portant voting qualifications are citizenship and residence. Citizenship is a universal requirement for all practical purposes. Uniformity of residence requirements, particularly for this national election, makes good sense anyway. Too many people who move on leap years are being disfranchised today. But some States have adopted very long and complicated provisions that are really unique. Advocates of national provisions must justify depriving the States of this independence. In the case of those requirements which are obviously designed to accomplish an arbitrary and otherwise illegal discrimination, national standards would be readily accepted by people from nearly all of the States. The people in the remaining States, however, might just have enough strength to prevent a proposed amendment from accumulating the votes of three-fourths of the States. 2. Represents voters, not artificial concepts.-Direct election does away with the fiction that geographic areas have a political interest that needs to be represented as such. It recognizes, rather, that only people have preferences, and it therefore counts only people. Were this amendment adopted, the people who argue that ours is a "republic" and not a "democracy" would have a harder case to make. Those of us who prefer democracy, however, and wish to proclaim to the world the superiority of democracy over other forms of government, will have our hands strengthened. 3. Some small State representatives favor democracy.-The principle of majority rule and equality of votes is, in fact, so clear and so popular in the United States, that little dispute exists in public on the point. Instead, recourse is had to a "practical" consideration: that is, that the overrepresented small States will not give up their advantage. Actually, under the electoral college system as it now operates the greatest advantage goes not to the small States but to the States that have the most extreme ratio of electorial votes to popular votes. South Carolina has frequently led (or followed) the country in this respect. Two important rejoinders need to be made to this "practical" argument. One is that even today, many representatives of small States favor complete abolition of our artificial presidential election system. Some of North Dakota's U.S. Senators and Representatives have been particularly outstanding in the struggle for direct election. Cannot the others from small States be tested? Can the doubtful ones among them not be persuaded? I would expect a fair mind at least to give them a chance to be counted. Secondly, the direct election system may not now be popular enough to win the support necessary for a constitutional amendment, but it can very suddenly become that popular a day or two after any presidential election. Suppose, as might easily have been the case (and as might be the case in 1964), that Mr. Kennedy had won 2 million more votes than he did, but that as they were distributed Mr. Nixon had nevertheless won the electoral vote. Then what report would this subcommittee be making? The Senators would not have waited to hear the academic analysis of a Florida State University college professor. 4. A standby amendment.—Why wait to be pushed? Why not beat the fates to the punch and leave the responsibility for the next backfire of the electoral college in the hands of the State legislatures should they scorn your proposal? As a result of the hangfire on some past constitutional amendments, the Congress has adopted the practice of the built-in 7-year limitation. In the case of abolishing the electoral college system in favor of direct election, no such time limit is necessary. Another form might be worked out to require that three-fourths of the States ratify the proposal within a 7-year time span, but that period could be measured from the last State to adopt it backwards instead of from today forward. III. POLITICAL OR PARTISAN ADVANTAGE A. Hypothetical analysis 1. Pro-Republican.—At the present time we can assume, probably incorrectly. that the Republicans cannot get out a presidential vote in the South. From this shaky ground we can go on to claim for the Republicans some artificial benefits derived from the electoral college and the State unit votes. The trouble with this is that it resigns the Republicans to the loss of the South. Then all the Democrats would need in addition would be large enough pluralities in a handful of big cities to swing the unit votes of a few big States. On the other hand, we might assume that the Republicans will be able to get out of least some southern support in a presidential race. This would become very important in a direct election and it would greatly enhance the Republican cause even today. Americans cannot avoid contrasting the total national popular vote for presidential candidates today. The Republicans have long suffered in this comparison because they were not credited with those stay-athome supporters who knew how useless their votes would be in the face of a Democratic sweep of the electors in their State. 2. Pro-Democratic.—Again by shifting assumptions we can play the game both ways. The unit vote gives the Democrats a chance to carry nearly balanced States whenever they can run up some huge pluralities in a few big cities. Thus the friends of some of the big city bloc voters defend the system. The fulcrum turns on their power-an influence which they could not have simply on the basis of numbers. By way of contrast, the Democrats can claim the larger party registration throughout the Nation so that to throw all the voters into one pot ought to produce a Democrat victory whenever the Democratic Party could keep its ranks solid. 3. Pro-third party.-Not quite so artificial is an examination of the impact of different systems upon third party or splinter movements, whether regional or national. Gubernatorial elections show us what happens to the small factions. Whether they be concentrated in a county or scattered throughout a State, they are simply ignored. If they do not enter into a fusion or other agreement, they are reduced simply to pressure groups. If they have some loyal followers they can survive, but they cannot win elections or tip the scales with other people's votes. In a very closely divided contest, they can hold the margin of victory or defeat, but they cannot anticipate this. Under the electoral college system-or the unit vote system in Georgia's primaries-such minor elements are given an artificial bonus. We have noted their effect, whether they be honest minor party movements or simply out-and-out crooks like the men of Plaquemines Parish in 1844. B. The hypothetical is inconclusive Now all of the above conjecture is inconclusive. Other people have played the game more seriously than I. Some have really worried about what would happen to their party and their influence. Most of what they have argued cannot be established. What we are left with, then, is a philosophy of responsible government. What kind of a President do we favor and to whom should he be responsible? We know that today presidential candidates must be more sensitive to the claims of pivotal areas. Under either the Kefauver-Dodd proposal or the direct election system the pivotal influence would evaporate. Nobody has convinced me that the long-run consequence would help or hurt either party as a party. The effect would be a more democratic and responsible President, even if he were from the other party. A. The electoral count IV. INCIDENTAL CONSIDERATIONS 1. Danger. Year after year, otherwise fine proposals for reform of presidential elections fall down at the point of the electoral count. They generally rely on the ambiguous phrase already in the Constitution: “and the votes shall then be counted." By whom? The Constitution does not say and neither do most of the proposed amendments. How shall contested votes be treated? The Constitution is silent. In a close and contested election-and we nearly had another one this January-the electoral count could be crucial. In the Hayes-Tilden election (1876), the pressure mounted to the point where the President (a Republican war hero) called Federal troops into town to assure the succession within his party. The House of Representatives finally adopted a resolution declaring Tilden elected. Tension was great, tempers ran high. They had until March to arrive at a solution and they cooked up a scheme that finally worked without bloodshed or violence. Happily, the Republicans had something to offer besides their control of the Army. They agreed to an end of reconstruction and the Democrats were placated, more or less. The 1876-77 story is a long one and we do not suppose that we shall ever face such a situation again. But we do not have a constitutional provision for dealing with one should it arise. We rely instead simply upon an act of Congress for resolving disputes. This trusts the old administration and the lameduck Congress not to change the law in December. The new Congress could not pass a new law unless it was able to override a presidential veto. The importance of minute detail in the law is demonstrated by reference to all of the 8-7 votes in the 1877 electoral commission. All of these crucial decisions went in favor of the Republicans and Hayes needed every single one of the contested ballots in order to win. The present electoral count law is not entirely adequate; it deals with most possible contingencies but not all. Some of the theory behind the law, moreover, is subject to criticism. But that is not a constitutional issue. That can be left up to Congress. What the Constitution must do is insure stability in the process. 2. Remedy. This stability can be insured simply by a constitutional authorization to Congress to provide for the case of a disputed election coupled with a prohibition on changing the law in midstream. That is, any disputed election would have to be resolved according to the provisions of the electoral count law as that law existed prior to the popular election. Such a constitutional provision would fit easily into the present scheme because the law is already on the books; all we need is assurance that it will not be reformed with a view to gaining advantage in resolving a particular existing dispute. As times change the law should be revised and it should go into much greater detail than is proper for a constitutional provision. But the Constitution should spell out the basis for this law. B. Resolution of deadlocks 1. Danger of the House voting by States.-The present procedures for resolution of electoral college deadlocks (in case of a tie or a lack of a majority) are unbelievably gruesome. The story on this is fairly long and I could submit as an appendix an article explaining the whole problem with detailed illustrations from past situations. Very briefly, however, the point boils down to this: the whole election is made finally to rest on the integrity of too many independent actors in the drama. Suppose that the party division among the State delegations is such that one candidate has the support of 26 States-just enough to win. (If the election were thrown into the House by a three-way contest, the likelihood that any one candidate would command this requisite majority of the States becomes very doubtful.) But among those 26 States are many State delegations that are closely divided. Some of them are one-man delegations; others are larger with as many Republicans as Democrats. Suppose a 15-Representative State is divided 8 to 7 in favor of the candidate. Then any one of the eight men in the majority could deprive the candidate of that State, and thereby of the election. The House could secret ballots for this purpose and who would ever know which of the eight had pulled the doublecross? I suppose that we would discover the answer when he collected his reward. And he would not have to be a crook, either. His constituency back home might well have elected him while voting for the presidential candidate of the other party. What better rationalization would he need for a switch? This whole fiasco can be easily avoided in either of two ways. Since the election need rarely if ever be settled this way, the point should not require much argument. If we could just avoid the really bad scheme we now have, either of the reforms would be acceptable. 2. Congress voting in joint session.-The Congress could resolve itself into a giant electoral college of its own. It would have just the same number of votes as the total of all the State electoral colleges, but it would not have the three votes corresponding to those now assigned the District of Columbia. This congressional choice would at least produce a President who had the support of the Congress en masse. He might or might not thereby have the support of both Houses. But this point is not too important since we have learned how quickly a President, once popular here on the Hill as a Member himself, loses the support of his old friends. (This is not a veiled reference to any President in this decade.) The Members of Congress, however, were not elected to resolve presidential deadlocks. A straight per capita vote in Congress would be a neat way of doing the job, avoiding the pivotal men now empowered to swing whole State delegations representing each one vote regardless of size. But an even neater system would avoid the Congress altogether. 3. Resort to total national popular vote.-Why not? Then we would be able to know the results of the election within a few days under all but the most unusual circumstances. We would add up the vote first according to whatever Federal principle was involved (whether the present electoral college system or the Lawrence plan) and if that failed to produce a winner, then we would add up the results differently-that is, directly, nationally. This would avoid all temptations to bargaining and negotiation for the Presidency. The Members of Congress would not really be sacrificing much in offering the Nation this protection. Members have not had the election of the President in the House since the election of 1824 and the Senate (which did not get to choose the Vice President in 1824) has not had the power to name the Vice President since the election of 1836-and then they took what was really the very obvious choice. C. Safeguarding the 23d amendment Some of the proposed amendments before the subcommittee rewrite the whole presidential election system, some of them even rewriting the assignment of executive power to the President. These need to be reexamined with an eye on their effect upon the 23d amendment. Why leave this matter to doubt and litigation, especially since the outcome of some future election might rest on just those three votes now assigned to the District. Can you imagine such a contested election in which the Congress, acting under its own provisions for resolving disputes, decided one way and the Supreme Court decided the other? Why risk it? Senator KEFAUVER. The subcommittee will stand in recess until 2:30 this afternoon. (Whereupon, at 12:45 p.m., the subcommittee recessed, to reconvene at 2:30 p.m., the same day.) AFTERNOON SESSION Senator KEFAUVER (presiding). The subcommittee will come to order. Mr. Kirby, do you have some matters to offer for the record? Mr. KIRBY. Yes, sir. The first is a letter from Floyce Kidd of Pontotoc, Miss., president of Political Leaders of Tomorrow, to Senator James O. Eastland, which Senator Eastland asks to be included in the record. Senator KEFAUVER. That will be made a part of the record. Mr. KIRBY. Then a statement submitted by Robert A. Barrett, entitled "Electoral College Reform," dated June 29, 1961. Senator KEFAUVER. That will be made a part of the record. Mr. KIRBY. Then a statement filed by William Byrnum, chairman of the Industrial Problems Committee, for the National Association of Manufacturers. Senator KEFAUVER. That will be made a part of the record. Mr. KIRBY. And a letter from the Governor, of the State of Oregon, the Honorable Mark O. Hatfield. Senator KEFAUVER. We are glad to have Governor Hatfield's letter. It will be made a part of the record. (The letter of Floyce Kidd to Hon. James O. Eastland follows:) PONTOTOC, MISS., June 22, 1961. Hon. JAMES O. EASTLAND, DEAR SENATOR EASTLAND: As you may know, a group of college and high school students here in Mississippi is at present engaged in a campaign to get the minimum voting age lowered in Mississippi to 18 years. The group, known as Political Leaders of Tomorrow, has been assured that the amendment will be introduced at the 1962 session of the Mississippi Legislature. PLOT is interested in good government, and tries to make our position clear on every matter. We would like to register our protest to the Federal constitutional amendments which have been proposed that would take the right to set voting requirements away from the States. We feel that the average person, 70784-61-pt. 2 -15 on reaching 18, is qualified to vote, but we feel that this is a matter for the individual States to decide. We will appreciate your making our views known to the Subcommittee on Constitutional Amendments. Thank you very much. Sincerely yours, FLOYCE KIDD, President, Political Leaders of Tomorrow. (The statement submitted by Mr. Robert A. Barrett follows:) STATEMENT OF ROBERT A. BARRETT, JUNE 29, 1961 ELECTORAL COLLEGE REFORM The Chairman and distinguished members of the Senate Subcommittee on Constitutional Amendments; I am Robert A. Barrett, a graduate student in American Government at the American University here in Washington, D. C. I regret that this committee does not have more time to hear testimony but then it is understandable in light of the many days of hearings which you have already held. Under these circumstances I am happy to have permission to submit a written statement for the record. My study of the present electoral college system was started in 1958 as an undergraduate student studying on a special research program here in Washington. Hence you will realize that I am a comparative newcomer to the consideration of electoral college reform when one realizes that the first proposal to accomplish its reform came within 10 years of the first election of our Nation. But the consideration of others before me has certainly assisted my studies of the subject. The analysis which I made in 1959 and which I am including for the record has led me to the conclusion that the least objectionable and the most practicable proposed reform is one embodied in House Joint Resolution 274 as introduced by Representative MacGregor in this Congress and earlier supported and sponsored by Senator Humphrey and others. I favor this solution as the best method to improve upon our present inadequate and undemocratic electoral system of electing a President. The workings of the electoral college in this last election serve as a vivid example of the inherent weaknesses that have been condemned by more men and proposed to be amended more times than any other feature of the Constitution. It seems obvious that now is the time to act and House Joint Resolution 274 offers the best means to establish a just electoral procedure that is easily comprehendible and very equitable in application to all of the people of these United States. The office of elector is completely unnecessary and very dangerous since any elector can resist the will of the people of his State and cast his electoral vote for another candidate-as has happened in so many past elections and happened in this election. At the time that the Constitution was framed there might have been valid reasons for choosing the President by a "deliberative body of wise men" but subsequent advances in communications, education, and the suffrage make such a body not only unnecessary but undemocratic today. We recognized way back in the XVIIth amendment that Senators could and should no longer be selected in any other manner than by the people. It seems to be a serious inconsistency to continue to select the Nation's Chief Officer in a manner much less democratic than those methods for selecting the other representatives of the people. This electoral college system has also allowed the development of the "unit vote" or "general ticket" practice of granting all of a State's electoral votes to the candidate receiving a bare plurality of the popular vote. This practice is very inequitable in that it effectively disenfranchises every voter in a State that voted for an opposition candidate and credits such votes behind the candidate receiving a bare plurality. It is theoretically possible for a candidate to receive only 26 percent of the popular vote and yet become President if that vote is located properly in the Nation, while his opponent, gathering 74 percent of the popular vote, would lose. In addition, this practice denies campaign considerations to most small States and "safe" States as the candidates concentrate their campaigns and platform promises on the large "pivotal" States. There also occurs a "landslide illusion" that is particularly deceiving as in the instance of 1936 in which Roosevelt received 98 percent of the electoral vote from only 60 percent of the popular vote. |