Your statement to the press should tell who you are and what you did as a presidential elector for Oklahoma in 1960. You were doing precisely what an elector is supposed to do, namely, to get the best persons possible for President and Vice President respectively. An election of the President by the House of Representatives which might have resulted from your efforts-would have been entirely constitutional and completely justifiable under the circumstances. Sincerely, CLARENCE MANION. Mr. IRWIN. Attached to that is an enclosure which I also beg of the committee to include, which is an address by Dean Clarence Manion on his broadcast "Manion Forum." Senator KEFAUVER. Let it be made a part of the record. (The document referred to follows:) [Weekly Broadcast No. 321, Nov. 20, 1960, by Dean Clarence E. Manion, Manion Forum Network. Sponsor, Manion Forum, South Bend, Ind.] ELECTORAL COLLEGE A BASTION OF FREEDOM As is always the case with close contests, the Monday morning quarterbacks are still working overtime on the presidential election returns. It is safe to say that nobody, not even President-Elect Kennedy, is completely happy about all of the final figures and millions of people, including some able cartoonists and a great many of our most distinguished editors, are unable to mask their misery. The reasons for dissatisfaction on both sides of the political fence are diversified and sometimes contradictory; nevertheless, this post election time of atonement seems to demand a single scapegoat and the criticisms are now tending to converge into an indignant blast against the constitutional establishment known as the presidential electoral college. Some of the frustrated commentators have discovered-apparently for the first time that the overall nationwide popular vote received by a presidential candidate in November bears no necessary relationship to the decisive electoral vote which will be cast for the candidate in December. Other critics are concerned because presidential electors have been chosen in Mississippi and Alabama who are uncommitted to either Nixon or Kennedy. These observers are sure that such a suspension of judgment is pure political blackmail. If the practice spreads, they are afraid that the choice of the people as expressed in the November elections may be frustrated. The fact is, of course, that as of now in 1960, nobody has voted for the next President of the United States. The millions who apparently cast their ballots for Kennedy and Nixon on November 8 were really voting for their own State's proportionate part of the 537 presidential electors who will meet in their respective States on December 19 and vote by ballot for a President and a Vice President of the United States. In this constitutional context, the nationwide total of popular votes now tabulated for Kennedy and/or Nixon means absolutely nothing. Strictly speaking, we did not have a presidential election on November 8. Actually, on that day, 50 separate elections were held, 1 in each State, and each of these was hermetically sealed off by the Constitution from each and all of the others. Thus, the popular majorities which Nixon rolled up in Kansas and Indiana could not be used to help him in Illinois or Pennsylvania. Nor could Kennedy use his big New York surplus to push him over the top in Ohio. In spite of all the current sound and fury, there is nothing unique about the discrepancy that appears when the 1960 nationwide popular vote total for Kennedy or Nixon is compared to the electoral vote that is now attributed to each of them. In the history of our presidential elections, it has frequently happened that the candidate who won the Presidency with a majority of the electoral votes has had many more nationwide popular votes cast against him in the November election than were cast for him at that time. This happened to Harry Truman in 1948, to Woodrow Wilson in 1912, to Benjamin Harrison in 1888, and to Rutherford B. Hayes in 1876. But, the most celebrated of all of these so-called minority Presidents is Abraham Lincoln who won the Presidency exactly 100 years ago in a field of four candidates, each representing a different political party. In that 1860 election Lincoln picked up 59 percent of the electoral votes after receiving only 39 percent of the nationwide popular vote. Furthermore, Lincoln had a clear popular majority in only 15 of the 33 States then composing the Union. And in seven Southern States Lincoln got no popular votes at all. ELECTORAL COLLEGE SAVED UNION IN 1860 Considering the political passions that prevailed throughout the country at that time, it is difficult to see how Lincoln-or anybody else for that mattercould have been made President in 1860 without the help of the constitutionally established presidential elector system. When that critical election was over, Lincoln's enraged enemies blasted the electoral machinery just as vehemently as some modern commentators are blasting it now. But, without the electoral system, the country would have lost Lincoln and, without Lincoln, we would probably have lost the Union. It is undoubtedly true that the framers of the Constitution designed the presidential electoral college deliberately to keep the selection of the President at least one step removed from the actual popular balloting. Certainly, that reflected their lack of faith in the virtues of direct democracy. But, it is also true that all of the modern corporation laws of the country are in like manner designed deliberately to keep the selection of the president and other officers of the company one step removed from the votes of the corporation's shareholders. Nevertheless, that undemocratic legal safeguard has seldom been fired upon by the corporate owners and it has undoubtedly helped to make American industrial enterprise the modern wonder of the world. It would be difficult to show that the fortunes of General Motors, United States Steel, or the General Electric Co., for example, would be improved by requiring their chief executive officers to be chosen by ballots cast directly by the thousands of people who own the stock of those companies. Some years ago, in an unguarded moment, a prominent business man temporarily in Government service made the mistake of saying, in substance, that what is good for General Motors will be good for the United States and vice versa. Without retooling that political babble, it can be said safely and truly that our political economy has a lot to learn from corporate business management where directors of the company are elected periodically by the voting shareholders, but where the responsible officers of the company are selected by the directors. This is precisely the type of indirect popular representative government that the framers of our Constitution attempted to provide for the management of the United States. In no part of the Constitution was this effort spelled out in more detail than in those constitutional provisions which describe the election of our President. Candor requires us all to confess that critically important collective decisions, like naming a President for the United States, require surrounding safeguards that extend far beyond a simple simultaneous show of hands by a plurality or even by a big majority of all of the American people. The need for such safeguards is even greater now than it was when the presidential elector system was invented by the Founding Fathers in the Constitutional Convention. In the beginning, it was possible to follow the constitutional provision literally in the selection of George Washington. But, in succeeding years, the electoral college was continuously compromised by the exigencies of politics until the presidential electors, who were designed to be responsible but free agents of the people for the selection of their President, were transformed into rubber stamps for dominant political parties which have now completely usurped the constitutional right of the people to name the person, who, as President of the United States, holds in his hands more power over life, liberty, and property than any other elective officer in the world. Today, modern organized politics has removed the real selection of our President much further from the reach of the people than the undemocratic framers of the Constitution ever dreamed of doing. Two dominant extraconstitutional political organizations now tell Americans to choose one of two people for the office of President. In political campaigns for the execution of this Hobson's choice, all of the really important issues of domestic and foreign policy are blurred, blunted and subordinated to the point where they give way entirely to the techniques of crowd psychology and the nuances of television pancake makeup. Comes November, and millions of Americans troop to and through the polling places with the impression that they are voting directly for the next President of the United States. But, of course, none of them can really do that. How many of you can name one-just one-of the 537 men and women whom you helped to elect on November 8 and who now have the official duty and responsibility to select the new President on December 19? SYSTEM HAS BEEN PROSTITUTED Of course, you can't name them. Nevertheless, at this moment and according to law, these people constitute the most important group of men and women in the world. But, they are all rubber stamps, of course, by virtue of their political pledges to the party bosses and you may confidently expect them to carry out those pledges on December 19 when they will vote for Kennedy and Johnson or Nixon and Lodge, depending upon their political complexion-unless, of course, some one of the candidates should die in the meantime. In that case, there would be the very devil to pay. But, God willing, the 537 electors will faithfully carry out their pledges; that is, in all States, except Mississippi and Alabama, where, as just about everybody knows, presidential electors have been chosen who are unpledged free agents with the full untrammeled power of choice, precisely as the Constitution of the United States says that all shall be. Our teachers of American political science owe a debt of gratitude to the people of Mississippi and Alabama for thus graphically highlighting this obscure point in American civil government which, up to now, practically no teacher has been able to get across-namely, the blatant hypocrisy of our quadrennial November presidential election and the extraordinary continuing authority of the obscured constitutionally created presidential elector. The practitioners of organized politics are incensed, of course. It was definitely not cricket of their Mississippi and Alabama colleagues to let such a black cat out of the bag because, after all, other electors elsewhere may get these libertarian constitutional notions and start to feel their political oats-if not this year, then certainly 4 years from now. Just suppose that some day all 537 duly elected presidential electors should start acting like directors of General Motors between November 8 and December 19 and dare to select the best available man for President of the United States, party pledges to the contrary notwithstanding. Horrors! You may look, therefore, for an immediate drive by the "old political party pros," aided and abetted by thoughtless thousands who are disappointed one way or another by the current election returns, to amend the Constitution by wiping out what they will call the anachronistic undemocratic electoral college system and providing for the election of future Presidents by the direct votes of all the people of the United States. Those who understand the priceless time-tested advantages of our Republican form of government will gird themselves to resist this hypocritical crusade to the very last ditch. Undoubtedly there are some parts of the electoral college machinery that need repair and/or replacement, but there is nothing wrong with it that cannot be satisfactorily adjusted by each State acting for and by itself. The Constitution now provides that each State shall appoint its electors in whatever manner the legislature thereof may direct. (Art. II, Par. 2.) It is not necessary, therefore and for instance, for New York or Illinois or for the country to forever endure "a winner take all" electoral vote system which now causes the presidential election to go periodically to the political huckster who is willing to promise the most for a hundred thousand blocked votes in New York City and Chicago. It is possible and desirable for every State, including Illinois and New York, to preserve the political effectiveness of all of its areas and for all of its people by having its presidential electors chosen separately by the voters of each congressional district with two to be chosen at large as its U.S. Senators are chosen. The constitutional integrity of this country depends upon the constitutional integrity of its constituent States. One of the last bulwarks of defense for he vanishing rights of the States of the Union is now found in the constitutional provisions which lodge control of elections generally, and of presidential elections particularly, in the several States of the Union. When this constitutionally established State control of votes, voters and the vital presidential electors disappears into a single nationwide pool of popular voting power, this American Republic will be dead. And, when this American Republic is dead, it will be immediately succeeded by a worldwide pool of absolute power controlled by Communists in the Kremlin. (Copyright, Manion Forum, 1960) Mr. IRWIN. This division of the States to more nearly represent the popular vote is perhaps too obvious a solution. Who can see the States of New York, Pennsylvania, California, or Illinois diluting their voice in the control of a presidential election? These powerful States merely wish to dilute the opposition. I implored the Legislature of the State of Oklahoma, in its present session, to lead the way by making such a division of its electoral vote. Instead, a law was enacted levying a fine of $1,000 in indemnity against any elector performing his constitutional duty. I was quoted in one of the leading newspapers as saying that I did not believe this act of the Oklahoma Legislature would void or supersede the Constitution of the United States. I offer for the committee's consideration a decision of the Supreme Court of Alabama in their Opinion of the Justices, No. 87, a summary of which consists of all or most of one page. I would be happy to read it or include it; as the counsel of the committee wishes. Senator KEFAUVER. Well, how long is the decision of the Supreme Court of Alabama? Mr. IRWIN. It is a very fine, concise, authoritative statement of law regarding presidential electors. Senator KEFAUVER. We want to try to hold the record down as much as possible, but this seems to be only two pages so we will let it be made a part of the record, and, for identification, it is in Southern Reporter, second series, volume 34, at page 598. The style of the case is Opinion of the Justices, No. 87. Is that the one? Mr. IRWIN. May I inquire if that pertains to the electors, the pledging of the electors from the State of Alabama, in which the supreme court stated that the parties did not elect the electors, but the people at large elected the electors, citing further reference to the U.S. Constitution and other cases in question? Senator KEFAUVER. It appears to be. What is the style of the case you have there? Mr. IRWIN. I am not familiar with those law references, sir. Senator KEFAUVER. Yes, it is the same case, we have been advised. (The decision referred to, Opinion of the Justices, No. 87, 250 Ala. 399, 34 So. 2d 598 (1948), is as follows:) Opinion of the Justices of the Supreme Court in answer to questions propounded by the Governor under Code 1940, title 13, section 34, as to whether an amendatory act of the legislature, requiring presidential electors to cast their ballots for the nominee of the national convention of the party by which they were elected, is violative of constitutional provisions. "To the Chief Justice and Associate Justices of the Supreme Court of Alabama "Judicial Building, "Montgomery, Ala. "SIRS: "Your written opinion on the following important constitutional questions is requested: "1. Does Act No. 386, S. 46, approved July 7, 1945 (General Acts, 1945, p. 605) entitled 'An Act to amend Section 226 of title 17 of the 1940 Code of Alabama' violate any provision of Article II of the Constitution of U.S. or Article XII of the Amendments of the Constitution of the United States? "2. Did the matter inserted in Section 226 of title 17 of the 1940 Code by said amendatory Act No. 386 constitute such a departure from the subject of the statute before amendment as to render Act No. 386 unconstitutional as violative of section 45 of the Constitution of Alabama? "3. In view of the fact that presidential electors are not elected by political parties, would an elector chosen at the general election in November 1948 have a discretion as to the persons for whom he could cast his ballot for President and Vice President? "4. If a presidential elector chosen at the general election in November 1948 should cast his ballot for a person for President or Vice President who was not the nominee of the national convention of the party by which the elector was elected, would the elector's ballot so cast be a legal vote for the person or persons for whom it was voted? "5. Is said Act No. 386 so ambiguous, indefinite, and uncertain as to be invalid because it is incapable of enforcement? "Very respectfully "JAMES E. FOLSOM, Gessner T. McCorvey and McCorvey, Turner, Rogers Johnston & Adams, George S. Taylor and Samuel M. Johnston, all of Mobile, Wilkinson & Skinner, Borden Burr, Frank M. Dixon and Bowers, Dixon & Dunn, all of Birmingham, Julian Harris, Norman W. Harris, Russell W. Lynne, Philip Shanks, Jr., John A. Caddell, Charles H. Eyster, Noble J. Russell, Melvin Hutson and S. A. Lynne, all of Decatur, J. B. Blackburn, of Bay Minette, Rushton, Stakely & Johnston, of Montgomery, W. Howell Morrow, of Lanett, and John E. Adams, and Adams & Gillmore, all of Grove Hill, filed briefs, amicus curiae, asserting the invalidity of the act. A. A. Carmichael, Attorney General, and Bernard F. Sykes, Assistant Attorney General, filed brief, amicus curiae, in support of the validity of the act. To the Governor of Alabama, State Capitol, DEAR SIR: We acknowledge receipt of your communication of March 23rd in which you request our written opinion on certain constitutional questions in connection with Act No. 386, S. 46, approved July 7, 1945, General Acts 1945, p, 605, entitled, "An Act to amend section 226 of title 17 of the 1940 Code of Alabama." In our opinion the attempted amendment is violative of the Federal Constitution. Section 226, Title 17, Code of 1940, is as follows: "The electors of president and vice-president are to assemble at the office of the secretary of state, at the seat of government at twelve o'clock noon on the second Tuesday in December next after their election, or at that hour on such other day as may be fixed by congress, to elect such president and vice-president, and those of them present at that hour must at once proceed by ballot and plurality of votes to supply the places of those who fail to attend on that day and hour." By the aforesaid act, § 226 was sought to be amended by adding the following words at the end of the section: "and shall cast their ballots for the nominee of the national convention of the party by which they were elected." The Constitution of the United States, Article II, § 1, clauses 2 and 3, says: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator |