there might well be many state legislators who would oppose the direct vote for some of the substantive reasons discussed above.

The New York Times has argued editorially that it is wrong for Members of Congress to refuse to support direct election for such practical reasons. The yardstick, says the Times, “must be the adequacy of the proposed changes. Inadequate reforms must not be submitted to the states out of fear that sounder measures would never win ratification."

Such a rigid position seems doctrinaire at best, running counter to the customary give-and-take of the legislative process. But it might be justified if the case for direct popular election were on the merits overwhelming. As I have tried to show, it is not, but is rather highly debatable. That being so, I suggest the Congress should just proceed by proposing for ratification an amendment that will cure the two agreed defects, the problem of the faithless elector and the possibility that the election might be thrown into the House. After that is done, we can proceed to thrash out the merits of the direct popular vote.

OTHER PROPOSALS

There are other proposed schemes that I would like to say a few words about. First, there are proposals affecting only the method of ascertaining electoral votes: the district plan and the proportional plan.

The district plan would eliminate the present procedure of giving all of a state's electoral votes to only one candidate and would provide instead for electors, equivalent to the number of representatives in Congress, to be chosen from districts, Congressional or otherwise. In addition, two electors would be elected at large in each state.

Under the proportional plan, the electoral votes of each state would be divided in proportion to the candidates' state-wide votes.

Both of these plans are subject to most of the same objections raised against direct election; in fact, they would not only end the advantage now enjoyed by large urban states but would also discriminate in favor of the small states.

Moreover, both of these proposals would reduce the likelihood of an election producing a majority in the electoral college, because splinter parties could easily win some electoral votes, and hence would increase the need for a run-off or some other system for resolving a deadlock.

If the present system of counting electoral votes is to be abandoned, it is hard to see why we should not abandon the electoral vote altogether and move to direct popular election, which certainly has greater superficial appeal.

Finally, there are various proposals which envisage leaving the electoral vote count system unchanged but which would alter the present method of coping with a deadlock.

For example, you, Mr. Chairman, have introduced a resolution providing that, if no candidate receives a majority of electoral votes, the President and Vice President will be chosen by the Senate and the House meeting jointly, with each Member having one vote.

While this would be a great improvement over the present system, I see grave disadvantages in permitting the election to go to the legislative branch at all. What has happened on previous occasions when the election went to the House strongly suggests that no similar event should be allowed to re-occur. In the election of 1800, the outcome was decided in the House after 35 ballots and an incredible amount of maneuvering. The election of 1824 focused on a single undecided representative, Stephen van Rensselaer of New York, who finally had to rely on what he took to be divine guidance. The charges and countercharges of deals and treachery, especially when Clay-a defeated candidate-turned up as Secretary of State, did not die down for a long while. Moreover, the danger of involving the House in the Presidential election is further illustrated by the sordid story of 1876, when backroom deals dep ived Tilden of the election. The payoff's included Cabinet appointments, restorat on of "home rule" in the South (that is, rule by white Democrats), and a certai i amount of what is now known as "pork barrel."

I do not suggest that the Members of today are anything like their predecessors, but I do suggest that it might be better if the new President could not be placed in the uncomfortable position of owing anything, either to the Legislative Branch as a whole, or to individual Members or Senators.

Apart from these considerations, I suggest that it is wrong in principle for Members of Congress to be made Presidential electors under any circumstances: they are not elected for that purpose. As the 1968 election clearly indicated, the voters of the Country may elect a majority of their legislators from one party, while preferring a President from another.

If there had been a deadlock this past year and if the Celler amendment had been in effect, a Democratic President would presumably have been chosen. While for partisan reasons I would have preferred that result, it would have been difficult to justify on any other basis. Again, we must consider the danger of non-acceptance of an election; those voters whose candidate has been defeated would feel profoundly aggrieved, and justifiably so.

THE BINGHAM AMENDMENT

On February 15, 1968, I introduced as H.J. Res. 1086 a proposed Constitutional amendment in the House that has the advantages of remedying the two major defects in the present system-the chance that an elector will be faithless, and the selection of a President by the House-but that avoids the drawbacks of other proposals. I have reintroduced the proposal this year as H.J. Res. 6. This proposal has two basic features: (1) it retains the present system of awarding all the electoral votes of a state to the popular vote winner of the state, but awards the electoral votes automatically; (2) it provides for a run-off between the two leading candidates in the event that no candidate receives a majority of electoral votes. The proposal also provides for the election of the President and the Vice President together.

This proposal preserves the present balance of power that Professor Bickel has argued for so strongly, and that he says is so vital to our political stability. It raises no question of harm to the two-party system, or of paralyzing election contests. It removes the possibility that the Congress could create a Presidential debt to itself or elect a President who had come in second or third in the popular vote.

I am delighted that my proposal has also been introduced by Mrs. Green of Oregon, Mr. Gibbons of Florida and Mr. Robison of New York. In addition, the distinguished majority whip, Mr. Boggs, has introduced a proposal which is, with one exception, similar to mine. The difference is that his proposal provides for a run-off if no candidate receives 40% of the electoral vote rather than the majority my plan calls for. The advantage of Mr. Boggs plan is that a run-off seems less likely to happen with that figure than if a majority is needed. I think that that is true, but the disadvantage is that a candidate could receive 40% of the electoral vote with a relatively small fraction of the popular vote. This could be done, for example, by winning several large states by small margins and losing the other states to two or more other candidates by large amounts. Moreover, I see no need to take such a risk. The chances of having to have a run-off election are very slight in either case. We should remember that the present electoral vote system has produced an absolute majority of electoral votes on all but one occasion. The same consideration meets, I think, the objection to a run-off that it would be expensive. After all, what we are concerned with here is to provide for a contingency that we know is unlikely to occur.

In conclusion, I think that reform is vitally important. Elimination of the dangers in the system we now use to elect the President should be accomplished quickly. I am in agreement with the advocates of the direct popular vote when they say that renegade electors and election by the House must be made impossible.

I think, though, that there is a difference between correction of clearly recognized evils and creation of something entirely new, the good or evil of which is unknown, in response to a theoretical need which is debatable. In the first case, action should be swift. In the second case, the creation of an entirely new method of doing something as vital to us as electing a President, I think that caution is necessary. When we are changing fundamental institutions by Constitutional amendment, there is great reason to be a little conservative. Many of our institutions are, as Professor Bickel has said, mysteries, whose "actual operation must be assessed, often in sheer wonder, before they are tinkered with, lest great expectations be not only defeated, but mocked by the achievement of their very antithesis."

29-018-69-12

[H.J. Res. 6, 91st Cong., first sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to the election of the President and Vice President

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress :

"ARTICLE

"SECTION 1. In lieu of the method of election provided in section 1 of article II and in the twelfth and twenty-fourth articles of amendment, the President and Vice President shall be elected as provided in this article.

"SEC. 2. Each State shall have a number of electoral votes for President and Vice President equal to the whole number of Senators and Representatives to which that State may be entitled in the Congress. The places and manner of electing the President and Vice President shall be prescribed by law in each State, but the Congress may at any time by law prescribe the places and manner of electing the President and Vice President.

"SEC. 3. The people of each State shall cast their votes for the candidates for President and Vice President. The candidate for President in each State receiving the greatest number of votes shall receive that State's electoral votes for President, and the candidate for Vice President in each State receiving the greatest number of votes for Vice President shall receive that State's electoral votes for Vice President.

"SEC. 4. The person receiving the greatest number of electoral votes for President shall be President, if such number be a majority of the whole number of electoral votes; and the person receiving the greatest number of electoral votes for Vice President shall be Vice President, if such number be a majority of the whole number of electoral votes.

"SEC. 5. If no person has a majority of the whole number of electoral votes for President or Vice President, there shall be a runoff election in which the names of the two persons with the greatest number of electoral votes for President or Vice President, as the case may be, shall appear on the ballot in each of the several States. The winner of such election shall be decided in the same manner as the election provided by sections 3 and 4 of this article.

"SEC. 6. The District, constituting the seat of government of the United States, shall have a number of electoral votes equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State.

"SEC. 7. The Congress may provide by law for the determination of any case affecting the election of the President or Vice President for which provision is not made by this article."

Our next witness is Miss Jeanette Rankin, who represented the State of Montana in Congress, and who now resides in Mexico. She has stayed over to give her thoughts to us. She has been long interested in reform. She was one of the prime movers throughout the country to give the women of America the right to vote, and inasmuch as we are talking about the franchise, and giving everyone the right to vote equally, I think it is important for her to be with us.

STATEMENT OF MISS JEANNETTE RANKIN, A FORMER REPRESENTATIVE IN CONGRESS FROM THE STATE OF MONTANA

Miss RANKIN. Mr. Chairman, the lights are bad and I cannot see over there.

Senator BAYH. Will you sit there because we cannot hear you. We will then ask our friends of the press to turn down the voltage.

Miss RANKIN. Oh, yes, you can hear me. You will have no difficulty.

I appreciate very much having an opportunity to talk to you. I have been interested in this question.

Senator BAYH. Why don't you just be seated.

Miss RANKIN. I cannot talk sitting down. I have to stand up. Do you mind?

Senator BAYH. No, that is all right.

Miss RANKIN. If you mind, I will sit down.

Senator BAYH. Go right ahead. I just wanted to make it easy on you. Miss RANKIN. I have listened to the debate today, and I felt as though there were many simple questions that I could answer for you, not that you would not think about them yourself when you got time.

I did not think there was a great confusion as to the two extra votes that the small States have in certain matters, and talking to Senators, I do not see why they did not recognize that our prerogative to have as many Senators from Montana as you have from New York or Indiana or anywhere else is a thing that we are not going to give up. We have more power in the Senate, and the Senate deals with all the problems except one that was not a prominent problem, when the Constitution was written, and that is the problem of international affairs.

The President is the executor of your desires, and direct election gives the people more power to select the Executive that carries out the wishes of the Senate and the House.

Direct election gives the people more power over the question of international affairs, which are delegated more to the President. In Montana we would rather have more power to control international affairs through the President, but we want also to keep our advantage in the Senate by keeping two Senators. We send such able men to the Senate that we know that they are going to take care of domestic problems.

But we are interested in international. At least the women and the youth of the country are more interested in the international situation as proved by this last election, but they have nothing to say about it. A direct preferential vote for President would solve many problems. The problem of nomination would be solved and the problem of runoff would be solved because the people would vote for the first, second, third, fourth, fifth, even 15th choice. The ordinary county judges or precinct judges could never count such a vote. It is necessary to have a computer or some modern system. And this way the votes could be counted immediately.

The whole question of time and the whole question of a majority is solved, because the voter votes for his first choice, his second choice, his third choice, his 15th choice, if necessary. He has only one vote. If his first choice is not counted, his vote goes to the second choice, and if the second choice is not counted, it goes to the third or to the fourth, so that in the end you get a majority of the sentiment. It may not be their first choice, but it is a majority of the sentiment.

In many of the elections in the past, where the two parties were very near equal, if there had been a third candidate, the ones who voted for the first Republican might have gone to a third when they thought they could not be elected, and the one for the second party could go. So there would never be a question of who represented the majority sentiment of the people.

With a direct vote, a vote in Montana would be equal to one vote in New York, and there would be no question. It would be direct. That one vote would be counted.

In the district plan, no one has mentioned gerrymandering. It is perfectly easy to gerrymander a State so that the votes would all go one way, and the people would be disenfranchised if they count it as they do under the present system. But if they count it as one vote directly for the President, and that vote can be counted by computer immediately, within 24 hours they would have the result.

Senator BAYH. May I ask a question to clarify just exactly how your running majority plan would work?

Miss RANKIN. Yes.

Senator BAYH. Take an election based on 1968, in which you have President Nixon, former Vice President Humphrey, Governor Wallace and Senator McCarthy.

Miss RANKIN. And Rockefeller and Reagan.

Senator BAYH. For the sake of clarity let us keep it to those four if I may, please.

Miss RANKIN. All right.

Senator BAYH. Now if I go in and on my first vote I vote for, let us take it in the order I gave it to you.

Miss RANKIN. Yes.

Senator BAYH. Nixon, Humphrey, Wallace and McCarthy. Those are my four votes. Now how would that be counted in the presidential election as it turned out? Would my vote for Mr. Nixon be counted? Miss RANKIN. Yes, because he won, your first vote. But if you had a second vote

Senator BAYH. When would the second vote be implemented, under what circumstances?

Miss RANKIN. All the votes would be counted, the first, second, third, fourth. How many 1's, and how many 2's, how many 5's did Nixon get and-I have forgotten your order.

Senator BAYH. Humphrey.

Miss RANKIN. Mr. Humphrey would get so many 1's, he would get so many 2's, 3's, 4's. They would say if we cannot get Nixon, we would rather have Humphrey.

Sentor BAYH. When are those votes counted?

Miss RANKIN. Right then, on the computer.

Senator BAYH. But I mean is this a sort of system that we use for choosing a national basketball champion?

Miss RANKIN. Yes, I think so. I do not know that, but I have heard they use something similar.

Senator BAYH. You give 10 points for first place votes, nine points for second place votes?

Miss RANKIN. No, this would be one vote. If the voter named Nixon second choice and his first choice went for Humphrey-and Nixon won his first choice would not count, you see. The computer would tally the choice. It is clear to me, but it is difficult to explain.

Senator BAYH. Why don't you try?

Miss RANKIN. I have a diagram. Fifty years ago we discussed it. Senator BAYH. Let me give another hypothetical here. The same Nixon-Humphrey-Wallace-McCarthy votes.