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APPENDIX A

S. J. Res. 2

IN THE SENATE OF THE UNITED STATES

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.”

90-902 0-68-36

Senator Bayh. You may proceed.

STATEMENT OF EASTMAN BIRKETT, CHAIRMAN OF THE COMMIT

TEE ON FEDERAL LEGISLATION OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

Mr. BIRKETT. Thank you.

The committee on Federal legislation regards the proposal for direct election as, to borrow a phrase, an idea whose time has definitely come. Some might think it a little overdue. I know our committee has focused on this problem on three occasions within my recollection, first in 1949 with the Lodge-Gossett proposals, again in 1961, and yet a third time in 1965, and, of course, again this year. We have had four different positions as a result of our attack of these four times.

All along, I think, our committee has somewhat wistfully, more members of it at least, have somewhat wistfully wished for direct popular election, but have felt that it was, as we said, several times in our earlier reports, not politically feasible or practical at this time.

Somehow, since 1965, things seem to have changed. I think a great catalyst has been the work of the chairman of this committee and the American Bar Association's report. We think that probably the greatest proof there could be for the need for this reform is the fact that probably most Americans, just about election time, assume it to be already in effect, and when asked whom they voted for, they do not say for the elector; they do not consider the possibility that perhaps they did not really vote for anybody becaues of the unit rule that exists in the various States. They say they voted for the Democratic candidate or the Republican candidate, and we believe that it is highly desirable, in this system of ours, to bring into real being this system which people already think is in effect.

Senator Bays. Excuse me. I suppose you could go just a bit further and say they really do not realize this system exists until they see it being reported on television and they see a difference between the popular vote and the electoral vote.

Mr. BIRKETT. Exactly, and somehow or other they tend to forget that again until the next time it happens. In large part, this is because as it happened in the more recent elections it has not, in fact, changed the results of it as distorted results.

Now, we concur, in spades, if you will, with the barrage laid down by the American bar report which describes the present system as archiac, undemocratic, complex, ambiguous, indirect, and dangerous. What they forgot, I think, was immoral and fattening and perhaps it is at least one of those.

The only real area of contention within our committee was the discussion of the 40-percent runoff provision. We have also had a little of it in this room this morning with some of those present. There is a vigorous dispute and a kind of gnawing doubt as to whether the 40percent provision will encourage the development of splinter parties, the idea being that if a plurality wins on a candidate, a third-party candidate has little chance of winning and no real opportunity to make a deal with the front-running candidate, whereas under a runoff some have expressed the fear that this would, if a runoff occurred,

give a third-party candidate a leverage that might enable them to make a deal and would, therefore, encourage the development of thirdparty candidates in the first place.

On balance, we finally achieved unanimity on the committee that we did not think was realistic. We did not think it was a realistic

concern.

Senator Bayh. Well, then, what is your specific
Mr. BIRKETT. We favor the 40-percent provision.

Senator Bayh. Forty percent and then a runoff or then another contingency?

Mr. BIRKETT. We favor the runoff. We favor, in effect, the provision that is in your draft resolution. We have some suggestions as to implementation which I would like to take off as we go along, but basically we regard the possibility of a runoff, with a 40-percent provision, as extremely remote. We do not think that this extremely remote contingency will encourage the development of splinter groups, particularly in view of the difficulties that are in the way and will continue to be in the way of splinter groups who want to run a national candidate.

Senator BAYH. What about the national attitude toward a President that has only 41 percent?

Mr. BIRKETT. We have had it before on occasion, and the country has survived. We think you have to put a figure somewhere. We think a majority requirement would lead to two frequents and such a figure perhaps would give you more of a problem of splinter parties than a 40-percent figure. I think generally that the Nation tends to rally behind the winner, so long as they feel that he is the winner under the

, system and under the rules that have been set up. Certainly this has been true in the case of some pretty razor-thin elections in the past, the Kennedy election being, of course, one.

Senator BAYH. The key being that the winner had more votes than the fellow he ran against ?

Mr. BIRKETT. No, not really. More than the fellow he ran against, right. Not a majority. Right.

One provision in the draft resolution that troubled some of us was the provision for the official totaling of the certified vote not earlier than the 4th and was it not later than the 10th or something of that sort. Precisely—these escape me. And, the problems of having a runoff election; that is to say, if there is a runoff election and the vote is not certified until January 6, the difficulty of scheduling, holding, and determining the results of a runoff between then and January 20 are, we think, obvious and serious, and, of course, if it were not done within that interval of time we would be faced with the prospect of the Speaker of the House being President, under the succession law of 1947. So, we would think it desirable to revise this provision to provide for the official totaling of the votes in Congress at a considerably earlier date.

Senator Bayh. What date would you suggest ? Would you suggest this be in the Constitution or Congress be given authority to enact legislation?

Mr. BIRKETT. I think the latter. I think it would be better to leave it out of the Constitution itself, certainly as far as the precise date is concerned, because it is difficult to foresee all the contingencies. I think the ABA—no, I do not think the ABA proposal speaks on this. I think

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they recommend leaving the date of the election to the Congress, but, we did discuss this on our committee and felt that probably it would be better not to put it in the Constitution.

In any event, we felt it would not be a good idea to put into the Constitution a date as late as the one that is in there.

Senator Bayh. I think you are absolutely correct in that given a runoff that that particular proposal would be totally inadequate.

Mr. BIRKETT. Right.

Senator BAYH. In fact, as I think about it, it would be more of a benefit to that draft without any reference at all as to the possibility of a runoff. You cannot amend the Constitution in that manner.

Mr. BIRKETT. That is right.

Senator Bayh. Can you foresee any contingencies in which the absence of a certain date might tempt the Congress of an opposite political party to play some type of political game with the results?

Mr. BIRKETT. Now, that thought had not occurred to me.
Senator BAYH. It certainly has its liabilities.
Mr. BIRKETT. Yes, it does.
Senator Bayh. Or certain advantages you can see here.

Mr. BIRKETT. Yes, it does. It might be possible, in order to avoid such a Machiavellian possibility, to put not a specific date, but a period within which, and to put the period back sufficiently so that it would-at least it would avoid a practical scheduling problem.

Senator Bayh. Could one say within x number of days after an election the vote shall be totaled and reported ?

Mr. BIRKETT. Yes. Yes, and I think that it would be, with the modern machines and means of totaling, that it need not be nearly as many days, perhaps, as has been the case before. You do have to allow time for recounts and that sort of thing and that, of course, has been one of the practical problems that has bothered people for years about the direct popular election; has been the possibility of recounts and charges and counter-charges in every State. But we think that in this computerized age that could be done rather quickly.

We also noted that—and forgive us for quibbling with a couple of things—the resolution seems to require the States to include on the ballot the names of all pairs or persons who have consented to the joining of their names on the ballot for President and Vice President. This would literally seem to give the opportunity for a remarkably long ballot of self-nominated presidential and vice presidential candidates with no followings. Perhaps this could be handled by giving the States the power to make reasonable regulations designed to prevent this.

We also wanted to comment a little bit on the provisions for what happens in case of the death of a President. We agree with the provision that the winning vice-presidential candidate would become President if the winning presidential candidate should die before the official count, since we think this is what people would expect. In the case of both winning candidates, we think that the amendment should provide for a new popular election rather than leaving it to be provided for by Congress, because Congress might provide for it by providing that the election--providing not for a new election, but for a determination by Congress of who should be the winner or who should be the President. Since the whole thrust of this

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