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the plans, but they are the two most substantial differences, and my feeling is that this subcommittee, in its wisdom, in looking over the whole matter, might well consider whether it would reduce the majority provision in the administration plan and would add the apportionment of the electoral vote of each State on the proportionate vote plan as embraced in the Lodge-Gossett formula which the Senate adopted by a very substantial vote as this subcommittee well knows.
I shall go more at length into this same matter later, but I want to make it very clear for myself, that while I appear here in general support of revision and in support of much of what is in the administration program and while I congratulate the chairman of this subcommittee and others for offering that as a beginning point, I would not be satisfied by adopting it in toto and ending with the provisions of the administration plan for the reasons which I stated, and other reasons.
In my humble judgment, the President's recommendations do not go far enough. The time is long overdue for a complete and drastic change in the constitutional method of selecting a President and Vice President. The electoral vote of a State should not be arbitrarily counted as a whole in favor of the candidate for President or Vice President who receives the highest number of individual votes. This method of selection successfully disenfranchises millions of U.S. citizens and denies them the right to have their vote weighed and counted for their choice for President or Vice President. While I am absolutely opposed, under the compact conception of our Constitution, to the popular election of a President and Vice President, and firmly believe that a State should be entitled to electoral votes proportionate to its representation in Congress, I further feel that the electoral vote should be divided between candidates in the exact manner in which it is cast. This is substantially the same plan that was contained in the proposed Lodge-Gossett amendment for which I was proud to cast my vote in 1950 when it was adopted in the Senate by a vote of 64 to 27. I will be glad to refer the subcommittee, if they are interested, that I did speak at some length to this subject. My remarks, if they are worthy-they appear as far as the temporary record is concerned, beginning at page 1186 in the Congressional Record of January 31, 1950, and extending for a good long paging thereafter. I have introduced Senate Joint Resolution 139 which contains this substantial language which follows the present text of Senate Joint Resolution 58, page 1, line 3, after the word "counted" as follows:
In other words, I adopted for my amendment and I hope it will not be regarded as plagiarism-I am trying to piece this thing together so when we get through with this we can say something that satisfies the philosophy of persons of all political persuasions, those who call themselves liberals and those who call themselves conservatives, those who call themselves big-State people and those who call themselves little-State people, and which at the same time will allow a reasonable chance of ratification. So I follow substantially the quotations out of the administration resolution, Senate Joint Resolution 58 with these words, and I quote:
Each person for whom votes were cast for president in each state shall be credited with such portion of the electoral vote thereof as he received of the total vote of the electors therein for President and each person for whom votes were cast for Vice President in each state shall be credited with such proportion of the electoral votes thereof as he received of the total vote of the electors therein for Vice President. In making the computation, fractional numbers less than one thousand shall be disregarded. The person having the greatest number of electoral votes for President shall be the President if such number be at least 40 per centum of the whole number of the electoral votes, then from the persons having the three highest numbers of electoral votes for President, the Senate and the House of Representatives sitting in joint session shall choose immediately, by ballot, the President. A majority of the votes of the combined authorized membership of the Senate and the House of Representatives shall be necessary for a choice.
The Vice President shall be likewise elected, at the same time and in the same manner and subject to the same provisions, as the President, but no person constitutionally ineligible for the Office of President shall be eligible to that of Vice President of the United States.
The adoption of this language will effect a basic, far-reaching and necessary reform in our constitutional method for selecting a President and Vice President.
The population election of the President and Vice President could be effected by a constitutional amendment. But even then it would be in direct conflict with the dual political form of government established by the Constitution. It flies in the face of the federal system" and destroys completely the political identity of States and regions. It presses the entire people into one composite mass. I just call attention to the fact that to make a direct election workable would require the Federal Government to take over, lock, stock, and barrel, the election laws of the several States and so many particulars as to make us in fact one Federalized electoral, election machinery. For instance, the age of registration, age of qualification for voting varies in the various States, as this committee well knows, and would have to become uniform, if direct election would give each State a fair chance.
The period of residence, which varies among the various States as required in their own wisdom would have to be changed to become uniform. The dates of registration would have to be changed and the provisions of this registration machinery would have to be changed. The provisions for absentee voting would have to be changed so as to have a uniform formula in order to make, in order to give the States equal opportunity for their people in the event direct elections were adopted. And for that reason--for these reasons I regard direct elections as completely out of the question; besides that, direct elections, and this is one of the largest objections, disregard the long battle in the Constitutional Convention between those States who wanted state representation and who succeeded in getting it in the Senate and those States who wanted popular representation and who succeeded in getting it in the House.
Direct election would negative that entirely, whereas holding the matter in the States and giving the States each an electoral vote in accordance with its entire representation in Congress, including both the Senators and the House Members retains in part, at least, the original concept of two different approaches to this question of how we get to a national statement of policy or a conclusion on a matter as important as this.
The district plan, where two State electoral votes are awarded for each Senator on a statewide basis and one for each separate congressional district in the State—we generally refer to that as the Mundt
plan in honor of our distinguished colleage from South Dakotarecognizes the federal system, but it is subject to a marked degree of human and political control and manipulation by those who control the machinery of State government, particularly in delineation of the district, though they will have closer control under present opinions of the Supreme Court than would have been the case a few years ago. There is still the opportunity for gerrymandering of lines so long as the population figures are substantially identical in the various districts.
Then too, there are substantial population shifts and changes that take place between the decennial census for which compensation cannot be made. Many who have supported this plan in the past may now have second thoughts in light of the decisions in the legislative apportionment cases which will be discussed later by me. This plan is still eminently preferable over the present system or that of popular election. In other words, I regard the so-called Mundt plan as an improvement, but I feel about that just as I feel about the administration program, except I do not feel quite so strongly about it, I think the adoption of either, if they were submitted to the States and ratified by the States would present an almost insuperable problem to our getting a more far-reaching amendment which would give to each person the chance to have his vote counted, at least in groups of the smallest practical number which could be assigned a unit in the program which I have suggested.
The proportional method of selecting President and Vice President which I advocate and now present, is in complete harmony with our constitutional forms. It is precise and not subject to political manipulation or human frailties. It is fair to the States, both small and large, and it gives to each and every qualified elector in a State the right to have his vote counted for a candidate for President or Vice President. I am not one of those who is a strong supporter of the one-man, onevote principle, but since the Court has gone so far in adopting it, I think there is added reason for feeling that the present system, which is the most massive diminution of popular voting strength, and which takes away from more millions of voters and citizens their right to be heard in counting the final electoral vote, becomes more and more intolerable and that one of the reasons crying out for improvement and modification of the electoral system at this time is that very thing and that the program I suggest here comes nearer recognizing the facts that each citizen's vote should have a chance to be counted in the final estimate, in the final conclusion, rather than to have millions thrown out the window as they are now. Where, for instance, in the case of a great State like New York or Illinois or California, closely divided States, the total electoral strength is thrown one way or another. hanging the question of which candidate gets the majority, no matter how slender of the total vote cast.
There are some who feel that those of us who are pressing this are only those who decry the casting of liberal voting strength, one way or another. Perhaps that might have been urged with some strength some years ago, but now when we have seen the exact opposite occur, by having splinter party candidates break down the strength of parties in the various States, splinter party candidates standing for the most conservative type of government position, and when we have seen every
conceivable sort of shifting of voting patterns from one party to another in the States--North, East, South, West-whether by reason of the liberal proclivity or by reason of some other approach, frequently a highly conservative approach, I think the point may be made no one can claim at this time that what we are interested in is only straitjacketing the vote in the States where there is a highly vocal liberal minority which has been known to shift from side to side, thereby changing the election results in that particular State. I shall bring this up in some detail later.
Mr. Chairman, the historical arguments as to why the electoral college system should be reformed have been stated and restated in the past with such power, force, and eloquence that I am reluctant to advert to them now and do not believe that it is necessary to inform and enlighten the members of this subcommittee and the people on the issues. Committee hearings of both the House and Senate and the Congressional Record are replete with these arguments. The urgent need today is to examine and weigh on the scales of judgment new evidence and new developments that have effect and influence on the issue involved, so that we can offer and find approval by the two-thirds vote required in both of the Houses of Congress with a reasonable chance of ratification by the three-fourths of the States required, a formula which would bring about a meaningful change.
The Supreme Court of the United States on March 26, 1962, rendered a decision in the case of Baker v. Carr, commonly known as the Tennessee Legislative reapportionment case, which may well be ranked as the most important and far-reaching decision ever handed down by that august tribunal. As a direct result of this decision the political foundation and hegemony of every State in the Union and in every political subdivision thereof, is being transformed either by a voluntary but forced act of the State legislatures or by orders and decrees of U.S. district courts. This statement could have gone a good deal further. We have had two formulas approved in our State by three-judge courts, one of which was turned down by the Supreme Court with allowing a hearing of the States some years ago and the other of which was turned down last week, in such a way as to force extra elections within our State. So that my statement here could have gone "and decrees of the U.S. district courts which themselves have sometimes been reversed by the U.S. Supreme Court.”
Baker v. Carr held that the people of a State were being denied equal protection of the laws as guaranteed by the 14th amendment to the United States Constitution when State legislative districts were drawn in such a manner that a portion of a State's population suffered a debasement of their votes in relation to less populated districts. Numerous subsequent decisions have resulted in the doctrine enunci. ated being reduced to a description of “one body, one vote," "one man. one vote,” Reynolds v. Sims (377 U.S. 533) required the Alabama State Legislature, both upper and lower houses, to be evenly reapportioned on the strict basis of population. State courts are carrying the principle of equal apportionment on the basis of population down to the level of district, county, and municipal subdivision of State government.
In Wesberry v. Sanders (376 U.S. 1) the Supreme Court extended the doctrine to the District of Members of the House of Representatives. It said, in part:
We hold that, construed in its historical context, the command of Art. I, Sec. 2. that Representatives be chosen "by the people of the several states" means that as nearly as is practicable one man's vote in a Congressional election is to be worth as much as another's."
Since the 17th article of amendment was enacted subsequent to the 14th, I suppose we Senators are safely beyond the reach of the Court. That is simply the supposition of one citizen and one lawyer. No one knows what the Supreme Court is apt to think about this question when it referees. But it is a fact that the 17th amendment was ratified long after the 14th amendment, which of course was one of the reconstruction amendments.
But, when one considers how far the actual election of a President and Vice President has in fact departed from the electoral college concept written into the Constitution by the Founding Fathers a serious question is presented.
Mr. Arthur M. Schlesinger, whom I frequently disagree with, frequently hits a sound note in my opinion and he does so in this book right here. “Paths to the Present," describes what happened in this language:
What demoted the electoral college from a deliberative body to a puppet show was the rise of political parties. As people began taking sides on public questions, they were unwilling to leave the crucial choice of the Chief Executive to a sort of lottery. Instead, each party publicly announced its slate of electors and the candidate they would support. This usurpation of the electors' functions, though peaceably achieved, amounted to a coup d'etat. It was an amendment of the written Constitution by the unwritten constitution. The electors, while retaining the legal status of independence, became henceforth hardly more than men in livery taking orders from their parties. * * * in the election of our President and Vice President in a choice of our electors.
As we are today, in fact, acting in an extra-legal and supra-constitutional manner, would it not be entirely appropriate for the Supreine Court to assert its judicial power if it felt that great masses of citizens in these United States were being denied equal protection of the laws in having their vote for President and Vice President discarded because they failed to vote for the candidate or candidates that receives the most number of votes.
In any event, it would be most appropriate for Congress and the States to implement the principle of fair and proportionate distrieting of areas for which public officers are to be elected by providing for the division of the electoral vote of a State in accordance with the pronortionate rote received by the candidate.
The trials and tribulations of the electoral college system have differed from election to election. The election of 1948 dramatically illustrated how third party movements and splinter parties could so dilute the vote between candidates that the States' electoral vote would be cast to candidates receiving less than a majority of the popular vote. In the States of California, Florida, Indiana, Louisiana, Maryland, Michigan, New York, Ohio, Oregon, Tennessee, and Virginia where the total popular vote amounted to 19,985,102, the candidate carrying the entire State electoral vote, a total of 184, received less than a majority of the popular vote. I think too little attention has been given to that fact and in each case of the States that I have