ELECTING THE PRESIDENT

THURSDAY, MARCH 13, 1969

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

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

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

Senator BAYH. We will reconvene our subcommittee hearings.

I ask unanimous consent to put into the record the statement of our colleague, Senator Cannon, who was scheduled to be our leadoff witness this morning. Because of complications with another set of hearings, he is unable to be here. I would also like to put into the record, at this time, the statement of our colleague from Iowa, Senator Jack Miller.

STATEMENT OF HON. HOWARD W. CANNON, A U.S. SENATOR FROM THE STATE OF NEVADA

Senator CANNON. Mr. Chairman, I appreciate this opportunity to present my opinion on the subject of constitutional reform of the manner of electing the President and Vice President of the United States.

Before political parties, conventions, and preferential primaries were conceived, it was the opinion of a majority of the delegates to the constitutional conventions that the people would not be sufficiently informed as to the qualifications of the various candidates to make a wise choice. Electors, on the other hand, carefully chosen in each State, would be among the most knowledgeable and capable persons in the country.

In a new Nation of a few States and small population, the electoral college was generally approved. Today, however, the complex elective process has eliminated the need for informed, knowledgeable, and capable electors. They perform a mere ministerial function and even in the performance of that routine act, sometimes betray the voters of a State.

Arguments favoring the abolition of the electoral college of presidential electors are so forceful and widely known as to make unnecessary the need for further comment. The electoral vote, though, is of far greater importance and of deeper significance.

While some delegates to the constitutional convention favored direct popular election of the President and Vice President, others argued

that the electoral system providing for at least three electors for each State, regardless of population, gave the small States some protection against domination by large States. That argument is considered by historians to have had considerable weight in swaying the convention in favor of the electoral system and still carries weight today.

Retention of the constitutional guarantee of at least three electoral votes per State is still a substantial factor in the feeling of equality which smaller States have with regard to the large industrial States in our Nation. Fifteen States and the District of Columbia, all with populations of less than a million each, have three or four electoral votes apiece and an overall total of 58 electoral votes, in every instance, each of those electoral votes gives fewer people in lesser populated States a voice equal to a greater number of people in larger populated States.

For example, the Washington Post on Monday, March 3, 1969, published an editorial on electoral college reform. It cited Alaska as having one electoral vote for each 75,389 persons whereas California has only one electoral vote for each 392,930 persons. Some use those figures to demonstrate an inequity between citizens of large and small States but again, the State of lesser population is merely retaining its constitutional protection of electoral vote minimums.

Mr. Chairman, my bill, Senate Joint Resolution 33, proposes that the constitution be amended so as to eliminate presidential electors and the electoral college. It proposes, further, the retention of the electoral votes on the basis of the whole number of Senators and Representatives to which a State is entitled, but in no case less than three electoral votes.

Briefly, after the date of a presidential election, the official election returns of each State would be forwarded to the President of the Senate. Early in January the votes would be counted and each person for whom votes were cast for President in each State and the District of Columbia would be credited with such proportion of the electoral votes as he received of the total popular vote cast by the voters for President. In computing the electoral vote, fractional numbers less than one one-thousandth would be disregarded.

The person having the greatest aggregate number of electoral votes would be President if he had at least 40 percent of the total number of electoral votes.

Otherwise, from the persons having the two greatest numbers of electoral votes, the Senate and the House of Representatives, sitting in joint session, would choose the President immediately by ballot. A majority of the votes of the combined membership of the Senate and the House of Representatives would be necessary for a choice. In other words, a vote of 268 Senators and Representatives would be necessary for election. The same procedure would be followed for the election of the Vice President.

Mr. Chairman, a choice, if necessary, by the House and the Senate would be less cumbersome, less time consuming and less expensive than a runoff election.

Unlike any of the other proposed alternatives, a proportional vote amendment would best reflect the popular strength of the candidates and still maintain our Federal system. The proportional automatic system comes closest to electing a President by popular vote of the peo

ple while at the same time preserving each State's relative electoral strength.

In place of the present method which diminishes the people's voice in the most important decision the U.S. citizens can make, a proportional plan would eliminate arbitrariness and enhance the role of the individual and the State in electing the President.

Mr. Chairman, I introduced my bill on January 27, 1969. Recently, President Nixon has expressed his preference for the proportional plan over the direct popular vote system. It is gratifying to have the support of the President of the United States and I hope I will also gain the support of this distinguished committee.

In conclusion, I believe that the proportional plan for distribution of electoral votes down to one one-thousandth of a vote meets the aims of the proponents of the direct popular election system while at the same time preserving the constitutional balance of the States by retention of the electoral votes.

I thank the committee for this privilege of presenting my views on badly needed constitutional reform.

(S.J. Res. 33 follows:)

[S.J. Res. 33, 91st Cong., first sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States providing for the election of the President and the Vice President of the United States 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 three-fourths of the legislatures of the several States:

"ARTICLE

"SECTION 1. The Executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected as provided in this article. No person constitutionally ineligible for the office of President shall be eligible for the office of Vice President.

"SEC. 2. The President and Vice President shall be elected by the people of the several States and the District of Columbia. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that the legislature of any State may prescribe lesser qualifications with respect to residence therein. The electors in the District of Columbia shall have such qualifications as the Congress may prescribe. The places and manner of holding such election in each State shall be prescribed by the legislature thereof, but the Congress may at any time by law make or alter such regulations. The place and manner of holding such election in the District of Columbia shall be prescribed by the Congress. The Congress shall determine the time of such election, which shall be the same throughout the United States. Until otherwise determined by the Congress, such election shall be held on the Tuesday next after the first Monday in November of the year preceding the year in which the regular term of the President is to begin.

“SEC. 3. Each State shall be entitled to a number of electoral votes equal to the whole number of Senators and Representatives to which such State may be entitled in the Congress. The District of Columbia shall be entitled to a number of electoral votes equal to the whole number of Senators and Representatives in Congress to which such District would be entitled if it were a State, but in no event more than the least populous State.

SEC. 4. Within forty-five days after such election, or at such time as Congress shall direct, the official custodian of the election returns of each State and the District of Columbia shall make distinct lists of all persons for whom votes were cast for President and the number of votes cast for each person, and the total vote cast by the electors of the State or the District for all persons for President,

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which lists he shall sign and certify and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. On the 6th day of January following the election, unless the Congress by law appoints a different day not earlier than the 4th day of January and not later than the 10th day of January, the President of the Senate shall, in the presence of the Senate and House of Representatives, open all certificates and the votes shall then be counted. Eac hperson for whom votes were cast for President in each State and the District of Columbia shall be credited with such proportion of the electoral votes thereof as he received of the total vote cast by the electors therein for President. In making the computation, fractional numbers less than one one-thousandth shall be disregarded. The person having the greatest aggregate number of electoral votes of the States and the District of Columbia for President shall be President, if such number be at least 40 per centum of the whole number of such electoral votes. If no person has received at least 40 per centum of the whole number of such electoral votes, or if two persons have received an identical number of such electoral votes which is at least 40 per centum of the whole number of electoral votes, then from the persons having the two greatest numbers of such electoral votes for President, the Senate and the House of Representatives sitting in joint session shall choose immediately, by ballot, the President. A majority of the votes of the combined membership of the Senate and House of Representatives shall be necessary for a choice.

"SEC. 5. The Vice President shall be likewise elected, at the same time in the same manner, and subject to the same provisions as the President.

"SEC. 6. The Congress may by law provide for the case of the death of any of the persons from whom the Senate and the House of Representatives may choose a President whenever the right of choice shall have devolevd upon them, and for the case of death of any of the persons from whom the Senate and House of Representatives may choose a Vice President whenever the right of choice shall have devolved upon them. The Congress shall have power to enforce this article by appropriate legislation.

"SEC. 7. The following provisions of the Constitution are hereby repealed: paragraphs 1, 2, 3, and 4 of section 1, article II; the twelfth article of amendment: section 4 of the twentieth article of amendment; and the twenty-third article of amendment.

"SEC. 8. This article shall take effect on the 1st day of February following its ratification, except that this article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the States within seven years from the date of its submission to the States by the Congress.".

STATEMENT OF HON. JACK MILLER, A U.S. SENATOR FROM THE STATE OF IOWA

Senator MILLER. Mr. Chairman and fellow members of the subcommittee, I appreciate the opportunity to present a statement to this subcommittee concerning the timely subject of electoral college reform.

Every close presidential election-such as those of 1960 and 1968– has spotlighted the need for electoral college reform. During those elections the weakness of our present method of electing the most important and influential officeholder in the world was underscored. According to James Wilson of Pennsylvania, one of the framers of the Constitution, the subject of the formulation of an acceptable play for electing a President and Vice President was "in truth the most difficult of all on which we had to decide."

The multiplicity of proposals concerning this subject, compounded by the mysterious inaction of Congress, over the last 8 years, indicates that that difficulty is no less now than it was in 1787. But, no matter how difficult the question, I believe it is imperative for Con

gress to carry out the obvious will of the people by improving upon the dodo bird system which troubles us so deeply.

Of the many different proposals for changing the electoral system, I have cosponsored both Senator Ervin's plan to apportion a State's electoral votes and Senator Mundt's so-called district plan. In very general terms, the district plan would retain electors (who would be bound to vote as announced before the election) chosen just like Senators and Congressmen; that is, one each from a congressional district and two at large from each State. This is clearly a fairer system than the winner-take-all present system.

However, I prefer the apportionment plan of Senator Ervin embodied in Senate Joint Resolution 2 and recently recommended by the President of the United States. Under this proposal each State's electoral votes would be divided among the candidates in proportion to their share of the total popular vote in the State, and the office of elector would be abolished.

I believe that when we approach the subject of electoral reform we should dissect the present method to determine what features are unfair and what features, if any, merit retention.

Just about everyone seems to agree that the electoral college, as such, is a useless and potentially dangerous feature. Because of the lack or difficulty of communications when our Constitution was adopted, it was originally anticipated that the electors would be chosen by each State from among the more knowledgeable and important citizens of the State, and that they would meet together to exercise independent judgment on the merits of each candidate.

The rise of political parties and improved communications invalidated the premise. And today, when a presidential candidate can reach even the most remote voter through the use of radio and television, it is unconscionable to retain as a part of the electoral system a procedure under which the electors can subvert the will of the people of their State as occurred in the case of a North Carolina elector early this year. Abolition of individual electors is one of the reforms called for by President Nixon in his recent message to Congress. Senate Joint Resolution 2 would accomplish this objective.

The major division of opinion among sponsors of the various proposals to reform the electoral system comes not on the point mentioned above, but on the question of how to determine the electoral vote, or indeed whether to retain it at all. In my opinion the present system of the unit method of casting electoral votes, or the so-called winner-takeall system, is grossly unfair. Indeed, this inequity was not envisaged by the framers of the Constitution. Many arguments have been advanced to support abolition of the unit rule. I will mention two major ones. First, the winner-take-all system disfranchises thousands of voters in every presidential election in every State, because citizens' votes for electors for losing candidates have no effect. Some have gone so far as to say that such votes are, in effect, taken from these citizens and added to the votes of the winning candidate whom they opposed. This system also perpetuates one-party government in some States, because there is little incentive for a party possessing a small government in