(b) Existing constitutional provisions may already provide the court with authority to act.

(c) With the constitutional amendment provided by Senate Joint Resolution 12 additional and explicit authority would be provided for the enforcement of this provision, strong legal precedents already existing for the assumption of jurisdiction by the Federal courts.

There is another often-raised objection to the present system of electing a President. President Johnson, in his message to the Congress, commented upon it and requested that it be corrected. It is the provision that if no candidate receives a majority of the electoral votes when they are counted in Congress that the House of Representatives shall choose immediately a President from among the candidates with the three highest numbers of electorial votes. The vote in such a casethe last time it occurred was in 1824-is by State; each State delegation having one vote. In the event a State's House delegation is evenly divided its vote is not recorded. A majority of the States is required for election.

The objection to this system is that it is grossly unfair to the larger States, giving New York, California, and Pennsylvania no greater voice than Alaska, Delaware, and Nevada, despite the great population disparities.

Senate Joint Resolution 12 corrects this situation. It provides that in the event no presidential candidate has a majority of the electoral

votes

Then from the persons having the highest numbers on the list of persons voted for as President, the Senate and the House of Representatives, assembled and voting as individual members of one body, shall choose immediately by ballot, the President; a quorum for such purpose shall be three-fourths of the whole number of Senators and Representatives, and a majority of the whole number shall be necessary for a choice; if additional ballots be necessary, the choice on the fifth ballot shall be between the two persons having the highest number of votes on the fourth ballot.

The Constitution also provides that if no candidate for Vice President has a majority that the Senate shall choose him from among the two candidates with the highest electoral vote total. Senate Joint Resolution 12 provides that both Houses in joint session and voting by the head, as for President, shall select the Vice President from among the candidates with the three highest numbers of electoral votes. This provision would also guard against the possibility of electing a President and Vice President from different parties.

So I point out that while we equalize the rights of individual citizens to vote for President we recognize the validity that bigger States should have more authority if it comes to be decided in the House of Representatives, so that we also are fair and equitable to the big States by giving them more authority than they have now. We do not attempt to simply take power from one or the other but rather to equalize the power of both and to recognize that mere accident of geographical residence should not give one American citizen more than 14 times as much significance, stature, and authority in the voting booth as another American citizen, and this is what occurs today.

We believe that the large States should have their proportionate power-no one is advocating taking away the 43 votes of New Yorkbut we do believe that this power should be registered in the electoral college on the basis in which the people voted it; to do otherwise or,

in other words, to continue the present system of general ticket voting, with its cumulative effect which produces second, third, and even 15th-class citizens, would be to give some individuals a greater voting power than they deserve.

The fact that this type of a result is clearly wrong (and I applaud the State of Delaware for its decision to carry to the Supreme Court its suit testing the electoral college), no matter how or where it is achieved, was pointed out by Chief Justice Warren in Reynolds v. Sims when he said:

It would appear extraordinary to suggest that a state could be constitutionally permitted to enact a law providing that certain of the state's voters could vote two, five, or ten times for their legislative representatives, while voters living elsewhere could vote only once. 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. Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical. Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in districts is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the state. Two, five, or ten of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. One must be ever aware that the Constitution forbids "sophisticated as well as simple-minded modes of discrimination.”

We are all familiar with the fact that Reynolds v. Sims deals with legislative apportionment on the State level and was an attempt to give a more equal share of the voting strength to the urban areas but this does not detract from the basic premise that such weighting is wrong. It can be the other way around. The Chief Justice mentioned this in a footnote to his opinion when he pointed out that in the early 19th century the cities held the disproportionate representation and in the future the situation might be reversed again. The situation is reversed now as far as presidential elections are concerned and it should be rectified. As Warren said:

To the extent that a citizen's right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. The complexions of socities and civilizations change, often with amazing rapidity. A nation once primarily rural in character becomes predominantly urban. Representation schemes once fair and equitable become archaic and outdated. But the basic principle or representative government remains, and must remain, unchanged-the weight of a citizen's vote cannot be made to depend on where he lives.

Before closing I would like to mention one additional and important point. Much has been said and written about "minority" presidents. The major factor in such an occurrence is undoubtedly the general ticket-unit rule system. By breaking this up we would go a long way in eliminating such a possibility. It will not eliminate it entirely because as was pointed out in the memorandum prepared by the staff of the Subcommittee on Constitutional Amendments following the hearings in 1961 (an excellent memorandum for which the staff deserves great credit) two other factors contribute to such a possibility: (1) The minimum of three electoral votes for each State, and (2) the allocation of additional electors on the basis of population.

90-902-68- -5

Senator BAYH. We have a live quorum call. I am going to catch it myself. The Senator from Nebraska says he will hold the fort. This puts the Senator from South Dakota in a rather difficult position.

Senator MUNDT. If the Senator is willing to sacrifice the quorum I will be glad to.

Senator HRUSKA. I will. The Senator's presentation will more than outweigh the live quorum.

(Senator Bayh left the hearing room for the quorum call.)

Senator MUNDT. With one exception, no plan proposed in the past would eliminate completely the possibility of a minority president. That one exception is a direct national election. I have mentioned this not because I consider this a basic flaw in any other plan including Senate Joint Resolution 12 but because I think it should be made very clear why this possibility, so small it is almost infinitesimal once the general ticket system is broken up, must continue to exist, as one of the coordinate results of our maintaining a Federal system.

As long as this Nation follows the principle of equality of Statesthe basis of federalism-it must exist. Under this system each State is allocated two electors corresponding to its Senators and a minimum allowance of at least one more regardless of the population of the State. To quote from the memorandum :

Obviously, any system which preserved the Federal principle and its threevote minimum allows for the possibility that a majority of the electoral vote may go to a candidate who receives fewer popular votes. Indeed, this was the original purpose of the electoral vote "bonus" for smaller States, so that the greater populations of the larger States could not dictate the selection of the President. It was part of the compromise which made the Constitution possible.

We work with a program which tries to correct the inequities without becoming frightened over the possibility that there is always an outside chance of a minority President being selected. We reduce that chance, may I add, materially, when you eliminate the general ticket system and substitute for that the district plan, because there is a much greater likelihood of an election of a minority President where big blocs of votes are involved and they are all bound together.

Mr. Chairman, the emphasis here is mine although the quote is from this Subcommittee's memorandum. I have included this because as I have said, I feel that this is important. We should attempt to reduce the possibility of a minority President by doing away with that which contributes the most to such a possibility and is neither needed nor desired to preserve our federal system but we should not become so obsessed with the idea of elimination of all possibilities that we destroy the principle of statehood imbedded in our Constitution. To do so we would, as the old saying goes, throw out the baby with the bathwater.

In summary, Mr. Chairman, I would say this. Our system of electing a President has, generally speaking, served us well during the 177 years since our Republic was established. It has never failed to give us a President.

Through no fault of the Founding Fathers, it has, however, become distorted through the use of the general ticket system. Most of the framers of the Constitution, it should be pointed out, went on record favoring a district system for choosing electors, as the fairest method of expressing the popular will.

Senate Joint Resolution 12 is, in my opinion, and the opinion of the many who support it, the only simple method by which each voter in every State will have the same voting weight in electing a President. It is the only one among the various electoral reform proposals which have been offered which will bring about a needed reform without a basic change in our constitution system. It alone leaves control of the election machinery in the States, where it belongs.

It will bring about the balance so desperately needed in today's inequitable system. It was this imbalance that former President Truman addressed himself to in 1961 when he endorsed the district plan. At that time he said:

The electoral college was first devised to protect the small States from dominance by the larger States, as for example, Delaware and Rhode Island from being dominated by Virginia and New York.

The problem we face today is that of the emergence of the big cities into political overbalance, with the threat of imposing their choices on the rest of the country.

If you accept the thesis, which I do not, that two wrongs make a right, in 1961, the argument could be made that although large urban areas possessed a disproportionate influence in the selection of the President this was offset by a certain disproportionate representation in Congress on the part of rural areas. In effect then there was a counterbalance of interests. As has been previously pointed out this is no longer true. We have reformed and equalized the election process for the legislative branch. Now we must do likewise for the executive. Simply put, in the past a wrong existed and logic demanded that it be rectified. Today that same wrong exists and both logic and justice demand that it be rectified.

I thank the committee for its indulgence for giving me a chance for the fourth time to present to them reasons why I believe the district plan, in a constitutional amendment, is the optimum method of meeting the problems which are so serious today in our presidential electoral college machinery.

Senator HRUSKA. The Senator from South Dakota has long ago established a record and a reputation for being one of the articulate voices of the Senate, one of the great students of history in the Senate, I might add.

The statement that he has given today just reaffirms and fortifies that reputation and that record that he has made. The thing that I particularly like about it-two things-is not only its delving into history as he has, for the foundation of his proposal and his discussion, but also the updating of this entire subject through the various Supreme Court decisions which have been rendered since the 1961 hearings which was the latest appearance on behalf of his so-called Mundt-Coudert plan.

So I should like to commend the Senator for his appearance here today and thank him for the vast store of information and of really meaningful thought on the subject that we are now considering.

Senator MUNDT. I am indeed grateful to the Senator from Nebraska for his very generous statement.

Senator HRUSKA. Senator Mundt, turning to page 4 of your statement I note there the direct language of your Senate Joint Resolution 12, and I believe it is the second sentence which is about in the middle

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 writ ten. 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