THE INFIRMITIES OF THE PRESENT SYSTEM

Few would deny that our present method of electing a President has serious infirmities. It has been criticized on numerous counts, and the 1968 presidential election serves to exemplify these criticisms.

First, because each state has electors equal to its number of representatives and senators, the number of electors is not directly proportional to the population of the states. Small states are thus overrepresented in the Electoral College. Second, since an election under our present system is determined by the number of electoral rather than popular votes, it is possible for a candidate to achieve an electoral majority without garnering a majority or even a plurality of the nation-wide popular vote. In fact, it has been estimated that a candidate with a minority of 25% of the popular vote could yet receive the necessary majority of the electoral vote. Thus, the will of the majority can be subverted-as it has been three times in the history of this country.

Third, the will of the voters can be disregarded by the electors themselves, since they are not legally obligated to cast their ballots for the candidate to whom they stand pledged. In 1968, the possibility that electors pledged to third party candidate George Wallace could "deliver" their votes to another candidate gave an exaggerated importance to a minor candidacy. The electors are thus an unnecessary and potentially mischievous element in the election machinery : To the extent that they automatically register the will of the voters, they are superfluous. To the extent that they disregard that will, they defeat the function of the election.

Fourth, if no candidate receives a majority of the electoral vote, the election of the President is referred to the House of Representatives while the Senate considers the election of a Vice-President. The procedure in the House is even more undemocratic than that of the Electoral College. Each state is entitled to one vote, regardless of its size. There are also other objections. Each state delegation has full discretion of choice; it is in nowise bound by the vote of its constituency. If a state delegation is evenly divided, it cannot cast its vote. Finally, should the House itself be deadlocked, the Constitution is not clear as to how such a deadlock may be resolved.

PROPOSED CHANGES

In view of these criticisms, it is understandable that pressure to alter or even abolish the electoral vote system has mounted. Critics of the system offer four general routes for change, with variations within each possible route.

The most radical of these proposals, in the sense of moving farthest from the present constitutional scheme, is that calling for the direct or popular election of President and Vice-President. (See S.J. Res. 1 and 30.) The other three proposals would all abolish the Electoral College but would retain the electoral vote system, with the same number of electoral votes being assigned to each state as the states now have electors. One of these proposals would divide each state's electoral vote proportionately to the popular votes cast in the state, using fractions up to one-thousandth. (See S.J. Rs. 2, 4 and 33.) This is the proposal supported by President Nixon at his press conference on February 20. The second would allocate one electoral vote to each Congressional district, with two additional electoral votes in each state to be determined at large. (See S.J. Res. 25.) The third, which would involve the smallest change in the present system, would assign all the electoral votes of the state to the candidate receiving the most popular votes in that state. (See H.J. Res. 1. We know of no Senate Resolution embodying this proposal.) Coupled with each of these proposals is a variety of methods of determining whether a candidate has sufficient electoral (or popular) votes to be declared elected, as well as a variety of methods of conducting a second elective process (sometimes called the "contingent election") if no candidate is elected in the first election.

THE POSITION OF THE AMERICAN JEWISH CONGRESS

The American Jewish Congress believes that the manifest evils of the present Electoral College system should be corrected, particularly the opportunity for power-plays by "unfaithful" electors and the vagaries of the procedure for the contingent election when an electoral majority fails. Beyond this, however, we advocate caution. We oppose further change lest certain positive byproducts of an acknowledgedly imperfect arrangement be unwittingly jettisoned.

We, therefore, support the last of the alternatives out"ned above. Specifically, we make the following recommendations:

We would eliminate the electors, as human agents, while retaining the system of electoral votes. These votes would be allocated among the various states as they are now and would be cast, as they now are, in a block for the candidate within each state winning a plurality of the popular vote. A candidate winning a simple plurality of the electoral vote, if it reached as much as 40% of the total, would become President. If no candidate received 40% of the total, a contingent election would be held in the House of Representatives (not the House and Senate together, as is sometimes suggested). In this election, each Representative would cast a single vote for one of the two candidates receiving the largest number of electoral votes. The candidate receiving a majority of the vote in the House would be declared elected President. The House would then conduct a similar election of Vice-President between the top two candidates in the Electoral College for that office.

THE ADVANTAGES OF THE PRESENT SYSTEM

Although the system of electing Presidents that has been in effect in this nation since its origin undoubtedly has faults, it would be a mistake to assume that it has no virtues. Indeed, its virtues are proved by its successful operation for nearly two centuries.

To begin with, the stability and the success of America's system of government is in large measure due to our two-party system. The Electoral College mechanism has tended to preserve that system. Third parties are discouraged from running presidential candidates since they are not likely to win state-wide pluralities.

In a two-party system, each party becomes a coalition of forces, a party of consensus and accommodation, rather than a rigid, doctrinaire fragmentation. There are therefore few irreconcilable losers in a two-party election and the winner is better able to govern. Multi-party systems, on the other hand, are more difficult to operate. Each party tends to offer a self-contained ideology to the voters, and accommodation, which takes place after the elections, is more difficult. In a close popular vote, there is an additional advantage to the Electoral College system: When the victory is seen through the magnifying glass of an electoral vote, a squeak-through is transformed into a vote of wider acceptance and the winning candidate gains an enhanced ability to govern.

Finally, the present system has preserved the federal character of our government. It recognizes and embodies a delicate balance between the powers of the states and the powers of the central government. Few doubt that this feature of our system has contributed to its stability.

It is argued, however, that the present system, and particularly the unit rule in the naming of electors, unduly favors the large industrial states. The theory is that candidates devote a disproportionate amount of attention to those states and that the political parties select their candidates primarily on the basis of their ability to attract the large blocs of electoral votes.

It is generally recognized by constitutional scholars that this aspect of our system has tended over the years to balance other features which favor rural groups and smaller states. Thus, under the original compromise which paved the way to the adoption of the Constitution, each state has equal representation in the United States Senate, regardless of its size. This manifestly favors the smaller rural states.

The House of Representatives too has in the past been disproportionately representative of rural areas because of gross malapportionment in both state legislature and Congressional districts. While this is on the way to being corrected, its effects are still felt.

Finally, in both houses of Congress the seniority system tends to give leadership positions to those who represent secure or one-party states rather than to those representing the large states where party fortunes are subject to rapid change. These inequities, say the constitutional scholars, are compensated for by a system of electing Presidents which favors the urban voter. The Presidency, which must be responsive to urban and ethnic interests, is seen as a counterweight to Congress. In a country as large as ours and as diverse, this system of

countervailing powers has served as well. It is part of a network of balances and accommodations which insures a concern for all groups and a genuinely representative government.

If this system is to be changed in a manner which wipes out advantages held by one group, all aspects of this system should be reconsidered and none should be regarded as sacred. As the late President John F. Kennedy said, when he was a Senator:

*** [I]t is not only the unit vote for the Presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider all the others. (102 Cong. Rec. 5150 (1956).)

For the reasons stated below, we believe that each of the proposals for radical reform of the present system-direct election, the proportional system and the district system-would endanger the stability of our political system.

DIRECT POPULAR ELECTION

The proposal that the electoral vote concept be eliminated entirely in favor of direct popular vote has received wide support. We believe its supporters have overlooked many of the problems it poses. Not the least of these is the possible destruction of our two-party system.

In a system of direct election, narrowly based parties would be encouraged to enter presidential candidates in the hopes of gathering enough strength to prevent a majority or plurality choice, thereby giving them a bargaining position in any run-off procedure. And as the vote was fractionated by the proliferation of parties, it seems certain that the eventual winner would represent a smaller share of the popular vote. The popular vote system thus offers the irony that a system meant to assure an elected candidate most reflective of the popular will could result in a candidate elected by a smaller proportion of the popular vote.

Under a direct election scheme, furthermore, when a candidate failed to achieve a stipulated percentage of the vote, which would be more likely with additional minority parties in the field, a run-off election would be necessary, Apart from the delay in achieving a final result, a run-off has the dangerous effect of giving an exaggerated influence to minor candidacies.

The impact of adoption of the popular election system on the present balance of Federal-state power should be fully understood. Too often, it is assumed that we would simply eliminate the Electoral College and count the popular votes as they are now cast. There are many reasons why such a count would be unacceptable. At the least, the Federal Government would have to lay down uniform standards as to who could vote and what candidates and parties would be on the ballot.

Without such Federal regulation, individual states would be encouraged to compete in lowering the voting age in order to enlarge their proportion of the total vote. On the other hand, in an election in which every vote had equal importance, the nation could not tolerate the restrictions on voting that now exist in many states. Moreover, it would cease to make any sense for persons to be deprived of their right to vote in a national election merely because they moved from one state to another.

With respect to the ballot, it would obviously be illogical, in a single unitary election, to permit any state to exclude from the ballot parties or candidates who appear in other parts of the country. This aspect of the electoral process would also have to be taken over by the Federal Government.

More than merely candidates and voters are involved. It is doubtful that the country could long permit state control over the actual balloting process when every vote counted in a single national election. Under our present system, occasional fraud or other irregularities in the vote usually do not affect the result, even in a close election. In a popular election they would be intolerable. The Federal Government would have to supervise and, ultimately, conduct the voting process. It would soon be seen that a uniform, Federally-managed system of counting and reporting election results was required.

We are not saying that such changes would be wholly undesirable. We are saying that they would do violence to the Federal system as we know it.

THE PROPORTIONAL AND DISTRICT PLANS

The other two proposed methods of electing the President may be treated together. Under both, each state would have the same number of electoral votes as it now has electors. Under the proportional plan, the electoral vote of each state would be divided in proportion to the popular votes cast in that state, using fractions of one-thousandth. Under the district plan, one electoral vote would be decided by the vote in each Congressional district in the state and two would be decided by the vote of the entire state.

We submit that these two proposals have nothing in their favor except narrow sectional interest. They would retain all of the bias of the present system in favor of the small states while doing away with whatever advantage the large states now have. The advantage held by the small states in the Senate would be retained. So would their disproportionate electoral vote.

In practice, the system would virtually destroy the significance of the large states in the presidential selection process. In any close election, no candidate could hope to obtain an edge of more than three or four electoral votes in any one state, no matter how large. The same advantage could be obtained with much less expenditure of energy--and of political capital-in one or two small states. Hence, in picking candidates and in shaping issues, the parties would tend to concentrate on the states with small population and light voting, and particu larly those which they dominate.

Destruction of the influence of the urban voter and of minority groups has been stated quite frankly as the justification of these proposals. When similar measures were being considered in Congress in 1950, Senator Johnson (D., S.C.) complained:

We, in the South, highly resent the fact that both parties will spend a hundred times as much money to get the Negro vote in Harlem . . . as the vote of a white man from South Carolina.

Similarly, Representative Gossett, after noting that both parties attached undue importance to the votes of Negroes and organized labor, said:

Now, with all due deference to our many fine Jewish citizens, they constitute a third group, to whom a specific overt appeal was made in the platforms of both major parties. There are 2,500,000 Jews in the city of New York alone, When they vote even substantially en bloc, it means the balance of power in our largest State.

As noted above, one of the objections to the present system is that a candidate may be elected even though he did not obtain a majority, or even a plurality, of the popular vote. It cannot be suggested that either of these plans would reduce that possibility. On the contrary, if the proportional plan had been in effect in 1960, when John F. Kennedy obtained a narrow popular plurality as well as electoral majority, he would have received only 262.671 electoral votes to 263.632 for Richard M. Nixon. In 1968, Mr. Nixon would have received 231.534 votes to 225.362 for Hubert H. Humphrey and 79.445 for George Wallace. Unless a 40% rule were in effect, this would have required a second election.

Both these systems, we submit, would also tend to undermine the two-party system. Third parties would be encouraged to enter presidential elections because of their greater likelihood (as the 1968 results show) of bringing about an election deadlock.

THE CONTINGENT ELECTION

For the reasons stated above we support retention of the unit rule in the allotment of electoral votes, while doing away with the Electoral College as a useless and dangerous anachronism. We believe, further, that the present constitutional provisions dealing with the contingent election are cumbersome and undemocratic and urgently in need of change.

As noted above, we would not require a majority in the electoral vote but would provide that a candidate receiving a plurality of the electoral votes would be elected if his plurality constituted at least 40% of the total. Pluralities are generally considered sufficient in elections in this country for other offices. There is no need for a special majority rule in the case of presidential elections. Acceptance of a 40% rule would tend to preserve the two-party system since it would reduce the likelihood that a third party could deadlock an election. On the other hand, any third party large enough to obtain 20% or more of the electoral vote, thereby denying any candidate a 40% plurality, should be considered as a legitimate factor in the electoral process.

If a contingent election becomes necessary because no candidate wins 40% of the electoral vote, we believe it should take place in the House of Representatives. We oppose a second popular election because of the tremendous strainthat puts on the electoral process. We believe the vote should be in the House of Representatives because it is the most representative body. We see no reason to give further advantage to the small states by including the members of the Senate in this vote. Furthermore, the members of the House will just have been elected while that would be true of only one-third of the members of the Senate.

We believe the contingent election should be among the top two candidates, to eliminate any possibility of deadlock. Finally, we believe the election of the Vice-President should also take place in the House of Representatives to guard against the possibility of a divided government and because it is the more representative body.

CONCLUSION

We submit that the proposals that we support have the merit of simplicity. They would eliminate the potential dangers of our present system without abandoning features that have proved their worth over the years. Such innovations as a direct election would have unpredictable and possibly baneful results. We believe it is the wise course to make only necessary alterations in a system which has served us well historically.

Respectfully submitted,

Mr. WEKSELMAN. Thank you, sir.

I. MARTIN WEKSELMAN,
Member, Governing Council,
American Jewish Congress.

Mr. Chairman, I find myself in a rather anomalous position in these proceedings. It is somewhat difficult, obviously, for a member of an organization such as the American Jewish Congress which, as you undoubtedly are aware, has the reputation of being a somewhat liberal organization to appear in opposition to direct popular election of the President, obviously is the most democratic method of electing the President.

One of the stated purposes of our organization is to promote and extend the ideas of democracy. So, as you can well imagine, it was not with ease that the National Government Council of the American Jewish Congress came to the conclusion that direct popular election was not the way to go about reform of the electoral college.

The House Committee on Judiciary, as you know, has reported a proposed amendment. I had the opportunity of testifying before the House Judiciary Committee as well, and needless to say our position was not adhered to by the House committee.

There is no proposal now before the Senate which resembles our proposal. However, in the House, House Joint Resolution 1 did embody largely what our position is.

Before we get into that, I think it is clear that the thing which creates the most public furor and demand for electoral reform is the possibility clearly inherent in the present system, of a candidate for President who has the lesser number of votes being elected to the Presidency.

Congressman Burlison testified earlier this morning and indicated times in our history when that has happened.

Clinton Rossiter in his work, The American Presidency, said this, and maybe Mr. Rossiter can make a case for it. I certainly cannot, but at least that eminent authority has said this:

There has been no convincing instance, certainly not in 1824 and 1876, and probably not even in 1888, in which a candidate was cheated out of the Presi