PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATING TO THE ELECTION OF THE PRESIDENT AND VICE PRESIDENT TUESDAY, JUNE 17, 1969 HOUSE OF REPRESENTATIVES, The committee met, pursuant to call, at 10:30 a.m., in room H-313, the Capitol, Hon. William F. Colmer (chairman of the committee) presiding. The CHAIRMAN. Mr. Celler, you are here this morning, in spite of all the political activity going on up in New York, to try to establish a new system for election of a President. The committee will be glad to hear from you. (H.J. Res. 681 follows:) [H.J. Res. 681, 91st Cong., first sess.] JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to the election of the President and Vice President Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress : "ARTICLE "SEC. 1. The people of the several States and the District constituting the seat of government of the United States shall elect the President and Vice President. Each elector shall cast a single vote for two persons who shall have consented to the joining of their names as candidates for the offices of President and Vice President. No candidate shall consent to the jointer of his name with that of more than one other person. "SEC. 2. The electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that for electors of President and Vice President, the legislature of any State may prescribe less restrictive residence qualifications and for electors of President and Vice President the Congress may establish uniform residence qualifications. "SEC. 3. The pair of persons having the greatest number of votes for President and Vice President shall be elected, if such number be at least 40 per centum of the whole number of votes cast for such offices. If no pair of persons has such number, a runoff election shall be held in which the choice of President and Vice President shall be made from the two pairs of persons who received the highest numbers of votes. "SEC. 4. The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations. The days for such elections shall be determined by Congress and shall be uniform throughout the United States. The Congress shall prescribe by law the time, place, and manner in which the results of such elections shall be ascertained and declared. "SEC. 5. The Congress may by law provide for the care of the death or withdrawal of any candidate for President or Vice President before a President and Vice President have been elected, and for the case of the death of both the President-elect and Vice-President-elect. "SEC. 6. The Congress shall have the power to enforce this article by appropriate legislation. "SEC. 7. This article shall take effect one year after the 21st day of January following ratification." STATEMENT OF HON. EMANUEL CELLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. CELLER. Mr. Chairman and members of this distinguished committee, I appear this morning to request an open rule, with 6 hours' debate, on House Joint Resolution 681, which proposes to amend the Constitution to provide for direct popular election of the President and Vice President of the United States. Mr. Chairman, Thomas Jefferson said way back in 1823 that our system of election of President and Vice President "was the most dangerous blot on our Constitution and one which some unlucky chance will soon hit." The danger that Jefferson pointed out is even more grave today. The uncertainties, the imponderables in the last presidential election emphasize the need for a change. The CHAIRMAN. Mr. Celler, if you will permit me to interrupt you right there, I promise I will not do it any more. Mr. CELLER. That is perfectly all right. The CHAIRMAN. But your quote there of Thomas Jefferson-he said a great many things, and another quote that I remember which I just wanted to particularly get across to the distinguished chairman of the Judiciary Committee, and I think this is a direct quote, was that— There is no danger I apprehend so much as the consolidation of our Government by the noiseless and, therefore, alarming instrumentality of the Supreme Court. Now, the gentleman deals with the Supreme Court so much that I just wanted to throw that out to him and also to remind those who are very conscious of the activities of the Court these days that he had some very strong views on that question, too. Now, the gentleman does not have to commnet on that. Mr. CELLER. Of course, no man, Jefferson or anybody else, is always right. The CHAIRMAN. And that was the point I was trying to make here. Thank you. Mr. CELLER. But I would say as far as Jefferson is concerned, 99 times out of 100 he was right. We on the Judiciary Committee, as Ben Franklin stated at the close of the Constitutional Convention on September 17, 1787, "cannot help expressing a wish that every member doubt a little of his own infallibility." Mr. O'NEILL. Do you want to speak up, Mr. Chairman, please? Mr. CELLER. Yes, sir. "Cannot help expressing a wish that every member doubt a little of his own infallibility." Thus we are not, we members of the Judiciary Committee, that infallible as to state that House Joint Resolution 681, is perfect, but we do believe it contains the least inequities and is the least objectionable of all plans considered, and we did consider a plethora of plans, among them the so-called District plan, the proportional plan, the automatic plan, and the direct vote, and combinations of all four. We came to the decision that the Direct Voting plan was, indeed, the least objectionable of all. The final vote in the committee for this resolution now before you was 29 to 6. It was a prepondering vote of the committee. Indeed, if you will note the resolution, 25 members of the committee have cosponsored it with me. The reform we seek is timely and wise. It is anachronistic to preserve the electoral college system. It is outmoded, it is ill-suited to our times. Permit me to quote another very distinguished gentleman in history Edmund Burke, in a classic speech for reform in England said before the House of Commons: "A wise government will know the best time and manner of yielding what is impossible to keep. Most well-intentioned statesmen, most worthy institutions, be they civil, religious, or educational, know that the present system of the election of a President and Vice President is not in the best interests of the Nation and should no further be maintained. Thus, Congress must start to weed out the distressing system that can be the catch basin of much evil, as I shall point out. A number of distinguished members of the committee are here this morning, among them our distinguished ranking member of the Republican side, Mr. McCulloch, who will support the bill. We have Congressman Rogers, of Colorado, Congressman Mann, of South Carolina, Congressman Dowdy, of Texas, Congressman Hutchinson, of Michigan. I understand Mr. McClory has just entered the room. I want to pay tribute to Mr. McCulloch who has been most painstaking, most dedicated in consideration of this difficult problem. Our present electoral system was born at a time when this country's population was only 4 million, of which 700,000 were Negro slaves, and more than 2,300,000 were white women and children. Only about 100,000 people lived beyond the Appalachian Mountains. Only five cities had a population in excess of 10,000 souls. Horseback, wagon, stagecoach, boat, and foot were the main modes of transportation. To go from Boston to New York was a journey of from 3 to 6 days; from New York to Philadelphia, 2 or more days; newspapers usually were distributed on a weekly basis; had limited circulation; and contained mostly local news. Small wonder that such an election apparatus applicable to a horseback and buggy age becomes ill suited to a TV and jet age. The existing electoral system is familiar, of course, to all of you. Until recent years, it has not really prompted significant, widespread outcries for reform. However, several elections, and particularly the most recent presidential election, underscored the potential instability of the existing procedure. The possibility of a deadlock and vacancy of uncertain duration in the principal office of this Government has posed substantial dangers that many Americans, regardless of party or region, agree must be eliminated. To a large extent, our presidential election system lacks constitutional sanction, and relies on the individual States and their electors to operate in accordance with the prevailing understanding of our citizens. For example, under the Constitution, the States are not even required to hold elections to choose presidential electors. As a matter of fact, until the late 19th century, many States had the electors appointed by the State legislatures; they were not the result of elections by the citizenry. There remains the ever-present possibility that States or electors will depart from custom and exploit their constitutional independence. The risk that electors may substitute their own will for the will of the people is of grave concern to many, particularly in view of the most recent exercise of an elector's independence which was sustained by both Houses of Congress this year. As long ago as 1826 a Senate select committee described the anachronistic presidential elector in the following manner: They have generated into mere agents in a case which requires no agency, where the agent must be useless if he is faithful and dangerous if he is not. In addition to elector infidelity, a potential crisis in our presidential election system also occurs if the electoral college fails to produce a majority for one candidate and the final decision for electing a President and Vice President falls on the Congress. Under the 12th amendment, each State delegation may cast but one vote in the House of Representatives, and an absolute majority of all the States is required to elect a President from among the three leading candidates. The Vice President will be selected from among the two leading candidates by the Senate, each Senator having one vote, and an absolute majority, again, being required to elect. Under this system it is possible that a President and Vice President would be of different political parties. Under the rules adopted in 1824 in the Adams-Jackson election in the House, no vote can be cast by a State whose vote is evenly divided. You would have difficulty in obtaining a majority of all the States as required by the 12th amendment, and 26 States now, of course, is a mandatory majority. Some State delegations today are evenly divided between Republicans and Democrats. Such a contingent election in the House has occurred twice in our history; in 1800 between Thomas Jefferson and Aaron Burr, in 1824 between John Quincy Adams and Jackson. In each case the event is remembered for a lengthy deadlock, intrigue, and an appearance, if not the reality, of political deals. As a matter of fact, in the 1824 election, John Quincy Adams was lowest in the popular vote of the four leading candidates. The others that received substantial votes were William Crawford, Henry Clay, and Andrew Jackson. But all the candidates had an inveterate grudge against Jackson. He was the maverick that came out of the west, Kentucky. They all thought he had woolly reform ideas. There was an inveterate hate against him, particularly on the part of Clay. These four were the highest of those who received votes from the citizenry of the Nation. Crawford had a stroke. He was eliminated. The vote then was between Clay, John Quincy Adams, and Andrew Jack son. Clay hated Andrew Jackson and threw his support to John Quincy Adams. The result was that Adams was made President, although he was a minority President. There is a case where the loser became the winner. Henry Clay, as a result of the deal, was made Secretary of State. Thereafter, John Quincy Adams was caricatured as a Clay President. His administration could not be deemed successful, and was not successful, and he was not reelected. He had all manner and kinds of troubles because of the fact that he was a minority President elected President. I need not go into the Aaron Burr-Jefferson situation. There, too, history tells us of alleged intrigues and deals. It was never proven that Jefferson was part of the deal, but the one vote cast by Baird, the Congressman from Delaware, was the deciding vote, which elected Jefferson over Burr. Thereafter, Baird received every manner and kind of preferment and patronage. As I said, it was never proven that Jefferson himself was part of the deal, although Baird in his diaries, in his speeches, gloated over the fact that he had received so much preferment from Jefferson. The prospect of a contingent election in the House under the precarious constitutional structure now provided, troubles many thoughtful citizens. There is also widespread concern over the disparity existing today between the number of electoral votes allocated to the respective States pursuant to decennial censuses and the number of their citizens and actual voters. Our system allocates electoral votes to the States in numbers which are not truly proportionate, either to population or to actual voter turnout. Regardless of population, each State is entitled to two electoral votes and one electoral vote for each Congressman (at least one) allotted to the State. This gives tremendous disproportion to the value of an electoral vote. Let me read you some figures with reference thereto and with reference particularly to these so-called bonus votes that each State has. Alaska, with a population of 226,000, has three electoral votes, one for every 75,000 people. But New York, with a population of 16,782,000, has 41 electoral votes, only one for every 390,000 people, as against Alaska's one for every 75,000 people. On a population basis, then, Alaska receives electoral votes of better than five times the rate of New Yorkers. The ratio was high for all other small States as well: Nevada, one electoral vote for every 95,000 people; Wyoming, one for every 110,000; Vermont, one for every 130,000. It is low for all the other large States: California, one for every 393,000; Pennsylvania, one for every 390,000; Illinois, one for every 388,000. The cumulated effect of this small State advantage may be gaged from the fact that New York, for example, with a population of 16,782,000, has 43 electoral votes, whereas Alaska, Nevada, Wyoming, Vermont, Delaware, New Hampshire, North Dakota, Hawaii, Idaho, Montana, South Dakota and Rhode Island, with a combined population, all of them, of only 6,364,000, also have a total of 43 electoral votes, the same as the State of New York. Another inequity results from the "winner take all" system which wastes the loser's votes within a State. As you know, in the case of |