STATEMENT BY SENATOR BIRCH BAYH, CHAIRMAN OF THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS

Today we begin a difficult task-a task that has been a troublesome one ever since the Constitutional Convention. It is the task of trying to find a better means to elect our President and our Vice President.

In 1787, James Wilson of Pennsylvania, one of the Framers of the Constitution made clear how difficult it was for the Framers to formulate an acceptable plan for electing a President and Vice President. Speaking to the Pennsylvania Ratifying Convention, Wilson said this:

"The Convention, sir, were perplexed with no part of this plan so much as with the mode of choosing the President of the United States. This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we had to decide."

There was no shortage of ideas in the Constitutional Convention on how to elect the President. The first was the so-called Virginia Plan, in which it was suggested that the President be elected by the national legislature. Proponents of this plan contended the people were not sufficiently knowledgeable to make a sound judgment of the candidates. But the great majority of the delegates believed that the presidency should counterbalance the legislature and thus they could not support a plan leaving to Congress the selection of the Chief Executive. A second plan, calling for the State legislatures to select the President, also failed. Wilson proposed the direct popular election, but there were many major obstacles preventing adoption of this idea. First, it was considered very unlikely that a direct election would produce a majority candidate and, if it did, he would come in all likelihood from one of the larger States. Quite obviously, the more numerous smaller States objected. Just as they had sought certain minimum guarantees in representation in Congress, they wanted a minimum guarantee of a voice in the choosing of a President.

And so, the Electoral College was born. Each State would be entitled to a number of electors equal to the number of Senators and Representatives to which it was entitled in the Congress. The language of Article II, Section 1, clause (2) of the Constitution provides:

"Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Repre sentatives to which a State may be entitled in the Congress."

These electors would be, according to John Jay in The Federalist No. 64. "select assemblies for choosing the President . . . composed of the most enlightened and respected citizens. . . ." The development of political parties soon led to the tradition of the casting of a State's electoral votes in a unit--that is, the candidate winning a plurality in a State received all the electoral votes of that State.

In dealing, then, with proposals to alter the method of electing our Presidents and Vice Presidents, it seems to me we must examine carefully and individually the components of the electoral system. We must answer these questions:

In the light of our experience with the tradition of casting a State's electoral votes as a unit, would we be trading a viable procedure for something better or worse if we were to change to one of the several proposed substitute procedures? In the light of the political development in our Nation, is it wise to continue to vest in each of our 50 State legislatures the authority to choose electors in any way they may direct?

In the light of the drastically different role of electors from what the Founding Fathers had envisioned, is it necessary to retain electors if we are to retain the tradition of the State-by-State unit electoral vote?

The last and extremely significant question is whether we should change our present system or to leave it unchanged.

I said a moment ago that John Jay described the Electoral College as being composed of "select . . . enlightened . . . respected" men.

Times have changed. To illustrate the changing nature of the Electoral College. I want to discuss some examples. In December of 1948, Mr. J. J. Levy of Lansing. Michigan, was minding his own business when he received an urgent message It seems the weather was bad that day and of the 19 Republican electors who were to meet, only 13 showed up. Mr. Levy was one of six substitutes rounded up to cast their votes for Governor Thomas E. Dewey, who had carried Michigan in his unsuccessful effort to unseat President Truman.

Mr. Levy described himself as "a fighting proud Republican. But when it came his turn to cast one of Michigan's 19 electoral votes, he announced for Truman.

His colleagues gasped with disbelief. They demanded an explanation. "I thought we had to vote for the winning candidate," Mr. Levy explained. When he was instructed that he was supposed to vote for the winning candidate in Michigan, Mr. Levy gladly switched and cast his ballot for Dewey. Mr. Levy was a known and respected member of his community. But as far as the function of the electoral college was concerned, he was, like most Americans, pretty much in the dark.

In the same year, the presence of electors on a ballot may well have affected the outcome of Ohio's vote. Because a legal suit delayed certification of the Progressive Party's slate of electors, these electors were listed on the ballot without the names of their candidates for President and Vice President. However, following the usual Ohio procedure, the names of the major party candidates appeared without the names of the electors. Because of this unusual arrangement, Ohio voters were confused. A total of 160,000 ballots were declared invalid because that many voters had voted for either Truman or Dewey, but also had voted for some of the Progressive Party electors. Truman won Ohio by 7,000 votes of 3,000,000 cast-so the 160,000 invalidated ballots could have changed the outcome in that State. The very presence of electors, therefore, prevented a clearcut decision by the people of Ohio.

In 1960, an Oklahoma elector named Henry Irwin cast an independent vote disregarding the people's decision in that State to support Richard M. Nixon for President. But why? Mr. Irwin later testified before the Senate Subcommittee on Constitutional Amendments to explain his vote. These are some of the things he said: "To alter our electoral college system would . . . permit the monied class-and by that I mean the Communist-Socialist-Labor and oneworld groups-to impose their form of democracy on us. . . . On April 15, 1960, I filed for presidential elector. . . . In the space for occupation I had described my occupation as 'slave laborer for the Federal Government.'

I don't believe that was what John Jay had in mind for members of the Electoral College.

There are many other scattered incidents of this sort throughout our history. In 1956, Mr. W. F. Turner became an elector on the winning ticket in Alabama headed by Adlai Stevenson. Mr. Turner disregarded the mandate of the people of Alabama and cast his electoral vote for Walter B. Jones, an Alabama circuit court judge. In 1944, the entire slate of Texas electors sought to disregard the mandate of the people of their State, who gave a plurality to President Roosevelt. Only an order from the Texas Supreme Court prevented a revolt. In the same year, only extreme pressure from the State Democratic Committee of South Carolina prevented a similar revolt by electors.

In 1960, the trend toward independent electors became clear. This trend could enable little known men and women to subvert the will of the majority in their respective States.

In Mississippi, unpledged electors carried the State. Thus, the people had little idea of the candidate for whom they were voting. The electors could have done whatever they, as individuals, wished. If the people of that State wanted neither major-party candidate, they could have-if permitted-voted for a third-party candidate. But none was on the ballot.

In Alabama in 1960, the voters were confused even more. There, only two slates of electors-Democratic and Republican-appeared on the ballot. The names of candidates were omitted. But within the slate of Democratic electors, some were pledged to the party's candidate and others were not. As a result, five electors pledged to Kennedy were elected and six unpledged electors were elected. Again, I would not dispute the choice of the people of a State. I simply suggest that the vast majority of Alabama voters could not have known which electors were which at least not without a scorecard. Nor was there any way for a loyal Kennedy supporter to make the full weight of his vote felt.

In the same year, Kennedy carried Louisiana. But an effort was made by the Louisiana Legislature to suspend the State's election laws so that the Legislature could appoint a slate of unpledged electors in place of the winning slate of Kennedy Democrats. The move failed-but there is nothing in the Constitu tion of the United States to prevent such action. Under the present system, a State legislature is free to appoint electors, to apportion them according to districts, to have electors apportioned on the basis of the popular vote, or set up any other system it chooses.

All the Constitution provides, I repeat, is that "each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors, equal

to the whole number of Senators and Representatives to which the State may be entitled in Congress."

Pursuant to that authority, in our first elections, most electors were appointed through the State legislatures. Only two or three States used direct popular elections. By 1804, however, a majority of States had switched to popular elec tions and after 1832 only South Carolina continued to use legislative appointments. South Carolina continued this practice until 1860. States using direct elections generally utilized the district system-that is, electors ran in districts roughly approximating congressional districts so that electoral votes were split within States. The development of the unit system—that is, the winner in each State taking all the electoral votes in that State-closely paralleled the develop ment of political parties. As parties developed, they put up slates of electors on whom they could count to deliver their votes to the party's candidates. Thus, the winning slates of electors began voting as a unit for whichever candidate had received the most votes within their State. Exceptions continued to occur, however. In 1876, when Colorado had just been admitted to the Union and did not have sufficient time to conduct a general election, the legislature appointed electors for convenience. In 1892, a lame-duck Democratic legislature in Michigan substituted the district system in the hope of securing a partisan advantage. This action, by the way, was challenged but upheld in the courts as constitutional. I think it is important for us to understand that a legislature still may have electors named in any way it wishes. As I mentioned earlier, the legislature of one of our States even sought to suspend that State's election laws after the 1960 presidential election because the legislature did not like the choice of the people of that State. Had the effort succeeded, the electors named by the people would have been removed and a slate of electors appointed by the legislature would have been substituted. Those electors would have voted for someone other than the man who received the most votes in that State.

I have given several instances in recent history in which electors followed a course independent of the will of the majority of people in their State, and 1 have given some examples of how electors sought to disregard the popular will Our Nation has long since outgrown the need for so-called "select assemblies" to choose a President. Our Nation should no longer run the risk of having a few individuals empowered to make decisions for the people of their State which may be entirely contrary to the wishes of the people of a State as expressed at the ballot box. The position of elector is an anachronism which no longer has a place in our system of government. This position should therefore be abolished, and would be under the provisions of Senate Joint Resolution 58 which I have introduced for myself and others and which now is pending before this subcommittee.

The second component of our electoral system is one not founded on law, but rather on tradition-tradition evolving from the development of political parties in the United States.

Politics soon frustrated the intentions of the Framers to have Presidents chosen by wise, knowledgeable and independent electors. In the election of 1792. a group of Jeffersonian Republicans were determined to make known their opposition to John Adams who had been Washington's Vice President for four years and who would be named to serve four more years under the Nation's first President. So this group voted for the Anti-Federalist, George Clinton.

In 1796, one group the Federalists-nominated their candidate for President, thus substituting the choice of the organization for that of the individual electors.

In 1800, the tightly organized Republicans delivered all their electors to Jefferson and Burr. Of course, this created a new problem later solved by the 12th Amendment. At that time, each elector voted for two men; the man who ended up with the most votes became President, and the man who received the next highest figure became Vice President. Thus, Jefferson and Burr ended up with the same number of electoral votes. Even though the Jeffersonian Republicans intended Jefferson for President and Burr for Vice President, the matter had to be settled in the House of Representatives. The 12th Amendment solved this problem by providing separate balloting for President and for Vice President.

From that election to the present, electors customarily have voted along party lines, thus giving us the tradition of the entire electoral vote of a State's being awarded to the candidate receiving the most popular votes in that State.

As we have seen, the Framers of the Constitution had proposed and examined several alternate methods by which the Chief Executive would be elected. They

had not foreseen the development of political parties, so the method needed alteration immediately after the election of our third President. But the first proposal to change the electoral college system was offered more than 169 years ago on January 6, 1797, by Representative William Smith of South Carolina. In the past 75 years, more than 300 proposed constitutional amendments on the Electoral College system have been offered in the Congress.

Several proposals are before this subcommittee now. I have suggested Senate Joint Resolution 58, which would eliminate the position of elector. The resolution, of course, provides another means of electing a President and Vice President. But it is a means that would retain what has become traditional in our system and give it the foundation of law.

Senate Joint Resolution 58 simply would require that a State's total electoral vote be awarded to the candidate who received the greatest number of popular votes in that State. This would eliminate the need for electors-and eliminate the risk that their whims and prejudices could dictate the outcome of a presidential election.

Opponents of the winner-take-all system argue that on three occasions in our history, Presidents were elected even though they received fewer popular votes than their opponents.

The first case in point is the election of 1824 in which John Quincy Adams defeated Andrew Jackson, although it appears that Jackson received more popular votes. What is usually omitted from consideration is the fact that six of the 24 States participating in the election of 1824 did not have popular elections. Electors from those States were appointed by their legislatures. In six other States where there were direct elections, the general ticket system was not used. Voters wrote in their choices. Thus, there is no way to conclude that Jackson did, in fact, receive more popular votes than Adams.

In the election of 1876, there was so much deliberate fraud on both sides that few scholars are willing to state with any assurance that Samuel Tilden actually received more popular votes than Rutherford B. Hayes. But Hayes' victory was in no way related to the winner-take-all, or unit, system. It was instead the result of a partisan decision by a congressionally appointed Electoral Commission in one of the darkest moments in our history of democratic elections. There were eight Republicans and seven Democrats on the Electoral Commission. Every disputed vote was awarded to Hayes on a straight party-line vote of 8-to-7. Only once when Grover Cleveland lost to Benjamin Harrison in 1888-did the victorious candidate receive fewer votes than his opponent.

But I submit that other systems suggested to replace the winner-take-all or the unit system would have produced even more distortions in the results of presidential elections. The proportional system, for example, would divide electoral votes on the basis of the percentage of popular votes received by candidates in each State. Under this system, Hancock would have defeated Garfield in 1880 even though Garfield received a greater number of popular votes1 William Jennings Bryan would have defeated McKinley in 1896, even though McKinley received 50.9 percent of the popular vote. In 1900, the estimates of the results under a proportional system vary. The late Senator Robert Taft concluded that Bryan would have defeated McKinley. Others estimate that McKinley's margin of victory would have been less than one electoral vote. But the significant fact is that everyone agrees the election-under a proportional system-would have been extremely close, despite the fact that McKinley's popular vote margin was 850,000-the most convincing Presidential victory to that date.

The proportional system also would create a strange shift in the importance of States in presidential elections.

Under the unit rule, the most important States are the States with the greatest population. While recent campaigns show that candidates for President do not ignore smaller States, they concentrate on winning the biggest States. I see very little wrong in this practice. It seems to me candidates should go where most of the voters are. However, they cannot ignore smaller States because, as I will demonstrate shortly, most of our States have an advantage in the electoral system-their electoral votes represent a greater percentage of the total electoral votes than their population represents in ratio to the total population of the nation.

1 Senator Bayh here assumes that the votes which were cast under a plan of "winner take all" would have been cast in the identical way under other plans. The more general assumption is that campaign techniques and appeals would be materially changed if the "proportional" or "district" plans were adopted.-Editor.

But the proportional system would encourage candidates to spend most of their time in the traditionally one-party States-whether they be North or South, East or West, Democratic or Republican.

For in the proportional system, the key factor becomes the margin of victory in each State. In 1948, for instance, President Truman carried Georgia by enough popular votes to lead Governor Dewey there by five electoral votes, had a proportional plan been in effect, Dewey carried New York, New Jersey, Pennsylvania, Michigan, Indiana and Connecticut. But his margins in those States were small-those six States put together would not have enabled Dewey to offset Truman's lead of five electoral votes that he would have picked up in Georgia alone. The implication is clear.

The big States tend to have healthy and strong two-party systems and I think we all can agree on the virtues of this political competition which assures us public officials who are responsive to the people. A proportional system would tend to destroy all that. Within the parties themselves, the more important States would become those producing the greatest margins of victory. The big States would no longer have a big voice because the margins of victory they produced might be smaller than that of the traditional one-party States.

Another proposal is the district plan-that is, a system in which each elector would be named according to how each district voted for a candidate. This plan is similarly dangerous. In 1964, there were two districts in Illinois, each voting about 180,000 people. In one of these districts, President Johnson polled about 90 per cent of the votes taking a lead of about 140.000. In the other district. Senator Goldwater won by fewer than 80 votes. Under the district system, the two men each would have received one electoral vote-even though Johnson was out front in the popular vote by almost 140,000. Under this plan, Nixon would have won easily over Kennedy in 1960, even though Kennedy had more popular votes than Nixon.2

If a district plan were adopted, I dread to think of the Pandora's Box of gerrymandering that would result. Special presidential districts could be drawn every four years. Sooner or later, no matter how sincere the motives of the framers of this proposal may be, legislatures throughout the land would be drawing districts to favor not only congressional candidates in their own States, but to favor the national standard bearer of the party in power in each of those States. This is precisely what the Democratic-controlled Michigan legislature had in mind in 1892 when it decided to have electors named on a district-by-district basis, rather than at large.

The plan most often suggested to replace our State-by-State winner-take-all system is the direct popular election. On the surface, this appears to be the ideal solution, the natural answer for a democratic society.

But I would like to suggest that there are today at least as many obstacles to adoption of this idea as there were when the Framers of the Constitution considered it in 1787.

First, we must understand that the nature of our government is federal. Certain powers were delegated by the several States to the Federal government; other powers were reserved to the States. In agreeing to form our union, the one thing most jealously guarded by each of the original States was the right to a guaranteed minimum voice in the Congress and in the choice of a national leader. Each State, regardless of its population, was guaranteed two members of the Senate no more, no less. And each State, regardless of its population, was guaranteed one member in the House of Representatives. Because the size of the House of Representatives remains relatively fixed, and because each State is equal in the Senate, the smaller States have a proportionately larger voice in relation to their population. And, because the number of electoral votes accorded to each State is equal to its number of Senators and Representatives, the smaller States have a proportionately larger voice in the determination of who is elected President. As I illustrated a moment ago, the danger of this system resulting in a choice of President who receives fewer votes than his nearest opponent is extremely slight. And there is considerable advantage in not demanding that a President receive an absolute majority of the popular votes. A requirement of that kind could lead to runoff elections, and the nation would be in doubt for months as to the identity of its next President.

But the cold, realistic fact of the matter is that because of our traditional system, 35 States and the District of Columbia enjoy a proportional advantage

2 This popular vote for Kennedy in 1960 is not known exactly, because of the confused situation on the Alabama ballot. See tabulation, p. 93.-Editor.