Popular vote Computation of the national popular vote by the method explained above shows: Kennedy 34,050,341 (49.46 percent), Nixon 34,108,546 (49.54 percent), unpledged electors 462,575 (0.67 percent), and minor party candidates 215,140 (0.32 percent). Nixon's plurality over Kennedy: 58,205. Under the Mansfield plan, Nixon would be elected; under the Smith plan, a runoff election would be required because Nixon would not have achieved an absolute majority. The 1960 hypothetical example is used only for purposes of illustration. If the popular vote system were actually in effect in 1960-as with the proportional method applied below-voting behavior undoubtedly would be different in the manner and the numbers of votes cast. Either major candidate could have gained or lost votes as a result of this different voting pattern. Proportional method The proportional method also gives Nixon a narrow margin when applied to the 1960 election: Kennedy 265.623 electoral votes, Nixon 266.075, unpledged 3.608, minor parties 1.692. Nixon's electoral plurality: 0.452 electoral vote. Under the Kefauver plan, with a plurality over 40 percent required, Nixon would have been elected. District system The district system, when applied to the 1960 vote, would have given Nixon a more substantial margin: Kennedy 245 electoral votes, Nixon 278, unpledged 14. Nixon plurality: 33. Nixon would have been elected. These figures are based on returns from congressional districts as currently constituted. The Mundt plan requires that elector districts be of similar population and contiguous. The results from districts so constituted might vary widely from those given above. If it is true that, in general, congressional districts are currently gerrymandered in favor of the Republicans, then Mr. Kennedy's vote would probably have been higher under districts drawn in accordance with requirements of the Mundt plan. Humphrey compromise plan Under the terms of the compromise plan proposed by Humphrey in 1956, which would grant two electoral votes to the candidate with a popular vote plurality in each State and divide the remaining electoral votes according to the proportion of the national popular vote, the 1960 electoral vote would have divided as follows: Kennedy 260.159, Nixon 268.526, unpledged 6.936, and minor parties, 1.377. Nixon plurality: 8.367 electoral votes. High man would have won under Humphrey's proposal, giving Nixon the election. Mr. KIRBY. Mr. Chairman, the Legislative Reference Service of the Library of Congress has prepared a study of the operation of the electoral college system in 1960 in selected States. It includes a discussion of the situation in Alabama which might be helpful at this point in the record. I offer it for insertion following Mr. Peirce's statement. Senator KEFAUVER. Let it be included in the record at this point. (The document referred to follows:) THE LIBRARY OF CONGRESS LEGISLATIVE REFERENCE SERVICE Washington, D.C. OPERATION OF THE ELECTORAL SYSTEM IN SELECTED STATES IN 1960 This report consists of two sections. The first part is essentially a factual review of the 1960 presidential election in certain States. The emphasis is on the presidential electors and the operation of the electoral college in these States. The second part is more in the nature of a commentary on what happened in these States. Certain basic issues and possible changes in the existing electoral plan are discussed in the light of these experiences. PART I Alabama The 1960 presidential election in the State of Alabama is a very complicated story involving both pledged and unpledged electors appearing on the one slate of electors put up by the Democratic Party. In Louisiana and Mississippi, as will be shown in the following pages, quarrels within the Democratic Party led to the presentation of entirely separate slates of electors, one pledged, the other unpledged. This did not happen in Alabama where the party offered only one group of electors. The single Democratic slate of presidential electors consisted of five persons committed in advance to support the candidates of the approaching national party conventions and of six persons pledged to withhold their electoral votes from any candidate whose beliefs were hostile to Southern traditions. Only the names of the electors, not the names of the candidates for President and Vice President, appear on the ballot in Alabama in the general election. All six of the unpledged Democratic electors received more popular votes than did any one of the five pledged to the regular party ticket. Unpledged electors received, roughly, 322,000 to 324,000 popular votes, whereas pledged electors received about 317,000 to 318,000 votes. Republican electors drew 237,981 votes and the National States Right slate attracted only 4,367. Nothing unexpected happened when the electors cast their ballots in the electoral college on December 19, 1960. The five pledged electors voted for the Kennedy-Johnson ticket and the six unpledged electors voted for Senator Harry F. Byrd for President. Hawaii The 1960 presidential election story in our newest State offers a straightforward account of the problem of the accurate counting of the popular vote. Final but unofficial returns from Hawaii 2 days after the election indicated that Kennedy had carried the State by 102 votes, but there was also the suggestion that errors in counting had cost Nixon 200 ballots. Further checking the next day gave Nixon a 157 vote lead out of more than 180,000 votes cast. Both parties talked of a recount. The final official tabulation sheets, according to the New York Times, November 18, 1960, showed that Nixon had carried the State by 141 votes, 92,505 to 92,364. These results were then certified. In the meantime, Circuit Judge Ronald B. Jamieson had ordered recounts, first, in certain precincts, then in additional precincts, and, finally, in all precincts. On December 19 the electors met in Iolani Palace, the capitol, in Honolulu. The officially certified Republican electors were joined there by the Democratic electors who also cast their ballots, pending the final outcome of the recount. The recount of the entire State was completed on December 28. It gave the State, with its three electoral votes, to Kennedy by a margin of 115 votes, 92,410 to 92,295. This count was then given certification by Gov. William F. Quinn with the ultimate decision to be left, under the law, to Congress. On January 6, 1961, when Congress counted the electoral votes, the choice was made in favor of the Democratic electors. There was no problem involving the electoral college or any constitutional aspect of the presidential election in the situation in Hawaii. The question, rather, dealt with the administration of the State's election law and the proper and accurate counting of the popular vote. Illinois An interesting and potentially serious problem dealing with the presidential election arose in the State of Illinois as a result of the closeness of the popular vote, followed by charges of vote stealing, especially in Cook County, recounts of certain precincts, and investigations. There was considerable discussion for a time of the possibility that the Repub lican-controlled State electoral board would refuse to certify the State's 27 elec toral votes to be cast by the Democratic electors. The effect of this action, if it were taken, on the division of the total national electoral vote was the crux of the problem. Under the Constitution a candidate must have a majority of the electoral vote, which in 1960 was 269. At the height of the controversy in Illinois, Kennedy appeared to have won 300 electoral votes. (The Hawaiian situation was still up in the air; when it was resolved in favor of Kennedy, his total was 303.) If the 27 Illinois votes were not to be cast, his total would then drop to 273, only four more than the constitutional majority needed to elect him. (The question of the constitutional majority of the electoral vote under these circumstances is discussed in pt. 2.) Obviously, such a result would have a damaging effect on the prestige of the President-elect, but it might also have a more tangible result. Since the electoral college had not yet cast its ballots, the uncertainty in Illinois gave new impetus and motivation to the drive in some Southern States to encourage defection among electors. If the Kennedy majority were to be only four electoral votes. then the defection of five electors would throw the choice of the President into the House of Representatives where the South felt it would have considerable strength and bargaining power. As it eventually worked out, the Democratic electors were properly certified in time to vote for the Kennedy-Johnson ticket. Louisiana An intraparty fight among the Democrats in Louisiana played a significant role in the 1960 presidential election. Electors in this State are nominated by the State central committee of the Democratic Party. One group of Democrats within the party wanted to choose electors pledged to the party candidate, John F. Kennedy, whereas another powerful element of the party preferred to select unpledged electors. The showdown came at the meeting of the central committee on August 11 (Washington Post, Aug. 12, 1960) when the party "regulars" won by the narrowest possible margin, 51 to 49. This victory permitted the winners to place their pledged slate of electors under the Rooster symbol on the ballot, a matter of considerable importance in this State because of the traditional practice of Democrats to "stamp the Rooster" in general elections and thereby vote a straight ticket. The losing faction of the party then organized themselves into the States Rights Party and placed their own slate of unpledged delegates on the ballot. This group was badly defeated in the general election, as the following popular vote shows: Democratic Party. Republican Party. 407, 339 230, 980 169, 572 All of Louisiana's electoral votes went, of course, to Mr. Kennedy. However, the pledged electors of Louisiana were among the principal groups sought after by those who were trying to encourage defection from the regular Democratic Party when the time came for the electoral vote to be cast. Mississippi In Mississippi, as in Louisiana, presidential electors are nominated by the parties meeting in convention. Also, as in Louisiana, there was a struggle within the Democratic Party over whether the slate of electors should be pledged or unpledged. The outcome was that both elements of the Democratic Party chose slates of electors which appeared on the ballot in the general election. (Washington Star, August 17, 1960). The "loyalist" Democrats promised to support the Kennedy-Johnson ticket and filed an affidavit with the Mississippi secretary of state to this effect. The purpose of this action was the belief that it would guard them against any future legal action that might be filed contesting the selection of two separate slates of electors. The unpledged slate of electors were listed as such on the ballot, and they defeated the "loyalist" slate by a vote of 116,248 to 108,362 (Republican vote73,561). The unpledged slate eventually cast all eight of the State's electoral vote for Senator Harry F. Byrd. Oklahoma The Republican Party and its presidential candidate, Richard M. Nixon, easily carried the State of Oklahoma in 1960 by a popular vote of 533,039 to 370,111 for the Democrats. Ordinarily, this would, of course, mean that all of the State's eight electoral votes would go to the Republican candidate. However, when the electoral college cast its vote on December 19, Henry D. Irwin, a duly elected Republican elector, cast his vote for Senator Harry F. Byrd for President and for Senator Barry Goldwater for Vice President. There was never any challenge as to Mr. Irwin's legal right to vote as he did,' but no record could be found of any statement of his to the effect that he did not intend to vote for his party's nominees. With an eye on the presidential election, some parts of the South began to consider early in 1960 a plan for independent electors. This approach would avoid a complete break with the Democratic Party and make unnecessary the formation of a third party, as occurred in 1948, as a means of expressing southern views. (See Congressional Quarterly, Apr. 1, 1960: 569–571). Presidential electors probably cannot be required to vote for a specific individual when the electoral college casts its ballots. A commitment of this kind that could not be broken would appear to abridge the freedom of the electors, guaranteed by the Constitution, to vote as they please. It is true that some States have laws requiring the electors to vote for the presidential and vice presidential candidates of the parties whom they represent, but it is questionable what, if anything, could be done about enforcement of such laws if the pledge were ignored. (See Congressional Quarterly, cited above, and Wilkinson, Donald M., "The Electoral Process and the Powers of the States," American Bar Association Journal, March 1961.) A political party can exact a pledge. It can refuse to accept the qualifying papers of an elector who will not agree in advance to support the party nominee (Ray v. Blair, 343 U.S. 214 (1952)). But the indications are that the elector, despite whatever earlier pledge or commitment he may have given, may still vote for any qualified citizen when the electoral college meets. Several Southern States, including Alabama and Mississippi, discussed above, have laws that would allow the election of unpledged electors. In Alabama the State Democratic Party in 1959 abolished the requirement that electors pledge themselves to support the party nominee for President. (The pledge was still in effect in Alabama in 1956 when one elector violated it and refused to support Stevenson.) In Mississippi a 1948 law permits a political party to place a slate of electors on the ballot under the heading, "Unpledged Electors of Political Party." A slate of pledged electors may also appear on the ballot. Louisiana, discussed above, is one of four Southern States wherein the electors must be associated on the ballot with a presidential candidate. The 1948 law permits the State party committee to place a candidate on the ballot other than that of the national party. The national nominee with his own complete slate of electors could also appear on the ballot. In these States, and in several others in the South, the election laws were such as to make possible the widespread implementation of the independent elector idea. However, the use of the plan did not receive the general acceptance that some supporters may originally have expected. The outcome of the proposal in certain States has already been discussed above. Between the time of the November election and the meeting of the electoral college on December 19, 1960, there were renewed efforts, directed primarily from Alabama and Mississippi, to swing Democratic electors in certain Southern States from their support of Kennedy and Johnson to an independent status. The objective apparently was to throw the choice of the President into the House of Representatives. This drive did not succeed. No new recruits were won over, and only those electors six in Alabama and eight in Mississippi-elected as unpledged in the first place failed to support the Democratic nominees in the electoral college. This move probably came closer to success in Louisiana than in any other State. A resolution was introduced in the lower house of the State legislature to suspend the election laws so that a new slate of electors could be appointed. The resolution was withdrawn, however, before it was acted upon by the man who introduced it in the first place. His explanation was that the official vote count for the State was published before his resolution could be considered. Another explanation for the withdrawal was that opposition to it in the house was virtually unanimous. (See Washington Post, Nov. 29, 1960.) 1 A 1961 Oklahoma law (house bill 538) provided for nomination of electors by convention instead of primaries, requires electors to file an oath to support the national candidate, and levies a fine of $1,000 for failure to do so. PART II No direct constitutional conflict was raised by the election in Alabama, but it did create a difficult, perhaps insoluble, problem as to the accurate counting of the popular votes for the Democrats. This vote is generally determined to be that which is received by the elector who got the most popular votes, but in this case, that elector (all six unpledged electors, in fact), received more popular votes than did any of the electors supporting the party candidates. On the other hand, to regard as the popular vote that total which was received by the highest Kennedy elector does not seem accurate either, since the unpledged electors were also representing the Democratic Party. It has been suggested that Mr. Kennedy should be allotted only five-elevenths of the popular vote, that being his proportion of the electoral vote. This idea is hardly acceptable, since it would base the popular vote on the electoral vote rather than the other way around. Furthermore, it would give the electors for Mr. Nixon more popular votes than were received by the electors of any other candidate in Alabama and would indicate that the entire electoral vote of the State should go to him. On the national level, this approach would wipe out the narrow margin of approximately 120,000 popular votes which Kennedy, as a plurality President, holds over Nixon, and make him indeed a minority President. It should be noted that neither Mr. Nixon nor the Republican Party ever claimed any of the electoral vote of Alabama or gave any indication that they felt they had carried the State's popular vote. The decision reached by the Clerk of the House of Representatives in the compilation of his election statistics from official sources is to list the Democratic popular vote at 324,050, the top received by any of that party's electors. in this case an unpledged one, and, of course, to divide the electoral vote 5 and 6 between Kennedy and Byrd, respectively. Democrats in Alabama were faced with extraordinary circumstances. If they wished to stick with their party, they had no choice but to vote for the 11 Democratic electors whom they knew in advance to be sharply divided. There was no possible way for an Alabama Democrat to give his full and undivided support to the Kennedy ticket. He could vote for only the five pledged electors and either quit there or vote for the additional six electors who he knew would not express his views. Conversely, the anti-Kennedy Democrats were frustrated. They could not fully exercise their franchise without supporting the five electors pledged to the national candidate. In Illinois the constitutional question arose as to the total votes in the electoral college if the votes of this State were withheld because the issue of questionable ballots could not be resolved before the electors met. The total electoral vote would then drop to 510, but would the number then required for election be decreased to a majority, or 256, of this new total? If this were the case, the chances of lining up enough electors to defect and thereby put the national election outcome in the House were considerably decreased. It was the opinion of Justice Department lawyers that if the electoral total were to be decreased to 510, then 256 electoral votes, 1 more than one-half, would be sufficient to elect a President (Washington Star, Dec. 1, 1960). The relevant language in the 12th amendment to the Constitution states that "The person having the greatest number of [electoral] votes for President, shall be the President, if such number be a majority of the whole number of electors appointed * Part of the controversy in Illinois revolved around the meaning of the word "appointed," as used in the Constitution. Does it apply to the choice of the electors by popular vote of the people at the polls (or by whatever method the State may determine, though no other method has been used by any State for many years)? Or does it apply to the certification of the electors by the proper State officials? Does it apply in both cases? If the provisions of the Constitution are uncertain or ambiguous in their application to the situation that arose in Illinois, it might be worthwhile in any proposed amendment dealing with electors to consider the insertion of a clarifying clause that would cover this contingency. If it is assumed that the States' Rights Party in Louisiana was made up primarily of dissident Democrats who did not want to support the national ticket, then party members in that State had two full slates of electors from which to choose. It can be argued that this may have weakened the Democratic Party |