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of this paragraph which you have quoted from the text of your resolution. I note this, the language reads:
Before being chosen elector, each candidate for the office shall officially declare the persons for whom he will vote for President and Vice President, which declaration shall be binding on any successor.
I presume it is implied that such declarations shall also be binding on the maker of that declaration; is that your thought!
Senator MUNDT. This is true. This is of course the intent of the language. The cosponsors of Senate Joint Resolution 12 would welcome with warm applause anything which can be done to tighten that up to make it as clear as possible, completely binding, because it is our intention to bind the elector or his successor to vote in conformity with his declared announcement at the time of his candidacy before the people.
Senator HRUSKA. I am sure that was the intent. It was the way I originally read it, but it was suggested to me that it is only implied that it shall be binding on the maker of such a declaration. If the words were inserted there, after the words, "which declaration shall be binding on", insert at that point, "on him and any successor"
Senator Mundt. I think that would be an improvement. It would certainly eliminate any conceivable ambiguity and I would welcome it.
Senator HRUSKA. At the cost of only two words and three letters in each of them, I think it would lend the definiteness to the picture. It was a matter which had been called to my attention and I pass it on and I am grateful for the Senator's concurrence in that correction.
I do not want to get into any great discussion of any collateral issues here, but when the Senator from South Dakota did quote very extensively from the opinion of the Chief Justice in Reynolds v. Sims, I find myself just a little uncomfortable because I cannot subscribe to such sweet language as that used by the Chief Justice as these words:
And it is inconceivable that a State law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or ten, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable.
Perhaps if that were limited to the Constitution as it was construed by the Chief Justice, I would agree with it as being the law of the land, because it is the law of the land in such form and in such meaning as the Supreme Court places upon the Constitution as presently written. However, I would not want to subscribe to the idea that it is inconceivable that such a result could not be brought about.
By the same process which the Senator from South Dakota seems to apply in the electoral college, to wit, a constitutional amendment which would not only make it conceivable, but would make it very, very common sense, that the decision of the people to be governed by that kind of a system under a constitutional amendment that would give them that decision, that power of decision which could be renewed every 10 years as the present version is, that would be most notably an improvement in our present constitution.
Senator MUNDT. The Senator from Nebraska and the Senator from South Dakota are both cosponsors of what is defined as the Dirksen amendment, which in view of this thesis by the Supreme Court would restore to the States their right which we thought they had, and if they did not have it, restore it in view of this constitutional decision-it
would retain a right we thought they had and a right the Supreme Court did not think they had.
I alluded to this primarily because the Constitution is what the Supreme Court says it is until it is changed. And having made it, it seems to me that there is no constitutional manner in which they can reverse the field by saying that what obtains in their opinion in terms of injustices for States is appropriate to obtain as far as injustices of electing a President is concerned. Having made that commitment and having made that finding and that interpretation, it would seem to me they are bound to concur in a situation which would tend to eliminate the type of injustices existing between two twin boys who, all through their life had been equal, decided to settle—one in New York and one in Wilmington, Del., and for the first time lost their identity as twins and their equality of importance when they go to vote for President, when one twin is voting in New York, votes 43 times for President and his twin brother in Wilmington, Del., votes only three times. That is an astounding kind of discrimination which should not prevail in this day and age and which runs contrary to every word and syllable enunciated by the statements read in the decisions which I quoted from Reynolds v. Sims.
Senator HRUSKA. Thank you for that comment and I know that it brings it into proper focus for the all-around purpose that you had in mind.
The Senator from South Dakota was a Member of that Congress in 1950 when this was voted—was in 1950–1956—when there was voted the Daniel compromise amendment which permitted the States to have an option, a choice, as between proportional representation on the electoral college and the district representation as is containedas the latter is contained in Senate Joint Resolution 12.
Would you care to comment on that as a possibility, again, as compromise, if we really get into a box on this subject ?
Senator Mundt. Yes. That was done-I believe it was mentioned by Senator Holland-in many conferences with Senator Daniel and the other cosponsors at that time. This was done in an effort to get us off from dead center. It was quite obvious at that time that neither the Lodge-Gossett or Mundt-Coudert alone had support enough. You had the unfortunate division which we have now among sincere advocates of electoral college reform, as to which course to follow, each trying to achieve the same goal. And neither particular group having support enough for their version to get the job done. So this had been tried before. One time the Lodge-Gossett amendment also passed the Senate and failed in the House.
So we felt we would provide it on this basis, in the expectation that the House of Representatives which also has to act, would eliminate one or the other of the choices which were made in the Senate. It was never seriously expected that at the end of the confusion trail you would come up with each State having a choice, although it was worked out in careful consultation with constitutional lawyers that this would be a possibiilty, but not a very efficient one and a rather awkward method of trying to eliminate the general ticket system. So we proceeded in that fashion and came within, I think, six votes of getting the necessary two-thirds to have it approved. And I am happy to report that the then majority leader and now President of the
United States was among those voting for this approach in terms of a rollcall vote at that time.
Now, I think it would be better to hammer out these differences, and to try to present to the Senate one choice or the other, in lieu of the kind of choice that we gave the States with the so-called Daniel compromise, which we voted out at that time.
Senator Hruska. Of course, 1950 there was the Lodge-Gossett plan which was the proportionate system and that prevailed in in the Senate as I remember.
Senator MundT. Yes, and the House rejected it for some of the reasons which I think are inherent weaknesses in the plan and which, while it might provide and would provide, at least temporarily, certainly an improvement over the general ticket system, might in the longrun create evils which are even more alarming than that which we are seeking to eliminate by constitutional action.
Senator HRUSKA. That is all the questions that I have, Mr. Chairman; and I again want to express my thanks to the Senator from South Dakota for his statement.
Senator Bays. Does the Senator have time to yield to a few more questions?
Senator MUNDT. Yes.
Senator BAYH. As you do on all things, you speak eloquently about your feelings on this subject.
In comparison of the two twins, one in Delaware and one in New York, I am not convinced in my own mind, if you want to really look into that, that one of them is voting 43 times and one is voting only once. From my understanding the person in New York is casting one forty-third of a vote because it takes 43 times as many people to get the ultimate number. Therefore each person who goes into the voting booth knows that his strength is watered down because there are that many additional people in the State which count for the additional numbers.
Senator Mundt. Let me try to explain it this way, if I may, in greater detail about the twins.
They have identical achievements, they have made identical progress and I have them now at a period when they are in their middle fifties and one is a chief justice of the Supreme Court of New York and the other is a chief justice of the Supreme Court of Delaware so they are right smart boys and have done real well. Then they come to vote for President. Actually, the vote cast in the States becomes meaningful when it breaks a tie. Up until then whether we vote or do not vote in any determination is really not a significant factor. You and I and all politicians are always saying that their vote may be the determining vote. It may be the vote that breaks the tie. Let us put this now to a tie vote, popular vote, the determination of who the electors are going to be in Delaware and New York. The fellow who votes to break that tie, his twin, gets out to vote just before the polls are closed and casts his 43 votes for President because he determines the direction in which all 43 votes are going to go and the other man who breaks the tie, his twin brother in Delaware, determines just how three votes go. So I do not think that you could say that. I think you have given completely exaggerated strength of determining the fate and destiny of this country to a man purely bv geographic strength, because he is voting in New York instead of voting in Delaware.
Senator Bayh. You can find this same disparity existing within the districts and there is one thing that I want to get your thoughts about.
Senator Mund. You could if you did not provide for a safeguard.
Senator Bayi. I am concerned about this aspect. I would like to get your thoughts on, because you have given this question much thought. We are talking about creating districts which are equal in size, are we not ? Equal number of people?
Senator MUNDT. Compact, contiguous and equal—three factors. Senator Bays. The tendency I suppose would be very great, at least
Ι the temptation would be very great, to make these conform to congressional districts unless there has been movement in that direction.
Senator MUNDr. Yes.
Senator Bays. Whether this is true or not, the same thing could exist whether it is a specific congressional district or not. Take the congressional district, in which the tendency has been to create districts which are relatively safe districts both for the Democrats and Republicans. For an example, let's use the twins. One twin may be living in a district where the vote is 100,000 to 10,000. His vote would he lost if he voted with the 10,000. Whereas the other twin might be in a district which is evenly divided and his vote would be, of course, critical in breaking the tie. You are not concerned, apparently, about the fact that there would be great disparity within congressional districts and thus larger numbers of votes would be lost and not counted within States?
Senator MUNDT. Two comments on that to show this. First, it is increasingly difficult for politicians in either party to engage in significant gerrymandering these days for the purpose of protecting a safe congressional district. The Supreme Court has gone into this. The redistricting has gone into this. The redistricting that can take place by court action if the States refuse to act runs against that. Our amendment would include that it has to be compact, contiguous and nearly as equal in size, so that the limitations are pretty tight on any group that is trying to provide very many safe districts for one party and unsafe districts for another party, even though they would be tempted to try. The realities are such, when you have to have them compact, contiguous and nearly equal in size, your opportunities for thievery is substantially reduced. That would be my first comment.
The second one is, after all the travail and torture of trying to do it, when they get all them, the most they can achieve would be three electors, because each citizen votes for three electors. Actually, the most they could achieve by redistricting would be one. One elector out of 43. Let's suppose that party X, so we keep it nonpartisan, gets control of New York State. They contrive to set up three safe districts for one party or another. What have they done Presidential-wise? Those three districts each vote for one elector so the most they would have is three. The overall vote for the two at-large would not be affected. So that you minimize almost, I think, to an insignificant and unrealistic degree the chances for that kind of dilution. Where now in every State, the tiebreaking vote always creates a tremendous disparity-I call it a civil rights injustice between the fellow who has the 43 votes or whatever it may be, against the other fellow whose weighted vote is three, four, or fire.
Senator Bayh. I appreciate the Senator's point of view. I am going to give that a lot of thought.
In the 1964 election I found two Illinois congressional districts, one in which President Johnson polled a 90-percent majority and took a lead of 140,000 votes. In another congressional district, of similar size, Senator Goldwater won the district by fewer than 80 votes. However, under a district plan both would be tied in electoral votes. This is the point.
Senator MUNDT. In each case what you say is exactly true, we are not going to get perfection. In each case those overwhelming majorities would have delivered only one vote under our system. The overwhelming majority registered its effect on the other two electors at large. When you transfer that to a State you aggravate the problem.
Take 1960, the election. Kennedy and Nixon running against each other-to a rather substantial degree each carried one of the two largest States of the Union each carried it by about the same percentage. Very skimpy majority for either one of them. But in each instance they got the total electoral vote, of the whole State. So when you expand, the number of votes you can throw around either by a big vote or little vote, you aggravate this evil which you alluded to, it seems to me, in this congressional district where you have only one direct vote.
Senator HRUSKA. Would the Senator yield? When we go in the other direction and think of a national popular vote, then instead of having 50 possibilities of error-not error-but of negating the wishes of a small minority, say, by one vote, the entire election of a nation could depend upon a single individual vote, theoretically?
Senator MUNDT. Correct.
Senator HRUSKA. So in a single district, that business of disappointing or having individuals who are not represented becomes minimized
Senator MUNDT. The only meaning of a vote is to break a tie-like the Vice President breaks a tie in the Senate, that vote counts. That makes a decision. A tie-breaking yote is a vote that counts. We do not know which is going to be the tie-breaking vote. How are you going to get it to tie? What difference does it make in reality if you get elected to the Senate with a majority of 10 or 10,000,000? You are just as much a Senator and just as good a Senator and just as well elected. The real meaningful vote you have to consider in terms of what does a vote mean that is going to influence a decision, going to determine a choice? I think that is the only way you can do that.
Senator Bayh. I notice that in your statement you really zero in on the general ticket system. You describe it as the major culprit.
Senator MUNDT. The present system.
Senator Bayu. It was tied in very closely to the question you asked our colleague from Florida. I think all of us in the Congress, despite our political leanings, feel we are fortunate in having the political structure which has the freedoms in it, but yet, it does not have the great diversity of political spectrum that is available in other countries. Does breaking it down in smaller districts where the minority parties.