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A replacement for the present system should meet several tests. First, there should be no intermediaries who might be "useless if faithful, dangerous if not."

Second, the new system should recognize the President as the leader of one nation. It should acknowledge the equal right of all Amercians to elect him without respect to their place of residence.

I feel the Senator from Tennessee hit on a critical election inequality which presently exists in pointing out the fact that many people are disfranchised because of certain residence requirements, many of them out of the country, in fact, and yet being citizens of this country.

Finally, Senator Muskie suggests that "The new systematic eliminator or dissolution of a vote once it has been cast” and I feel that these are three points well taken. I submit the whole statement. (Senator Muskie's statement follows:)


Washington, D.C., January 22, 1969.
Chairman, Subcommittee on Constitutional Amendments, Committee on the Judi.

ciary, U.S. Senate, Washington, D.O. DEAR BIRCH: I am enclosing a statement in support of S.J. Res. 1 which I should like to submit to the Subcommitee on Constitutional Amendments in lieu of my appearance during your current hearings on electoral reform.

I had hoped very much to appear in person to testify in support of this measure, as I consider electoral reform one of the most urgent issues this Congress will consider. However, previous commitments make it impossible for me to appear.

Thank you for your cooperation.
With all best wishes, I am



TIONAL AMENDMENTS OF THE COMMITTEE ON THE JUDICIARY, JANUARY 23, 1969 Mr. Chairman, the important question that each society must answer, Alexander Hamilton wrote, is "Whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force."

No serious man would term the American people "incapable" of making such a choice, yet because of an outmoded, undemocratic, and haphazard system of electing our President, we are insulated from a direct voice in the selection of our President.

According to Edward S. Corwin, we continue to rely “on the intervention of that providence which is said to have fools and the American people in its special care." We do depend on "accident and force."

Earlier this month, Congressman James O'Hara of Michigan and I attempted to remove one element of accident and force from the electoral college system by challenging the vote of Dr. Lloyd Bailey, the faithless elector from North Carolina. The failure of that attempt and the implications of Congress' decision for the future makes the effort to replace the electoral college by constitutional amendment all the more urgent.

The decision to sustain Dr. Bailey's action meant a further dilution of a tradition that was almost unchallenged until 1948—the tradition that electors on a party slate shall honor their party's candidate for President. There were many who felt that this commitment was binding in North Carolina because of that State's ballot law and that it should have been affirmed by Congress.

The action of Dr. Bailey in 1968 was the effort of a single elector to thwart the will of the people of his State. In 1960, however, the same gambit was tried on a much larger scale through the efforts of Mr. Lea Harris of Montgomery, Ala., and Mr. Henry Irwin, a Republican elector from the State of Oklahoma. Following the presidential election of that year, Messrs. Irwin and Harris circularized the Democratic electors of several Southern States and the Republican electors of several Northern States in an attempt to persuade them to withhold their votes from John Kennedy or Richard Nixon in order to exact from Kennedy promises of policies acceptable to this particular group, or, if sufficient strength was mustered, to elect another man of their own choosing.

Irwin and Harris could find no other electors willing to follow their lead, so only Irwin became a "faithless elector," casting his vote for Harry F. Byrd and Barry Goldwater. The two men circulated a memorandum following their failure in which they state: "We have a sizable list of well-wishers. ... Enough that if only a portion of them will get busy and start making their plans to become electors 4 years from now, we can definitely control the policies of the Government in 1964. ... Or appoint the President that year ... Just know the right people so that you may be selected in whichever way your State selects its electors."

Although this effort failed, and although the faithless electors of 1969 and 1968 did not change the final outcome of the clection, there is no question that a better organized effort or a closer margin in the electoral college could render the will of the people meaningless.

In fact, the anachronism of the electoral college accords a well-organized third party a disproportionate potential power. Had the margin in the electoral vote totals in the 1968 election produced a deadlock, with no candidate receiving a majority, the third party electors could have effectively eliminated the power of the voters to make a choice by voting for one of the major candidates in the electoral college.

Surely the American voter deserves a better chance to influence the outcome of the election.

A second fault with the electoral college is that it does not recognize the character of the office of the Presidency. Many of the proponents of preserving our current system of electing a President claim that it is designed to preserve the integrity and influence of the States in our federal system, especially the larger States. They say that as a method of election and representation, it is a necessary part of the compromise which includes the States' representation in the House and the Senate.

If this Nation had developed as the framers of the Constitution had envisioned—with most of the powers of Government reserved to the States and very few left to the Federal executive, and if there were uniform voting procedures within the electoral college system among the separate States, such claims might be legitimate. But this is not the case.

The President represents all the people of this country equally and at once, and his powers respect no differences among or borders between the States. He seeks and derives his support from the Nation as a whole, not from one State at a time. In light of the characteristics of this Nation and the nature of the Presidency, any effort to correct inequities in the distribution of power in the election of the Congress by perpetuating an inadequate and unfair method of electing the Executive causes much more harm than good and ignores the character of the Office.

In fact, in working together as national organizations for the election of a President, our political parties have been aware of the realities of the office to which our laws have been blind-that is, that the President is the leader of the Nation rather than of the separate States.

Nevertheless, the efforts of the political parties notwithstanding, thousands and millions of our voters are effectively disenfranchised every 4 years. Those voters in each State who do not vote for the candidate who carries that particular State find that their votes do not count. A faithless elector dilutes the power of only the majority or the plurality of a State's voters. The rest of them have already lost their franchise.

Advocates of increased participation in our political system are only indulging in empty phrases if the basic right to cast an effective vote does not exist. As long as we are saddled with an electoral system which reinforces one-party States, which rewards appeals to States instead of voters, and which discourages the exercise of the right to vote, political participation is meaningless to the individual voter unless he happens to be on the winning side.

A method of electing a President which tends to preserve division, which varies the weight of a vote from State to State, and which twice threatens the right to cast an effective ballot is an anachronism in a democratic society. We must do better.

A replacement for the present system should meet several tests. First, there should be no intermediaries who might be "useless if faithful, dangerous if not."

Second, the new system should recognize the President as the leader of one nation. It should acknowledge the equal right of all Americans to elect him without respect to their place of residence.

Finally, the new system must not incorporate any systematic elimination or dilution of a vote once it has been cast.

In other words, we must amend the Constitution to provide for the most direct, effective, and foolproof possible means of electing a President.

By eliminating the elector, we can meet the first standard, and the second can be met by providing for uniform voting procedures. But only through the direct popular election of the President can we insure that all votes count equally, and that each citizen can cast his ballot without questioning its effectiveness. Any other “reform" of the electoral process will be a facade.

In Wesberry v. Sanders (376 U.S. 1), the Supreme Court expressed its concern about the franchise: "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.”

Through the growth and the change of our Nation and the custom of our political practice, one article of our Constitution—that which prescribes the manner in which we shall elect our President-has fallen into conflict with the ideals and the provisions of the rest of that document. If we fail in our duty to correct that basic conflict through amendment, we have compromised all that the Constitution represents.

I hope Congress will approve Senate Joint Resolution 1 and refer the proposed amendment to the States as soon as possible.

Senator Bayu. And I would like to advise those present that we will meet tomorrow morning at 10 o'clock to hear Senator Church, Senator Moss, and Dr. Lloyd Bailey, the presidential elector from North Carolina who was the subject of some considerable discussion in both Houses of Congress; Mr.

Ted Sorenson, a former

special counsel of President Kennedy, and Dr. Otis Shal and Mr. Dennis Warren in behalf of the national campaign to "Let Us Vote.”

They will be testifying. Again, Senator Baker, we appreciate very much your taking time to be with us.

Senator BAKER. Thank you, sir.

(Whereupon, at 11:10 a.m., the subcommittee adjourned to reconvene at 10 a.m., Friday, January 24, 1969.)




Washington, D.C. The subcommittee met, pursuant to recess, at 10:10 a.m. in room G-308, New

Senate Office Building, Senator Birch Bayh, presiding. Present: Senators Bayh, Ervin, Hruska, and Thurmond.

Also present: Larry A. Conrad, chief counsel;, Clyde Flynn, minority counsel; Burnadette McGorarty, clerk; and Diane Meyer, assistant clerk.

Senator Bayh. We will reconvene our committee hearing this morning as the subcommittee continues its efforts to investigate all suggested reforms of the electoral college system. I ask at this time, if there are no objections, that copies of all of these plans be placed in the appendix of the record.

The first witness this morning is one of our distinguished colleagues on this subcommittee, Senator Ervin, who has been busy chairing important hearings in his Constitutional Rights Subcommittee on bail bond reform. Senator Ervin, as busy as you are, I appreciate the fact that you can take the time to be with us this morning. STATEMENT OF HON. SAMUEL J. ERVIN, JR., U.S. SENATOR FROM

THE STATE OF NORTH CAROLINA Senator ERVIN. Mr. Chairman, I am delighted that you give me the opportunity to present my views in respect to this very important question.

The major constitutional crisis nearly precipitated by the recent close presidential contest strongly reinforces my belief that one of the most pressing questions to be resolved by Congress will be the replacement of the existing electoral college system with an adequate method for electing the President and Vice President that will be compatible with our Federal system.

One of those most vitally concerned with the close election last year and in 1960, President Richard Nixon, also has expressed the conviction that something must be done to reform our method of electing a President. In a campaign speech September 13, 1968, in Cleveland, President Nixon addressed himself to this problem and expressed his preference for a proportional method, such as Senate Joint Resolution 2, as a means to rectify the problem.

As you know, Mr. Chairman, the proportional proposal, known originally as the Lodge-Gossett plan, has long been considered by the

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