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In 1960, under a proportional system, President Kennedy would have received 265.623 electoral votes and President Nixon 266.075. If only 40 percent were necessary, President Nixon would have been elected. In 1968, on a proportional system requiring 40 percent, President Nixon would have received 231.524 votes, and Hubert Humphrey 218.570. George Wallace would have received 79.822 votes. Forty percent is 215.20 electoral votes.

I offer to the subcommittee a chart I have prepared giving the State by State breakdown on the electoral votes each candidate would have received in the 1968 election on a proportional basis. I would request that it be printed in the record of these hearings with my statement.

Senator BAYH. We will ask our reporter to have these printed at the immediate conclusion of Senator Dominick's statement.

Senator DOMINICK. Fine. And I think the subcommittee has a copy of that with my statement.

Senator Bays. I appreciate your industry here in providing this for us.

Senator DOMINICK. Under Senator Mundt's plan, Senate Joint Resolution 12, in my opinion, the office of elector could be eliminated without altering the basic intent. This plan would retain a semblance of Unit Rule in each district wherein the plurality winner gets its one vote. The plurality winner statewide gets two votes. Each voter effectively, therefore, has three votes, one in his district and one for each of the Senators who may be running.

It minimizes the Unit Rule and retains the local and regional influence within each State, which I feel is necessary to balance our system.

The proportional plan of Senator Ervin and Senator Sparkman directly relates to the popular vote, but still retains the State and regional influence. It eliminates entirely the unit rule. It does present the problem that, statistically, in any close election, where third parties are a factor, there is little probability that the leading candidate will receive a majority of the electoral vote. He may not receive even 40 percent, but this contingency is provided for in the amendment. If a 40-percent plurality is an acceptable winning margin, the plurality issue is not critical.

There is one more point that I want to make here, and I think it is terribly important. Under the direct vote, it would seem to me that the fractionalization of parties which would occur, I believe, almost overnight would again insure that no person in the ordinary election would ever receive a majority of the total proportional or total direct vote. It's happened in every other Nation. Wherever they've had a direct vote, as far as I know, it fractionalize the parties. You get several parties competing, and while it may result in a plurality vote, it seldom produces a majority.

There is one other point that I would like to stress. In 1968, in the process of this election, despite the fact that Mr. Humphrey was nominated as the presidential candidate for the Democratic Party, there were some States, at least in Alabama and the South, where Mr. Wallace was listed as the head of the Democratic Party. It seems to me that we should take care of this as well. Mr. Wallace was running on the American Independent ticket, and he should have been listed as the

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head of that ticket in Alabama and Mr. Humphrey listed as the head of the Democratic Party. It would seem to me that this is only equitable and fair in any kind of a system where we are largely relying on a two-party system between the two major parties. If we don't do it this way, we are going to find ourselves suddenly having different people represented improperly as the head of a particular party ticket in State after State; it could easily spread. Whoever the most popular fellow happens to be in any State, could be listed as the presidential nominee. I would presume that this situation would be taken care of in any constitutional amendment which may be urged by this subcommittee.

I thank the Chair very much for his courtesy in letting me appear and give these observations early in the hearing.

Senator Bayh. I appreciate your coming. I don't know how pressed you are, whether you care to carry this colloquy a bit further or not.

Senator DOMINICK. I would be delighted to.

Senator Bayh. I would like to say that I think the four points that you mention on page 3 are pertinent. I share your concern in that regard. I think we have to recognize here that the problem is one of whether we want to change but whether we can get it.

Senator DOMINICK. That is correct.

Senator Bayh. When we are dealing with the disposition of the power of the presidency, we are dealing with a problem that is fraught with all types of nuances and controversies and thus the possibility of getting the necessary two-thirds plus the three-fourths of the State legislative bodies is one that certainly weighs heavily on this committee and on this Senator as chairman. Thus the traditional controversy of large State versus small State is one that has to be recognized. As we open these hearings I recall my concern of 3 years ago when we began hearings in which I shared many of the concerns of my colleague from Colorado about the impact of the popular vote. After studying this for about 3 years, I have changed my thoughts. I don't suggest that other people will, but perhaps, with study, others will find, as I did, that some of the problems considered apparent 3 years ago will not now look nearly as critical as they did.

One problem that the Senator from Colorado mentioned which concerns me more than any other is not the election of a “minority President," because, as you pointed out, we've had several plurality Presi. dents, but rather the election of a nonplurality President, a "minority President" in the more traditional sense.

Senator DOMINICK. A true “minority President."
Senator BAYH. The true “minority President.”
Senator DOMINICK. There has only been one.
Senator Bays. Pardon me.

Senator DOMINICK. There's only been one in the history of the country.

Senator Bay. There has been one. However there have been two others, where contingencies have caused nonplurality Presidents. We had a real close shave in 1948, to give you an example of what the problem might be. As I am sure you are aware, President Truman ran 2 million votes ahead of Governor Dewey and yet if there had been a change of 30,000 votes in three key States, Governor Dewey would have been President.

Now, I think this type of catastrophe is what we hope to avoid. I know of no plan that really guarantees us and protects us from this except the direct vote.

Senator DOMINICK. I might interpolate facetiously that I am not sure Governor Dewey being President would have been a catastrophe.

Senator BAYH. I would share that interpretation, but I would also suggest that the present President made a statement in the closing days of the campaign in which he emphasized, I think correctly so, that it would be extremely difficult for a President of the United States to govern this Nation in this day and age if we were not the choice of a majority-of a plurality of the people.

Senator DOMINICK. Plurality. I would agree.

Senator Bayh. It is this weakness, really, of the proportional plan and the district plan that concerns me more than any other. I don't know whether the Senate has any comment as to how this can be avoided, because I know of no way you can guarantee that the man that has the most votes is elected President under either one of those proposals.

Senator DOMINICK. I don't believe that you can. I would agree with you. Once you have electoral votes specified to a State on the basis of their Congressmen and their Senators, either one of the plans has the possibility at least of having a minority person or a nonplurality person made President. But I would say to you that this is because of the centralization of populations in large cities where you may have an enormous vote.

Now, there is this mitigating circumstance. Under the one man-one vote rule, which we have been following for not only State legislatures but in the congressional districts recently, your congressional districts as a whole will represent an average of the population divided by the number of people in the House. Consequently, you should have a reflection on that basis of the popular vote in those districts much more evenly than in the past.

Senator BayH. By the figures in your statement, you showed that the return by the district plan in 1960 would have been difficult despite the fact that President Kennedy had a narrow majority. He would have had a rather significant minority under the district plan so that

Senator DOMINICK. That is very true. This I would presume once again is because some of the districts at that time were probably not portioned correctly. I know that some of them in Texas were not at that time, and some of them in Illinois were not. They were not representative of the average figure per congressional district. It is my recollection that that average figure on a population basis is now about 485,000 people per district. I very much doubt whether those districts were that way. In fact, I know they were not. They were not even in our own State. Congressman Aspinall's district in 1960 at that point had about 181,000 people in it, whereas any district which I represented had 700,000, and we got a reapportionment of our districts after that time.

Senator Bayh. Well, I know you have other hearings to go to, and I don't want to prolong this. We will have a chance I hope to discuss this, if not further in committee, on the floor. I look forward to discussing it with you personally. I might suggest that we are going to have to give attention, it seems to me, to this whole problem of the Federal City complex because it is a matter of some concern. I for one don't see how we can deny to an area that has more people a larger voice. The question is how large that voice is.

I would just invite your attention, without getting at all argumentative to the fact that those who have the advantage under the present system are going to have to be convinced that there is going to be compensating factors or they are not going to give up. If not, we are going to end up with no change at all. This is a problem which concerns me, despite the fact we all want change. As I view the way the present system actually works, it will be harder to get large States to give up the present system than to get the small States to give it up.

Now, I just ask you to consider that a large city like Chicago or New York under the present system, in addition to casting the millions of votes of people who live in the city area; the unit rule also cast the votes for the country area as well. The upstate areas of New York and the downstate areas of Illinois. For that reason I think they will be reluctant, unless we can get some basic reform, to give up this advantage that they have under the present system.

Senator DOMINICK. Well, this, of course, is why I said so many millions of voters are effectively disenfranchised by this unit rule system.

Senator BayH. But see, we have to have some compensating factor. If those States that presently have an advantage under the unit rule are going to give up this advantage, we have to sort of weigh this off.

Senator DOMINICK. Yes; I can understand that problem, and that is a very practical political problem in getting any kind of a bill through the Senate. I realize that, too.

Senator Bayh. I appreciate very much your taking the time to come, Senator Dominick. We are going to have to study this, all of us, and hopefully we can get some change. I ask that your complete statement be printed at this point in the record.

Senator DOMINICK. Thank you, Mr. Chairman.

STATEMENT OF SENATOR PETER H. DOMINICK, BEFORE THE SENATE SUBCOMMITTEE

ON CONSTITUTIONAL AMENDMENTS

ELECTORAL COLLEGE REFORMS

Thank you, Mr. Chairman, my fellow colleagues on the Subcommittee. Thank you for allowing me the opportunity of appearing before you.

The recent election has raised more strongly than ever the general demands for reform of our Electoral System. The manner of selection of the highest Executive office in this land has come under severe criticism from broad elements across our Nation. The interest in Colorado is great. I would like to express some of my views to the Subcommittee as I see the relationship of the smaller Western States to this problem and particularly the relationship of Colorado.

As the Committee is aware, I am a co-sponsor of both Senator Mundt's district plan and Senator Ervin's and Senator Sparkman's proportional plan. I am strongly opposed to complete abolition of the Electoral System at this point in our Nation's history, but I do favor revisions in that system. There is no clear indication that abolition of the system is necessary in order to correct the primary objections. This may be likened to cutting off a head to cure a ruptured appendix. Any plan calling for direct popular election is fraught with difficulties which may prevent its ratification by three fourths (34) of the states. Certain reforms are

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clearly necessary such as the problem of the "faithless elector" and the contingent election of a President and Vice President by the separate houses of Congress. The Unit Rule of casting electoral votes should also come under intensive scrutiny by this Subcommittee, as I am confident it will.

I desire to point out to this Subcommittee at the outset my basic objection to any plan adopting a direct popular vote.

Such a plan will give the Federal-City complex an even greater influence and control of the election of the President and Vice President and reduce substantially the influence of the smaller states. The present system is weighted in favor of the large industrial states and particularly the major seven states of California, New York, Pennsylvania, Ohio, Illinois, Texas, and Michigan. The direct popular vote would give greater influence to the major urban cities in those and other states. Such influence would attract those interested largely in power. Certain of those cities now are, or have been in the past, controlled by city “bosses" who pledge to "deliver" the vote for candidates of their choice and who have the machinery to do so. Tammany Hall still exists though such men as Carmen de Sapio are gone from those halls. This contingency is a serious threat to the smaller states as many do not have total population equal to that of one of the major cities such as Los Angeles, Chicago, or New York.

Because of the demands on a major candidate's time, and the expense of a national campaign, these smaller states not only may not see or hear the major candidate, but also television and press coverage may be more limited. Millions were spent on the Presidential campaign in 1968. I fear much more will have to be spent in a direct popular election. The key to any direct popular vote plan is a fully informed electorate. The best medium appears to be television and such time, as we well know, is very expensive. Campaign expenses must be dealt with extensively to make any such plan fair and representative.

I am sure this Subcommittee is aware of these problems.

Further, each of us as members of Congress must proceed with great caution not to upset drastically the balance of influence between the smaller states and the large urban centers. The direct popular vote plan with its increased influence through a Federal-City complex cannot, at this point in our history, maintain the delicate checks and balances between the smaller states and the larger states. This is not a state sovereignty vs. Federal Government problem, but a shift of influence from the large state to the large city. The large urban city is more subject to control by "political machines.” Under the present system, as well as the proposed district and proportional plans, the out-state areas can still exert balancing influence on the large urban centers because they do not lend themselves as readily to central political control. Regional and rural influences may still be heard. Although any system is weighted to favor the large populous areas, we should not totally ignore the historical development of our Presidential election machinery which maintains a modicum of balance between large and small states.

Reform, however, is necessary and vital to the stability of our electoral proc. ess. This Congress will hopefully correct the serious threats and criticisms of our process.

These principal threats are:

1. Correcting and eliminating the hazard of the "faithless elector" or a group of such electors acting in concert.

2. Divising an alternative means of electing a President in the event of a tie or lack of a majority or plurality of the electoral vote. This would involve a run-off election or a joint session of the House and Senate voting as individual members for a President and Vice President together. The possibility of a deadlock, delay, or a Vice President from the opposite political persuasion is not relished by any segment of our society.

3. Revision of the Unit Rule concept of casting electoral ballots. Such gross disenfranchisement of a great segment of the voters cannot be condoned.

4. Insuring that the nominee of a party be listed at the head of his party ballot in every state.

The first practical problem presented by a direct popular vote plan is Fed. eralization of voting requisites regarding age. Such requisites are now controlled by the states, and range from 18 years to 21 years of age. The issue presented is not the Constitutional issue of 18 year olds voting. As the Senators are aware, I have been a strong proponent of reducing the voting age to 18 years of age and making this standard across our Nation. Differential in age limita

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