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spectre of "deals" in the electoral college obviously rears its ugly head. Bargaining for the highest office in the land would not only seriously jeopardize the general acceptance of any winner, but might easily result in frustrating the intent of the people. We should say, or at least ask ourselves the question, would that man who receives the electoral vote majority by that method have the mandate necessary to govern and adequately exercise the powers of his office?

Really there is no longer any necessity for the office of elector. The office can be eliminated under the present system as well as the various proposals for revision. The elimination of the office does not require abolishment of the electoral system. There is a serious legal and constitutional question, however, whether the States by law can require an elector to vote in a given manner under the present system. A constitutional amendment so binding an elector is a superfluous appendage. The voters do not need an intermediary to exercise their judg ment. This argument posed by proponents of the direct system is valid, but it does not necessarily follow that the only method of election left is direct popular vote.

Now, the contingency of the last election being thrown into the House under the present system was fraught with dangers, many real, and others imagined. The fact remains that the clear possibility exists of substantial delay in selecting the President and a Vice President being selected from the opposite or even a minority party.

All proposals to reform the electoral college have included alternatives to correct these dangers. The two most significant would require the Senate and House to meet in joint session, each member having one vote, with a limit on the number of votes. The other proposal is a national runoff. The subcommittee should consider carefully the time delay and cost involved in the latter proposal. Would additional campaigning be allowed? Both proposals have merit, but it would seem to me at least that the additional cost of a runoff is something that we are going to have to wrestle with and consider very seriously before it is authorized.

We further have to determine whether a majority is necessary under any system. A major argument of proponents of the direct popular vote is that a "minority President" may be elected under the present system. "Minority" as I am using the term means one who finished second or below in the popular vote. This danger is caused by the unit rule, primarily.

The direct plan will not eliminate the possibility of a President with only a plurality vote. As a matter of fact, it may enhance this possibility by fractionalizing our present two-party system. The question is how large a plurality should be necessary. Forty percent appears to be the magic figure, which has been settled upon by a number of proponents of constitutional amendments. This country has had only three "minority Presidents" under the present system, and only once, in 1876, did the winner's chief opponent receive an absolute majority. There have been, now, 12 "plurality" Presidents. Only one, President Lincoln in 1860, failed to receive 40 percent of the popular vote, and he received 39.79 percent of the vote.

This problem ties in directly with the unit rule. Certainly this rule lends some influence to the smaller States, but it lends even greater influence to the larger States. No President before President Nixon

won the Presidency with less than a majority of the seven big States and their 210 electoral votes. This does not mitigate the fact that the unit rule, in my opinion, is the most unfair, unrepresentative, and undemocratic feature of whole electoral process. The system of casting the whole block of votes of one State for a candidate who wins by only one vote in that State, is not only antagonistic to the one-man, one-vote rule, but effectively disenfranchises many voters in that State.

Again, however, abolishment of the unit rule does not require abolition of our whole electoral system. I am a cosponsor with Senator Mundt of Senate Joint Resolution 12, calling for a district plan. The office of elector is retained with a binding declaration by the elector to vote for certain candidates for President and Vice President. It requires a majority of electoral votes. In any event no candidate receives a majority, the three highest are chosen and voted for by a joint session of the House and Senate, each Member having one vote, three-fourths (34) being a quorum. If no person has received a majority after the fourth vote, the fifth ballots shall be taken on the two with the highest number of votes on the fourth ballot. I don't need to further explain that to you. It is my statement, and I am sure it is already well known to the committee chairman.

I also cosponsored Senate Joint Resolution 2 with Senator Ervin and Senator Sparkman. This is the proportional plan. This plan calls for a proportional distribution of the electoral vote in each State based on the percentage of the popular vote received in that State. It wholly abolishes the office of elector and each State's votes are automatically cast on a percentage basis. A candidate must receive 40 percent of the total electoral vote. If not, the two highest shall be voted on by a joint session of the House and Senate, each Congressman having one vote. Both of these provide for abolition of the unit rule. By retaining the electoral vote, they balance the small State-large city interest inherent in the direct popular vote plan.

They solve the problem of the "faithless elector." They prevent delay, stalemate and a Vice President from another party by providing for a joint session of the House and Senate, narrowing the number of candidates and limiting the number of votes.

Both would solve three of the four critical deficiencies of the present system previously pointed out. Each provides a more direct relationship to the popular vote by eliminating the unit rule, thus minimizing any possibility of a "minority President."

I would point out one or two statistical facts in relation to the proposals and minor problems presented by each plan.

Under a district plan in the 1960 and 1964 elections, the results would be different. This subcommittee was given these figures by Mr. Neal R. Pierce, political editor of Congressional Quarterly, in hearings held in the 89th and 90th Congress. They appear on page 233 of the hearing record. Under a district plan, in 1960, President Kennedy would have received 244 electoral votes and President Nixon 279270 votes being a majority. The result would have been changed from President Kennedy's 303 electoral votes to President Nixon's 219. In 1964, the district plan would have given President Johnson 466 votes instead of 486, and Senator Goldwater 72 rather than 52. No figures are yet available for 1968 by districts.

In 1960, under a proportional system, President Kennedy would have received 265.623 electoral votes and President Nixon 266.075. If only 40 percent were necessary, President Nixon would have been elected. In 1968, on a proportional system requiring 40 percent, President Nixon would have received 231.524 votes, and Hubert Humphrey 218.570. George Wallace would have received 79.822 votes. Forty percent is 215.20 electoral votes.

I offer to the subcommittee a chart I have prepared giving the State by State breakdown on the electoral votes each candidate would have received in the 1968 election on a proportional basis. I would request that it be printed in the record of these hearings with my statement.

Senator BAYH. We will ask our reporter to have these printed at the immediate conclusion of Senator Dominick's statement.

Senator DOMINICK. Fine. And I think the subcommittee has a copy of that with my statement.

Senator BAYH. I appreciate your industry here in providing this for us.

Senator DOMINICK. Under Senator Mundt's plan, Senate Joint Resolution 12, in my opinion, the office of elector could be eliminated without altering the basic intent. This plan would retain a semblance of Unit Rule in each district wherein the plurality winner gets its one vote. The plurality winner statewide gets two votes. Each voter effectively, therefore, has three votes, one in his district and one for each of the Senators who may be running.

It minimizes the Unit Rule and retains the local and regional influence within each State, which I feel is necessary to balance our system.

The proportional plan of Senator Ervin and Senator Sparkman directly relates to the popular vote, but still retains the State and regional influence. It eliminates entirely the unit rule. It does present the problem that, statistically, in any close election, where third parties are a factor, there is little probability that the leading candidate will receive a majority of the electoral vote. He may not receive even 40 percent, but this contingency is provided for in the amendment. If a 40-percent plurality is an acceptable winning margin, the plurality issue is not critical.

There is one more point that I want to make here, and I think it is terribly important. Under the direct vote, it would seem to me that the fractionalization of parties which would occur, I believe, almost overnight would again insure that no person in the ordinary election. would ever receive a majority of the total proportional or total direct vote. It's happened in every other Nation. Wherever they've had a direct vote, as far as I know, it fractionalize the parties. You get several parties competing, and while it may result in a plurality vote, it seldom produces a majority.

There is one other point that I would like to stress. In 1968, in the process of this election, despite the fact that Mr. Humphrey was nominated as the presidential candidate for the Democratic Party, there were some States, at least in Alabama and the South, where Mr. Wallace was listed as the head of the Democratic Party. It seems to me that we should take care of this as well. Mr. Wallace was running on the American Independent ticket, and he should have been listed as the

head of that ticket in Alabama and Mr. Humphrey listed as the head of the Democratic Party. It would seem to me that this is only equitable and fair in any kind of a system where we are largely relying on a two-party system between the two major parties. If we don't do it this way, we are going to find ourselves suddenly having different people represented improperly as the head of a particular party ticket in State after State; it could easily spread. Whoever the most popular fellow happens to be in any State, could be listed as the presidential nominee. I would presume that this situation would be taken care of in any constitutional amendment which may be urged by this subcommittee.

I thank the Chair very much for his courtesy in letting me appear and give these observations early in the hearing.

Senator BAYH. I appreciate your coming. I don't know how pressed you are, whether you care to carry this colloquy a bit further or not. Senator DOMINICK. I would be delighted to.

Senator BAYH. I would like to say that I think the four points that you mention on page 3 are pertinent. I share your concern in that regard. I think we have to recognize here that the problem is one of whether we want to change but whether we can get it.

Senator DOMINICK. That is correct.

Senator BAYH. When we are dealing with the disposition of the power of the presidency, we are dealing with a problem that is fraught with all types of nuances and controversies and thus the possibility of getting the necessary two-thirds plus the three-fourths of the State legislative bodies is one that certainly weighs heavily on this committee and on this Senator as chairman. Thus the traditional controversy of large State versus small State is one that has to be recognized. As we open these hearings I recall my concern of 3 years ago when we began hearings in which I shared many of the concerns of my colleague from Colorado about the impact of the popular vote. After studying this for about 3 years, I have changed my thoughts. I don't suggest that other people will, but perhaps, with study, others will find, as I did, that some of the problems considered apparent 3 years ago will not now look nearly as critical as they did.

One problem that the Senator from Colorado mentioned which concerns me more than any other is not the election of a "minority President," because, as you pointed out, we've had several plurality Presidents, but rather the election of a nonplurality President, a "minority President" in the more traditional sense.

Senator DOMINICK. A true "minority President."
Senator BAYH. The true "minority President."
Senator DOMINICK. There has only been one.
Senator BAYH. Pardon me.

Senator DOMINICK. There's only been one in the history of the country.

Senator BAYH. There has been one. However there have been two others, where contingencies have caused non plurality Presidents. We had a real close shave in 1948, to give you an example of what the problem might be. As I am sure you are aware, President Truman ran 2 million votes ahead of Governor Dewey and yet if there had been a change of 30,000 votes in three key States, Governor Dewey would have been President.

Now, I think this type of catastrophe is what we hope to avoid. I know of no plan that really guarantees us and protects us from this except the direct vote.

Senator DOMINICK. I might interpolate facetiously that I am not sure Governor Dewey being President would have been a catastrophe. Senator BAYH. I would share that interpretation, but I would also suggest that the present President made a statement in the closing days of the campaign in which he emphasized, I think correctly so, that it would be extremely difficult for a President of the United States to govern this Nation in this day and age if we were not the choice of a majority of a plurality of the people.

Senator DOMINICK. Plurality. I would agree.

Senator BAYH. It is this weakness, really, of the proportional plan and the district plan that concerns me more than any other. I don't know whether the Senate has any comment as to how this can be avoided, because I know of no way you can guarantee that the man that has the most votes is elected President under either one of those proposals.

Senator DOMINICK. I don't believe that you can. I would agree with you. Once you have electoral votes specified to a State on the basis of their Congressmen and their Senators, either one of the plans has the possibility at least of having a minority person or a nonplurality person made President. But I would say to you that this is because of the centralization of populations in large cities where you may have an

enormous vote.

Now, there is this mitigating circumstance. Under the one man-one vote rule, which we have been following for not only State legislatures but in the congressional districts recently, your congressional districts as a whole will represent an average of the population divided by the number of people in the House. Consequently, you should have a reflection on that basis of the popular vote in those districts much more evenly than in the past.

Senator BAYH. By the figures in your statement, you showed that the return by the district plan in 1960 would have been difficult despite the fact that President Kennedy had a narrow majority. He would have had a rather significant minority under the district plan so that

Senator DOMINICK. That is very true. This I would presume once again is because some of the districts at that time were probably not portioned correctly. I know that some of them in Texas were not at that time, and some of them in Illinois were not. They were not representative of the average figure per congressional district. It is my recollection that that average figure on a population basis is now about 485,000 people per district. I very much doubt whether those districts were that way. In fact, I know they were not. They were not even in our own State. Congressman Aspinall's district in 1960 at that point had about 181,000 people in it, whereas any district which I represented had 700,000, and we got a reapportionment of our districts after that time.

Senator BAYH. Well, I know you have other hearings to go to, and I don't want to prolong this. We will have a chance I hope to discuss this, if not further in committee, on the floor. I look forward to

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