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tions, it seems to me, is as discriminatory as race limitations. The problem is obtaining ratification from the necessary three-fourths (34) majority of the states. I would despair to see the needed reforms just mentioned fail because of this related problem. I would suggest to the Senators that the smaller states' concern with the Federal-City complex and the threat of control by "city bosses" and political machines with the resultant further erosion of the small states' influence on the election of the President in the direct popular plan may result in failure of three-fourths (34) of the states ratifying the amendment and the four particular reforms previously mentioned must be accomplished.
I will make a brief statement concerning the four critical problems of our present system, then address myself to a short consideration of the salient features of the district and proportional plans.
The "faithless elector" has just been considered by this body and I understand that the object of that debate, Dr. Bailey, is scheduled to appear before this Subcommittee. The real threat lies in a group of such electors acting in concert to throw the election into the House of Representatives. The spectre of “deals” rears its ugly head. Bargaining for the highest office in the land would seriously jeopardize the general acceptance of any winner, and may further result in frustrating the intent of the people. We must ask ourselves the question, would that man have the mandate necessary to govern and adequately exercise the powers of his office.
There is no longer any necessity for the office of elector. The office can be eliminated under the present system as well as the various proposals for revision. The elimination of the office does not require abolishment of the whole electoral system. There is a serious legal and Constitutional question, however, whether the states by law can require an elector to vote in a given manner under the present system. A Constitutional Amendment so binding an elector is a superfious appendage. The voters do not need an intermediary to exercise their judgment. This argument posed by proponents of the direct system is valid. It does not necessarily follow that the only method of election left is direct popular vote.
The contingency of the last election being thrown into the House under the present system was fraught with dangers, many real, others imagined. The fact remains that the clear possibility exists of substantial delay in selecting the President and a Vice President being selected from the opposite or even a minority party.
All proposals to reform the electoral college have included alternatives to correct these dangers. The two most significant would require the Senate and House to meet in joint session, each member having one vote, with a limit on the number of votes. The other proposal is a national run-off. The Subcommittee should consider carefully the time delay and cost involved in the latter proposal. Would additional campaigning be allowed ? Both proposals have merit.
We must further determine whether a majority is necessary under any system. A major argument of proponents of the direct popular vote is that a “minority President” may be elected under the present system. Minority as I am using the term means one who finishes second or below in the popular vote. This danger is caused by the Unit Rule, primarily.
The direct plan will not eliminate the possibility of a President with only a plurality vote. As a matter of fact, it may enhance this possibility by fractionalizing our two party system. The question is how large a plurality is neces. sary. Forty percent appears to be the magic figure adopted by the various amendments. This country has had only three “minority Presidents" under the present system, and only once, in 1876, did the winner's chief opponent receive an absolute majority. There have been, now, twelve "plurality" Presidents. Only one, President Lincoln in 1860, failed to receive forty percent of the popular vote. He received 39.79%.
This problem ties in directly with the Unit Rule. Certainly this Rule lends some influence to the smaller states, but lends greater influence to larger states. No President before President Nixon won the Presidency with less than a majority of the seven big states and their 210 electoral votes. This does not mitigate the fact that the Unit Rule is the most unfair, unrepresentative, undemocratic feature of our whole electoral system. The practice of casting the wbole block of votes of one state for a candidate who wins by one vote is not only antagonistic to the one vote one man rule, but effectively disenfranchises many voters in that state.
Again, however, abolishment of the Unit Rule does not require abolition of our whole electoral system. Such action may be compared to chopping off an arm to cure an infected finger.
I am a co-sponsor with Senator Mundt of S.J. Res. 12, calling for a district plan. The office of elector is retained with a binding declaration by the elector to vote for certain candidates for President and Vice President. It requires a majority of electoral votes. In any event no candidate receives a majority, the three highest are chosen and voted for by a joint session of the House and Senate, each member having one vote, three-fourths (84) being a quorum. If no person has received a majority after the fourth vote, the fifth ballot shall be taken on the two with the highest number of votes on the fourth ballot.
I also co-sponsored S. J. Res. 2 with Senator Ervin and Senator Sparkman. This plan calls for a proportional distribution of the electoral vote in each state based on the percentage of the popular vote received in that state. It wholly abolishes the office of elector and each state's votes are automatically cast on a percentage basis. A candidate must receive 40% of the total electoral vote. If not, the two highest shall be voted on by a joint session of the House and Senate, each Congressman having one vote.
Both provide for abolition of the Unit Rule. By retaining the electoral vote, they balance the small state-large city interests inherent in the direct plan.
They solve the problem of the "faithless elector". They prevent delay, stalemate and a Vice President from another party by providing for a joint session of the House and Senate, narrowing the candidates and limiting the number of votes.
Both would solve the four critical deficiencies of the present system previously pointed out. Each provides a more direct relationship to the popular vote by eliminating the Unit Rule, thus minimizing any possibility of a “Minority President."
I would point out one or two statistical facts in relation to the proposals and minor problems presented by each plan
Under a district plan in the 1960 and 1964 elections, the results would be different. This Subcommittee was given these figures by Mr. Neal R. Pierce, Political Editor of Congressional Quarterly, in hearings held in the 89th and 90th Congress. They appear on page 233 of the Hearing Record. Under a district plan, in 1960, President Kennedy would have received 244 electoral votes and President Nixon 279-270 votes being a majority. The result would have been changed from President Kennedy's 303 electoral votes to President Nixon's 219.
In 1964, the district plan would have given President Johnson 466 votes instead of 486, and Senator Goldwater 72 rather than 52.
No figures are yet available for 1968 by districts.
In 1960, under a proportional system, President Kennedy would have received 265,623 electoral votes and President Nixon 266,075. If only 40% were necessary, President Nixon would have been elected. In 1968, on a proportional system requiring 40%. 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.
I would point out under Senator Mundt's plan, S. J. Res. 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 has three votes. It minimizes the Unit Rule and retains the local and regional influence within each state, which I feel is so necessary to balance our system.
The proportional plan of Senator Ervin and Senator Sparkman, S. J. Res. 2, 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 wll receve a majority of the electoral vote. He may not receive even 40%, but this contingency is provided for. If a 40% plurality is an acceptable winning margin, the plurality issue is not critical.
I congratulate the Subcommittee and appreciate it giving me this opportunity. I commend the Senators and thank them for their attention to my remarks.
BREAKDOWN BY STATE UNDER PROPORTIONAL VOTE PLAN, 1968 ELECTION
bence where wwoon Bouwo
1.860 1. 281 1.750 1.818 17.880 2. 460 3. 960 1.248 2. 454 4. 326 3. 240 2. 393 1.228 11.492 4.940 3.672 2. 429 3.384 2. 820
. 546 5.670 3. 564 1. 548
2.272 12. 246 6. 539 4. 770 3.836 3. 942 2. 350 1.724 4. 190 4.606 8. 715 4. 150
.945 5. 388 2.024 2.990 1.425 2.084 7.832 2.072 19.049 5. 135 2. 236 11. 752
3.792 2.988 12. 731 1. 272 3.048 2. 132 4.158 9.975 2. 260 1.584 5. 208 4.059 2. 856 5. 748 1.674
1.680 3.091 10. 275
1.484 1. 305 3. 900 4, 248 3. 472 5. 316 1.065
Note: Number of votes required for 40-percent plurality, 215.20.
Senator BAYH. I notice that Senator Baker is here. Let me go ahead and read this statement while he is coming to the table. Would you mind? I know you are busy.
I'd just like to point out that today our subcommittee is resuming a study of what to my mind is one of the most pressing issues facing this Nation, namely, to determine the best method of electing the President and Vice President. I think most of us would argue that nothing short of the best method will be sufficient. We should never lose sight of that as we study our problem here. The stakes are great.
The vitality of our political institutions and their responsiveness to the needs of the American people is at stake. We are not going to have an easy time. I think our discussions already have brought this out.
James Wilson of Pennsylvania pointed out in the Constitutional Convention in Philadelphia that “This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we had to decide.”
Well, that was almost 200 years ago, and so it is similar today.
I feel that it would be less than honest for me as chairman of the subcommittee not to suggest that after 3 years of study I enter these hearings with some rather strong beliefs about the subject. I do believe that the direct popular election is the best system with no "ifs," "ands" or "buts,” and that there is little reason that the people of America should not be given an opportunity to elect their Presidents if they elect their county commissioners, their mayors, their Governors, their Senators, and their Congressmen. There have been 40 cosponsors join us on our proposal. We appreciate the effort that has been made by them and particularly the Senator from Tennessee, who is our next witness.
I would like to say that as the chairman of this subcommittee I believe I have a real responsibility to be objective. For this reason we are inviting all testimony we possibly can from proponents and opponents of all different plans. As I pointed out to Senator Dominick, the study of this whole problem for 3 years has caused this Senator to change his mind. When you actually examine the way the present system does in fact work at the precinct level, at the district level and at the State level, it looks much different than it does when you just give a cursory examination of it at the national level.
I am hopeful that we can bring a greater degree of expertise to these hearings. We want to take into consideration the 1968 elections. I think this will shed some further light on the severity of the problem as well as the complexity. There are cretain weaknesses disclosed. I think most people here can vividly recall the election of November 5. I remember the morning of November 6, because I was personally involved in a little confrontation. I was watching to see what the final returns would be. I recall watching one of the major television networks and at the specific moment that Vice President Humphrey conceded, or at least the computer said that he was going to lose Illinois and thus President Nixon was going to win it, thereby guaranteeing the electroral vote necessary; the very next picture flashed of the popular vote showed that by then Vice Humphrey had forged into a popular vote lead. In my judgment this would have been tragic. As President Nixon himself said, "I think that if the man who wins the popular vote is denied the Presidency, the man who gets the Presidency would have very great difficulty in governing." I think the basic principle we must assure, is a scheme that will give the Presidency to the man who has the most votes. There is only one plan that does that. It is the direct popular election. I will not go further because our friend from Tennessee is here and ready. I know he is busy. We will ask that my remarks be put in the record as if they had been read in full. We have several problems to deal with. I only touched on the one which appears most apparent and to have the greatest impact.
(Senator Bayh's statement in full follows:)
STATEMENT BY SENATOR BIRCH BAYH, CHAIRMAN OF THE SUBCOMMITTEE ON
CONSTITUTIONAL AMENDMENTS Today this Subcommittee resumes its study of what, to my mind, is one of the most pressing issues facing this Nation to determine the best method of electing the President and Vice President. Nothing short of the best method, it seems to me, will suffice. We ought never to lose sight of that for what is at stake here, plainly, is the vitality of our political institutions and their responsiveness to the needs of the American people.
We will not have an easy time reaching a determination. It was not easy for the Framers of the Constitution, As James Wilson of Pennsylvania pointed out:
“This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we had to decide." Resolving this difficulty, the Framers devised what Professor John Roche has aptly described as that "jerry-rigged electoral college compromise."
As one Senator I am something of a partisan in this matter. My views are known. I strongly believe that direct popular election is the best electoral system, with no "ifs," "ands," or "buts," and so I have introduced a proposed constitutional amendment, S.J. Res. 1, along with 40 cosponsors, to provide for the people to elect their President directly. As Chairman of this Subcommittee, however, I have an obligation to the members of my committee, to the Senate, and to the American people to present a record that encompasses the width and breadth of opinion on the question of electroal reform. And I intend to fulfill that obligation.
The purpose of these hearings, therefore, is to serve as a forum of discussion. Over the space of the past 242 years this Subcommittee has conducted a wide ranging study of our electoral process, hearing testimony from our colleagues in the Congress, numerous civic groups, and interested public spirited citizens. We have compiled a printed hearing record of more than 900 pages of quality testimony. It is a record of which this committee can be proud.
It is my hope that at this time we can accommodate the growing number of those who have an active interest in electoral reform and have not had an opportunity to testify previously. Secondly, I would like to see the record made as current as possible and so we are seeking information that, as a result of the 1968 election, may shed some further light on this whole matter.
At this point, I would like to offer my own views as to the lessons, if any, that can be learned from the 1968 election. It seems to be, that in 1968 we came as close as we safely could to demonstrating the basic structural weaknesses and defects in our present electoral machinery without having to experience the disastrous consequences of an electoral mishap.
First, for some time it was feared that despite his electoral majority, Mr. Nixon actually might poll fewer popular votes than Vice President Humphrey. In fact, I can vividly recall, early on the morning of November 6th as I sat glued to my television set awaiting the final election results, that at the very moment the computers predicted a Nixon electoral majority, Humphrey had forged ahead in the popular balloting.
Along with millions of other concerned citizens, I viewed with great alarm the prospect of a minority President. Fortunately, we narrowly escaped that danger but the scare was sufficient to make the average American sit up and take notice of our hit-and-miss electoral machinery. At a time of great international tensions and pressing problems at home, with so evident a need for strong Presidential leadership, it would have been ironic indeed if the President-elect was not the choice of the American people. As President Kennedy was often heard to remark, the closeness of the popular vote in the 1960 election seemed to hamper Presidential efforts to attack the problems of our nation head-on. During the campaign, President Nixon took this thought one step further and said "that if the man who wins the popular vote is denied the Presidency, the man who gets the Presidency would have very great difficulty in governing."
Second, I am sure we can all recall the speculation that was rife about what would happen in the event no candidate received an electoral majority. Throughout the campaign, the political pundits pointed out that this, in fact, appeared to be the very purpose of the Wallace candidacy. If this strategy proved successful, the American Independent Party would then have held the balance-of-power when the victorious slates of electors convened in their state capitols on December 16th. On the basis of pre-election polls, some showing Wallace with as much as