ELECTING THE PRESIDENT FRIDAY, JANUARY 24, 1969 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS 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 29-018-69- -3 Senate. On February 1, 1960, the Senate passed the Lodge-Gossett proposal by a vote of 64 to 27. In 1951 the proposal was endorsed by the House and Senate Judiciary Committees, but no action was taken on the floor of Congress. Again in 1955 the proposal received Senate Judiciary Committee support. With each passing year that the electoral college dilemma is studied I become more and more convinced that the proportional method is the only one that will abolish the admitted evils of the present system and be compatible with our Federal system. In order to remove the serious threats to the smooth functioning of our government structure which the present system poses, I believe there must be substantial reform in three major areas. These areas are: 1. The legally unobligated elector: While I agree that presently an elector has the legal right under article II of the Constitution to vote for anyone in his discretion, I believe that the original purpose of this constitutional provision became obsolete with the rise of political parties. My proposed amendment, Senate Joint Resolution 2, would solve this problem by abolishing the electoral college and the office of the elector. Under my amendment, there would be no possibility for electors to ban together to defeat the mandate of the voters of their States. 2. The unit rule of casting electoral ballots: The present system is indefensible because the unit rule requirement of counting electoral votes completely disfranchises those who do not vote for the winner within their State. It requires candidates to concentrate on the large, pivotal States where elections are historically closely contested to the exclusion of smaller States and one-party States. It encourages bloc voting since a small group can often determine the course of the entire electoral vote of a large State. Also, it increases the influence of fraud or accident in tipping the scales for the electoral vote in such States. The unit rule also results in small, so-called sure States being bypassed with a consequent voter apathy in all parties. I feel the principal electoral college evil to be rectified is the unit rule of counting a State's electoral votes. Accordingly, I favor the approach taken by Senate Joint Resolution 2 which divides each State's electoral votes among the various presidential and vice-presidential candidates according to their respective percentage of the popular vote within their State. Since the electoral votes would be cast in proportion to the popular vote in each State, every man would have a voice in the election and candidates would solicit the vote of every man in every State. 3. The choosing of the President by the House of Representatives if no one received the necessary majority: Senate Joint Resolution 2 proposes that if no candidate receives 40 percent of the total electoral votes, the election would be decided by the Senate and House in joint session, with each Senator and Representative having one vote. This would eliminate the undemocratic and unfair method which now gives each State delegation-no matter how large or small the State may beone vote in elections thrown into the House of Representatives. By the reduction of the percentage of electoral votes presently required for election, we would reduce the threat of elections being decided by Congress instead of the people and the threat of multiple parties. Just as I am convinced that change in the above three areas is necessary, I am equally convinced that the number of electoral votes to be divided must remain as it is under the present system-equal to the number of Representatives and Senators from that State. As a result of the great compromise which made the formation of the United States possible, each State was entitled to at least two electoral votes because membership in the Senate was allotted on a geographical basis. The retention of this basic representation in Senate Joint Resolution 2 is necessary to our concept of a Federal system and for the protection. of the interest of the smaller States. Our remedy to our electoral problem that has been suggested is that of direct popular election of the President and Vice President. However, I feel very strongly that the direct election approach is not the best possible answer to this great constitutional issue, and I would like to comment briefly on the chairman's proposal, Senate Joint Resolution 1. Senate Joint Resolution 1 would substitute the concept of having the President and Vice President represent those who happen to vote on the particular election day, for the principle established by the framers of having them represent population and States regardless of how large or how small the actual vote might be on that election day. In erasing the concept of electoral votes representing population (including nonvoters) within States, direct election would replace it with a theory of representation based solely upon a percentage of voters who happen to vote at a particular election. Regardless of how one may divide them, electoral votes do reflect people. As long as a candidate for the Presidency secures the requisite number of electoral votes, he represents that portion of the people which is considerably larger than the actual popular vote total which he may have amassed. Senate joint resolution 1 does not make any attempt to preserve the identity of the States in the presidential electoral process. By not providing for the basic Senatorial representation now given to each State, Senate joint resolution 1 overlooks completely the historical development of our presidential election process and completely destroys the concept of federalism as it has applied to this progress. There is no doubt that the strength of the smaller States will be reduced, and that national influence will continue to shift to the big cities from the smaller States. Accompanying the increase in influence of the big urban centers would be the threat of greater influence by political machines and bosses. From a practical standpoint, while I am convinced that there is a grave need for an electoral college reform, I am equally convinced that there is no chance of ratification for any resolution dealing with direct elections, including the recommendation of the American Bar Association. As a practical matter, the legislatures of three-fourths of the States are not going to vote away the added advantage of the additional electoral votes granted them by reason of senatorial representations. That is-I interpolate in the statement-that is, the State legislatures are intelligent. There are 36 States which receive proportionally larger representation in presidential elections because of the present system. This additional representation preserves the Federal principle and protects the smaller States, and I do not believe these 36 States will accept any plan which dilutes their voice in presidential elections. The proposed aboli tion of the present system by direct election advocates will, I feel, place a substantial obstacle on the way of electoral college reform. Direct popular election might also result in uniform qualifications for voting in all of the States. Such a federalization of voter qualifications could further erode the powers of our States and could present another obstacle in the way of the States ratifying any change. Senate joint resolution 1 includes a runoff system between the two candidates receiving the highest popular votes when neither secures at least 40 percent of such votes. As contrasted with this costly, drawnout runoff provision, my method, Senate joint resolution 2, proposes substantially less strain to the country. Also, the runoff provision of the direct election proposal could cause disruptive changes in our dates for elections or for the counting of votes. My proposal would avoid these changes. Mr. Chairman, I think most of us agree that something must be done to improve the process for electing our President and Vice President. It remains for us to decide on the most appropriate method to bring about this needed change. After a close comparison of our proportional plan and the direct election plan, I hope members of the Constitutional Amendments Subcommittee will agree with me that Senate Joint Resolution 2 retains the basic protection essential for our Federal system and for obtaining the board support needed for electoral college reform. After serious consideration of this matter, the Senate acted, in less hectic times, to approve a proportional plan, the Lodge-Gossett Amendment in 1950. I hope the Senate will show the same wisdom in 1969. Senator BAYH. I appreciate very much having my colleague's views for the record. He has been interested in this question for a long while and I know he is going to make a significant contribution to our committee discussion. I am extremely concerned about getting change. I do not completely concur in the analysis of my colleague on the relative merits of these two measures. But I think we both concur in the fact that there needs to be a change and that as men of good will we can improve our present system, and of course this is our goal. As the debate continues, we will have a chance to discuss in full the relative merits of all of the plans and to look, point by point, at some of the issues that are raised by the Senator from North Carolina and that have been raised earlier by supporters of other plans so that we can really know how these various plans would work. Senator ERVIN. Mr. Chairman, I would just like to add to my statement that my plan is somewhat between the district plan and your plan, and it is a very basis on which divergent views can compromise because it is between the two other extremes. I would like to make it very clear I am not forbidding the chairman or any other Member of the Senate from voting for my plan. Senator BAYH. As a matter of fact, as the Senator knows, I had introduced, in 1966, a popular vote plan that contained his runoff provision, which in my judgment has some merit. But I am concerned about getting a system which meets one fundamental criteria. Namely, the man who is elected President of the United States should have more |