NATIONAL ELECTIONS VOTING HOURS REFORM (CONVENTION 1965)

Whereas There is speculation that the election reports given from one part of the United States before the polls are closed in another part of the United States affects the voting in these areas; and

Whereas The rapidity of modern communications has caused a new situation in our national elections with the result that voters, in an area where voting polls are still open, may know who is elected before they have cast their votes; and

Whereas Inequity in voting can only be corrected by achieving uniformity in the various time zones on days of national elections; therefore

Resolved, That the General Federation of Women's Clubs urges the Congress of the United States to enact legislation providing for the opening and closing of polls on national elections simultaneously throughout the United States, regardless of time zones.

HON. BIRCH BAYH,

AMERICAN BAR ASSOCIATION,

April 28, 1969.

Chairman, Senate Subcommittee on Constitutional Amendments, Old Senate Office Building, Washington, D.C.

DEAR SENATOR BAYH: The American Bar Association believes that electoral reform is one of the most vital issues facing the nation today. As you know, we participated in the extensive hearings of your subcommittee in the last Congress and presented witnesses on May 17, 1967.

The members of your subcommittee are, I think, thoroughly familiar with our recommendations for a constitutional amendment that would provide for direct popular election of the President and Vice President of the United States. In the interest of saving the time of the members of your subcommittee, we suggest that, rather than appearing before the subcommittee, a submission of a written statement along with a copy of the Electoral College Reform Commission report should be sufficient to explain our position. If, however, you desire the A sociation to provide witnesses, we should be pleased to comply.

With best wishes.
Sincerely,

WILLIAM T. GOSSETT.

STATEMENT OF WILLIAM T. GOSSETT, PRESIDENT OF THE AMERICAN BAR

ASSOCIATION

In an effort to develop a position on electoral reform, the American Bar Association decided in February 1966 to create a Commission to make a thorough study of the subject and seek a nonpartisan formula for electing the President and Vice President. The Association appointed fifteen persons to the Commission, representing different walks of life, professions and parts of the United States. The membership of the Commission consisted of governors, judges, lawyers, constitutional law authorities, political scientists, leaders of the bar and representatives of labor and management. I had the privilege of serving on the Commission.

In my view, Mr. Chairman, there is no more vital issue facing the Nation today than that of electoral reform. Our most recent presidential election surely demonstrated that the electoral college is potentially hazardous to our Nation. It also confirms the conclusion of the American Bar Association Commission on Electoral College Reform that "the electoral college method of electing a President of the United States is archaic, undemocratic, complex, ambiguous, indirect, and dangerous."

If there had been a shift of a relatively few popular votes in Ohio and Missouri, or if President Nixon had lost California, or if Mr. Wallace had carried three border states, no presidential candidate would have had a majority of the electoral votes. The choice of President would then have shifted to the electoral college, in which the electors pledged to George C. Wallace would have held the balance of power. Mr. Wallace certainly would have been tempted to play the role of a President-maker during the forty-one day period between election day and

1 American Bar Association, Report of the Commission on Electoral College Reform, "Electing the President," at 3-4.

the meeting of the electors. If Mr. Wallace should have decided against any such role and his electors had voted for him, then the choice of President would have shifted to the House of Representatives under an inequitable one state-one vote formula susceptible to political wheeling and dealing and frustration of the popular will. One can only speculate as to the outcome of an election by the House. The twenty-six least populated states, representing sixteen percent of the nation's total population, would have had the power to elect the President. It is conceivable that no candidate might have been able to obtain the votes of twentysix states by Inauguration Day and that in consequence a Vice President selected by the Senate would have had to assume the powers and duties of the President that day. It is also conceivable that the House and Senate might have selected a split ticket by Inauguration Day. It is also conceivable that neither House might have been able to make a choice, in which event the Speaker of the House of Representatives would have become the Acting President.

Had a deadlock occurred in the 1968 election, it could have had the most perilous of consequences for our country and the office of President. Yet, unless our system is changed, we will suffer the risk of such consequences in every future presidential election.

The subject of electoral reform is not new to this Committee or the Cogress. No sooner was the Constitution adopted than proposals were introduced in Congress to reform the electoral college. The first proposal was introduced in 1797. and since then more than 500 proposels have been offered. The major plans of reform pending before this Committee the district, proportional, automatic and direct vote plans-have their roots in proposals introduced in Congress during the nineteenth century.

Before discussing the recommendations of the American Bar Association. Mr. Chairman, I would like to review certain aspects of the electoral college system which, I believe, point the way to direct election as the best of all posible methods of electing the President.

The workings of the electoral college over the past 190 years show that it is sometihng completely different from that envisioned by the Framers. Thanks to the extraordinary notes of James Madison, we know that the Framers of the Constitution encountered much difficulty in deciding on a method of electing the President. More than fifteen different methods were proposed at the Constitutional Convention, including election by the Congress, the state legislatures, and the people. Some of these proposals were first adopted and then reconsidered and rejected. Among the supporters of popular vote were James Madison, “the masterbuilder of the Constitution," James Wilson, one of the great lawyers of his age. Gouverneur Morris of Pennsylvania, John Dickinson of Delaware and Daniel Carroll of Maryland.

3

Not until the final weeks of the Convention was the electoral college adopted. Election by Congress was rejected because it was felt that the President would be subservient to the legislative branch and it opened the door for “intrigue, cabal or faction." A direct vote by the people was criticized on the grounds that the people were too "uninformed" and would be "misled by a few designing men."* One delegate said that an election by the people would be like referring a “trial of colours to a blind man." What seemed to move the delegates to accept the electoral system were certain practical cosiderations, dictated not by political ideals but by the social realities of the time-realities that no longer exist. These were centered largely in the limited communications and relatively low literacy of the period, which made it virtually impossible for the people to know the candidates, rendered them subject to deception and would have inclined them to vote only for someone from their own state. This made it likely that the largest state, having the largest vote, usually would elect its candidate. On the other hand, the delegates assumed that the electors, to whom the people would delegate their franchise, would be the wise men of the community, with their disinterested role protected by the requirement that they not be officeholders or candidates. The Electoral College was thus envisioned by the Framers as a kind of elite gathering in which the most distinguished and talented persons in the various states would participate. These electors would deliberate and cast an informed and independent vote for President."

2 See Tienken, "Proposals to Reform our Electoral System," Library of Congress Legislative Reference Service 20 (1966).

3 See 1 Records of the Federal Convention of 1787, at 175 (M. Farrand ed. 1937) (hereafter "Farrand"); 2 Farrand 29, 34, 500.

42 Farrand 31, 114.

62 Farrand 31.

• See The Federalist No. 68.

Since it was felt that the large states would have considerable influence in the electoral voting, the Framers, in an effort to allay the fears of the small states, provided for the House of Representatives to choose the President, with each state having the same influence, where no candidate received a majority of the electoral votes. The Convention debates indicate that many of the Framers were of the view that most elections would be thrown into Congress.

We know that the design of the Framers in creating the electoral college was not fulfilled. Political parties appeared and the electors' role became a purely mechanical one of voting for their party's candidate. As they became partisan functionaries, their names and reputations became far less known to the citizens than those of the candidates. As a Committee of the Congress noted in 1826, electors "have degenerated into mere agents, in a case which requires no agency, and where the agent must be useless, if he is faithful, and dangerous, if he is not." "

Participation by the American people in presidential elections has come slowly. Since the Constitution left it to the states to determine the manner of selecting the electors, in the first eleven elections a number of states gave the right of choice to the members of their legislatures rather than to the people." It was not until late in the nineteenth century that every state had entrusted the right of choice to the people. Today, of course, due to state law, the people choose the electors, who are expected to register the will of their constituents in the electoral college.

Experience has shown, however, that the electoral college is riddled with defects which could operate to frustrate the will of the people.

First, it can happen that the popular will of the majority of the nation can be defeated by mathematical flukes. Under the winner-take-all or unit vote rule for allocating a state's electoral votes a candidate could win an electoral victory and yet receive fewer popular votes than his opponent. Success in twelve key states alone would give a candidate an electoral majority, regardless of his margin of victory in those states and regardless of whether he received any votes in the other thirty-eight states. Three times in our history-1824, 1876 and 1888-the popular vote loser was elected President. In fifteen elections a shift of less than one percent of the national vote cast would have made the popular-vote loser President. I think it would be tragic for the popular-vote winner to be rejected again, particularly since the people have come to measure a President's success by his popular vote margin. This aspect of the electoral college allowing for the election of the popular-vote loser violates our most fundamental principle of government by consent of the governed.

Second, it can happen that the choice of the President is thrown into the House of Representatives, where each state has but a single vote. While it has been 144 years since the House of Representatives has had to choose a President, we have had seven narrow escapes since then, including the elections of 1968, 1960 and 1948. A shift of less than one percent of the popular vote in a few key states would have thrown those elections into Congress, with the consequent risk of political deals and possibly the election of a President who was rejected by a majority of the voters. This feature of our system is clearly a political monstrosity, fully distorting the most elementary principles of self-government.

Third, presidential electors can take matters into their own hands and reject the will of the people who chose them. The so-called constitutional independence of electors can take various forms. It can take the form of pledged electors defecting, as in our most recent election, 1960, and 1956; of unpledged elector movements, as in 1960; or third party electors being instructed by their presidential candidate to vote for one of the major candidates. Under the electoral college system, the decision of the people is meaningless unless it is approved by, in effect, another body of government. Such a barrier between the people and their President is both anachronistic and abhorrent.

The electoral college system violates fundamental democratic principles in other ways:

S. Doc. No. 22, 19th Cong., first sess. 4 (1826).

In the period between 1812 and 1820. nine state legislatures chose the electors for their states. Six did so in 1824 and two in 1828. See C. Paullin, "Political Parties and Opinions, 1788-1930." in Atlas of the Historical Geography of the United States 88-89 (1932). John Quincy Adams, with fewer popular and electoral votes than Andrew Jackson, was chosen President by the House of Representatives in the election of 1824. In the election of 1876, Samuel J. Tilden lost the Presidency by one electoral vote, although he had over 250.000 popular votes more than Rutherford B. Hayes. In 1888, Benjamin Harrison defeated Grover Cleveland, who had 100,000 more popular votes.

The winner-take-all feature of the system suppresses at an intermediate stage all minority votes cast in a state. The winner of the most popular votes in a state, regardless of his percentage of the votes cast, receives all of that state's electoral votes." The votes for the losing candidates are in effect discarded while those for the winner are multiplied in value. As Senator Thomas Hart Benton stated in 1824 :

"To lose their votes, is the fate of all minorities, and it is their duty to submit; but this is not a case of votes lost, but of votes taken away, added to those of the majority, and given to a person to whom the minority is opposed.” “

The present system discriminates among voters on the basis of residence. While a small state voter might seem to enjoy an electoral vote advantage because his state receives two electoral votes regardless of size, a large state voter is able to influence more electoral votes, and it is in the large industrial states that presidential elections are usually won or lost. There is no sound reason why every citizen should not have an equal vote in the election of our one official who serves as the symbol and spokesman for all the people.

The electoral college system fails to reflect the actual strength of the vote turnout in each state. Under the system each state casts its assigned electoral votes regardless of voter turnout. Thus, voters in states where the turnout is small are given a premium. It is not uncommon to find a great disparity in the vote turnout in states having the same number of electoral votes."

To remedy these evils, the American Bar Association proposes a system of direct popular election, with the following major features:

A candidate must obtain at least forty percent of the popular vote to be elected President or Vice President. The ABA Commission felt that a majority vote requirement was not desirable because it would frequently happen that no candidate had a majority and therefore a second election would be required to decide the outcome. In this regard, it should be noted that one-third of our Presidents received less than a majority of the total popular vote cast." Additionally, the Commission felt that a majority vote requirement might encourage proliferation of the parties, since a small group might have the potential to cause the election to be resolved under the machinery established for a contingent election. In arriving at a forty percent plurality, the Commission was of the view that it was high enough to furnish a sufficient mandate for the Presidency and low enough so that the first election would decide the contest.

The ABA recommends that in the event no candidate receives at least forty percent of the popular vote, a national runoff should be held between the top two candidates. The Commission felt that a runoff was preferable to an election by Congress because it would avoid the possibility of political wheeling and dealing and assure the election of the popular vote winner. The Commission also believed that a national runoff, together with a forty percent plurality requirement, would operate to discourage proliferation of the parties. The Commission reasoned that it would rarely occur that no major candidate had at least forty percent, even with minor party candidates in the field. However, if that happened, the people would choose between the top two. As the Commission stated in its report:

"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

10 In the 1968 presidential election, for example, the winning percentage of the popular vote was less than 50 percent in 28 states with a total of 388 electoral votes, and less than 40 percent in four of those states.

11 41 Annals of Cong. 170 (1824).

12 In the election of 1968, in Illinois, over 668,000 more people voted than in Ohio although both states have twenty-six electoral votes; (2) almost 590,000 more people voted in Connecticut than in South Carolina and yet each had eight electoral votes, nullifying each other in the election; (3) Utah went Republican and cast 186,000 more votes than Hawaii which went Democratie; but each had the same electoral votes; (4) almost 125.000 more votes were cast in Virginia than in Georgia although each had twelve electoral votes: and (5) Californians cast almost 360,000 more votes than New Yorkers, yet New York had three more electoral votes than California.

13 These Presidents and their popular vote percentages are: John Quincy Adams in 1824 (31.9 percent); James K. Polk in 1844 (49.6 percent); Zachary Taylor in 1848 (47.3 percent); James C. Buchanan in 1856 (45.6 percent); Abraham Lincoln in 1860 (398 percent); Rutherford B. Hayes in 1876 (47.9 percent); James A. Garfield in 1880 (48.3 percent), Grover Cleveland in 1884 (48.5 percent); Benjamin Harrison in 1888 (47.8 percent), Grover Cleveland in 1892 (46.0 percent; Woodrow Wilson in 1912 (41.9 percent); Woodrow Wilson in 1916 (49.3 percent); Harry S. Truman in 1948 (49.6 percent); John F. Kennedy in 1960 (49.5 percent); and Richard M. Nixon in 1968 (43.4 percent).

influence of such a group would be asserted more effectively, as now, before the major party nominations and platforms are determined.'

99 14

We recommend that the President and Vice President be elected jointly. In other words, each voter would cast a single vote applicable to both offices. The purpose of this recommendation is to eliminate the possibility of a split ticket. The ABA recommends that Congress be empowered to establish the days for the original election and any runoff election, which days should be uniform throughout the United States. Under our recommendation, Congress would set the date for the election by statute, as it does at present. This recommendation is similar to what now appears in the Constitution with respect to Congress establishing the day on which the electors shall vote for President and Vice President."

Under our proposal the places and manner of holding presidential elections and the inclusion of the names of candidates on the ballot would be prescribed by the state legislatures, subject to a reserve power in Congress to make or alter such regulations. This is similar to provisions now in the Constitution governing elections for Representatives and Senators." The reason for giving Congress the residual power to legislate on the question of appearances on the ballot is to insure that the people of every state have the right to vote for major party candidates. We know from the elections of 1948, 1960 and 1964 that the electoral college can be manipulated in such a way as to deny citizens even an opportunity to cast an indirect vote for a major party candidate. Under the ABA recommendation, Congress would have the power to prevent a state from excluding the name of a major candidate from the ballot."

We also recommend that the qualifications for voting in a presidential election be the same as those for voting in a congressional election. Since the qualifications for voting for members of Congress are defined by state law and are tied with the qualifications for voting for members of the most numerous branch of the state legislatures, the Commission felt that this would make substantially uniform the voting qualifications in both federal and state elections. A state would be discouraged from relaxing its voting qualifications so as to gain some special advantage in a presidential election because the reduction would apply to other elections held within the state. Under the ABA's recommendation, states would be specifically authorized to establish special residence qualifications for voting in presidential elections. This recommendation is premised on the fact that a majority of the states have already passed laws relaxing the residence requirement and that such laws are desirable in this day of great mobility among our people. The Commission also recommended in the area of voting qualifications that Congress be given the reserve power to establish uniform age and residence qualifications." The Commission felt that Congress might not find it necessary to exercise this power in view of the substantial uniformity among the states in this area. However, the Commission felt that Congress should have the power to adopt uniform age and residence qualifications should the need ever arise for it to do so.

18

Finally, we recommend that a constitutional amendment on direct election embody the necessary provisions for remedying gaps caused by the death of a candidate. The Commission had no specific provisions to recommend in this area. I believe that various contingencies might best be dealt with by the amendment empowering Congress to provide for such cases by statute.

The advantages of direct popular election over other proposals are numerous. It is the only method that can assure that the candidate with the largest number of popular votes will be elected President. It is he only method that would eliminate once and for all the principal defects of our system: the "winner-take-all" feature and its cancellation of votes; the inequities arising from the formula for allocating electoral votes among the states; the anachronistic and dangerous office of presidential elector; and the archaic method by which contingent elections

14 "Electing the President," supra note 1, at 6.

25 U.S. Const. art. II, § 1.

18 U.S. Const. art. I, § 4.

17 See Williams v. Rhodes, 21 L. Ed 2d 24 (1968).

18 See R. Hupman and R. Tienken, "Nomination and Election of the President of the United States," U.S. Government Printing Office, pub. no. 3671, at 252-59 (Jan. 1968).

10 This recommendation was intended to be in addition to the powers Congress now has under the Constitution with respect to voting qualifications. See, e.g., Katzenbach v. Morgan, 384 U.S. 641 (1966).