elective Executive officers of the United States-S.J. Res. 12 does not transfer control of elections from the States to the National Government.

Abolition of the person of the Presidential Elector necessarily would require the establishment of some substitute for the performance of this vital function. His function, with his fellow Electors, is the formal, constitutional nomination and election of the President and Vice President by a majority vote, or, if there is no majority, merely the nominations for these offices to the House and Senate, respectively. In performing his function, the Elector acts in a representative capacity-an agent of the people who appointed, or elected, him.

Today in each State, slates of Electors are nominated under State law by political parties organized under that law. What is often overlooked is that "national" parties and their Presidential conventions are extra-legal, being merely voluntary associations of state parties.

Party nominees for President and Vice President have no legal status as candidates for office under the Constitution or any laws of the United States. It is the office and person of Presidential Elector which permits the functioning of national parties without any Constitutional provision. Without the Elector, some Constitutional provision would have to be made if the Constitution is to provide a certain means for filling the offices of President and Vice President. The Elector's elimination would create a Constitutional vacuum unless some substitute is provided. Former Representative Frederic R. Coudert, Jr., of New York, who was one of the initial sponsors and supporters of the District plan, succinctly stated this problem. He was writing about a proposed amendment in 1955 that would abolish the Electoral College, retain the same number of electoral votes for each State, and permit their proportional division among Presidential candidates. He wrote:

"Most important is the constitutional vacuum in the election of the President created by the abolition of the State offices of Presidential Elector. For, any organic instrument of government is incomplete that fails to provide for the filling of its own offices by established and competent authority.

"The Constitution now provides imperatively that each State 'shall' appoint Electors, that the Electors 'shall' meet and vote and 'shall' sign and certify and transmit certificates to the President of the Senate who 'shall' open them and a person 'shall' be President. These imperative provisions will produce a President without the agency of a party nominating convention. This permits conventions to be extra-legal, and to continue so.

"S.J. Res. 31 says: "The President and Vice President shall be elected by the people of the several States,' and speaks of 'persons for whom votes were cast for President.' But, S.J. Res. 31 is silent on the vital first step of who, where, when, and how shall be legally selected 'persons for whom' votes can be cast for President and Vice President. Presumably, candidates are to be named by the extra-legal but lawful, 'national' convenings of the legal State parties. If this power is implied in S.J. Res. 31, doesn't the 'national' convention become an instrument of the Constitution?

"Should an attempt be made to fill this Constitutional vacuum by an addition to the proposed amendment, the foremost question is: Can nominees of national party conventions be given Constitutional status without making the party conventions themselves instruments of the Constitution under the authority of Congress? If this is not possible, a whole body of Federal law would be necessary to supplant present State laws and self-made convention rules with respect to the nominating process.

"The Presidential Elector, a so-called 'rubber stamp.' unknown and unsung. has a Constitutional importance as great as his anonymity. S.J. Res. 31, by Senator Mundt, by maintaining the office of Presidential Elector, avoids this and other major criticism."

"I suspect," Congressman Coudert concluded, "that few of the friends of S.J Res. 31 have looked at it in terms of a part of the Constitution, and some of its ultimate consequences on our federal system. I fear that its immediate positive political effect has dominated most of the thought about it."

The abolition of the Elector, it seems to me, raises a whole series of questions that have not been fully considered by those who advocated it.

In trying to improve the Constitution, we must be most careful that we do not, knowingly or unknowingly, upset the balance of our Constitutional structure. We should always remember that ours is a limited government-limited to the obiects for which its powers were granted.

The Constitution of the United States rests on two fundamental principles: (1) the limited dual sovereignty of State and Nation-each has the sovereign

power to declare the law as to certain things, and not as to other things, and (2) the division and separation of Legislative, Executive, and Judicial Powers, according to function. On these foundation principles are erected our system of "checks and balances."

In our federal Union of States, the proper objects of government are divided between the National Government and the Governments of the several States. This is the limited dual sovereignty of Nation and State, and is the source of our dual citizenship. We are, at the same time, citizens of the United States and of our own States.

It is the principle of Separation of Powers in the National Government which brought about the establishment of the Electoral College as the election link between the States-in a federal union-and the National Government. For example, were the British to introduce a separation of powers into their unitary government, they would have to establish an elective body counterpart to the House of Commons to choose the Executive. As it is, the Commons-without the separation of powers-performs the function of the Electoral College when it chooses the Prime Minister.

Senate Joint Resolution 12 is carefully designed to accomplish the limited purpose of establishing for the election of the President and Vice President the same principle of representation that has been long established for the election of Members of Congress-Senators and Representatives.

Each of us, as citizens of our States and of the United States, is represented in Congress by two United States Senators and by one Representative. Thus, a citizen's representation in Congress is two parts federal and one part national. Under S.J. Res. 12. a citizen would be represented in the Electoral College on exactly the same principles. We would vote for two federal Electors, corresponding to our Senators, and for one national Elector who would correspond to our own Representative in Congress. In so voting, each of us would be two parts federal and one part national.

S.J. Res. 12 would give the President and the Congress similar and parallel roots into the electorate. This is the proper foundation for both the Executive and Legislative Branches of our National Government.

Since the Supreme Court of the United States handed down the decision in the case of Baker vs. Carr in 1962, the phrase "one man-one vote" has been a rallying cry for those who condemn the present apportionment of state legislatures. While there is a considerable difference of opinion concerning the ap portionment of state legislatures, there is no question but that the principle of “one man-one vote" has not been applied in Presidential elections. If the principle is sound, then it seems readily apparent to me that those who are so strongly for its application to state legislatures should be equally strong for it to be applied to presidential elections.

The District plan comes as near to applying the principle of “one man-one vote," and yet retain the Federal system presently imbedded in the Constitution, as any proposal before this Subcommittee. Each individual voter would cast his ballot for three presidential Electors, whether he lives in the State of Wyoming. South Carolina, or New York. As things now stand, each individual voter in the State of Wyoming, when he casts his ballot in a presidential election, influences the selection of three presidential Electors; in South Carolina, the individual voter influences the selection of eight presidential Electors; and in New York, each individual voter influences the selection of 43 presidential Electors. I submit that this is injustice at its very worst.

For my part, I wish to see our Federal Union of States maintained while the method of selecting the President and Vice President of the United States is modified to more accurately reflect the wishes of the Electorate. For this reason, I urge the Committee to favorably report S. J. Res. 12 with the recommendation that it be passed by Congress and submitted to the States for ratification Senator THURMOND. Possibly, I am a suitable candidate to testify since I ran for President once and received 39 electoral votes.

Senator BAYII. I think it is fair to say you are the only witness we have been able to secure that can bring those credentials with him. Senator THURMOND. At that time in 1948 I received 39 electoral votes for President, and I might say, it might interest you, something the public does not generally know, that a change of 21,000 votes in

two States would have thrown that election into the House of Rep resentatives, it was that close.

I do not believe we have had any change in the electoral college since 1804 when the 12th amendment was adopted. At that time the 12th amendment provided that the electors would vote for a specific person for President and Vice President. Up until then the candidate receiving the largest number of votes for President would be the President and the second largest would be the Vice President. But the 12th amendment changed that and provided that they would definitely vote for a specific candidate for each office. That is the only change I believe we have had since 1804.

Under the present system the President and Vice President are both chosen by electors chosen by people in the general election. Each State has a number of electoral votes based on the representation in both houses of Congress. My State has eight electoral votes representing the two Senators, too, and the six House Members, making a total of eight. New York has 43, 41 House Members and two Senators, making a total of 43.

Each qualified party puts up the slate of electors and voters actually vote for electors, who then vote for President. This is one of the things I might say this is the winner-take-all practice that allows one vote margin to give all States electoral votes to one candidate. If no one candidate received a majority of the electoral votes the election goes to the House of Representatives where each State is given one vote. If one party in New York gets one more vote than the other he gets all 43 electors.

Now, the advantage of this system is, it serves as a buffer. It gives the Federal intervention, it serves as a buffer against Federal intervention in State elections since the electors are State officers. They are not Federal officers. They perform a Federal function but they are State officers.

I would not favor changing the electoral college. I think we need that buffer there. And it should be retained.

Now, the disadvantages, though, of the present system, and this is one reason I favor change, is that the present system does not accurately reflect the will of the people. It discourages voter participation, it makes it possible for one vote margin to carry all of the States electoral votes which I think is undesirable. It places more importance on each vote in a large State than in a small State. For example, one voter in New York can influence for 43 electoral votes whereas one voter in Delaware influences only three electoral votes, whereas one voter in Vermont or Delaware, Nevada, Wyoming, or Alaska would only influence three electoral votes. This is a 14-to-1 advantage for each voter in New York over those States I just mentioned. I am not too sure if this matter were appealed-if a case went to the Supreme Court, but what they would hand down a decision to that effect.

I think this encourages corruption in the larger cities. It enables the presidential candidate to be elected by a minority of the popular vote. Now, in 1955, the first year that I was in the Senate, I became interested in the electoral reform because I had had the experience of being a presidential candidate, and I had studied the matter a great deal and I introduced what is known as the "proportional plan." That is, the

State's electoral votes would be split in the same proportion as the popular vote went.

For instance, in my own State where we have eight electoral votes, if five of those went for one party and three for the other, then the party that got the five electoral votes would get five-eighths of the electoral votes and the other party would get three. This is not a bad system. I thought it was good. It is true, you would have some fractions there, but it could be handled or could be measured off to the nearest fraction if it is desired to be kept in whole numbers.

Senator Daniel of Texas, former Governor of Texas, was very much interested in electoral reform and Senator Mundt of South Dakota was very interested. We all had different plans. But we came together and worked together on a plan which passed the Senate by a majority but did not get two-thirds. And this gave each State the right to choose which system it would use, whether it wanted to use the proportional plan or whether it wanted to use the district plan.

As I stated, we did not get two-thirds and therefore we did not pass the Senate.

Now, I thought over the matter a great deal and I am inclined to think that possibly, of the two plans, that the district plan might be preferable, although I still think the proportional plan would be an improvement over the present system. The reason I think the district plan would be preferable is the President and Vice President would still be chosen by electors in the same manner, same number of electors would come from each State. Each State would be divided into districts, but not exactly like the present congressional districts, but some alike. But you would have the same number of districts as the number of Representatives in the House. You would have one elector for each district and two State-wide.

There you would have every segment of every State represented. You would not have a voter voting for all electors statewide as they do now. He would probably know the man he is voting for. He would probably know who that man favors for President. It takes it back to the grass roots. He would vote for two at-large statewide just like he votes for two Senators. He would vote for one, just like he votes for his Congressman now. Each voter would vote for three electors and that would seem to make more sense than voting on a statewide ticket voting for 43 people. Each State's electoral vote total might be made according to how each district voted. Each State's electoral vote total may be split, according to how each district votes, and candidates carrying the State gets two statewide electoral votes.

The advantages of this plan are this: it retains the advantages of the present method. It better reflects the will of the people. It equalizes the influence of every single vote-each voter votes for a total of three electors, one in district and two statewide.

It encourages voter participation.

If we can do that I think it is worthwhile.

I have no axes to grind, I simply pass on the benefit of my experience as a former presidential candidate and my experience as I have envisioned it here in the Senate. I think this would be an improvement, if we can stimulate voter participation and if we can make a fellow feel his vote is really going to count, I think it would be a stim

ulus and would be a great inducement to more people to participate in Federal elections.

If there are any questions I will be glad to try to answer them.
Senator BAYH. Thank you very much, Senator.

Because of your unique experience, I would like to ask you some questions in order to clarify our record.

I think most of us in the Senate are firmly convinced we are fortunate to be living in a country where we have a strong two-party system and as a result, we are careful, and I think correctly so, about changing the system which may have resulted in the development of a strong two-party government.

As you know, some concern has been expressed that a voting system, such as you have suggested, where you do not have a unit rule, would result in splinter parties, small minority parties, giving them the opportunity to, perhaps, exert themselves more than would otherwise be the case, thus weakening the two-party system.

Because of your unique position I suppose it would have to be said you were a member of a minority party at the time that you ran for President. Perhaps it is healthy to encourage this.

One, could you give us the benefit of your thoughts as to the value of small party participation and, two, the impact that you feel the district plan would have on the party system.

Senator THURMOND. I do not think it would protect it from that standpoint either way to any extent. I think this just takes it back more to the grassroots and would be advantageous over the present system. I think the way should always be kept open, although I am a believer in the two-party system-I think there are conditions that arise at times where the way should never be foreclosed for a third party to rise, if the occasion demands. But I do not think this district plan I recommended, or the proportional plan, would tend to stimulate thirdparty or parties or splinter groups by whatever terminology is desired to call any other than a two-party system-then the two parties.

Senator BAYH. If we are really getting down to the grassroots, sir, and the Senator from Maine argued persuasively that if you are going to get down to the grassroots, then you must permit the people in a direct popular vote to make their choice, just as the people in our States choose us for Senator. What is your thought about this?

Senator THURMOND. Well, you know, we really do not have a true democracy in this country. If so, I think that would be the case. We have a Republic, and because we do have a Republic, the majority does not control in everything, and I like that buffer of the electoral college between the States and the Federal Government. I think it is important that that be retained.

I was thinking a few days ago about some of the constitutional limitations on the majority. For instance, a majority will not control in a number of instances. It takes two-thirds of a vote to bring about conviction on impeachment. It takes two-thirds to expel a Member of the Senate. It takes two-thirds to override a Presidential veto. It takes two thirds to concur in a treaty. It takes two-thirds to call a constitutional convention-incidentally which has never been done-I am talking of a national convention. It takes two-thirds to propose a constitutional amendment to the States. It takes two-thirds to constitute a quorum of the Senate to elect a Vice President. The majority does not control.