Senator BAYI. Are you at all concerned about the prospect that a President of any party, American Independent Party, Republican, Democrat, Socialist Labor, or Prohibition or whatever it might be, that a President of any party would have great difficulty serving this Nation at a time of trial if he received fewer votes than the man he was running against?

Dr. BAILEY. I don't think that we can automatically assume that. I think that if a man ascended to the Presidency under the conditions that everyone would know why, they would judge him on his own merits, and we all have the best interests of the country at heart and would try to do the things that are right. I think that it would have to be that way if we are to survive.

Senator BAYH. How does this system actually work? By carrying a handful of States by the barest of margins-12 States, I believe-a candidate can win the necessary 270 electoral votes to be elected President, even though he was defeated soundly in the other 38 States.

The most graphic example of this was the election of 1948, in which our friend from South Carolina was a candidate. It was a four party race then. We had a Wallace, running on the other end of the political spectrum, Senator Thurmond and Governor Dewey and Vice President Truman. When the votes were counted, President Truman had a 2 million, not just a handful, but he had a 2 million vote plurality. Yet if there had been a change of less than 30,000 votes in just three key States, California, Illinois, and Ohio, Governor Dewey would have been elected President despite this 2 million vote plurality. Does that concern you?

Dr. BAILEY. Yes, it does. I think that the unit rule is the reason for that. I think if the electors were free there are even more possibilities, and these things certainly have to be considered.

Senator BAYH. All right.

I thank you for your patience. If anyone else cares to ask any further questions, they may proceed.

Senator THURMOND. I have one or two more questions.

Dr. Bailey, speaking about the choice, you were not elected by the people of your district but you were elected by the whole State so you are not necessarily bound by the people of your district because you are running for the whole State. I believe the distinguished chairman indicated that, about the choice in your district but you were not voting, as I understand, you didn't vote for former Governor Wallace because he carried your district, but you voted for him because after the election the candidate who was nominated, Mr. Nixon, took positions which you didn't agree with and you felt that you ought to vote as a protest more or less to those decisions?

Senator BAYH. Would the Senator yield? We can look right here at what Dr. Baily did say. He said

Senator THURMOND. His statement covers only part of it, his printed

statement.

Senator BAYH. That is right.

I am referring to his philosophy. He said, "This left no doubt about the wishes of the people in the district should they have been denied

under a representative system of government." That is why I asked the question.

Senator THURMOND. He explained the position he did take was in accord with his district. The point I am pointing out however, is he didn't vote, as I understand it, for former Governor Wallace because his district voted that way. He ran as a Nixon elector, intended to vote for Nixon even after the election, until certain positions were taken by the President-elect in which event he then exercised his own judgment as he had a legal right to do and voted as a protest against that action for former Governor Wallace. In other words, what you did, because you said you would not have voted for Wallace if that would have thrown the election into the House. I believe that is what you said, you would not have voted for him and thrown it into the House so what it is you were doing then because Mr. Nixon had been elected in effect, so what you were doing was to exercise your legal right to vote as you please to show a protest after certain positions taken after election?

Dr. BAILEY. That is right.

Senator THURMOND. Is that what you mean to say?

Dr. BAILEY. That is right.

Now, in forming these opinions after President Nixon began to make these appointments it became apparent to me that certain philosophies will not be changed, this is certainly my opinion. But on the other hand, Governor Wallace represented in his campaign the other side, so the fact that Governor Wallace won in the district and the fact that he also represented the opposing views to what appeared to me to be coming, certainly made it easy to vote for Governor Wallace in the electoral college. For those two reasons.

Senator THURMOND. The reason you changed your mind as I understood chiefly, was to show a protest to actions taken after the election because you intended to vote for Mr. Nixon until after then, but to buttress that or to fortify your position the people of your district had voted that way too as I understand. That is your position, is that

correct?

Dr. BAILEY. That is right. These things that began to happen made me, they were the underlying cause for me changing.

Senator THURMOND. We spoke about two parties. I presume you believe in the two-party system so long as it gives the people a choice? But the avenue must always be left open

Dr. BAILEY. Yes, sir.

Senator THURMOND (continuing). For a third party to come in if both parties advocate similar policies and the people do not have a choice. That is the reason I ran for President in 1948. I felt there was really no true choice between Mr. Truman and Mr. Dewey, and I ran to give the people a choice. And I presume you do believe in the twoparty system so long as it gives the people a real choice?

Dr. BAILEY. Yes, I do.

Senator THURMOND. But the avenue must be left open for a third party if the two parties don't give the people a choice or if a third party wants to run but I mean it is very vital if the people don't have a choice, it is vital then that the avenue be left open for a third party candidate?

Dr. BAILEY. I think it is imoprtant to leave the avenue open for any number of parties because if they can prove their merit they will grow and the other ones will wither.

Senator THURMOND. Now, you said about electing-would you favor a President who received fewer votes than his opponent? Well, isn't that the Federal system?

Dr. BAILEY. That is right.

Senator THURMOND. In other words, over in the Senate here, last week, didn't a majority vote to change rule 22 but it wasn't changed. Why? Because we have checks and balances in the federal system and if 34 Senators voted against it it would have taken place. So isn't this the same principle throughout the Nation, if there is action being taken against one region of the country and if enough States and the people in those States feel so strongly about it then the majority can't control. If the majority could control they might run roughshod over the minority. This Constitution, and this federal system is designed to protect the minorities, and yet those who are trying to destroy it are chiefly those who pretend to represent the minorities, and it is disgusting to see the position that a lot of these people have taken at different times that is absolutely inconsistent. There are many places in the Constitution where the majority does not control. It takes two-thirds of the votes of both bodies to override a veto. It takes two-thirds to expel a Senator. It takes two-thirds of the States present to elect a Vice President, and it would take two-thirds to impeach a President or to impeach an officer. There are many cases where the majority can't control, and rightly so. You have got your checks and you have got your balances, and the fact that a man doesn't receive the most votes in the Nation, if he gets the most electoral votes from the most States he will be elected, that is the law now under the Constitution.

Although there may be some States that he wouldn't carry and those States might carry a few more popular votes but the idea is to get a man who will meet the nearest approval of all the people of all of the States of the Nation rather than to meet the greatest approval of some people in the few States which might carry an election. That protects the whole country. It makes the President look out for all of the people and all of the States rather than look to a majority in some of the States that might elect him or might re-elect him as the case may be, and it is the same theory. We are going back to the same theory, and the question was asked you whether you would favor election of a President if he got fewer votes, why shouldn't you do it, if the candidate elected got the most electoral votes from more States or enough States to give him the most electoral votes because if you answered any other way then a mere majority would rule, and that is what our constitutional framers tried to avoid, is giving the unlimited power to the majority who, I think, at times becomes dangerous, of course, a minority could become dangerous.

There is an American Legion motto, if you read it, says that they oppose tyranny by the majority or the minority.

Under our system of government we have a way to protect the minority, and we had better keep it or in the future the minorities will be sorry.

Senator BAYH. May I suggest, as a clarification of my views, if they need to be clarified, I know of no system known to man that does not contain within its structure the frailties of man. Any system of government is fraught with the possibility of tyranny. I don't buy this business of weighing off the tyranny of the minority against the tyranny of the majority. This is one Senator who says I hope we don't have any tyranny, and I think the more people that can be involved in our system the better off we are going to be.

I would point out, if we are really concerned about a Presidential election system that doesn't let a few areas make a decision which can be imposed on a minority or a majority, then we had better look at the way the electoral system actually works today.

The example that I mentioned to Dr. Bailey, earlier, about the 12 States is a real possibility. In fact, you can have 12 States, the big industrial, populous States carried by a candidate by only a handful of votes and won the Presidency. That is the way the present system works, or can work. I hope it never does.

Dr. BAILEY. Senator, I think you are exactly right in saying that but I think we also ought to recognize here that if the electors in those big States were free that would not automatically be the case, because independent electors in those big States would not, certainly not all of them be voting the same. For example, in upstate New York the people might as well stay home at election day because their vote will go the way New York City goes anyway. That is very likely to happen. But if they had their own electors who were free it would be different.

Senator THURMOND. Mr. Chairman, on that could I make this point; then what you are really coming down to is it is better for the people of each district to select their own elector in the States and that is known as the district system and that is what I would prefer as a method of change. As a second preference, which originally I favored first, was the proportional, but as time has gone on, and I still would favor the proportional now advocated by the distinguished Senator from North Carolina if we can't get the district system. But the district system would allow one to vote for three electors, two representing the two U.S. Senators and one representing the Congressmen from the district and he would vote for only three and that would be the case in New York where now he votes for 43, or the case in Delaware where he votes for three, or the case in Nevada where he votes for three now or Alaska or Wyoming, five States which have only one Congressman, and then every voter would vote for the same number of electors. That comes as near being the Supreme Court decision on when they speak about the one vote business, that comes as near compliance, it seems to me, as any system we can get. This takes it back to the grassroots. Then in upper New York State which might go one way, the people would be represented in the electoral system rather than letting New York City swing the whole State. Maybe when you vote for 43 electors and vote statewide you don't know any of them you are just voting for a big slate but you vote for 43 instead of three, that gives advantage to people in those big States in that way, and to me a reason for change.

Now, I realize you feel that if the electors could retain their freedom as was originally conceived in the Constitution, that would be fine, if we could do that. But I would have to say that as time has

gone

on and what has occurred, I don't believe that now it is working out and I believe it is going to be better to make some change in the electoral system.

Now, it is just a question of what type change you want. If you want the popular vote which gives the power to the majority or do you want the 50 elector votes in the same proportion as the popular vote, the proportional system, or do you want the district system where you just vote for three representing the Senators and Congressmen which really takes it back to the grass roots, back to the people. And to me that would be the sounder of the three plans now suggested with the proportional being the next sounder.

Senator BAYH. Dr. Bailey, thank you very much for being with us. You have been up here for a long time and we appreciate your patience. I am glad we have had the chance to discuss this issue and get your views.

Our next witness this morning is Mr. Ted Sorensen, who has come at some inconvenience to himself. I apologize for keeping him waiting. I do not think it is necessary to describe the qualifications of this witness. He has been close to the Presidency, he has an idea about how the powers actually are dispensed, and how the system actually works because of his close relationship with the late President Kennedy. He is now a member of the New York bar. I appreciate very much your being with us this morning, Mr. Sorensen.

STATEMENT OF THEODORE C. SORENSEN, FORMER SPECIAL COUNSEL TO PRESIDENT KENNEDY

Mr. SORENSEN. Thank you very much, Mr. Chairman. You might as well add in my biographical statement that I am also a member of the Council on Foreign Relations.

If I had time, Mr. Chairman, I would like to defend Ambassador Murphy and Dr. Kissinger and Mr. Monihyan, and Dr. McCracken, but since time is short, I think Mr. Nixon's supporters on the subcommittee will have to defend him.

I am grateful for the subcommittee's invitation to testify in my individual capacity as a concerned lawyer and citizen on the question of electoral reform.

No single area of possible constitutional amendment deserves higher priority. In my opinion, this Nation's present presidential electoral system is a live bomb buried in the Constitution that must be defused before, not after, it explodes in our faces.

The disturbing trend toward bitterness and even violence in presidential politics witnessed all too clearly in 1968 is due in some measure to an inability on the part of many citizens to understand the fairness and relevance of most of our antiquated political institutions—including the nominating process, registration requirements, campaign finances, the use of television, the length of the ballot, and our party structures themselves. The electoral college is surely the least understandable, the most irrelevant and the most unfair part of our entire political system; and, should it ever again produce a President who was defeated by rank-and-file voters, the potential for violent and bitter reactions would be truly tragic.