II

Recommendations

It is the consensus of the Commission that an amendment to the United States Constitution should be adopted to reform the method of electing a President and Vice-President. The amendment should: 1 provide for the election of the President and Vice-President by direct, nationwide popular vote;

2 require a candidate to obtain at least forty percent of the popular vote in order to be elected President or Vice-President;

3 provide for a national runoff election between the two top candidates in the event no candidate receives at least forty percent of the popular vote;

4 require the President and Vice-President to be voted for jointly; 5 empower Congress to determine the days on which the original election and the runoff election are to be held, which days shall be uniform throughout the United States;

6 provide that the places and manner of holding the presidential election and the inclusion of the names of candidates on the ballot shall be prescribed in each state by the legislature thereof, with the proviso that Congress may at any time by law make or alter such regulations;

7 require that the voters for President and Vice-President in each state shall have the qualifications requisite for persons voting therein for Members of Congress, with the proviso that each state may adopt a less restrictive residence requirement for voting for President and Vice-President provided that Congress may adopt uniform age and residence requirements; and

8 contain appropriate provisions in case of the death of a candìdate.

Direct, nationwide popular vote

The electoral college method of electing a President of the United States is archaic, undemocratic, complex, ambiguous, indirect, and

dangerous. Among other things, the present system allows a person to become President with fewer popular votes than his major opponent; grants all of a state's electoral votes to the winner of the most popular votes in the state, thereby cancelling all minority votes cast in the state; makes it possible for presidential electors to vote against the national candidates of their party; awards all of a state's electoral votes to the popular winner in the state regardless of voter turnout in the state; assigns to each state at least three electoral votes regardless of its size; fails to take into account population changes in a state between censuses; allows for the possibility of a President and a Vice-President from different political parties; and employs an unrepresentative system of voting for President in the House of Representatives.

It is claimed that the system gives too much weight to some voters and too little to others; discourages voter turnout in many states; gives excessive power to organized groups in states where the parties are evenly matched, since such groups sometimes are able to swing the entire electoral vote of a state to one candidate or the other; limits campaigns to pivotal states and nominations for the Presidency to persons from large states; places an undue premium on the effects of fraud, accident, and other factors since a slight change in the popular vote may determine who receives a state's entire electoral vote; and allows for possible abuse and frustration of the popular will because state legislatures have the plenary power to establish the method of appointment of electors.

While there may be no perfect method of electing a President, we believe that direct, nationwide popular vote is the best of all possible methods.' It offers the most direct and democratic way of electing a President and would more accurately reflect the will of the people than any other system. The vote of every individual in the constituency (including the District of Columbia) would be of equal weight, as it now is in elections for the United States Senate and House of Representatives and for statewide, municipal, county, town, and village offices throughout the United States.

Direct popular vote would eliminate the principal defects in the present system. It would eliminate the unit vote rule or the winnertake-all feature which totally suppresses at an intermediate stage all

1 Our recommendations are applicable to both the President and Vice-President, whom, we believe, should be voted for as a team, i.e., there should be but one vote for the two officers.

minority votes cast in a state. It would do away with the ever-present possibility of a person being elected President with fewer popular votes than his major opponent, as has happened on a few occasions in American history. It would abolish the office of presidential elector, which is an anachronism and a threat to the smooth functioning of the elective process. It would minimize the effects of accident and fraud in controlling the outcome of an entire election. It would put a premium on voter turnout and encourage increased political activities throughout the country.

We do not consider the objections that have been made to direct popular vote as sufficient to overcome the numerous advantages which attach to such a method.

Perhaps the most important objection that has been voiced to direct election is that it would lead to a proliferation of parties and weaken the American two-party system. The winner-take-all feature of the electoral college system undoubtedly is conducive to the bipartisan pattern by limiting the effectiveness of votes for minorityparty candidates, although there have been times when third parties have played an important, if not decisive, role in presidential elections.

It should be noted that several factors, not the electoral college alone, have worked to produce our two-party system. Authorities who have studied our party system in great depth attribute the dualism to both noninstitutional and institutional factors. There is general agreement that, institutionally, the selection of representatives by plurality vote from single member districts has strongly encouraged and reenforced the two-party structure. Neither this factor nor other contributing factors would be changed by direct election of the President. They would continue to operate to support the two-party system. Moreover, our recommendations do include factors which, we think, would have a substantial tendency to support the twoparty system.

We recommend that a candidate should receive at least 40 percent of the popular vote in order to be elected President. A 40 percent plurality requirement would encourage factions and splinter groups

2 See, e.g., Key, Politics, Parties, & Pressure Groups 205-11 (5th ed. Thomas Y. Crowell Co. 1964); Schattschneider, Party Government 65-84 (Farrar & Rinehart 1942); Sindler, Political Parties in the United States 49-59 (St. Martin's Press 1966).

3 The Presidential Election Campaign Fund established by Public Law 89-809 (1966) surely will be a new factor tending to preserve the two-party pattern. Under this law minor parties are entitled to receive no payments unless they polled more than 5,000,000 votes in the preceding presidential election.

to operate, as now, within the framework of the major parties, since only a major candidate would be in a position to obtain such a vote. At present, third parties have the power to "tip the balance" in a relatively close election by drawing crucial votes from a candidate. The power of third parties would be considerably reduced under a 40 percent rule because the likelihood of a third party candidate obtaining 20 percent of the popular vote is small. A group existing outside of either of the major parties would not be able to thrive in view of the certainty of defeat.

We further recommend that there be a national runoff popular election between the top two candidates in the event that no candidate receives at least 40 percent of the popular vote. A runoff between the highest two would seem to have the tendency to limit the number of minor party candidates in the field in the original election because it is improbable that a minor candidate would be one of the top two; and the influence of such a group would be asserted more effectively, as now, before the major party nominations and platforms are determined.

In addition, it should be mentioned that it is no easy matter for a group to become a national party. It would have to comply with the various state requirements for the formation of a party. These requirements are not easily met by minor parties.

It is also said that direct election of the President would wipe out state lines or destroy our federal system. The following should be noted:

The President is our highest nationally elected official. He occupies the most powerful office in the world. The problems and the issues with which he deals are largely national in character. It is only fitting that he be elected directly by the people.

Under direct election as embodied in our recommendations, states would continue to play a vital role in the elective process. They would continue to have the primary responsibility for regulating the places and manner of holding the presidential election, for establishing qualifications for voting in such elections, and for controlling political activity within their state boundaries.

We do not believe that our federal system would be destroyed by direct election of the President and Vice-President. As Senator Mike Mansfield has stated:

[T]he Federal system is not strengthened through an antiquated device which has not worked as it was intended to work when it was included in the Constitution and which, if anything, has become a divisive force in the Federal system by pitting groups of

29-018 O - 69 - 36

States against groups of States. As I see the Federal system in contemporary practice, the House of Representatives is the key to the protection of district interests as district interests, just as the Senate is the key to the protection of State interests as State interests. These instrumentalities, and particularly the Senate, are the principal constitutional safeguards of the Federal system, but the Presidency has evolved, out of necessity, into the principal political office, as the courts have become the principal legal bulwark beyond districts, beyond States, for safeguarding the interests of all the people in all the States. And since such is the case, in my opinion, the Presidency should be subject to the direct and equal control of all the people.*

There is the view that the practical objection to direct election is that it would never be proposed by Congress as a constitutional amendment or ratified by the necessary number of state legislatures. In this connection, it is interesting to note that members of Congress from both large and small states have been leading proponents of direct election. Recent supporters include Senators Aiken, Bayh, Bible, Burdick, Byrd, Clark, Douglas, Magnuson, Mansfield, Morse, Muskie, Nelson, and Smith. Moreover, thirteen states, both large and small, recently attempted to have the Supreme Court of the United States strike down as unconstitutional the unit vote feature of our system."

Significantly, a recent poll of state legislators was conducted by Senator Quentin N. Burdick of North Dakota to determine their preferences regarding electoral reform. The published results revealed that over 59 percent of the more than 2,200 legislators who responded indicated that they would support a direct popular vote for President. We are advised that since the published results, over 1,000 additional legislators have responded, with a similar ratio of support for direct popular vote. This support, moreover, comes from both small and large states in all parts of the country.

In summary, direct election of the President would be in harmony with the prevailing philosophy of one person, one vote. "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one

4 107 Cong. Rec. 350 (1961).

5 See pages 35-36 infra.

6 Cong. Quart. Fact Sheet on Electoral Reform, Dec. 16, 1966.