difficult to explain and to get the legislatures to ratify than the present system. Senator FONG. The main purpose of Senate Joint Resolution 5 would be to prevent an elector from jumping to another candidate; is that correct? Mr. BANDSTRA. That's true. Senator FONG. Thank you. Senator BAYH. As the Senator knows, the provision for a contingent election in the event no candidate receives a majority of the electoral votes is an important feature of the proposed amendment. I feel that there is something almost patently unjust about the winner-take-all system, where you disenfranchise millions of people, by not counting their votes in the final total. I feel this very strongly. But when you look at the results of what has happened, you find in only one case, when Harrison beat Cleveland, that there is any clear evidence that a majority of the people did not elect the President. The Congressman referred to the Jackson-Adams election; but as he pointed out, six of the States did not have popular elections for the electors, and in six other States the general ticket system was not functioning. In the Tilden-Hayes dispute, there was so much fraud and graft, and voter manipulation, that no one can really say who really won the popular election. So, really throughout history, we have had only one time under this winner-take-all rule when the majority of the people did not have their will registered. If you look at the statistics, using either the proportionate plan-which appeals to me-or the district plan, you would have had more than just this one occasion in which the choice of a majority of the people was not elected. So I think, in studying this, it is going to be interesting to see whether we can come to some sort of consensus in which we can improve on the system. I hope that we can. Senator FONG. I think the chairman has to admit that the electoral votes in the final analysis actually do not reflect the percentage of the popular vote. Senator BAYH. That's correct. Senator FONG. And in a proportional-in the percentage representation, it reflects more the popular vote. Senator BAYH. That's correct-except if we are looking for an exact representation of the popular vote, I think we will all recognize that we are not likely to get that passed; because some of the smaller States in the Union, like Hawaii and others, that have a significant stake in the two senatorial votes, would be unwilling to give up that advantage. Mr. BANDSTRA. I might add-I was thinking now, while the very able Senator was testifying, what difference does it really make, the fact that the electoral vote is somewhat blown out of proportion to the popular vote? They are both published and everyone knows, for example, that Kennedy won by a very small fraction of the popular vote. This is pointed out repeatedly and everyone is very much aware of that. I think they don't place too much stock in the results of the electoral Senator FONG. The Senator makes a point that this gives an incentive to the minority party to go out and get as many votes as it can in the State, with which you sort of disagree. Senator BAYH. I think what we are striving for in this area is certainty. Whatever the formula, the public should be certain of it and its effects. We don't want to have an elector sneaking in here at the midnight hour and for some reason or other casting his vote for a candidate not chosen by the people. This could certainly throw the country in a turmoil if it turned out to be the deciding vote. Mr. BANDSTRA. I certainly agree. It doesn't make too much difference whether you have the rule of three strikes and out or four strikes and out, just so it is the same, whether you are batting or pitching. Senator BAYH. Thank you, Congressman. We will recess at this time until 10 o'clock tomorrow morning. (Whereupon, at 11:55 a.m., the subcommittee recessed until 10 a.m., Tuesday, March 8, 1966.) ELECTION OF THE PRESIDENT TUESDAY, MARCH 8, 1966 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m., in room G-308, New Senate Office Building, Senator Bayh presiding. Present: Senator Bayh and Senator Fong. Senator BAYH. We will reconvene our subcommittee meeting this morning. We are privileged to have with us this morning the Attorney General of the United States before the Subcommittee on Constitutional Amendments, and to have his testimony and wisdom in the record. Attorney General Katzenbach. STATEMENT ON BEHALF OF HON. NICHOLAS deB. KATZENBACH, ATTORNEY GENERAL OF THE UNITED STATES Attorney General KATZENBACH. Mr. Chairman and members of the committee, I am pleased to appear before this subcommittee today. Largely through its efforts Congress has adopted, and the States are presently in the process of ratifying, two of the three major recommendations made in the President's special message to the Congress in January 1965, to correct "conspicuous and long-recognized defects" in the Constitution as they relate to the Office of the Presidency. There remains only the recommendation for reform of the electoral college system, a recommendation that was strongly reaffirmed by the President in his special message to Congress on January 20, 1966. Of the various proposals for reform of the presidential election system, the one which the administration endorses is that embodied in Senate Joint Resolution 58, introduced by the subcommittee, which is substantially identical to the proposal which the late President Kennedy introduced as Senator in the 85th Congress (S.J. Res. 132). The proposal is designed to correct the specific defects that have been revealed in the present system without fundamentally altering the method of electing the President that has served the Nation so well in the past. The various proposals before the subcommittee, although generally described as providing for electoral college reform, in fact deal with three distinct matters. The first is the method by which the people elect a President-that is, the electoral college system as such. The second is a method by which the President is chosen when the popular election is indecisive-that is, the "contingent election" in the House. And the third is the provision made for the death of a candidate before inauguration. As to each I will consider the existing system, its defects, and the remedies proposed. The present system. The manner of selecting the President gave the framers of the Constitution much difficulty. Direct election by the people, it was feared, would produce turmoil and confusion and, in addition, deprive the smaller States of any effective voice. Election either by the Congress or by the State legislatures, on the other hand, was opposed because it would deprive the President of independence. The compromise adopted was to provide for election of the President by an independent body of electors, appointed in each State, in such manner as its legislature might direct, to serve that one function only. It was hoped, as Hamilton noted, that distinguished citizens would be chosen as electors and that they in turn, exercising an informed and independent judgment free from the stress and excitement of political compaigns, could be counted on to select a person well qualified for the office. The Federalist, No. 68 (Cooke Ed), pages 458-460. The fears of the smaller States were allayed by giving each State an extra two electors regardless of size, and the independence of the President was to be assured by the transience of the electing body. In practice, of course, the electoral college system never operated in the manner envisioned by its framers. Few voters knew or cared who the electors were, and they were seldom selected in a manner inspiring confidence in their superiority of judgment. Instead, national parties arose and the electors became mere figureheads pledged to cast their votes for the party nominees on whose ticket they ran. State laws providing for the short ballot and related devices institutionalized the practice. See Wilkinson, "The Electoral Process and the Power of the States," 47 A.B.A.J. 251, 253-254 (1961). The end result was the system we know today, with the people voting directly for the President and Vice President and with all of each State's electoral votes being cast automatically for the candidate receiving the greatest number of the popular votes in that State. DEFICIENCIES The system thus evolved, though not the original intent of the framers, has by now become deeply imbedded in our system of government. For the most part, it has worked well. Its most serious deficiency is simply its lack of constitutional sanction, a lack which makes it both dependent on the voluntary action of the States and subject to possible manipulation by the electors. The risk that a State or its electors will depart from established custom and exploit the constitutional independence of the electors is not fanciful. In 1948, a Tennessee elector, running on both the Democratic and States Rights tickets, voted for the States Rights candidate even though the Democratic candidate had a substantial plurality in the State. In 1960, Alabama and Mississippi elected 14 unpledged electors who then voted for a person who was not even a presidential candidate as did also an Oklahoma elector who had been elected on the Republican ticket. New York Times Election Handbook 1964, page 122. To be sure, such departures from the customary practice have been rare. But so long as there exists the possibility of unpledged |