform which this committee is now considering. A recent Harris poll showed 79 percent of the American people favoring the direct election of the President. A more recent Gallup poll indicated the support of 81 percent of our people for this same plan. Expressed in its simplest terms, eight out of every 10 Americans favor the election of the President by direct

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