allocation of electoral votes and the retention of all aspects of the Federal feature, is in order. A portion of each State's electoral votes, for example, onethird, could be cast for the candidate receiving the greatest number of votes at the popular election while the balance could be allocated on a proportionate basis.18 To be of any significance insofar as the smaller States are concerned this would, of course, require a proportionate increase in the number of each State's electoral votes. It would seem that this solution would do less violence to established sets of relative values and at the same time be less unpalatable to those States content with the present, not wholly satisfactory, system for the distribution of electoral votes. (The following is reprinted from U.S. News & World Report, July 11, 1960, p. 100:) WILL THE SOUTH DECIDE THE '60 ELECTION?-IN DEADLOCKED ELECTION, SOUTH'S POWER "WOULD BE FORMIDABLE”—“ELECTORAL VOTE: SOUTH'S ONLY EFFECTIVE WEAPON" It isn't being talked up now, but Keep an eye on key States of the South, once the national conven- Strategy is all set, if 1960 nominees are unacceptable to the Strategy: Throw the election into the House of Representatives, Heart of the Southern plan is the use of Presidential electors. Following are excerpts from an article, "Presidential Elections; We in the South are engaged in a great constitutional struggle to preserve our way of life, not in some trivial game. Every known stratagem is being employed against the South in this struggle, including appeals to our strong sense of loyalty to the Democratic Party. To prevail, we must be prepared, if the need is felt, to utilize any legal weapon available. To use the electoral system as a weapon, if this decision be made, would merely be calling to our aid provisions of the Constitution of the United States designed to accomplish our aim, namely, the election to the highest office in our Nation of the best qualified man. The Constitution of the United States provides that the person elected President of the United States must receive a majority of the whole number of electors appointed [that is, the electors chosen by voters in the general election]. Since the total number of electors to be appointed (elected) by the 50 States of the Union this November will be 537, a person to be elected President must receive the electoral vote of a minimum of 269 electors. The 11 Southern States will appoint the following number of electors: Between them, these States will appoint a total of 128 electors. What a political weapon these electors represent. 48 In the interest of preventing an undue fragmentation of the two-party system, Wechsler favors a proposal of Senator Norris to require a successful candidate to receive 35 percent support in the electoral college and, absent such support, selection by a majority of the numbers of Congress on joint ballot; supra, note 46. This would seem to be a sound feature of any amendment. Let us suppose, for the sake of argument, that this November the States of Alabama, Arkansas, Georgia, Louisiana, Mississippi and South Carolina elect 57 free electors, unpledged to any presidential candidate, as their laws apparently now permit; that the State of Virginia, as its laws apparently now permit, elects 12 electors pledged to a Virginia Democrat; that the State of Texas, as its laws now permit, elects 24 electors pledged to a presidential candidate nominated by the State Democratic convention-being some presidential candidate other than the one nominated by either of the two major political parties on the national level-who may or may not be the same presidential candidate as the one to whom the Virginia electors may be pledged; and that the States of Florida, North Carolina, and Tennessee, in accordance with their respective laws, elect 35 electors pledged to vote for some presidential candidate or candidates other than the presidential candidates nominated by the two major political parties on the national level, who may or may not be the same candidate or candidates as the one or ones to whom Virginia and Texas electors may be pledged. Under such circumstances, if, as a result of the outlined actions of the 11 Southern States, all presidential candidates, including those nominated by the Democratic National Convention and the Republican National Convention, fail to receive the requisite 269 electoral votes needed for election, but one or more of said candidates needs 57 or fewer electoral votes for election, 57 free and unpledged electors from the States of Alabama, Arkansas, Georgia, Louisiana, Mississippi and South Carolina would represent the balance of power and could determine the next President. This would put tremendous bargaining power in the hands of these free electors, and, in exchange for their electoral votes, they might exact from a presidential candidate needing their votes for election concessions and promises on issues, appointments and other things favorable to the preservation of our Republic and to the South. For instance, they might win a promise from such candidate that, upon becoming President, he would appoint as Attorney General of the United States, a key official in enforcing so-called civil rights laws in Federal courts, a person friendly to the South, and, as Justices of the Supreme Court of the United States, a number of appointees from the South having substantial previous judicial experience and holding traditional views on southern problems and the proper exercise of judicial restraint in connection therewith. On the other hand, if the free electors holding the balance of power are unable to strike any bargain with a candidate for President needing their electoral votes for election regarding such concessions and, consequently, determine to cast their electoral votes for some different candidate for President, thereby preventing any candidate from receiving enough electoral votes for election, or if none of the presidential candidates have enough electoral votes after the November elections which, combined with the votes of the free electors, would result in a majority of the whole number of electors appointed, then, as provided by the Constitution of the United States, the choice of the President would be made by the U.S. House of Representatives. In this event, the bargaining power of the 11 Southern States would be even more impressive. The Constitution of the United States provides that, in the event no person voted for as President shall receive a majority of the whole number of electors, the U.S. House of Representatives shall choose immediately, by ballot, the President from the three persons voted for as President having the highest number of electoral votes. In so choosing the President, the vote in the House of Representatives shall be taken by States, the representation of each State having one vote, and a majority-26 of all the States shall be necessary to a choice. The U.S. Supreme Court, in McPherson v. Blacker, commenting on this provision of the Constitution, stated that "in case of a failure in the election of President by the people, the House of Representatives is to choose the President; and 'the vote shall be taken by States, the representation from each State having one vote.' The State acts as a unit, and its vote is given as a unit, but that vote is arrived at through the votes of its representatives in Congress elected by districts." HOW SMALLER STATES GAIN POWER Since each State has but one vote when it devolves on the U.S. House of Representatives to choose a President, it is obvious that the power and influence of the smaller States is greatly increased in the selection of the President over what it is in the electoral college. For example, in the electoral college, the State of New York has 45 electoral votes, whereas Mississippi has only 8; but, in the House of Representatives, Mississippi has an equal vote to that of New York in choosing the President. By way of a further example, California has 32 electoral votes, whereas Arkansas has only 8 in the electoral college; but, in the House of Representatives, both Arkansas and California have an equal vote, one vote each, in choosing the President. In the House of Representatives, the bargaining power of the 11 Southern States, if they acted in unison, would be formidable. In order to visualize better how the choice of the President by the House of Representatives is made, let us assume, for the moment, that as a result of the election this coming November no person voted for by the electors for President receives a majority of the electoral votes and, consequently, the election is thrown into the House of Representatives. Further, let us assume that the three persons voted for by the electors for President receiving the highest number of electoral votes are the nominee of the Democratic National Convention and the nominee of the Republican National Convention and the person receiving the electoral votes of the 57 free electors of the 6 Southern States named herein above. The choice for President would be from among these three persons. Assuming also that the representation in the House of Representatives from the regions of the Nation outside the Southern States and the border States would be fairly evenly divided between Democrats and Republicans—which would seem to be a valid assumption when one considers that after the congressional elections in 1958 the division in the House of Representatives from all States, outside the Southern and border States, was 149 Democrats and 142 Republicans the Southern States, with the border States of Kentucky, Maryland, Missouri, Oklahoma, and West Virginia, would have the balance of power in choosing the President and could strike bargains for votes to win concessions, such as agreements on legislation, appointments and other things favorable to the Republic and the South. This is the kind of raw political power which politicians understand. It would make the South the most powerful minority bloc in the United States and restore it to the position of political power it once held in this Nation, from which position it jealously guarded the sacred institutions of our constitutional Republic. It may be asked whether the House of Representatives has ever chosen the President of the United States. The answer is an emphatic "yes," once in 1801 and again in 1825. Furthermore, the election of the President came closer to being thrown into the House of Representatives in 1948 than most people realize and most Democratic and Republican politicians want to admit. The first time the House of Representatives chose a President of the United States occurred in an election between Thomas Jefferson and Aaron Burr. The electoral vote for each was equal, as a consequence of which, no choice having been made by the people, the House of Representatives proceeded on Wednesday, February 11, 1801, in the manner prescribed in the Constitution, to the choice of a President. On the first ballot, eight States voted for Jefferson, six States voted for Burr, and the votes of two States were divided. The balloting continued until Tuesday, February 17, 1801, when the 35th ballot, as had all the previous ballots, resulted the same as the first. The House then proceeded to the 36th ballot, and, it having been concluded, the Speaker declared that, the votes of 10 States having been given for Jefferson, the votes of four States for Burr, and the votes of two States in blank, Thomas Jefferson, of Virginia, had been, agreeably to the to the Constitution, elected President of the United States for the term of 4 years commencing on the 4th day of March 1801. Again, in 1825, it having been determined that neither person voted for as President had received a majority of the votes of the electors, it devolved on the House of Representatives of the United States to choose a President from the three highest on the list of those voted for by the electors for President, which three were Andrew Jackson, 99 electoral votes; John Quincy Adams, 84 electoral votes; and William H. Crawford, 41 electoral votes. The number of electoral votes necessary to elect was 131. A member from each State, making 24, were appointed tellers, who, having examined the ballots, announced that the votes of 13 States had been given for John Quincy Adams; the votes of seven States for Andrew Jackson; and the votes of four States for William H. Crawford. The Speaker then declared that John Quincy Adams, having received a majority of the votes of all the States of the Union, was duly elected President of the United States for 4 years to commence on the 4th day of March 1825. STRATEGY THAT ALMOST WORKED IN 1948 With regard to the presidential election in 1948, it will be recalled that in that year Harry S. Truman was the presidential candidate of the Democratic Party, Thomas E. Dewey of the Republican Party, and J. Strom Thurmond of the States' Rights Democrats. It was the purpose of Thurmond in running for President to throw the election into the U.S. House of Representatives. Truman was elected President, receiving 303 electoral votes. Dewey received 189 electoral votes. Thurmond received 38 electoral votes from the States of Alabama, Louisiana, Mississippi, and South Carolina plus 1 from Tennessee. The number of electoral votes necessary to win was 266, a majority of the 531 electoral votes then in the electoral college. Truman received 37 more electoral votes than he needed for election. However, Truman carried two key States, one of which in particular was considered fairly safely Republican, in which a switch of a very few votes would have landed them in Dewey's column rather than in Truman's and would have thrown the election into the House, as planned by Thurmond. States were Illinois and Ohio. These In Illinois, with 28 electoral votes, Truman received 1,994,715 popular votes and Dewey 1,961,103. Truman carried the State by 33,612 votes out of 3,955,818 popular votes cast for himself and Dewey. A switch of 16,807 popular votes from Truman to Dewey would have given the 28 electoral votes of Illinois to Dewey. In Ohio, with 25 electoral votes, Truman received 1,452,791 popular votes and Dewey 1,445,684. Truman carried the State by 7,107 votes out of 2,898,475 popular votes cost for himself and Dewey. A switch of 3,554 popular votes from Truman to Dewey would have given the 25 electoral votes of Ohio to Dewey. If the total of the 28 electoral votes of Illinois and the 25 electoral votes of Ohio, 53 electoral votes, is deducted from the total electoral votes Truman received, 303, Truman's total electoral votes is thereby reduced to 250, less than a majority of all the electoral votes necessary to elect in 1948. If the total of said electoral votes of Illinois and Ohio, 53, is added to the total electoral votes Dewey received, 189, Dewey's total electoral votes is thereby increased to 242, also less than the majority of all electoral votes necessary to elect in 1948. The effect then of the switching of the electoral votes of Illinois and Ohio, if the results of the election in 1948 had been as here recast, would have been to throw the election of President into the House of Representatives. When one realizes that 48,489,217 popular votes were cast in the 1948 presidential election for all presidential candidates and that a switch of a total of only 20,361 popular votes from Truman to Dewey in Illinois and Ohio, as hereinabove illustrated, would have spelled success for the Thurmond strategy and doubtless changed the course of history to the advantage of the South, one is less inclined to write off the present movement in the South to deadlock the presidential election this year. CONCLUSION For many years prior to 1936, the one-party South had a major voice in the political life and affairs of our Nation. This was due, primarily, to the twothirds rule which was in effect in Democratic National Conventions for over 100 years. Under the two-thirds rule, candidates were required to receive two-thirds of the votes in a Democratic National Convention in order to be named the convention's nominees for President and Vice President of the United States. The rule assured that the views of all areas and sections of the United States would be respected in a national convention and that the nominees of the convention, in the main, would speak for all Democrats, united. Largely because of this, in the Southern States at any rate, the practice of nominating Democratic candidates for appointment (election) in such States as electors pledged or otherwise morally committed in advance to vote in the electoral college for the presidential and vice presidential candidates nominated at the Democratic National Convention grew. At the Democratic National Convention held in Philadelphia in 1936, the twothirds rule was abrogated, and majority rule in the choice of candidates for President and Vice President was adopted. SHIFT OF POWER TO NORTH Since then, the control of the Democratic National Conventions has moved primarily to the heavily populated States of New York, Pennsylvania, Michigan, Ohio, Illinois, and California, and in recent national conventions these States have dominated the choice of Democratic nominees for President and Vice President and dictated the political philosophies expressed in the Democratic platforms. Support of States' rights, a historic Democratic principle, no longer finds expression in national Democratic platforms. Since then, also, disunity, discord, and strife have become the order of the day in Democratic National Conventions. Nationally, Democrats are rent and torn asunder by profound sectional and philosophical political differences. The abolition of the two-thirds rule by the Democrats was urged in the name of more democracy, as represented by rule by a simple majority. However, we need only look at our beloved Constitution of the United States to discover that our Founding Fathers found it wise to require decisions on many important affairs of government-and certainly no decision could be more important than the nomination of a candidate for President of the United States, probably the most powerful office in the world today-to be made by two-thirds of those deciding. For example, by the provisions of the Constitution, no person shall be convicted by the Senate of the United States on an impeachment without the concurrence of two-thirds of the members present; each House of Congress may, by the concurrence of two-thirds, expel a member; bills returned with objections by the President-vetoed-may be passed by two-thirds of both Houses of Congress and become law; the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; the Congress, when two-thirds of both Houses shall deem it necessary, shall propose amendments to the Constitution; on the application of the legislatures of two-thirds of the several States, Congress shall call a convention for proposing amendments to the Constitution; and a quorum of the House of Representatives for the election of President when the election devolves upon the House shall consist of a member or members of the House from two-thirds of the States. It would be difficult to find more valid support for the restoration of the two-thirds rule in Democratic National Conventions than in the provisions of the Constitution itself. The rule in fairness and justice should be restored. Unless and until the two-thirds rule is restored in Democratic National Conventions, the Southern States, if they hope to protect their way of life and this constitutional republic, will be literally forced, this year and in the future, to employ the only really effective political weapon they have available to them, namely, their electoral vote, for the purpose of bargaining for favorable concessions and promises on issues, appointments, and other things vitally necessary to the South. There is no other practical course short of abject surrender of their cherished ideals and principles. |