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souri proposed an amendment to the Constitution recommended by the Senate Select Committee on Elections, which would have provided for contingent elec tion of the President and the Vice President by a Joint Session of Congress with each member having one vote. Later, in 1876, Congressman Samuel Addison Oliver of Iowa introduced H.R. 27, a joint resolution which provided, among other things, for contingent election of the President by the House viva voce with each member having one vote. Similar proposals were made in 1918 by Representative Tucker of Virginia and in 1928 by Representative Browne, of Wisconsin. Other leading legislators and scholars among them, Senator Oliver P. Morton (1877), Joseph Cady Allen (1917), and Edward Lee (in 1943), have long recommended this change which I am proposing now. Finally, in 1966, President Johnson said in a Special Message to Congress on January 20, 1969:

"In such an election (contingent election), the House of Representatives would be empowered to elect a President from the three highest candidates. However, each State casts only one vote. . . .

"I firmly believe that we should put an end to this undemocratic procedure." As I said when I introduced S. J. Resolution 18:

"This joint resolution is not introduced as the ultimate solution to our electoral ills... I propose this change in the Constitution with the intention of correcting a very specific fault, but a very dangerous fault, in our electoral system. If the House of Representatives is to remain the final arbiter in our Presidential election system, we must be concerned with the mechanics of selection in that body. Voting by state is one of the greatest faults in our total election process. I seek to bring the contingent election of the President by the House closer to the people by allowing each representative of the people to cast his own vote."

There are several proposals before this subcommittee relating to electoral college reform instead of reform of the contingent election provision. If we did away with electors but kept the electoral college, giving a vote to each congressional district and two at-large to each state or if we apportioned the electoral votes according to the percentage of the popular vote, the candidate receives, we may still end with no candidate having a majority of the electoral vote. And, if we abolish the electoral college and substitute direct popular election, we may end up the same way. Therefore, Mr. Chairman and Members of the Subcommittee, I feel that in any case, my Amendment is necessary.

I hope that you will give my proposal the most careful consideration possible. I hope it will be adopted by the Congress and by the states very soon.

Thank you.

Senator BAYH. You are very kind. If you do have a moment, I would like to ask you to give us your thoughts on a few brief questions. I feel that your suggestion would be decided improvement over the present contingency. Now just for purposes of clarification, the way you have your amendment worded in Senate Joint Resolution 18, this would be in the event that no candidate receives a majority of the electoral votes.

Senator YARBOROUGH. Yes.

Senator BAYH. Then your contingency of going to the House of Representatives would take place?

Senator YARBOROUGH. That is right, however your electoral votes are counted.

Senator BAYH. Well, there are a number of suggestions involving how to handle contingencies in the event no candidate receives a majority of the electoral votes, 40 percent of the electoral votes, a majority of the popular votes, 40 percent of the popular votes. I just wanted to make that clear for the record.

Our responsibility in this committee, and particularly mine as chairman, is really twofold. One is to try to determine, after sorting out all the evidence, which plan we believe would do the best job of electing our President, and two, to try to see if we can pass this. If we cannot pass the best, then what is our fallback position, our second best. Hopefully we will be able to get the best.

But surprisingly enough, we find now, at least some of the supporters of one plan or the other, retreating from this position or that position, because they do not feel that this plan can be passed. So I think we realistically have to take this into consideration.

If my memory serves me correctly, you have been a previous supporter of the popular vote, direct vote, plan?

Senator YARBOROUGH. Yes.

Senator BAYH. Would you feel inclined to support this plan? Has your mind changed?

Senator YARBOROUGH. No; my mind has not changed on that, I would support that but that is not in opposition

Senator BAYH. I understand.

Senator YARBOROUGH (continuing). To an electoral reform as such. I support one plan but I have no fixed opinion against the other. I think we should have reform. But this one, Mr. Chairman, that I advocate, would be separate from the others, and I think this is so badly needed, the case having been so forcefully stated by Thomas Jefferson over 145 years ago, I think this one should go through anyway.

Then we have the other which, as you say from all indications, would be more difficult to obtain. I have thought of an alternate situation. I do not know whether the committee or the Congress would ever do this or not.

Propose two constitutional amendments, separate from mine. It is entirely separate. Mine is reform only of the method of voting in the House of Representatives, not a reform of the electoral college. It is limited reform, but badly needed in those cases when the vote is thrown in the House.

Take the other, the so-called major ones, your direct election or the reform of the electoral college. I have been thinking about this and reading of what looks like some threat of a deadlock on that as to what kind of a reform we would have and I have come up with this idea. Submit two proposed constitutional amendments to the people of the United States, one for the direct election of a President and one for a reform of the electoral college, whether it be a percentage of votes of the State or by districts. Let the people pass on it as the members of the Constitutional Convention passed on it in 1787. This is a method of direct referendum of the people. Let them say which they will adopt, whether they want to reform the electoral college or reform the whole election process.

Senator BAYH. You said "the people." Do you mean the legislators? Senator YARBOROUGH. Yes, it will be the legislators, that is right, of the States. Presumably they represent the people in this situation. Senator BAYH. You could have State conventions?

Senator YARBOROUGH. The Congress could call for State conventions. I do not think we have ever done it.

Senator BAYH. To repeal prohibition.

Senator YARBOROUGH. That is right, we did.

Senator BAYH. That was a rather sensitive subject as you recall. Senator YARBOROUGH. I recall that. I am old enough to recall it. Senator BAYH. Let me play the devil's advocate a moment. Senator, I know you have given this a great deal of thought, that is why I want to get your opinion in the record. Are you concerned at all about

the fact that if this contingency of yours is adopted, this is more or less the establishment of sort of a parliamentary system, in which the legislative body is responsible for choosing the executive, or are you concerned at all about the possibility of less independence between the executive and the legislative, if one chooses the other this way?

Senator YARBOROUGH. Well, we have that system now. Under the present Constitution, the House of Representatives would choose the President, if it were thrown into the House. It would still choose if it were thrown into the House under my recommendation. However, it would be a more democratic way of doing. It would be the onemember, one-vote instead of one-State, one-vote.

I would not change that situation. My proposal does not change the basic setup of the Constitution. I think, Mr. Chairman, to go one step further, this is aside from our proposed constitutional amendments, I want to talk about another point in the selection of a President.

We have democratic processes now for electing a President, but the great fault in presidential elections today is the choosing of the presidential candidates. We have handpicked delegates to national conventions. You may say "rigged" conventions, where the people do not really pick the candidates for the Presidency of this country.

They get a free vote after the candidates are picked, but they do not get a free choice in picking that candidate. I think we need reforms of the parties. I hope the two parties will reform their procedures. If they do not, we in the Congress have to do it for them, to assure some democracy in picking the candidate for the Presidency as well as the real democracy which we have in electing a President, as where the people get a vote on it, once the candidates are picked.

Senator BAYH. There is a great need for reform in the nominating process.

Senator YARBOROUGH. Yes. That is a little aside from this needed constitutional reform, and I do not offer mine in opposition to the others. It is designed to correct the one great fault in the Constitution. I has been there over 150 years. I think it is time to correct that fault, without impinging on the other constitutional amendments at all. I thank the chairman of the committee very much for the courtesy of being here.

Senator BAYH. Senator Hruska, did you have questions to ask our witness this morning?

Senator HRUSKA. NO.

Senator BAYH. Could you yield for one question from the minority counsel?

Mr. FLYNN. Senator, it has been alleged that the direct election of the President would lessen the influence of some 24-odd States, that is the influence they have now under the present system in selecting a President. If that is the case, do you think it likely that they would ratify an amendment that would lessen it?

Senator YARBOROUGH. Well, I think that is one practical matter you have got to consider. I do not know. There is a great feeling for popular election in this country, and I am unable to speak for those 24 States, but I think those submitting a constitutional amendment could confer with the Senators from those 24 States and find out. People are not in the habit of voluntarily voting away power that they have. We know that as a political reality.

Mr. FLYNN. You mentioned one further thing

Senator YARBOROUGH. Of course these so-called reforms of the electoral college would still leave a smaller State in population like Alaska and Nevada, the same proportional power that they have now.

Mr. FLYNN. You mentioned possible delay in choosing a President under a direct election as a result of a recount or a contest in the various States. If that happens, would not the ultimate decision in selecting the President be made by the Supreme Court?

Senator YARBOROUGH. Not necessarily.

Mr. FLYNN. It could?

Senator YARBOROUGH. It could be. It could be there would be a contest. There was a famous contest in a Senate race in my State that has been talked about in the national press of 87 votes. Now that was contested. But that was 5 percent of the votes of the Nation cast in Texas. Take that 87 and multiply it by 20. That was 5 percent of the people of the Nation voting. If you had 87 by 20, that would be 1,740. If we had a popular election, and the difference between Presidents was 1,740, certainly the losing party would contest it, just as they did in Texas. That is no reflection on who won. Both sides were coming up with additional votes down there for two weeks after the election was over. If you had that difference here, you would be finding lost boxes all over this Nation for a month after that.

Mr. FLYNN. But in that case the Supreme Court would make the final decision.

Senator YARBOROUGH. Well, it is possible. I could not say categorically that they would.

Mr. FLYNN. I was using the illustration of the appeal to the Supreme Court.

Senator YARBOROUGH. The Supreme Court finally decided that one in Texas, because the question of whose name was going to be printed on the ballot, and the one who got his name printed on the ballot in all probability was going to win that election.

It depends on the terms of the constitutional amendment. It would not necessarily go to the Supreme Court. This constitutional amendment could be so written as to leave it to the House to be the final arbiter?

Mr. FLYNN. That is right.

Senator YARBOROUGH. It can be written to say they shall determine it, not the Supreme Court. That depends on the wording of this proposed constitutional amendment.

Senator BAYH. Thank you very much.

Senator YARBOROUGH. We know this provision that I propose, is directed at a weak provision of the Constitution. Just as the Founding Fathers debated every provision in 1787, we now know every one of these proposals we make there are objections to it. We seek a better system. We realize after this experience under this Constitutional government it is difficult to get a perfect system but I think we have the best system in the world.

I think in our evolution we have evolved the best system of government in the world, and we are still seeking to improve it.

Thank you.

Senator BAYH. Thank you very much, Senator Yarborough. I yield to my friend from Nebraska.

Senator HRUSKA. Thank you, Mr. Chairman. This will not be a lengthy introduction. It is not needed. Senator Curtis has served in the Senate since 1954 preceded by 16 years in the House.

All of the battles of the last 24 or 28 years concerning the amendment of the electoral college processes have come to his own personal attention. His ability as a politician, a practical politician, is pretty well demonstrated by the fact that he has been in the Congress since 1938, and I think that qualifies him to make a statement which we will weigh very seriously when the record is written up and when we assess the equities and the positions that are expressed by each witness.

It is a pleasure, Mr. Chairman, to welcome my colleague and to have him participate in these hearings.

STATEMENT OF HON. CARL T. CURTIS, A U.S. SENATOR FROM THE STATE OF NEBRASKA

Senator CURTIS. Mr. Chairman, and I thank my beloved colleague for his generous statement. Part of the things that I will say come as a result of a number of years spent on the Committee on Privileges and Elections, which has jurisdiction of the Election Contests and Corrupt Practice Act, and certain matters relating to contested elections.

We do not have, of course, jurisdiction over Constitutional amendments. I shall proceed with my statement, because I believe that will be the quickest way.

Over a period of many years individuals in government, political writers, political scientists, and others, including the general public, have talked about a reform of the electoral college. This discussion picked up momentum in the months just preceding the Presidential election of 1968. I do believe that we have a problem. I think that the Congress should submit a Constitutional amendment to the States for consideration and that this should be done in the next few months so that it might be effective for the next Presidential election.

Just what constitutes the constitutional crisis about which we heard so much about last fall? I believe that it can be briefly stated as the delay in selecting a President if no one candidate receives a majority of the electoral vote. Fear is expressed that the United States might be faced with an indeterminate period without an effective head of our Government. Any amendment advanced for consideration by the States should simply deal with this one problem.

The electoral college system is not difficult to understand. There are advocates of the direct election of the President who claim that the electoral college system is difficult to understand. I regard that as an argument of convenience more than an argument of fact.

Under the electoral college system we choose a President by action through the States. This not only has a sound basis historically, but also is a sound method in our present day and in the foreseeable future. Each State is entitled to as many electoral votes as it has Congressmen and Senators. By the 23d amendment to the Constitution the District of Columbia was given three electoral votes. This makes a total of 538 electoral votes for all the States and the District of Columbia. It requires 270 electoral votes for a majority. In the last election President Nixon received 301.

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