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States against groups of States. As I see the Federal system in contemporary practice, the House of Representatives is the key to the protection of district interests as district interests, just as the Senate is the key to the protection of State interests as State interests. These instrumentalities, and particularly the Senate, are the principal constitutional safeguards of the Federal system, but the Presidency has evolved, out of necessity, into the principal political office, as the courts have become the principal legal bulwark beyond districts, beyond States, for safeguarding the interests of all the people in all the States. And since such is the case, in my opinion, the Presidency should be subject to the direct and equal control of all the people."
There is the view that the practical objection to direct election is that it would never be proposed by Congress as a constitutional amendment or ratified by the necessary number of state legislatures. In this connection, it is interesting to note that members of Congress from both large and small states have been leading proponents of direct election. Recent supporters include Senators Aiken, Bayh, Bible, Burdick, Byrd, Clark, Douglas, Magnuson, Mansfield, Morse, Muskie, Nelson, and Smith. Moreover, thirteen states, both large and small, recently attempted to have the Supreme Court of the United States strike down as unconstitutional the unit vote feature of our system."
Significantly, a recent poll of state legislators was conducted by Senator Quentin N. Burdick of North Dakota to determine their preferences regarding electoral reform. The published results revealed that over 59 percent of the more than 2,200 legislators who responded indicated that they would support a direct popular vote for President. We are advised that since the published results, over 1,000 additional legislators have responded, with a similar ratio of support for direct popular vote. This support, moreover, comes from both small and large states in all parts of the country.
In summary, direct election of the President would be in harmony with the prevailing philosophy of one person, one vote. “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote.' " This equality in voting should extend above all to the Presidency.
4 107 Cong. Rec. 350 (1961). 5 See pages 35–36 infra. 6 Cong. Quart. Fact Sheet on Electoral Reform, Dec. 16, 1966.
Plurality of at least 40 percent
We recommend that a candidate should receive at least 40 percent of the popular vote to be elected President. We chose a 40 percent limitation rather than a lesser or greater one for several
A figure less than 40 percent would not furnish a sufficient mandate for election to the Presidency. It also could have the effect of weakening the two-party system by encouraging the formation of splinter parties, since a figure less than 40 percent would increase the chances of a minor party candidate being able to become President.
On the other hand, a majority vote requirement or a limitation of greater than 40 percent would increase the possibility of having to use the machinery established to handle a case where no candidate receives the required vote. That this possibility would be increased is underscored by the fact that fourteen Presidents received less than a majority of the popular vote. Eleven of the fourteen received between 45 and 50 percent, and one between 40 and 45 percent. Abraham Lincoln received 39.79 percent in 1860, but his name did not appear on the ballot in ten states. John Quincy Adams received 30.54 percent in 1824, but Andrew Jackson received 43.13 percent, and six states did not choose their electors by popular vote.
Guided by what is reasonably foreseeable under a method of direct election, a figure of 40 percent would render extremely remote the possibility of having to resort to the contingent election procedure. A 40 percent rule, as noted, would be conducive to the maintenance of our two-party tradition, and it would be consistent with the principle of plurality voting which operates in congressional elections and in elections for statewide and local offices throughout the United States.
National runoff between highest two
Although we believe that the use of any contingent election machinery would be rare, it nevertheless is essential to provide in an amendment for the case where no candidate receives the required vote. In such event, we recommend that a national runoff election resolution to this effect passed the House by a vote of 138 to 52.'
7 Gray v. Sanders, 372 U.S. 368, 381 (1963).
It has been suggested that, with provision for a runoff election, voters might be more inclined to cast "protest" votes for minor candidates in the original election on the assumption that they will have another opportunity to make their votes “count.” We do not subscribe to this view. In a close election where a runoff would be a real possibility, we believe voters would be more inclined to vote for a candidate with an actual chance of election.
Admittedly, there are some practical objections to a national runoff, but we do not think that they are by any means such as to make it unworkable. Our surveys and inquiries indicate that the runoff has worked successfully in various states and in foreign countries where it is used in connection with the direct election of a President. In the recent presidential election in France, for example, no candidate received a majority of the popular vote, which required a runoff to be held between the top two candidates fourteen days later. Almost 23,900,000 votes were cast in the first election; more than 23,700,000 in the runoff.
In the United States the runoff has been used extensively for many years in primary elections in the South, where nomination by a single party has been tantamount to election. In recognition of this fact and in order to prevent the nomination of a person with possibly a small minority of the total vote, the runoff was developed. It usually is brought into play where no candidate receives a majority of the popular vote in the first primary.
With respect to a national runoff, we suggest that the date for the second election not be written into the Constitution. It should be left for implementing legislation, as the Constitution now provides for the date of the original election.
We recommend that the amendment specifically authorize Congress to determine the days for the original election and the runoff election. The former is necessary because the present language of the Constitution is cast in terms of the day for the selection of the electors.
Decision upon the runoff date should involve a detailed consideration of the time needed by the states for canvassing and certifying votes, deciding disputed questions, and handling the details for a second election. The replies of various state election officials
9 II Register of Debates (pt. II), 19th Cong., 1st Sess. 2003 (1826). 10 See Ewing, Primary Elections in the South (University of Oklahoma Press
be held between the two top candidates. This would assure that whoever was elected President was the winner of the most popular votes, and it would keep the election of the President where it belongsdirectly with the people.
The present procedure of handling a contingent election not only is archaic and undemocratic but is fraught with perils. Under it, the House of Representatives chooses the President from the top three candidates, with each state having one vote regardless of its population. If a state delegation is evenly divided, the delegation will have no vote. In casting their votes, the state's representatives can disregard completely the popular vote received by the candidates in their state or in the nation at large. As the political alignment of the House of Representatives in 1948 demonstrated, an election there could well have resulted in a deadlock. Moreover, since the Senate selects the Vice-President under present contingent election procedure, there could be a President from one party and a VicePresident from another. This is possible because the political alignment of each House might be different, the method of voting and the requirement for election is not the same in each House, and the House selects the President from the “highest three” while the Senate chooses the Vice-President from the “highest two."
We gave serious consideration to the proposal that the contingent election procedure be changed to a joint session of Congress with each member having one vote. This method is certainly superior to present procedure, but it is not as desirable as having the people elect the President under all circumstances.
Realistically, an election in Congress is likely to involve political deals and pressures and to place the President in a position of indebtedness to those who voted for him. It could result, as past history shows, in members casting their votes contrary to the popular vote received by the various candidates in their districts or states or in the nation at large. If voting in Congress followed party lines, and the winner of the popular plurality in the nation were a member of the minority party in Congress, he would lose the election.
Significantly, following the election of 1824, the last time the House of Representatives had to choose the President, a concerted effort was made to amend the Constitution to eliminate the possibility of an election ever again devolving on the House. In 1826 a to our inquiries indicate that at least several weeks would be required before a runoff could be held. In that connection, we note that the present runoff dates in the southern state primaries are approximately five weeks after the first election in one state, four weeks in three, three weeks in three, and two weeks in two states.
8 The theoretical possibility of ties also will have to be dealt with in the amend
There now exist state procedures for canvassing the popular vote, certifying the number of votes received by each candidate, and deciding election contests pertaining to the selection of the electors, who are required to meet to cast their votes on the Monday after the second Wednesday in December (or forty-one days after the November election). Many of these procedures, with appropriate amendments, could be used if the President were elected directly in November. In the case of a runoff, they would have to be reemployed after the runoff in declaring the results.
Under present federal law, if a contest arises in any state over the appointment of electors, the state itself is authorized to determine the contest." It must do so by a "final determination” at least six days before the meeting of the electors in December. If the state so determines, its determination is conclusive when certified by the Governor under the state's seal. If the state does not so determine, the approval of both Houses of Congress is necessary before the state's electoral votes can be counted. It is not, however, until January 6 that the electoral votes are counted before a joint session of Congress. It would seem that much of this procedure could be adapted to a system of direct election.
We have no doubt of the American capacity to work out the practical aspects of a runoff election, as have other nations and certain states.
We recommend that the state legislatures continue to have, as at present, the primary responsibility for prescribing the places and manner of holding the presidential election and for including the names of the candidates on the ballot. These matters have been handled locally since the first presidential election and, if possible, should continue to be so dealt with under a system of direct election. However, we believe that Congress should have the reserve power to make or alter such regulations. Congress now has this power with respect to the places and manner of holding the election for the
11 3 U.S.C. $ $ 5, 6, 15 (1964).