gress, by using the general ticket for electors, we have formed a constituency for the President which is altogether different from that which elects the Congress. The great difference between these two constituencies is that almost all Representatives are elected in single member districts while their counterparts in the electoral college are elected in multimember districts consisting of entire States. This situation permits voters of a State, voting straight party tickets, to produce one result in the electoral college and an altogether different result in the House of Representatives at the same election. The effect of all this is that we have what I have called a presidential United States and a congressional United States that are, politically speaking, two different countries within one national boundary. (5) Many critics of the present system contend that the electoral college is an archaic institution, outmoded by our tremendous improvements in transportation and communications, and that it is incompatible with modern democratic principles. In the main, these charges are based on either a misunderstanding of the electoral college, or on deliberate intentions to change the structure of our constitutional system and change our Republic into something radically different. (6) Another criticism of the electoral college is in the contention that presidential electors are in no way bound to vote for the presidential candidate of the party on whose slate they were elected. This is coupled with the contention that the Founding Fathers intended the electors to be free agents. Both these contentions are without basis in fact. On the contrary, there is overwhelming evidence that from the very first it was clearly understood that the elector's function was to express the view of those who had chosen him. Since 1820, a total of 14,018 presidential electors have been chosen. Of these only eight are alleged to have voted contrary to the views of those who named them. In no case did any of these votes affect the outcome of a presidential election. In 1820, one elector did not vote for James Monroe. In 1948, a Tennessee elector voted for Thurmond, the States rights candidate, instead of for President Truman, but he had announced before the election that he would do this. The last case was in the 1960 election when a Republican elector in Oklahoma voted for Senator Harry F. Byrd instead of Richard M. Nixon. It is said, too, that the Founding Fathers had no notion of political parties. But, in the very first election, Alexander Hamilton, leader of the Federalists, saw to it that John Adams would not run equally with Washington, as both men were being voted for as President. In fact, Washington received 69 votes and Adams only 34. An outstanding authority on the Constitution, the late Chief Justice Charles C. Nott of the Court of Claims, has stated flatly that the notion that the framers of the Constitution had no plan in mind for electing a President different from that which is in force is completely in error. In the Encyclopedia Americana Judge Nott wrote: It is said by some of the commentators, and indeed it is now generally believed, that the electoral colleges were intended to be "deliberative bodies." In one sense this is true-in the legal sense. The electors are not ministerial or administrative officers; they do not perform a specific work in a way determined by higher official authority; in legal contemplation the responsibility of their action rests upon themselves. But the framers of the Constitution never supposed that the electors would disregard the political pledges upon which they were chosen, or that the American people, either directly or through their State legislatures, would blindly choose electors to evolve a President out of their inner consciousness. On the contrary, they contemplated the successful candidates receiving the votes of "a majority of the whole number of electors," and they required the electors to vote "in their respective States," and to vote on the same day. If they had framed a provision requiring all of the electors to convene at the seat of government in one body, and there in their own way and time proceed to choose a President, there would be good reason for saying that actual deliberation was intended; but they did not give to the electors one single power of attribute by virtue of which they could deliberate *** The idea that it was ever intended that the electors should nominate the candidate for whom they themselves should vote is a myth which has been unthinkingly reiterated by most eminent writers, but which does not rest upon a single fact * *. He who supposes that the framers (of the Constitution) intended that 13 different bodies should convene in 13 different places at one time for one object and for 1 day, and that object the selection of the executive of a nation, confesses a most superficial knowledge of the greatest constructive statesmen of their century and of the great work which they deliberately planned and built. As originally introduced several years ago, the Mundt-Coudert amendment provided that a State's electors corresponding to its Representatives in Congress should be elected from congressional districts and the two corresponding to its Senators should be elected statewide, as Senators are elected. Critics, most of them supporters of the status quo, objected strongly and with justice that the use of congressional districts was open to criticism since in some States district lines had been unfairly drawn by whatever political party controlled the State legislature, a practice long known as gerrymandering. To meet this criticism the amendment, as now proposed, provides for the setting up, as I have previously stated, of electoral districts to be composed of compact and contiguous territory, containing as nearly as practicable the number of persons which entitled the States to one Representative in the Congress. Our amendment, if adopted, would require State legislatures to follow this constitutional directive. If they failed to do so Congress would have the power to step in and see to it that fair and equitable districts for electors are established. It is altogether likely that these nongerrymandered electoral districts would at least sharply curtail the practice of setting up unfair congressional districts since it would be extremely difficult for a State legislature to justify one set of districts for electors and another for Representatives. Senator KEATING. May I interrupt there? Senator MUNDT. Yes. Senator KEATING. You would not force them to do that; in other words, they could have separate districts. Senator MUNDT. Precisely. Senator KEATING. Your point is it would act as a moral force then to have them the same. Senator MUNDT. Yes, it would place a good example before them, you are quite right; we would not force them. There is another often-raised objection to the present system of electing a President. It is the provision that if no candidate receives a majority of the electoral votes when they are counted in Congress that the House of Representatives shall choose immediately a President from among the candidates with the three highest numbers of electoral votes. The vote in such a case-the last time it occurred was in 1824 is by State; each State delegation having one vote. In the event a State's House delegation is evenly divided its vote is not recorded. A majority of the States is required for election. The objection to this system is that it is grossly unfair to the larger States, giving New York, California, and Pennsylvania no greater voice than Alaska, Delaware, and Nevada despite the great population disparities. Senate Joint Resolution 12 cures this situation. It provides that in the event no presidential candidate has a majority of the electoral vote that then from the persons having the three highest numbers on the list of persons voted for as President, the Senate and the House of Representatives, assembled and voting as individual members of one body, shall choose immediately, by ballot, the President; a quorum for such purpose shall be three-fourths of the whole number of Senators and Representatives, and a majority of the whole number shall be necessary for a choice; if additional ballots be necessary, the choice on the fifth ballot shall be between the two persons having the highest number of votes on the fourth ballot. The Constitution also provides that if no candidate for Vice President has a majority that the Senate shall choose him from among the two candidates with the highest electoral vote total. Senate Joint Resolution 12 provides that both Houses in joint session and voting by the head, as for President, shall select the Vice President from among the candidates with the three highest numbers of electoral votes. So I point out that while we equalize the rights of individual citizens to vote for President, we recognize the validity that bigger States should have more authority if it comes to be decided in the House of Representatives, so in that direction we are fair and equitable to the big States by giving them more authority than they have now. Our system of electing a President has, generally speaking, served us well during the 172 years since our Republic was established. It has never failed to give us a President. Through no fault of the Founding Fathers, it has, however, become distorted through the use of the general ticket system. Most of the framers of the Constitution, it should be pointed out, went on record favoring a district system for choosing electors, as the fairest method of expressing the popular will. Senate Joint Resolution 12 is, in my opinion and the opinion of the many who support it, the only simple method by which each voter in every State will have the same voting weight in electing a President. It is the only one among the various electoral reform proposals which have been offered which will bring about a needed reform without a basic change in our constitutional system. It alone leaves control of the election machinery in the States, where it belongs. It is the office and person of the elector, and nothing else, that maintains the intrastate character of presidential elections. Interstate candidacies are legally unknown and unprecedented under the Constitution, and would remain so under Senate Joint Resolution 12. Now, party nominees for President and Vice President are extralegal, outside the law. They achieve constitutional status only when votes are cast for them in the electoral college. If we abandon the office and person of elector we will of necessity establish interstate candidacies which, in turn, will open the door for ultimate Federal control of elections, including the qualifications of voters. Few Americans will favor such a change. Senator KEFAUVER. Senator Mundt, we thank you very much for a well-prepared statement, which has been forcefully and persuasively presented. The Chair recognizes that you have great knowledge in this field, and Senate Joint Resolution 12 is a very important proposal. There are a good many questions that I am sure Senator Keating and others would like to ask you. Could you appear sometime later on for a full discussion? Senator MUNDT. I shall be happy to return and try to answer any questions that you want to ask at that time. Senator KEFAUVER. Then we will put the colloquy immediately following your statement. (Pursuant to the above discussion, Senator Mundt appeared before the subcommittee on June 8, 1961. This portion of the hearings of that date follows:) Senator KEFAUVER. The committee is glad to have Senator Mundt back with us. Senator Mundt has previously testified at some length in support of the resolution of which he is the principal sponsor, Senate Joint Resolution 12. Since your earlier appearance here, Senator Mundt, we have heard the testimony of your cosponsors, Senator Morton of Kentucky and Senator Hruska of Nebraska, and Senator Thurmond is scheduled to be here today. I am glad you have come back, Senator Mundt, because some of your colleagues on the Republican side took Senator Morton to task rather briskly on some points in connection with your resolution. Senator MUNDT. Senator Morton of Kentucky? Senator KEFAUVER. Yes. Senator Keating and Senator Case of South Dakota had some searching questions, in which they indicated that they did not see the resolution in the same light that you do. Senator MUNDT. I am sorry that I have not had a chance to see that testimony, Mr. Chairman, because I might have some comments to make about it. Senator KEFAUVER. I can tell you the points they made. Senator KEFAUVER. Senator Keating and Senator Case made, first, the point that your resolution requires election districts so as to get away from the gerrymandering which we now have in congressional districts. They expressed great doubt as to how you were ever going to get the legislatures to adopt election districts which would contain approximately the same number of voters. They pointed out that although that should be done as to congressional districts, that it had not been done, that Congress has no power over getting the legislatures of the States to do anything, and that the only alternative would be for Congress to attempt to do it itself for the various States, and that would be a very doubtful and unwise invasion of States rights. That was their first argument. Senator MUNDT. May I have the others and then I shall try to answer them. Senator KEFAUVER. The second argument was that under your resolution, people in the district would be voting for only three electors, that is, the two electors at large in the State, plus the one in the district, and that, therefore, each political party would put up for the three electors the most glamorous votegetters they could possibly find, and that people in the district might very well to some substantial extent be voting for good old John Smith who is the elector, rather than for the man who is the candidate of the party, and that any political party that was worth its salt would find the best votegetter in the district, would advertise his name, his picture, put his picture in the papers, and he would make a personal appeal, and many people who were his friends would want to do him the honor of electing him as presidential elector. Senator MUNDT. Were there other objections? Senator KEFAUVER. Those, I believe, were the two principal ones that Senator Morton was involved in. Senator MUNDT. If I may, I will devote myself first off to those two, unless there are other questions you want to take up first. Senator KEFAUVER. I may think of some other points they raised, but those are the principal ones. Senator MUNDT. Thank you. After the testimony becomes available, so that I have a chance to see the transcript, if I have failed to cover any of your points, perhaps I can get a few minutes during the public witness sessions. Senator KEFAUVER. Yes; we will be glad to give you any time you want, or if you wish to file anything additional to cover the points, we will have them printed in the record. Counsel will furnish you with a stenographic copy of what they had to say. Senator MUNDT. Thank you very much. Devoting myself first of all to those criticisms which you have attributed to Senator Keating and Senator Case in the earlier testimony, the first one is about the requirement of electoral districts and how that would be handled. Let me point out, Mr. Chairman, that is quite correct that at the present time Congress exercises no control over gerrymandering of congressional districts and I presume that the reason it exercises no control is that it has no constitutional basis for so doing. There is nothing presently in the Constitution which gives Congress the authority to determine that congressional districts should not be gerrymandered. That being true, quite obviously Congress cannot go beyond the purview of its authority. My resolution, Senate Joint Resolution 12, as you know, spells out specifically the constitutional authority for Congress and the criteria for insisting upon districts which are "compact, contiguous, and relatively equal in population," and I was happy to read in your press release, Mr. Chairman, for May 26 that you stated you considered these to be fair and accepted standards for the districts. You followed that by raising some doubt that such provisions could be enforced. So that I think we are agreed Senator KEFAUVER. That is in section 1, paragraph 2, of your resolution? Senator MUNDT. Yes. Now, I think we are agreed, therefore, that the standards are fair and acceptable, so we can discuss the means of enforcement. |