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(S.J. Res. 4, 91st Cong., first sess.)

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

relating to the election of the President and Vice President Resowed by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring there. in), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE — "SECTION 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during a term of four years, and together with the Vice President, chosen for the same term, be elected as provided in this Constitution. No person constitutionally ineligible for the office of President shall be eligible for that of Vice President of the United States.

"Each State shall be entitled to cast for President and Vice President a number of electoral votes equal to the whole number of Senators and Representatives to which such State may be entitled in the Congress. Such electoral votes shall be cast, in the manner provided by section 3 of this article, upon the basis of an election in which the people of such State shall cast their votes for President and for Vice President. The voters in each State in any such election shall have the qualifications requisite for persons voting for members of the most numerous branch of the State legislature.

"The Congress shall determine the time of such election, which shall be the same throughout the United States. Until otherwise determined by the Congress, such election shall be held on the Tuesday next after the first Monday in November of the year preceding the year in which the regular term of the President is to begin.

"SEC. 2. In such election within any State, each voter by one ballot shall cast his vote for President, and his vote for Vice President. The name of any person may be placed upon any ballot for President or for Vice President only with the consent of such person.

*Within forty-five days after the election, or at such time as the Congress shall direct, the official custodian of the election returns of each State shall prepare, sign, certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate, a list of all persons for whom votes were cast for President and a separate list of all persons for whom votes were cast for Vice President. Upon each such list there shall be entered the number of votes cast for each person whose name appears thereon, and the total number of votes cast in such State for all persons whose names appear thereon.

"SEC. 3. On the 6th day of January following the election, unless the Congress by law appoints a different day not earlier than the 4th day of January and not later than the 10th day of January, the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the electoral votes shall then be counted. Each person for whom votes were cast for President in each State shall be credited with such proportion of the electoral votes thereof as he received of the total vote of the electors therein for President, and each person for whom votes were cast for Vice President in each State shall be credited with such proportion of the electoral votes thereof as he received of the total vote of the electors therein for Vice President. In making the computations, fractional numbers less than one-thousandth shall be disregarded. The person having the greatest number of electoral votes for President shall be President, if such number be at least 40 per centum of the whole number of such electoral votes. If no person has at least 40 per centum of the whole number of electoral votes, then from the persons having the three highest number of electoral votes for President, the Senate and the House of Representatives sitting in joint session shall choose immediately, by ballot, the President. A majority of the votes of the combined authorized membership of the Senate and the House of Representatives shall be necessary for a choice.

"The Vice President shall be likewise elected, at the same time and in the same manner and subject to the same provisions, as the President, but no person constitutionally ineligible for the office of President shall be eligible to that of Vice President of the United States.

"SEC. 4. If, at the time fixed for the counting of the electoral votes as provided in section 3, the presidential candidate who would have been entitled to receive a majority of the electoral votes for President has died, the vice-presidential candidate who is entitled to receive the majority of the electoral votes for Vice President shall become President-elect.

"Sec. 5. The Congress may by law provide for the case of the death of any of the persons from whom the Senate and House of Representatives may choose a President or a Vice President whenever the right of choice shall have devolved upon them, and for the case of death of both the presidential and vice-presidential candidates who, except for their death, would have been entitled to become President and Vice President.

"Sec. 6. The first, second, third, and fourth paragraphs of section 1, article II, of the Constitution, the twelfth article of amendment to the Constitution, and section 4 of the twentieth article of amendment to the Constitution, are hereby repealed.

"Sec. 7. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the States within seven years from the date of its submission to the States by the Congress."

Senator Bays. Thank you very much, Senator Holland. Do you have time to go to colloquy? I see my colleague from Nebraska has been making some notes as I have. Perhaps you would like to expand on your testimony if time permits.

Senator HOLLAND. I would be happy to expand at any length that you desire me to do so. I am happy that you have that desire.

Senator Bayh. I would just like to say that my colleague knows that I do not completely concur in his analysis, just as he does not com

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pletely concur in mine, but that certainly we respect the faith of our opposite views, and the sincerity of purpose.

I note that in the closing paragraph you specified the whole basis for these hearings. I concur completely with your statement:

Mr. Chairman, there will never be a better time than the present to completely overhaul the ancient and outworn machinery now provided for in the election of the President and Vice President. This is and should be a bipartisan effort.

To that I say Amen. We can only be successful if we approach it in this manner. I also heartily concur in the assessment you make of the dangers involved in the present system in which the electors have the opportunity to affect the system as they now have, through independent judgment.

I must say that although I am sure I do not argue the same points as my friend from Florida, I agree with your analysis of the President's statement. I agree with part of it and I disagree with part of it. I would like to suggest that perhaps the record may need modification since my friend from Florida may not want to confine his disagreement to the President's runoff provision. We should also look at the very initial statement in which the President said:

I have not abandoned my personnal feelings stated in October and November of 1968 that the candidate who wins the most popular votes should become President.

Senator HOLLAND. I saw that with interest, and that showed that the President's interest in practical politics has not changed. Whether the Nation would be sounder constitutionally, he does not go into, and there are many people who believe in practical politics that tend to support the popular election system, and I must say that there is a great temptation presented to the Senator from Florida to do that, because his State, as is true of the State so ably represented by the Senator from Indiana, would gain weight. We are among the relatively small number of States that would gain weight. Indiana would gain 8.5 percent based on the 1960 census, and Florida 7.7.

Of course Florida's gain would be a great deal greater based upon its present population and based upon the population of the next census, but the Senator from Florida believes so strongly in the retention of the counting of the weight of the State as a State the counting of its statehood as something that should be always represented in the selection of President and Vice President, that he is not overtempted by the fact just stated, and he feels that the proportional method is much the sounder, as it will allow every voter in his State and in the State of Indiana and in every other State to have his vote counted in the final countoff.

Senator Bayh. Of course I do not propose this system because I feel my State would gain, nor yours. Frankly I think if you look at the practical aspect of the thing, it would probably lose a little bit because of the influence we now have under the unit rule system. This has been argued both ways. There is plenty of room for disagreement as to whether the large States or the small States now have a practical advantage with the unit rule.

I have heard it argued that the proportionate system-as I recall the President himself presented the argument as one of the reasons for his recommendation-more nearly approximates the popular vote. Do you suggest this is an asset and an attribute?

Senator HOLLAND. That is an asset. It does count the popular vote, but it still allows the popular vote in each State to be counted against the electoral vote weight value from that State, still believing that the States as sovereign units of Government should be, as they have been since the beginning, allowed to count in this selection of a President and Vice President."

Senator Bayh. That criterion, the nearness to conforming to popular vote, recommends the system more highly to me than the present system. However, it does not assure us that the man who sits in the White House is the man who received the most popular votes. My principal reason for supporting the popular vote is that it is the only system that guarantees that the man who sits in the White House is going to have received the most votes.

Now the proportionate system, the district system, and other electoral alternatives that have been suggested in good faith by some of our colleagues in the Senate and House do not provide this guarantee. I am extremely concerned about that. In the times in which we live, and in which large numbers of our young people, particularly, are looking at our system very critically, and we talk about democracy and the representative form of government and the people having the opportunity to make the choice, and I am extremely concerned about the impact that the election of a President who has fewer votes than the man he runs against would have on these people, on the stability of our Government at home. I think the statement that the President made some time in late October to the effect that it would be impossible to govern or extremely untenable to govern if you did not have more votes than the man he is running against, that this is the real number one problem with our present system.

With all due respect to my friend from Florida, his system does not guarantee other results. Now I do not know whether he has a variation of his system that would guarantee that the man who wins has the most votes. This is, as I see it, the number one criterion in all elections in the country, except for the President and Vice President.

Sentor HOLLAND. Well, I respect the Senator's opinion. I think that it is wholly important to continue to respect the authority and the election law matters of the various States. The Senator knows how divided the States are, for instance, on the single question of the age, the appropriate age for electors. There has not been a single State since Kentucky went on the 18-year level, other than the two new States, one of whom came in with a 19-year level and the other with 20, there has not been a single State of the older States, the older 48, that has had this question suggested to it of lowering the voting age, but has turned it down.

My recollection is there are about 11 of those that have done so, and they have gone all the way from large States, Michigan, for instance, New York in a less direct way, because it was a feature only in a general constitutional revision, but many of them just on the single presentation of that question: Shall the voting age be decreased from 21, which was retained in most of those States as the age of majority, to

18, and some of them to a different age. There has not been a single State since Kentucky adopted the 18-year limit to reduce the age limit,

I do not want to see a federalization of this matter, which I am sure would follow the adoption of the amendment proposing a popular election, because obviously the people of Florida, for instance, the State which I represent in part, which has a 21 age limit, would look across the imaginary line which divides them from Georgia, which has an 18year age limit, and would see Georgia citizens counted disproportionately to Florida citizens in the matter of election of President and Vice President.

Senator BAYH. Of course that does not

Senator HOLLAND. The question is whether we want federalization of our election machinery, which was very jealously kept within the States by the Founding Fathers. I am one of those who does not want to see that additional federalization. We have had too much of it already. We have had too much centralized government in my humble opinion, and that I think would follow as night follows day, if the popular election of President and Vice President became the constitutional method.

Senator Bayh. This would be up to the States. There is nothing in the amendment that would necessarily reach this conclusion. The subject that concerns me, upon which I wanted to see if the Senator had any further opinions, was this matter of always electing a President who has more votes than the man he is running against.

Senator HOLLAND. He might have more votes growing entirely out of the difference between the voting age in the various States, in the event of a close election, and that would not be a very satisfactory result, if I may say to my distinguished friend.

In the event of a close popular election, it might easily be based on the question of different voting ages or different registration requirements or different absentee voting laws, or different residential requirements for qualification as voters, and any of those results in a very close election might come about, and they would not at all necessarily represent a popular favoritism for the man.

Senator Bayh. It would represent the most votes being cast for one candidate. I might call my colleague's attention to the 1968 election. The States of Virginia and Missouri both were entitled to 12 electoral votes. Under the proportional system, although President Nixon got 43 percent of the vote in Virginia, and Vice President Humphrey got 43 percent of the vote in Missouri, entitling each of the men in question to get 5.2 percent of the electoral votes of those respective states, Mr. Humphrey was required to get almost 200,000 more votes on the popular scale, to be entitled to the same number of electoral votes. That 200,000 is twice the difference between Mr. Nixon and Mr. Kennedy in 1960.

So just looking at the one problem, how do we explain to our young people, our concerned citizens, and the world a system which we suggest they follow, where the people are to make the choice, but it has built into it this disparity, which invites the election of a man who has fewer votes than the man he is running against. In my judgment that is asking for tragedy in these times.

Senator HOLLAND. Well, may I say respectfully that it has not proved difficult for me to explain this to young people or old people.

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