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ELECTION OF THE PRESIDENT

TUESDAY, MAY 16, 1967

U.S. SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to call, at 10:05 o'clock a.m., in room G-308, New Senate Office Building, Senator Bayh presiding. Present: Senators Bayh, Hruska, and Thurmond. Also present: Larry A. Conrad, chief counsel, and Clyde Flynn, minority counsel. Senator Bays. The subcommittee will please come to order. I would like to make a few opening remarks and I trust my colleague from South Carolina and others of the subcommittee will do so also either at this particular moment or as they arrive.

I am concerned and I expressed this Monday on the floor of the Senate, about the antiquated, really undemocratic, and what I feel is a dangerous electoral system under which we now operate to choose our President and Vice President. It seems rather strange to me in this day and age when we are making every effort to extend the franchise, when we have removed the religious prejudice that existed in the colonies, we have removed the roadblock of holding property, we have removed the roadblock of race, we have removed the roadblock that prohibited women from voting, when we are moving to let each American citizen have the right to vote, that we should have the stumbling block of the electoral college. We vote for township trustee, for county clerk, for Governors and Congressmen and Senators; there are only two offices about which we do not let the people make the final choice and that is the President and the Vice President.

The electoral system, as it was created by our Founding Fathers, was created to try to deal with certain very real 18th century problems that no longer have relevance to Americans of today. A close reading of the Constitutional Convention will bring to light what some of

concerns were. Indeed, the popular election, that the Governors choose the President, and that the legislative body choose the President were all methods suggested. In fact, some thought that this ought to be a hereditary right. It should be remembered also that there were no political parties at that time. Thus, it was felt that when the original Founding Fathers passed from the scene, the Jeffersons, the Washingtons, and the Adamses, that there would be a great proliferation, a splintering of the structure and there would be little ability to bring to bear in the individual States the national tenor of an election for President. Our forefathers did not see, of course, the development of the political parties. Thus, we had the tragic circumstances of the election of 1800, which caused an immediate ratification

these

of the 12th amendment. It showed that our electoral system was imperfect.

Other things that concerned the forefathers in the early days was that we had widespread illiteracy. We had large blocks of slaves who could not vote at all. We had great disparity in voter qualifications. There was little communication whatsoever, a few tabloids poorly distributed. There was little or no transportation.

All these circumstances have been altered. There has been change. There is mass media, both by television and by press, making it possible for each of our constituents to have full as to knowledge and to examine in detail the characteristics of each presidential candidate. So I feel that the time has come, as the majority leader has said, for us to make the final step in guaranteeing to each American citizen the right to vote; namely, the right to vote for the most important office in the land, the President of the United States. I sense the strong feeling which he senses that exists throughout the country, and I should say in fairness that some of my colleagues who disagree are really trying to accomplish the same goal. Those that support the proportional plan, those that support the district plan, basically are trying to arrange an electoral system in which the will of the people is more accurately expressed. I salute this goal. But I feel that there is only one really certain way for the will of the people to be accurately expressed, and that is to let them determine this for themselves, by voting directly for the Presidency.

Now, having made my position clear, I would like to repeat what has been my modus operandi ever since assuming the chair of this subcommittee. That is, we are going to try to explore all avenues on this very issue. I think the record will show that my mind has not been made up. Indeed, I have changed my mind since the first day that we sat in this very room holding hearings. Basically, we want to hear as many witnesses as time will permit. We hope we can get a full exploration from Members of this Congress and interested citizens throughout the land. A change like this should not be taken quickly and without adequate knowledge. If we do not have time to hear ail the interested parties, we will follow, without objection, the normal pattern of the committee of accepting statements for the record, if my colleague from South Carolina does not object. We are going to hold extensive hearings and hope to be able to recommend something from the subcommittee to the parent Judiciary Committee and then on to the Congress.

(S.J. Res. 2, 3, 6, 7, 12, 15, 21, 25, 55, 83, 84, and 86 follows:)

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(S.J. Res. 2, 90th Cong., first sess.) JOINT RESOLUTION To amend the Constitution to provide for the direct election of

the President and the Vice President of the United States Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress :

"ARTICLE--"SECTION 1. At a time determined by the Congress there shall be held in each State and in the District of Columbia an election in which the people thereof

shall vote for President and for Vice President. In such election, each voter shall cast a single ballot for two persons who shall have consented to the joining of their names on the ballot for the offices of President and Vice President.

"The legislature of each State shall prescribe the places and manner of holding such election thereof and shall include on the ballot the names of all pairs of persons who have consented to the joining of their names on the ballot for the offices of President and Vice President but the Congress may at any time by law make or alter such regulations. The voters in each State shall have the qualifications requisite for persons voting therein for Members of the Congress, but nothing in this article shall prohibit a State from adopting a less restrictive residence requirement for voting for President and Vice President than for Members of the Congress, or prohibit the Congress from adopting uniform residence and age requirements for voting in such election.

"The Congress shall prescribe the qualifications for voting and the places and manner of holding such elections in the District of Columbia.

“Within forty-five days after the election, or at such time as the Congress may direct, the official custodian of the election returns of each State and the District of Columbia shall prepare, sign, certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate, a list of all persons for whom votes were cast for President and for Vice President, together with the number of votes cast for each.

"SEC. 2. On the 6th day of January following the election, unless the Congress shall by law appoint a different day not earlier than the 4th day of January and not later than the 10th day of January, the President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be totaled. The persons joined as candidates for President and Vice President, having the greatest number of votes shall be declared elected President and Vice President, respectively, if such number be a plurality amounting to at least 40 per centum of the total number of votes certified. If none of the pairs of persons joined as candidates for President and Vice President shall have at least 40 per centum of the total number of votes certified, then Congress shall provide by law, uniform throughout the United States, for a runoff election to be held between the two pairs of persons joined as candidates for President and Vice President, respectively, who received the highest number of votes certified.

"Sec. 3. If, at the time fixed for the counting of the certified vote totals from the respective States, the presidential candidate who would have been entitled to election as President shall have died, the vice presidential candidate entitled to election as Vice President shall be declared elected President.

"The Congress may by law provide for the case of the death or withdrawal, prior to the election provided for in section 1, of a candidate for President or for Vice President and for the case of the death of both the persons who, except for their death, would have been entitled to become President and Vice President.

"Sec. 4. The Congress shall have power to enforce this article by appropriate legislation."

[S.J. Res. 2, 90th Cong., first sess.)

AMENDMENT

(IN THE NATURE OF A SUBSTITUTE) Intended to be proposed by Mr. Dirksen to S.J. Res. 2, a joint resolution to pro

vide for the direct election of the President and Vice President of the United States, viz: On page 1 strike out all after the resolving clause and

insert in lieu thereof the following: That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by conventions of three-fourths of the several States within seven years from the date of its submission by the Congress :

“ARTICLE

"SECTION 1. The President and Vice President shall be elected by the people of the several States and the district constituting the seat of government of the United States.

“Sec. 2. The electors in each State shall have the qualifications requisite for electors of Senators and Representatives in Congress from that State, except that the legislature of any State may prescribe lesser qualifications with respect to residence and Congress may establish uniform residence and age qualifications.

“Sec. 3. The persons having the greatest number of votes for President and Vice President shall be elected, if such number be at least 40 per centum of the whole number of votes cast for such offices. If no persons have such number, a runoff election shall be held in which the choice of President and Vice President shall be made from the persons who received the two highest numbers of votes for each office.

"SEC. 4. The times, places, and manner of holding such election and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations. The Congress shall prescribe by law the time, place, and manner in which the results of such elections shall be ascertained and declared.

“Sec. 5. Each elector shall cast a single vote jointly applicable to President and Vice President. Names of candidates shall not be joined unless they have consented thereto and no candidate shall consent to his name being joined with that of more than one other person.

"SEC. 6. The days for such elections shall be determined by Congress and shall be uniform throughout the United States.

"Sec. 7. The Congress may by law provide for the case of the death of any can. didate for President or Vice President before the day on which a President-elect or a Vice-President-elect has been chosen; and for the case of a tie in any election.

"SEC. 8. This article shall be imperative unless it shall have been ratified as an amendment to the Constitution by conventions of three-fourths of the States within seven years from the date of its submission to the States by the Congress."

[S.J. Res. 3, 90th Cong., first sess.) JOINT RESOLUTION Proposing an amendment to the Constitution relating to the nomination and election of candidates for President and Vice President, and to succession to the office of President in the event of the death or inability of the President

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States :

“ARTICLE "SEC. 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years and, to gether with the Vice President, chosen for the same term, be elected as provided in this Constitution.

"SEC. 2. The nominees of each political party for election as President shall be nominated in primary elections held in the several States as provided by this section. The places and manner of holding such primary elections shall be prescribed in each State by the legislature thereof. Congress shall determine the time of such primary elections, which shall be the same throughout the l'nited States. The voters in such primary elections in each State shall have the qualifications requisite for electors of the most numerous branch of the legislature of such State. Any such voter shall be eligible to vote only in the primary of the political party of his registered affiliation. No person shall be a candidate for nomination except in the primary of the political party of his registered affiliation, and the name of each such candidate shall appear on the ballot of that party in all of the States. A political party shall be recognized as such for the purposes of any primary election held pursuant to this article if at any time within four years preceding such election the number of its registered members shall have exceeded 10 per centum of the total number of registered voters in the l'nited States.

“Within fifteen days after any such primary, or at such time as the Congress shall direct, the official custodian of the election returns of each State shall make separate lists of all persons for whom votes were cast as nominee for President and the number of votes for each, which lists he shall sign and certify and transmit se:iled to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Speaker of the House of Representatives, open all certificates, and the votes shall be counted.

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