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Even back in 1960, had John Kennedy been elected President by means of big State electoral votes while losing the popular vote-which could have happened with a shift of less than 150,000 votes out of nearly 70 million cast-or had he been denied the Presidency by the withholding of Southern and border State electoral votes while winning the popular vote which could have happened with a shift of less than 12,000 votes in five States—the deeply divisive religious bitterness and suspicions aroused in that campaign would surely have continued to plague the country as either Catholics or non-Catholics charged the other with conspiracy and coercive voting.
Why continue to take this risk? The original purposes and premises of our presidential electoral system are no longer valid. It was devised long before our present levels of education, transportation, communi. cation and political sophistication permitted its authors to have the kind of confidence they would have today in the average voter's ability to choose wisely between candidates from States other than his own. It was favored by small States as a boon to their influence but has actually benefited the large. It was favored by Southern States when their black populations lacked the franchise they now increasingly exercise. It assumed, contrary to present practice, that independent, nonpartisan electors chosen by State legislatures would be solemnly meeting separately in each State unaware of how other electors were voting. It did not contemplate rapid changes in population between the congressional reapportionments following each decennial census, nor did it contemplate presidential conventions and campaigns.
My law practice takes me to many countries; and I have found it difficult to explain even to the best informed government officials in those countries the discrepancy between our professed beliefs and our presidential elector system:
We profess to believe in popular rule; but because electoral votes are not directly proportional to popular votes and each State votes as a unit, the present system can elect, and has elected, a President who lacked even a plurality of the popular vote.
We profess to believe in democracy as well as being a republic, and I do not mean a democracy according to the 1928 campaign manual, but we continue a system which was originated to concentrate basic political power in the hands of an affluent, well educated elite and which today permits a faithless few in a faceless body to defy the public will in order to bargain for private gain.
We profess to believe in majority rule, not in abolition of the rights of a minority, but in accomplishing and electing by majority rule, but even in a two-man presidential contest, a candidate receiving 21 percent of the vote so distributed as to give him a majority in States with only 41 percent of the vote would achieve an electoral vote victory; and when an election is thrown into the House of Representatives, victory can be achieved by obtaining a majority of congressmen within each of 26 States representing only 17 percent of the population.
We profess to believe in equality at the polls; but the voter in Alaska has more than five times as much weight in electing a President as the voter in California.
We profess that the Presidency is the one offce representing all of the people; but its occupant is not directly elected by the people and may feel politically obligated to prefer some States over others.
We profess to encourage all citizens to vote; but a citizen who stays home on election day is included equally with the citizen who casts his ballot in computing that State's electoral vote.
Under the present system, the election of a President who loses the popular vote is not a remote possibility. It happened in 1888; it happened under special circumstances in 1824 and 1876; and it very nearly happened in 1900, 1912, 1916, and in five out of our last eight presidential elections in 1940, 1944, 1948, 1960 and 1968.
Under the present system, an elector is free to disregard his obligation to the voters; and a Congressman, if the election is thrown into the House, is forced to disregard his obligation to either his party, or his State, or his constituents, or his conscience unless by sheer chance they all agreed.
Under the present system, third parties with no prospects of receiving a mandate from the people are encouraged to seek their own electors or unpledged electors for the sole purpose of weakening the twoparty system by maneuvering in the electoral college.
Under the present system, a legislature-dissatisfied with the prospective or even actual results in its State—could ignore the voters and select electors of its own liking. This was actually attempted in the Louisiana Legislature in 1960.
Under the present system, a presidential election thrown into the House could be blocked if one party prevented the presence of a quorum; or if there were a 25–25 tie; or if several States, being equally divided, cast no vote and as a result no candidate received the necessary 26 votes.
Éven the Senate's selection of a Vice President could then be blocked by the absence of a quorum or a 50-50 tie.
Under the present system, up to 10 percent of all electoral votesor roughly one-fifth of the total required by a winning candidate can be shifted by the political leaders of one State from one candidate's column into another by shifting a few thousand votes, an unwarranted temptation to corruption.
It has been argued this morning and earlier by those with rural, conservative or small State interests that the present system works to their advantage because every State, regardless of size, receives two electoral votes for its Senators. It has been argued by those with urban, liberal or large State interests that the present system works to their advantage because the winner-take-all or unit rule practice requires a candidate to focus undue attention on those voter concentrations in the big States and big cities that can swing an entire bloc of electoral votes into his column. Both sides are right; but the result is wrong.
In providing for the direct election of Senators under the 17th amendment, this Nation forgot about small counties versus large counties, rural citizens versus urban citizens, liberal voters versus conservative voters. It chose instead the fairest, simplest, most demoeratic method. As the proud native son of a small State, the State of Nebraska, and the proud citizen today of a large State, the State of New York, I would gladly forgo the small State's supposed advantage and the large State's supposed advantage, in order to achieve the only true democratic standard, a direct popular election in which each citizen of every State, regardless of size, has an equal voice and vote.
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Under a direct popular election of our President and Vice President, and only under such a system, we can be certain
That no man could be elected President receiving fewer votes than his opponent;
That no citizen's vote would be discounted or have more weight than any other;
That election results could not be distorted by faithless electors, by out-of-date census figures, or by a one-State, one-vote ballot in the House;
That every citizen would have reason to vote for President, even if his State or district should be dominated by the opposite party, just as he now votes directly for every other office; and, finally,
That presidential campaigns and presidential-vice presidential tickets would be devised for their appeal to all voters in all States without extra emphasis to large States and without an extra bonus for small States; 350,000 people in Omaha, Nebr., for example, would have the same influence and importance as 350,000
people in Oakland, Calif. Opponents of the direct election of Presidents often cite the words of Senator John F. Kennedy in opposition to this proposal in 1956. Inasmuch as I had some connection with those statements, I should point out that Senator Kennedy, as a Senator from a populous State, was defending the big-State preference inherent in the present system; that he felt obligated to oppose all changes in order to maximize the opposition he was leading to the proportional and district division schemes which had a real prospect of passage that year whereas direct elections had none anyway; that he spoke of maintaining the balance of an entire “solar system” of advantages and disadvantages in our political system, in which the urban advantage in the electoral college was needed to offset the rural advantage in the House of Representatives, the latter not then having been emasculated by the Supreme Court's one-man, one-vote decision; and, finally, that he spoke before the 1960 and 1968 elections provided us with not only examples of faithless and unpledged electors but electoral vote results so close as to bring us to the brink of constitutional crisis.
I realize that the direct popular vote is not the only alternative. But to retain the present system of electoral votes while splitting each State's votes along proportional or congressional district lines would only add further distortions to those presently threatening an undemocratic result.
I prefer the present system either to the district or proportional systems because they would be a step backward.
I realize also that the possibilities of corruption and uncertainty will exist under any system; but they are best confronted in a system that is fundamentally democratic, easily understood and applied to every other election in the country.
To achieve this critically needed reform, I urge this subcommittee to report as clean and simple an amendment as possible. I do not believe that a runoff provision or a 40-percent plurality is absolutely essential; or that the problems inherent in a national primary system have yet been overcome; or that it is necessary to include in this amend
ment controversies over national voting standards. I do believe in the words of Lincoln's first inaugural:
This country, with its institutions, belongs to the people who inhabit it * * * Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?
Senator Bays. Thank you very much, Mr. Sorensen. I must say that was a very compelling and concise argument supporting the direct election proposal. Senator Ervin, do you have any questions you would like to ask?
Senator ERVIN. Mr. Sorensen, it seems to me you conjure up a lot of possibilities that could happen under the present system which have never happened. It is easy enough to conjure up some possibilities that could happen under a popular election system, is it not? Mr. SORENSEN. Of course it is, Senator.
Senator ERVIN. In other words, it is possible under a popular election system that a President could be selected by the one voter, he casting the determining majority vote of one, and that his vote was either purchased or it was coerced against his will or that it was even a vote of a dead man who had been fraudulently voted under an absentee voting law.
Mr. SORENSEN. Senator, that is true in the election of Senators, Congressmen, Governors, and everyone else, and since we have experience with that system, it seems to me we ought to be able to share that experience in a presidential election.
Senator ERVIN. Well, I had a man tell me one time, he was in a certain large city, and the same thing could happen in an urban area, and said he was a stranger there, he was not even registered to vote, he was not even a resident of the State, but he was hauled around different precincts of the city and paid a dollar every time he cast a vote in the name of somebody else and he managed, he said, to make $17 that day by voting fraudulently in 17 precincts, and it is possible under that kind of a system, a popular election system, that a man like that could have given a President a majority by having him vote in that way.
Mr. SORENSEN. Yes, Senator; I have even heard in Southern States where that has happened in election for Senators.
Senator Ervix. I have heard about that in Northern and Western States.
Mr. SORENSEN. Exactly. My point is since it is going on now, we ought to root out political corruption everywhere, but do not deny people their rights.
Senator ERVIN. But the question, the thing I am just replying to, the fact that you are a very brilliant man, you have very brilliantly conjured up a lot of possibilities that could happen under the present system, and I could conjure up a lot that could happen under the new system.
But would not your ideas, carried to the logical conclusion, that is, which is a one-man, one-vote system throughout the country, would it not require an abolition of the Senate in order to carry your ideas to the logical—their logical conclusion?
Mr. SORENSEN. But no one is suggesting carrying it to any more conclusions, Senator. I am suggesting that it would be applied to
the presidency which should be an office representing the people. I am very much in favor of the federal system, and the federal system is preserved in our Constitution through the Senate and through the establishment of State units with governors. But I am frank to say that the fact that the electoral vote is divided according to States does not preserve the federal system in the slightest. No State has its power increased by the fact that its electors vote separately in the electoral college. States' rights, I am inclined to agree with you and Senator Thurmond, have been eroded over the years as the centralization of the government in Washington has increased. But the electoral college has neither prevented nor contributed to that.
Senator ERVIN. Take a State like Wyoming which has two Senators and one Congressman. Its powers certainly would be reduced. Whether it is wise_
Mr. SORENSEN. No, it would not, Senator. No, I must say, having been through some presidential campaigns, that Wyoming today has considerably less influence than it would have in a popular-vote election. The concentration today is necessarily on the large States, and, as I said, Omaha Nebr., today certainly is not given the same kind of treatment as Oakland, Calif., even though they are the same population.
Senator ERVIN. Mr. Sorensen, how do you reach the conclusion that a State which now has two Senators and one Congressman and now has three electoral votes, that its power, its voice in the selection of a President would not be diminished by the abolition of the electoral vote system?
Mr. SORENSEN. Because the present system necessarily, as has been pointed out earlier, provides—requires the presidential candidate in selecting his vice president and in mapping out his campaign to pay more attention to the large States than—and with the large electoral votes—than with the small States.
Senator ERVIN. Is there any reasonable prospect that that would be altered if the popular vote system was adopted ?
Mr. SORENSEN. Yes.
Senator ERVIN. Because still the most votes are going to be in the most populous States, and the same incentive, the same incentive to campaign in those States would exist. Mr. SORENSEN. Not at all. Senator ERVIN. To get the most votes where the most voters are. Mr. SORENSEN. Not at all, Senator.
Senator ERVIN. And it would be less necessity for them to pay any attention to the smaller States.
Mr. SORENSEN. No, just the opposite. In Cheyenne, Wyo., let us sayI am sorry to say I do not know what the population of Cheyenne is, but let us say it has 350,000 people—very little attention is paid in campaigning in Cheyenne, Wyo., today even though it has 350,000 people, but a lot of attention is paid to campaigning in smaller areas, in New York State, because we are trying to get into the electoral vote column of the winning candidate that large electoral vote in the large State. But if we had a direct popular vote election, Cheyenne would be just as important as every other city of that size, the voters there would have just as much influence, they would be given just as much attention.
Senator ERVIN. Well, Mr. Sorensen, I have done a lot of campaigning myself, and for the Senate, in trying to get popular votes, and I