chosen by the people, Andrew Jackson obtained a plurality of the popular votes cast, but lost the election in the House to John Quincy Adams. In both cases, there were allegations of intrigue and votetrading in the House. There is general agreement today that selection of a President by the House is highly undesirable, particularly under the present constitutional provisions for the contingent election. The procedure is hardly democratic, since each State delegation, regardless of size, has only one vote in deciding the outcome. Nevertheless, so long as the election of the President requires an absolute majority of electoral votes, there is always the danger that the House will be called upon to decide the contest. This danger is especially acute when strong third-party movements arise, or when a presidential election. is decided by a close popular vote. In 1948, for example, if Truman had received less than six-tenths of 1 percent of his vote in two States, the election would have gone to the House. And in 1960 a total shift of only about 20,000 popular votes in two States would have left Kennedy with less than an absolute majority of electoral votes. If adopted, Senate Joint Resolution 58 would correct all but one of these defects. It provides for abolishing the electoral college and automatically awarding a State's electoral votes to the winning candidate. This, in one stroke, would remove the dangers stemming from the office of elector and the State's absolute power over appointment of electors. It also provides that, if a presidential candidate fails to obtain an absolute majority of electoral votes, the election will be decided from among the three leading candidates by a joint session of the Senate and the House, with each Member casting one vote. This would make the contingent election more democratic, but it would not in any way lessen the danger of its occurrence. Since my feeling is that the danger of the contingent election should be reduced to the very minimum, I would like to suggest to the subcommitte that it consider the provisions covering it as contained in House Joint Resolution 819. Under my proposal, the candidates with the greatest number of electoral votes, whether a majority or a plurality, would automatically be declared President and Vice President. after a routine count by the Congress. If the electoral vote ended in a tie, which is a remote possibility, the Senate and House of Representatives, sitting in joint session and with each Member casting one vote, would immediately choose the President and Vice President from among the candidates with the greatest and equal number of electoral votes. As I see it, the provision for election by plurality has these arguments in its favor: First, it would give the greatest possible assurance, within the framework of a limited reform amendment, that the electoral vote count will reflect the results of the popular vote. In a close election, it is always possible that the presidential candidate with the most popular votes, and who as such would be the choice of the people, might nevertheless fall short of an absolute majority of electoral votes. If that happened, the people would not have elected the President. And, even under the provision of Senate Joint Resolution 58, it cannot be said with certainty that the Congress would be guided by the results of the popular vote. There would always be the danger of "cabal, intrigue, and corruption" especially if the leading candidate's party held a narrow majority in the Congress. Second, it would discourage divisive efforts by third parties. A third party, even with fairly heavy popular backing, would not be strong enough to elect a President. But it might actively work to frustrate the November election, throw the decision into the hands of the Congress and, in this way, exert an influence disproportionate to its strength. The contingent election, as provided by Senate Joint Resolution 58 would be decided among the three leading candidates, which would further encourage third-party efforts toward an inconclusive general election. Election by either a plurality or majority of electoral votes, rather than by an absolute majority only, would render such tactics futile and, in the process, strengthen our two-party system. Third, it would prevent the risk of an intolerable situation as regards the conduct of our foreign affairs. If a close election denied the leading candidate an absolute majority of electoral votes, the United States, lacking a President-elect, would drift from November to January uncertain as to the next occupant of the White House. And so would the rest of the world. It is not hard to imagine the difficulties which could plague us, particularly if a sudden international crisis arose before the Congress could elect the next President. Fourth, it would insure the orderly exchange of executive power from one administration to the next. A President-elect, especially if he is from a party returned to power, faces an enormous task after the November election. He must pick a Cabinet, appoint other high officials, consult, plan and prepare. He must do all this in the relatively short period from early November until the January inauguration. A President chosen by the Congress would be denied this time, and instead would be faced with the impossible job of organizing a new administration within a few weeks. The certain result would be delay and disorder in the executive branch, possibly for months. Finally, from the standpoint of practical politics, election by either a plurality or majority of electoral votes would not change our presidential election process. We find nothing harmful in sending the successful presidential candidate to the White House with a plurality of popular votes. In fact, some of our greatest Presidents reached office with less than 50 percent of the popular vote. Abraham Lincoln was a "plurality President" in the 1860 election. So was Woodrow Wilson in 1912, and again in 1916. So was Harry Truman in 1948. And so was John Kennedy in 1960. If we honor the plurality principle as to the popular vote, which is considered the Presidential mandate, there is no logical reason why we should not do likewise as to the electoral votes. In addition to the plurality provision, I also would like to suggest to the subcommittee that it considers revisions to Senate Joint Resolution 58 related to the following subjects: 1. District of Columbia presidential vote. Under the 22d amendment, adopted in 1961, the District of Columbia obtained the right to participate in the presidential election. However, Senate Joint Resolution 58 has no provision regarding voting in the District of Columbia and its status in the presidential election would be left in doubt if the proposed amendment were adopted in its present form. This problem can be resolved, as I have done in House Joint Resolution 819 by simply reworking the language of the 23d amendment so as to conform to an election system in which the electoral college plays no part. 2. State residency requirements for presidential elections. Within the last several years, there has been a growing trend toward State legislation allowing newly arrived citizens a shorter term of residence to qualify for voting in presidential elections. At least 19 States now have laws of this sort. The theory behind them is sound, since the presidential election is of national scope and a citizen should not lose his right to participate simply because he has moved from one State to another. Senate Joint Resolution 58, however, provides that voting in presidential elections be limited to persons qualified to vote for the most numerous branch of the State legislature. If approved in this form, the proposed amendment would strike down the more liberal residency laws now existing. To preserve these laws, it would be necessary only to add a provision allowing State legislatures to prescribe lesser qualifications with regard to residency in presidential elections. 3. Places and manner of holding presidential elections. Senate Joint Resolution 58 gives the Congress authority to determine the time of presidential elections, but it says nothing as regards jurisdiction over the places and manner of holding elections. Thus, it is silent on a subject involving, among other things, the determination of contested elections. In my view, it would be best to add a provision giving the Congress and the States concurrent jurisdiction over the places and manner of holding presidential elections. A precedent for such a provision can be found in article I, section 4, of the Constitution, which gives the Congress and the States concurrent jurisdiction over the conduct of elections to the House and Senate. It may be that the Congress would leave to the States statutory authority over the conduct of presidential elections. However, there might also be a need for uniform laws on some matters in this area, especially the determination of election disputes. In that case, the Congress would need to draw its authority from the Constitution and it would be well to make provision for that eventuality in any amendment abolishing the electoral college. By way of clarification, I would like to add that I see no technical problems with regard to the 24th amendment, which bans the poll tax in Federal elections. On February 2, 1966, I placed in the Congressional Record an analysis of Senate Joint Resolution 58 prepared by the Committee on Federal Legislation of the Association of the Bar of the City of New York. If I could, I would like to have that article inserted in the record at this point. Senator BAYH. Without objection. (The article follows:) PROPOSED CONSTITUTIONAL AMENDMENT ABOLISHING ELECTORAL COLLEGE AND (By the Committee on Federal Legislation) S.J. Res. 58 and H.J. Res. 278, 89th Cong., 1st Sess. (1965), sponsored by the Johnson Administration and introduced by Senator Bayh and Representative Celler, respectively (a copy of H.J. Res. 278 appears in an Appendix), would 1 President Johnson asked for reform of the electoral college system in a message to Congress on January 28, 1965. N.Y. Times, Jan. 29, 1965, p. 1, cols. 6-7. amend the Constitution so as to effect four major constitutional changes in the election of President and Vice President. 1. The "electoral college" would be abolished and, instead of selecting electors, the people would be given a direct vote on a single ballot for President and Vice President. 2. The electoral vote of each state, computed under existing procedure, would be cast as a unit for the presidential and vice presidential candidates receving a plurality of the popular vote in the state. 3. If a majority of electoral votes were not obtained, the House and Senate, in joint session, would choose by plurality vote the President and Vice President. 4. If the winning presidential candidate were to die before the official counting of the electoral votes in early January, the winning vice-presidential candidate would become President, and Congress could provide by law for the case of the death of both winning candidates. We support the thrust of the proposed amendment, and we suggest below various changes which we believe will improve it. The whole subject is of great importance to the nation, and we believe that all aspects of it should be carefully considered at future hearings. The present constitutional system for election of President and Vice President is embodied in Article II, Section 1 and in the Twelfth, Twentieth and Twentythird Amendments. At a time which Congress may determine, each state appoints "in such Manner as the Legislature thereof may direct" that number of electors equal to the total number of senators and representatives to which it is entitled. On a day which Congress may determine and which shall be uniform for all states, the electors meet in their respective states and ballot separately for President and Vice President, "one of whom, at least, shall not be an inhabitant of the same state with themselves." The electoral vote of each state is then certified and transmitted to the President of the Senate, who opens the certificates during a joint session of Congress. A majority of the electoral vote is necessary for election to each office. In the absence of such majority, the House of Representatives "immediately" chooses the President from among "the persons having the highest numbers not exceeding three" of the electoral vote for President. In such balloting, each state casts but a single vote with a majority of all states required to elect. A quorum consists of one or more members of the House of Representatives from twothirds of the states. Absent a vice-presidential electoral majority, the Senate chooses the Vice President "from the two highest numbers on the list" for Vice President. Twothirds of the senators constitutes a quorum and a majority of the entire membership is necessary for election. Finally, with respect to death or other failure to qualify, the Constitution provides that if, at the time fixed for the beginning of the term of office (January 20th), the President-elect has died, the Vice President-elect shall become President, and if, by such time, the President has not been chosen or the President-elect has failed to qualify, the Vice President-elect shall act as President until a President qualifies. Congress is empowered to provide by law for the case where neither a President-elect nor a Vice President-elect qualifies, declaring who shall act as President or the manner of selection of an acting President. The person selected shall act only until a President or Vice President qualifies. Likewise, Congress may provide for the case of the death of any of the persons from among whom the House of Representatives may choose a President and the Senate a Vice President, whenever the right of choice so devolves. Congress has exercised some of its constitutional powers in enacting laws relating to the electoral process. Thus, the Tuesday next following the first Monday in November has been designated as the time of appointing electors, 3 U.S.C. §1; the Monday next following the second Wednesday in December (i.e., 41 days after "Election Day") has been designated as the day on which the electors meet 2 Under the Twenty-third Amendment, the District of Columbia has that "number of electors to which the District would be entitled if it were a State, but in no event more than the least populous State," which electors "shall be considered . . . to be electors appointed by a State." and vote, 3 U.S.C. §7; and January 6th has been designated as the date for the official congressional counting of the electoral vote, 3 U.S.C. § 15. With respect to the death or failure to qualify of both the President-elect and Vice Presidentelect, the succession statute is made applicable, which establishes the order of priority of the Speaker of the House, the President pro tempore of the Senate and the members of the Cabinet, 3 U.S.C. §19. Congress has not exercised its power to provide for the case of death of any of the persons from among whom the House may chose a President and the Senate a Vice President. The electoral college system has almost from its inception not functioned as envisioned by the Constitutional Convention. The founding fathers, after much debate and compromise, looked toward the selection, primarily by the state legislatures, of distinguished citizens who in turn would exercise independent judgment in selecting a President. But the development of political parties and the growth of democratic ideas have produced a quite different system. The ties of party loyalty, quite early in our history, caused electors to announce in advance of their selection their support for particular candidates and to be elected simply as agents morally bound to vote for such candidates. And the spread of democracy caused the states to provide for the popular election of presidential electors. Finally, although some states experimented with election of presidential electors by districts, the state-wide ballot or general ticket came into universal use, in recognition of the fact that more political weight was given a state that could deliver its entire electoral vote to one candidate. Thus, there have evolved the essentials of the present electoral system: the people of each state voting for automaton electors (in some 30 states they are not even separately listed on the ballot) whose entire vote is cast for the candidate receiving a plurality of that state's vote. 3 CRITICISMS OF ELECTORAL COLLEGE SYSTEM The present electoral college system has been criticized for presenting the potential of election of a President who is not the first choice of the voters.* This result could be brought about by four factors, acting singly or in combination: electors exercising their claimed constitutional prerogative to act independently; the allocation of electoral votes to the states on a basis not proportionate to population or number of voters; the "winner-takes-all" system of each state which "wastes" all of the loser's votes within each state; and, where mandated, the selection of a President by the House and of the Vice President by the Senate on a basis of numerical equality among all states. A related criticism is that the concentration of electoral strength among the larger states has certain political effects which, to some, are undesirable: the selection of and campaigning by nominees with emphasis on key states and "swing" voters within those states. 5 Other criticisms are that, in the event of the death of a winning candidate after his "election" by the people in November but before his official election by the electoral college in December, the electors would have to exercise their discretion without guidance from the people; that if the selection of the President and Vice President devolved upon Congress, the House and Senate might well choose candidates of opposing parties and political views; and the perhaps lesser criticisms that, to the extent the office of elector has significance, the constitutional disqualification of federal office-holders is undesirable, and that the electoral college entails expense and needless formality in the requirement that the electors assemble within each state. See Joyner & Pedderson, The Electoral College Revisited, 45 Sw. Soc. Sci. Q. 26, 28 (1964). A candidate not receiving a plurality of the popular vote was elected in the JacksonAdams election of 1824 (Adams), the Hayes-Tilden election of 1876 (Hayes) and the Harrison-Cleveland election in 1888 (Harrison). See Petersen, A Statistical History of the American Presidential Elections 18, 46-47, 55-56 (1963). At least until the electors officially cast their votes, the "winning" candidate on Election Day in November is not President-elect and therefore the provisions of the Twentieth Amendment, whereby the Vice President-elect would become President upon the death of the President-elect, are inapplicable. Only once have the electors been required to act without instructions on the death of Horace Greeley, the losing candidate for President, in 1872, shortly after Election Day. See Petersen, supra at 43. The Twelfth Amendment, requiring the electors to cast a single ballot for President and Vice President, in practice prevents such a result in the electoral vote. The danger of such a result in the separate balloting by House and Senate stems not only from the possibility of the different political composition of the two houses and from the state-unit method of voting in the House, but also from the fact that the House may choose among those receiving the three highest, and the Senate among those receiving the two highest, numbers of electoral votes for President and Vice President, respectively. |