House in line with that in use in the Senate on a one-Member onevote basis.

The third reason, I think, for this change, Mr. Chairman, is most relevant, and that reason is that in the election that has just passed, there was the danger of a paralyzing constitutional crisis and political crisis. If an election was thrown into the House, as it could have been last fall, and the third party candidate had his voters stand as a bloc and refuse to agree on either of the two candidates with the major number of electoral votes until he could get certain concessions, that certainly would have produced governmental paralysis.

Then we would have elected a Vice President in the Senate, he would have taken over as an Acting President for an indeterminate period of time. No one would have known how long that would have lasted. No one would have known what steps to take in view of the fact that presumably sometime the House would break its deadlock. Suppose the Senate had been more evenly divided. It is even conceivable that the Senate cold deadlock if the third party candidate had any allies in the Senate.

The dangers in this world are too great. Our society and the whole civilization move too fast to have these deadlocks. We need procedure that will elect a President, put him in office with power to act, and not a deadlock such as could well have resulted in this country last fall, had five or six States voted the way the polls showed they were about to vote 2 weeks before the election.

The popular vote, there is not any doubt about it, shifted very rapidly in this country in the last 2 weeks of the election, and it shifted against the third party candidate in some four or five southern border States. Had they not shifted in the last 2 weeks of the election, the third party candidate would undoubtedly have received enough electoral votes to have thrown the election into the House of Representatives.

I will not belabor the point of what constitutional dangers we would have faced. I have it in my statement and will have it for the reporter here.

I hope I have made clear why I have introduced Senate Joint Resolution 18. I had an identical resolution proposed in the last Congress, in the 90th Congress. I have now reintroduced this one to reform the system if an election is thrown into the House.

This is not a new proposal. In 1824 Senator Thomas Hart Benton, of Missouri, proposed an amendment to the Constitution recommended by the Senate Select Committee on Elections, which would have provided for a contingent election of the President and the Vice President by a joint session of Congress with each member having one vote. That was the great Senator Benton, one of the all-time great Senators of this body, with over 30 years in the Senate.

Later, in 1876 Congressman Samuel Addison Oliver, of Iowa, introduced a joint resolution which provided, among other things, for a contingent election of the President by the House, each member having one vote. Similar proposals were made in 1918 by Representative Tucker of Virginia, in 1928 by Representative Brown of Wisconsin, and other leading legislators and scholars have proposed a similar reform, among them Senator Oliver P. Morton in 1877, Allen in 1817 and Edward Lee in 1943.

This change that I propose is no new thing. It has been recommended by resolution introduced into the Congress since 1824, when it had the strong support of Thomas Jefferson 2 years before he passed

away.

On January 20, 1966, in a special message to the Congress, President Johnson said:

In such an election, contingent election, the House of Representatives would be empowered to elect a President from the three highest candidates. However, each State would cast only one vote. I firmly believe that we should put an end to this undemocratic procedure.

At that time I introduced this resolution, Mr. Chairman. As I have pointed out, this joint resolution is not introduced as the ultimate solution of our electoral needs. I propose this change in the Constitution with the intention of correcting a very specific fault, but a very dangerous fault in our electoral system. If the House of Representatives remained the final arbiter in our presidential election system, we must be concerned with the mechanics of selection in that body. Voting by States is one of the greatest faults in our total election process. I seek to bring the contingent election of the President by the House closer to the people by allowing each representative of the people to

cast his own vote.

Mr. Chairman, I realize that several proposals before this subcommittee call for sweeping changes, one proposal giving one vote to each congressional district, two at large to the State.

Or to take another proposal pending before this committee, to apportion the electoral votes according to the percentage of the popular vote the candidate receives. With either one we might still end up with no candidate having a majority of the electoral vote, and if so, rather than say the high man take all, I think it ought to go to the House, but with the reform like that which I propose, I think this reform is still needed, if we adopt either of those electoral college reforms. If we abolish the electoral college entirely, and substitute a direct popular election, which appeals to me greatly, then it might not be necessary. But we would still have this danger of a close election and a recount. It could take months. A recount of a very close election could be a devisive thing, or a runoff could prolong the election and throw the country into turmoil. I think even with the direct popular vote, there might be such divisions, as last year, for example. Suppose that had been decided by a direct popular vote. There was no majority, the two lead candidates separated by about a half of a percentage between them. Probably the best thing would have been then to have sent it to the House of Representatives rather than keep the country in turmoil, because we need a certainty of government. There needs to be certainty in government.

In that case, again, I think no one would want to send it to the House if they have a one-State one-vote proposition. But I think, Mr. Chairman, that if these other reforms, any of them are adopted, we would still need a reform of the process in the House, unless we do away with the House as a final safeguard, a final arbiter.

I hope that you will give this proposal most careful consideration, as I do not submit it in opposition to the reform of the electoral college. I do not submit it in opposition to the direct election of a Presi

dent of the United States, but I submit it as a safety valve in the case of divided elections.

Of course there is another reform I think we should have, and that is bind the electors, if we keep men as electors, to cast their votes the way the people vote in that State. I think whether we give to one candidate all the electoral votes from a State, if he carries the State in the popular vote, or whether we divide it by congressional districts, or whether we divide it on a percentage basis, the electors should be bound to vote the way the people of their State told them to do. That is a peripheral reform that can be incorporated in the others.

Believing that this House of Representatives method is a safeguard, in the case of a very close divisive election, to prevent a prolonged deadlock over the election of a President, I think the modest reform proposed in my amendment should appeal to the committee and to the people as a safeguard, but in no wise detract from the other great reforms that have been proposed in the electoral process.

I want to thank the chairman and the committee for your kindness in permitting me to appear. If you have any questions I will be glad to attempt to answer them, but I would not think that with the long careful study given by the chairman, that I could enlighten him on this question.

TESTIMONY OF R. W. YARBOROUGH, ON S.J. RES. 18, PROPOSING AN AMENDMENT TO THE CONSTITUTION RELATING TO THE CHOOSING OF A PRESIDENT WHEN THE CHOICE DEVOLVES UPON THE HOUSE OF REPRESENTATIVES

Mr. Chairman and members of the Subcommittee, thank you for the privilege of appearing here today. The matter of electoral reform is one which I believe to be of constant concern to all of us. It is obvious that the process of electing a President is in need of revision, so I am encouraged, as I am sure all of us are, that this committee is taking a careful and comprehensive look at this question. I am aware that most of the testimony and discussion before this committee has dealt with the question of reforming or abolishing the electoral college. But my proposal is not so ambitious; I seek, rather, to reform only a small segment of the process we have for electing a President. Small though this may seem, however, I believe that the change which I propose would correct a very serious, potentially fatal flaw in this process, the most dangerous of all flaws in our presidential election machinery.

My proposed amendment to the Constitution deals with the Constitutional provision for contingent election of the President in the House of Representatives. The main provision for this type of election is found in Amendment XII which was adopted in 1804. Section 3 of Amendment XX, adopted in 1933, also contains some language concerning contingent elections of the President. Because it might be rather confusing to read the two amendments separately, I shall read Amendment XII, inserting language from Amendment XX where appplicable. This amendment says:

"The Electors shall meet in their respective states and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists 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;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall

29-018-69- -13

choose immediately, by ballot, the President. But, in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [If, at the time fixed for the beginning of the term of the President, the President shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.]1 The person having the greatest number of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States."

Mr. Chairman and Members of this Committee, the contingent election provision was carefully considered by the Federal Convention when it was engaged in the business of drafting the Constitution, well over a century and three-quarters ago. It has been recorded that even after the Convention had settled on the "electoral college" system of electing the President and Vice President, there was still a lengthy discussion of the procedure to be followed should no candidate for the highest office receive a majority of the electoral votes. It was first proposed that the Senate, which was to count the electoral votes, elect the President and the Vice President from the candidates with the five highest numbers of electoral votes. Several delegates objected to this procedure, however, and after discussion of several alternative proposals-including election by the House of Representatives on a one-member-one-vote basis-it was decided that the House would be empowered to elect the President and the Vice President when no man had a 'clear majority of electoral votes. Each state was to have one vote.

It was thought at this time that very few Presidents and Vice Presidents would be chosen by the electors. There were no political parties; there was no nominating process of any sort; the electors were simply to ". . . meet in their respective states and vote by Ballot for two persons.. ." The persons having the greatest number of votes was to be elected President. The Vice President was to be the runner-up. The Convention studied the contingent election process as carefully as they did because the delegates to the Convention felt that in almost every instance, the electors would give no one a clear majority and thus the House of Representatives would have to choose the President and Vice President.

By the beginning of the nineteenth century, however, political parties had begun to emerge and the election of a President from one party (Adams) and a Vice President from another (Jefferson) necessitated the adoption of Amendment XII which specified that the electors would vote for a candidate for President and a candidate for Vice President. This amendment also contained a provision taking from the House of Representatives the duty of electing a Vice President should the electors be unable to do so. The Senate was empowered to elect the Vice President; the vote was to be taken on a per capita basis and the choice was to be made from the two front runners rather than the three which the House was to choose from.

This system remained unchanged until 1933 when Amendment XX was adopted. Section 3 of this Amendment provided that if the President elect were to die before the beginning of his term, then the Vice President elect would become President at the proper time. If the President-elect were not to be chosen by the beginning of his term or if he were not to qualify; then the Vice President elect would act as President until a President was chosen or qualified. If neither man were to be elected or were to qualify by the beginning of his term, then the Congress could provide by law for the selection of an acting President who would serve until either a President or a Vice President had been elected or had qualified.

Bracketed language from Amendment XX.

By this time, Mr. Chairman and Members of this Committee, it should be all too clear to you that the process we have for contingent election of a President and Vice President is a mish-mash. It is a process rooted in an archaic, antiquated, totally anachronistic concern, crucial to the Founding Fathers but irrelevant in this age of one-man-one-vote-for protecting the rights and privileges of the small states against the larger states. All of you will recall that the chief reservation the small states had about abandoning the Confederation was that they would be swallowed up by the larger states. It was, in part, this concern which produced our bicameral legislative system with the House of Representatives representing the people and the Senate representing the states. It was also this concern which produced the compromise proposal for contingent election of the President and Vice President. The small states were fearful that election in the House with each member having one vote would throw the balance back in favor of the larger states. Therefore, the small state delegates and their allied insisted that voting for President and Vice President be on a one-state-one-vote basis. Strange as it may seem, this procedure has remained in effect ever since that time, even though Senators have been popularly elected for more than half a century now. I think, Mr. Chairman and Members of this Committee, that the anachronism of this method of contingent election is only one reason to abandon it.

A second reason is that this system is so chaotic. The President and Vice President were elected by different Houses and by different methods in each Houseon a state-by-state basis in the House of Representatives and on a one-memberone-vote basis in the Senate. The House chooses from the top three men, the Senate, from the top two. This system should be made more rational. Furthermore, given that it is our aim and our wish to make the selection of a President and Vice President as democratic a process as is feasible, it would seem necessary to rationalize this system by bringing the procedure in the House into line with that used in the Senate.

The third reason for a change, however, is the most critical. This reason should have become clear-very clear-to all of us during the election just past. For the system as it now stands contains the seeds of a paralyzing Constitutional and political crisis which could have very grave results indeed for this country. In the 1968 election, we had a serious third-party candidate whose chief prospect was not to win the election, but rather to force the final decision into the House of Representatives in order to "bargain" with the other two candidates for certain policy concessions in return for his support.

The strategy was not an unsound one. By my count, the Democratic Party controlled twenty-six state delegations, the Republican Party, nineteen, and five delegations were divided evenly. But, it is probable that some of the state delegations would have voted initially for the third party's candidate, Gov. Wallace. There are no Constitutional provisions binding members of the House to support their party's candidate for President. Moreover, Governor Wallace carried five southern states and it is possible that these five state delegations would have supported him in the House of Representatives. The result would have been deadlock in the House. Meanwhile, the Senate, choosing between the two front runners, would have met, voted, and in all probability, elected a Vice President, who would then be faced with the awesome task of serving, not as President, but as acting President. Can you, Mr. Chairman and Members of this Committee imagine how choatie the party quarrel would have become under these circumstances. Several other very detrimental results could come of the stalemate in the House. The President finally chosen might be of a different party from that of the Vice President, thus recreating the very situation which Amendment XII was written to avoid. Moreover, it is altogether possible that the concessions the President-elect would have been obliged to make in order to be elected would weaken his power to govern. If the Congress could not decide on a President and a Vice-President, it would then have to select a person to act as Acting President. Gentlemen, I hope I have been able to show why I have introduced S.J. Res. 18 and why I think it is so important that this Amendment be adopted as soon as possible. A Constitutional crisis such as I have just described would do great harm to our body politics. I don't believe that today we ought to preserve a system of contingent election of the President which is as undemocratic as the one we now have. I believe it is now time to change it.

My proposal is not a new one. In 1823, Thomas Jefferson wrote, "I have ever considered the Constitutional mode of election ultimately by the legislative voting by states as the most dangerous blot on our Constitution and one which unlucky chance will some day hit." In 1824, Senator Thomas Hart Benton of Mis