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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
Senator Bayu. 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 free. dom 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 Bayu. 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.
Even back in 1960, had John Kennedy been elected President by means of big State electoral votes while losing the popular vote—which could have happened with a shift of less than 150,000 votes out of nearly 70 million cast-or had he been denied the Presidency by the withholding of Southern and border State electoral votes while winning the popular vote—which could have happened with a shift of less than 12,000 votes in five States—the deeply divisive religious bitterness and suspicions aroused in that campaign would surely have continued to plague the country as either Catholics or non-Catholics charged the other with conspiracy and coercive voting.
Why continue to take this risk? The original purposes and premises of our presidential electoral system are no longer valid. It was devised long before our present levels of education, transportation, communication and political sophistication permitted its authors to have the kind of confidence they would have today in the average voter's ability to choose wisely between candidates from States other than his own. It was favored by small States as a boon to their influence but has actually benefited the large. It was favored by Southern States when their black populations lacked the franchise they now increasingly exercise. It assumed, contrary to present practice, that independent, nonpartisan electors chosen by State legislatures would be solemnly meeting separately in each State unaware of how other electors were voting. It did not contemplate rapid changes in population between the congressional reapportionments following each decennial census, nor did it contemplate presidential conventions and campaigns.
My law practice takes me to many countries; and I have found it difficult to explain even to the best informed government officials in those countries the discrepancy between our professed beliefs and our presidential elector system:
We profess to believe in popular rule; but because electoral votes are not directly proportional to popular votes and each State votes as a unit, the present system can elect, and has elected, a President who lacked even a plurality of the popular vote.
We profess to believe in democracy as well as being a republic, and I do not mean a democracy according to the 1928 campaign manual, but we continue a system which was originated to concentrate basic political power in the hands of an affluent, well educated elite and which today permits a faithless few in a faceless body to defy the public will in order to bargain for private gain.
We profess to believe in majority rule, not in abolition of the rights of a minority, but in accomplishing and electing by majority rule, but even in a two-man presidential contest, a candidate receiving 21 percent of the vote so distributed as to give him a majority in States with only 41 percent of the vote would achieve an electoral vote victory; and when an election is thrown into the House of Representatives, victory can be achieved by obtaining a majority of congressmen within each of 26 States representing only 17 percent of the population.
We profess to believe in equality at the polls; but the voter in Alaska has more than five times as much weight in electing a President as the voter in California.
We profess that the Presidency is the one offce representing all of the people; but its occupant is not directly elected by the people and may feel politically obligated to prefer some States over others.
We profess to encourage all citizens to vote; but a citizen who stays home on election day is included equally with the citizen who casts his ballot in computing that State's electoral vote.
Under the present system, the election of a President who loses the popular vote is not a remote possibility. It happened in 1888; it happened under special circumstances in 1824 and 1876; and it very nearly happened in 1900, 1912, 1916, and in five out of our last eight presidential elections in 1940, 1944, 1948, 1960 and 1968.
Under the present system, an elector is free to disregard his obligation to the voters; and a Congressman, if the election is thrown into the House, is forced to disregard his obligation to either his party, or his State, or his constituents, or his conscience unless by sheer chance they all agreed.
Under the present system, third parties with no prospects of receiving a mandate from the people are encouraged to seek their own electors or unpledged electors for the sole purpose of weakening the twoparty system by maneuvering in the electoral college.
Under the present system, a legislature-dissatisfied with the prospective or even actual results in its State—could ignore the voters and select electors of its own liking. This was actually attempted in the Louisiana Legislature in 1960.
Under the present system, a presidential election thrown into the House could be blocked if one party prevented the presence of a quorum; or if there were a 25–25 tie; or if several States, being equally divided, cast no vote and as a result no candidate received the necessary 26 votes.
Even the Senate's selection of a Vice President could then be blocked by the absence of a quorum or a 50–50 tie.
Under the present system, up to 10 percent of all electoral votes— or roughly one-fifth of the total required by a winning candidate can be shifted by the political leaders of one State from one candidate's column into another by shifting a few thousand votes, an unwarranted temptation to corruption.
It has been argued this morning and earlier by those with rural, conservative or small State interests that the present system works to their advantage because every State, regardless of size, receives two electoral votes for its Senators. It has been argued by those with urban, liberal or large State interests that the present system works to their advantage because the winner-take-all or unit rule practice requires a candidate to focus undue attention on those voter concentrations in the big States and big cities that can swing an entire bloc of electoral votes into his column. Both sides are right; but the result is wrong.
In providing for the direct election of Senators under the 17th amendment, this Nation forgot about small counties versus large counties, rural citizens versus urban citizens, liberal voters versus conservative voters. It chose instead the fairest, simplest, most demoeratic method. As the proud native son of a small State, the State of Nebraska, and the proud citizen today of a large State, the State of New York, I would gladly forgo the small State's supposed advantage and the large State's supposed advantage, in order to achieve the only true democratic standard, a direct popular election in which each citizen of every State, regardless of size, has an equal voice and vote.
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