I think a case can be made for the proposition that direct election, if it passes, will be the most deeply radical amendment which has ever entered the Constitution of the United States. — Charles Black, Henry Luce Professor of Jurisprudence, Yale Law School

I. INTRODUCTION

No more important business has come before the Senate in recent years than the consideration of our system of presidential election. Among the proposals for reform now being entertained are those which recommend moderate change, those which recommend extensive alteration, and those which demand complete abolition. We believe that the Judiciary Committee, in recommending the destruction of the electoral-vote system in favor of direct election, has embraced a scheme that will adversely affect the entire constitutional and political structure of the United States.

We realize that the present system has its defects. We believe, however, that remedies are available short of its wholesale destruction. In his statement in opposition to direct election, former Attorney General Nicholas De B. Katzenbach commented:

I strongly feel that on a matter so basic to the confidence and structure of the country, we ought not to abandon the familiar and workable for the new and untried without the clearest demonstration of need. In my judgment, no such demonstration has been made. We should not substitute untried democratic dogma for proven democratic experience.

Direct election of the President, we believe, would—

– Destroy the two-party system and encourage the formation of a host of splinter parties;

– Undermine the Federal system by removing the States as States from the electoral process;

– Remove an indispensable institutional support for the separation of powers;

– Radicalize public opinion and endanger the rights of all minorities by removing incentives to compromise;

– Create an irresistible temptation to electoral fraud;

– Lead to interminable electoral recounts and challenges;

– Necessitate national direction and control of every aspect of the electoral process.

How, it will be asked, could an idea which enjoys such widespread popular support be so dangerous? The answer, we believe, is to be found in an examination of certain influences which have attended the current debate over electoral reform.

It must be acknowledged, first, that direct election is a simple and easily communicable idea. That fact alone may account for its great popularity and for the widespread and uncritical support it has had from the communications media. Simplicity in the governance of human affairs, however, is not always a virtue; nor is it the distinguishing characteristic of this 200-year-old Republic which seeks to secure the blessings of liberty for 200 millions of people. Human hopes and fears are complex; politics is complex; and the Constitution is complex. Still, simplicity has its charms, and not the least of them is the capacity to conceal danger.

To the appeal of simplicity must be added two other factors: the influence of the recent one-man, one-vote rulings, and the furor which has arisen from the presidential candidacy of Gov. George Wallace of Alabama. These have produced, on the one hand, a curiously abstract conception of democracy which has concealed difficult problems of representative government beneath an impenetrable mathematical screen; and, on the other hand, an emotional catch-all argument which has enabled proponents of direct election to avoid answering hard questions about their proposal.

Burden of proof

These three otherwise unrelated factors—the simplicity of the ideas, the impact of the “one-man, one-vote” slogan, and the Wallace phenomenon—have combined, as chance would have it, to obscure the truly radical nature of direct election. They have cast such a talismanic charm over the discussion that the burden of proof traditionally assigned the proponents of change has been, for all intents and purposes, thrust onto the opposition. As Congressman William L. Clay of Missouri told the Judiciary Committee:

It is uncanny that the burden of proof in this debate has been assigned to those of us who defend the electoral system which has served us well, and that the proponents * * * of direct election, which is untried and necessarily unproven, do not discuss the need for change but only change itself.

This extraordinary attempt to transfer the burden of proof is without parallel in our constitutional history and must be condemned.

It is well known that the framers deliberately made the process of constitutional amendment a complicated and lengthy matter. They did so on the wise assumption that men can seldom be absolutely confident about the full range of consequences which may flow from even a seemingly minor alteration in the Constitution. Those who would amend the Constitution, therefore, are properly obliged to demonstrate that their proposal is salutary, not only for some apparent immediate purpose, but for the permanent and aggregate interests of the Nation.

The proponents of direct election, we believe, have not only failed to meet this obligation; they seem scarcely to be aware of it at all. Having fallen victim to the very forces which obscure the dangers of direct election from the public eye, they have grievously underestimated what is at stake in the matter of electoral reform. They have undertaken belief that the alteration is a mere housekeeping detail. With invincible innocence, they have reduced the manifold considerations which attend electoral reform to only one—the desire for a mathematical purity—without understanding what is implied by the application of “one-man, one-vote” to presidential elections. They would thus alter the most successful frame of government in history on behalf of a future the barest outlines of which can be only dimly perceived. Mr. Richard Goodwin, former advisor to President Kennedy and Johnson, was quite correct when he testified that it is here proposed “for the first time to amend the Constitution simply because we think something might go wrong at a future date.” Mr. Goodwin further detailed his opposition to direct election as follows:

We will exchange a mechanism which is clumsy but has worked well for an ideal construction of political theory whose consequences can’t be foreseen. This, it seems to me, places a heavy burden of proof on the proponents of the measure, for it is difficult to predict the results of structural change in our democratic institutions. It is not enough to demonstrate that direct election will probably be an improvement. It must be shown beyond all reasonable doubt that the adverse consequences which are predicted by many, including myself, will not occur. I do not believe that this burden of proof can be sustained.

No other constitutional amendment to our knowledge, in our own time or in the entire history of the Republic, has been put forward with such an inadequate demonstration of what it might entail.

The good intentions of the proponents are not in issue here. What is in issue is the wisdom of direct election and the adequacy of the argument made on its behalf. It is not sufficient for the partisans of direct election to argue that the electoral college is somehow defective. All mode of election are less than perfect, all provide certain benefits at the expense of certain other. What has bothered us in the current discussion is the unquestioned assumption that the alleged benefits of direct election can be had without paying a price, and the equally strong and equally unquestioned assumption that the alleged faults of the electoral college are without redeeming merit. The partisans of direct election must prove that their proposal is meritorious both as to the removal of what they understand to be extant defects, and as to the avoidance of undesirable effects we believe their scheme will produce in its own right. On both counts, they have come up short. They have failed to make a case for the profound alteration in the Constitution embraced by their proposal.

Accordingly, we recommend to the Senate that the proposal be decisively rejected.

II. RADICAL NATURE OF DIRECT ELECTION

The radical nature of direct election, we have suggested, has been obscured by the narrow constitutional perspective of its proponents. The fact is nowhere better revealed than in the majority report, which is interesting more for what it does not say than for what it does. It makes no mention, for example, of the relation between the two-party system and presidential elections; it makes no mention of nominating procedures, or of any of the other processes which must necessarily precede any meaningful election contest; it makes no mention of the federal system and the importance of the States as States having a say in the selection and election of the Presidents; and it makes no mention of the way in which the electoral college shores up the separation of powers. I makes no mention, in short, of those manifold institutions, laws, customs, and practices which have grown up in response to presidential elections over the past 150 years; nor does it reveal the slightest awareness that the electoral college bears any relation to the rest of the Constitution. The report, taken as a whole, proceeds as if presidential elections took place in a vacuum and assumes, without supporting argument, that the mode of election can be changed while everything else remains constant.

This strange abstraction from political reality derives from the attempt to extend the logic of the “one-man, one-vote” decisions to presidential elections—a dangerous, if well-intentioned enterprise that will ultimately destroy the American constitutional system. Even if “one-man, one-vote” were unobjectionable as applied to local, State, and congressional offices, its application to presidential elections would not follow as a matter of course. For, there are constitutional and political questions which must be raised regarding the Presidency which need not be raised in the consideration of lesser offices. Such questions, however, will never be raised so long as the terms of debate are confined to the mathematical categories imposed by the “one-man, one-vote” criterion; and so long as such questions are not raised, the truly radical nature of direct election will remain forever obscured.

What is required is a comprehensive constitutional perspective, one which sees presidential elections as something more than a ritualistic ordeal by numbers. The selection of a single man for a single office is not the only purpose which has been, or which ought to be, served by our electoral system. For the Presidency is not only a constitutional office; it is a highly political office which exercises a massive and pervasive influence throughout the entire political structure, right down to the local level. Thus, a debate about electoral reform, if properly conducted, will soon or late touch upon every institution with which the Presidency is connected by law or custom, by design or accident. As John F. Kennedy said in defending the electoral college on the floor of the Senate in 1956:

It is not only the unit vote for the Presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the system, it is necessary to consider the others.

This larger perspective, which understands the Presidency—and hence the mode of presidential election—as only part of comprehensive and grand design, dominated all previous discussions of reform. It has, however, been lost sight of in the current debate, both in Congress and in the country at large. The proponents of direct election have circumscribed the question of electoral reform so as to obscure the relation between the electoral college and the rest of the constitutional and political structure. Seizing upon one goal in particular—that of giving every man a mathematically equal vote—they have proposed a drastic reform which, in order to achieve that goal, must reach ever outward to encompass matters scarcely intended to be dealt with at the outset. It is not surprising, therefore, that some of the early proponents of direct election are now beginning to have second thoughts about the panaceas of a plebiscite. They are beginning to see that the electoral college cannot be isolated from the constitutional and political system in its entirety, and that the repair of one part of the system may entail a tinkering with the rest. This growing awareness of the dangers of direct election was underscored last fall by Congressional Quarterly:

House passage September 18 of the proposed constitutional amendment to abolish the electoral college could mean the beginning of profound changes in American political institutions, traditions, and practices. Just what those changes would be was largely a matter of opinionduring House debate. [Emphasis supplied.]

Clearly, there is more to direct election than its proponents would have us believe. Where the House was ambiguous, we must be forthright. Constitutional duty requires that we penetrate the screen of “one man, one vote.”

III. DANGER OF APPLYING “ONE MAN, ONE VOTE” TO THE PRESIDENCY

It is not our purpose to criticize the recent reapportionment decisions except insofar as the attempt is made to apply them to presidential elections. It is their general rationale rather than a particular result in a particular case which interests us here. Their general argument is that the Constitution requires that the weight of interests be precisely and mathematically proportional to their numbers. Whatever its effect in particular cases, we are persuaded that this doctrine emanates from an understanding of representative government that is wholly at odds with the spirit of American politics.

Nothing could be clearer in the Framers’ thought than their rejection of a merely numerical concept of representative government. If the Constitution stands for nothing else, it stands for the idea that mere numbers have no capacity to make legitimate that which is otherwise illegitimate—whether those numbers be 51 or 90 percent of the whole. All the unique features of the Constitution are explicit departures from simple majoritarianism. This is true of the federal system, which, among other things, prevents the less populous States from being engulfed by the more populous States; this is true of bicameralism, which divides legislative responsibilities between House and Senate on grounds other than those of population; this is true of the separation of powers, whereby, among other things, great power is invested in a nonelective judiciary; and this is true of the electoral college, which incorporates the Federal principle and grants to each State, however small, a minimum weight of three electoral votes.

Reasonable majorities

These departures from strict mathematical equality were designed jointly and severally, to prevent any group of men, whether a minority or a majority, from seriously or permanently interfering with the rights of others. The understanding which produced these unique constitutional features was summarized with characteristic economy and eloquence by President Thomas Jefferson in his first inaugural address. He said: “The will of the majority is in all cases to prevail, but that will, to be rightful, must be reasonable.”

By reasonablemajorities, Jefferson meant those which, by the very manner of their composition, would be disinclined or unable to interfere with the rights of others. Since the Constitution is dedicated to securing equal rights for all, it follows that only those majorities are entitled to rule which respect the rights of those who do not agree with them. We may say that the Constitution, in whole and in part, is devoted to the creation and maintenance of reasonable majorities. In more familiar terms, we say that the Constitution is equally devoted to majority rule and minority rights. The central character of American politics requires that we be concerned not just with the size of the majorities, but with their character.

Accordingly, the crucial question in considering electoral reform is whether one method if election is better than another at creating reasonable majorities. One method might be better at obtaining a strictly numerical majority, but only at the price of failing to protect minorities; another might protect minorities very well indeed, but only at the price of frustrating a truly reasonable majority.

In presidential elections, which are politically and symbolically the most important elections in the country, the electoral college attempts to strike a golden mean: it attempts to create numerical majorities which are moderate in character, It does this in part by granting a certain weight to numbers—hence greater representation for the more populous States. But it denies, quite properly, that numbers alone should be the exclusive criterion—hence minimum representation for the least populous States. The electoral college seeks to satisfy qualitative—as well as quantitative—goals, among them:

– the desirability of supporting the federal system by giving the States as States a say in the selection and election of Presidents;

– the desirability of encouraging compromise among potentially antagonistic interests by seeing to it that compromises are worked out well in advance of elections and within geographically limited political areas;

– the desirability of representing certain interests whose only drawback is the want of great numbers;

– the desirability of placing institutional restraints upon the abuse of powers in the Chief Executive Office.

As we point out below, the electoral college brings together all the distinctive elements of the American Constitution. It provides indispensable institutional support for the Federal system and the separation of powers. Moreover, it has through the years become inextricably intertwined with the two party system, and the national conventions, which carry out the Constitution’s dedication to reasonable majorities in the everyday political process. To understand the electoral college at all, it is necessary to understand it as the most important working part of an integral whole. The whole, as we have suggested, is devoted to the creation of reasonable majorities—majorities which represent the great diversity of the Nation without unduly interfering with minority rights. Such is no easy task, but none is more important to the survival of the Nation. The majority report, unfortunately, in reducing democratic processes to a mere “numbers game” understands neither the difficulty of the task nor its importance.

IV. WHAT’S WRONG WITH DIRECT ELECTION

We stated in the Introduction that direct election would

– destroy the party system and encourage splinter parties;

– undermine the federal system;

– alter the delicate balance underlying separation of powers;

– radicalize public opinion and endanger minorities;

– encourage electoral fraud;

– lead to interminable recounts and challenges; and

– necessitate national control of ever aspect of the electoral process.

We propose now to document these charges in detail.

Direct election would destroy the party system

It is generally agreed that our two-party system has been an indispensable aid in carrying out the dual purpose of American politics: majority rule with minority rights. It is also generally agreed that in a multiparty system either or both of these goals would be frustrated. Given the extent and variety of interests which compose this land, the maintenance of a two-party system is a remarkable feat. Indeed, the striking fact about American party politics is not that we have had a number of third-party movements, but that we have not had more them. All third-party movements in U.S. history, taken together, account for only 5 percent of the total vote cast in presidential elections.

The two-party system, however is not a product of chance. Public opinion in this great and diversified land has no inherent tendency to divide itself into two, and only two, major political groupings. The ultimate causes of two-party politics are to be found in the requirements of the presidential election system under which parties have operated for nearly a century and a half. In the words of Prof. Richard McCormick, perhaps our foremost authority on the formation of parties in the 1820’s and 1830’s, “In broad terms, it was the contest for the Presidency that shaped this party system and defined its essential purpose.” From the very moment of their inception, the major parties as we now know them had as their central organizing purpose the capturing of the Presidency. In order to carry out that goal, the parties had to contend with three constitutional requirements:

(1) The Constitution established a single office to be held by a single man. That is, it established a winner-take-all on the national level.

(2) It required a majority of electoral votes for victory.

(3) It distributed a fixed number of electoral votes to each State.

In addition to these, there was a fourth requirement, which was a product of State law: the custom within each state of awarding electoral votes according to the unite rule.

These four requirements—a unitary Presidency; the necessity of carrying a majority of electoral votes; the distribution of electoral votes according to States; and the awarding of electoral votes within the States on the basis of winner-take-all—are chiefly responsible for the most important distinctive features of the American party system:

(1) We have only two major parties. Third party movements have been sporadic and, on the whole, ineffectual.

(2) The major parties, often called “national” are in fact coalitions of 50 State parties; the State parties, in turn, are coalitions of county and local party organizations.

(3) Both major parties include a wide range of interests and a broad spectrum of opinion.

Let us now consider briefly how these features are related to the requirements of the present electoral system.

The need for broadly based parties

Because a majority of electoral votes is required for victory, a party seeking the Presidency must expand its base of support beyond a narrow geographical region. And because electoral votes are apportioned according to the Federal principle, a party must campaign in all or most of the States. The States, thus, are the decisive political battlegrounds. The States, of course, are free to award their electoral votes as they see fit. All States, except one, however, follow the practice of awarding electoral votes by the unit rule, winner-take-all; and they have followed the practice without notable exception for 150 years. Whatever else may be said about the custom, pro or con, it cannot be denied that winner-take-all has had a great impact on the character and structure of our political parties. Because of winner-take-all, a party is under a strong inducement to extend its platform as widely as possible within each State; it must expand its base of support to carry a popular plurality. Since both major parties face the same requirement, both must campaign in most of the same places before most of the same voters. Both must be hospitable to a wide range of minority interests which might otherwise be excluded from electoral competition. Every minority, in turn, is under an inducement to moderate its views to make them compatible to both major parties, at the risk of having to form a separate party.

Winner-take-all, in short, encourages both parties to include everyone and to exclude no one. Both, of course, have traditional bases of support which remain loyal over a considerable period of time; but with rare exceptions, these are seldom sufficient to provide the margin of victory. In most States most of the time, neither party can afford to alienate any sizable interest group; both are forced to seek the support of those who are not traditionally wedded to either party. Since both parties face the same requirement in all States, an electoral majority, when it does emerge, is both geographically dispersed and ideologically moderate. The victorious party is therefore capable of governing. The electoral college, in sum, produces truly competitive, State-based, moderate political parties.

Why, it will be asked, are there only two such parties? The answer is that the same inducements which produce broadly based, competitive, moderate national parties also operate to confine third parties to a narrow regional base. In order to compete with any hope of success outside a regional base, a third party must be able to outpoll the major parties in States where the major parties are strongest—a highly unlikely occurrence. The same difficulty is presented even within the regional base of the third party, for the major parties, or at least one of them, may be found competing there also.

Direct election would encourage splinter parties

Under direct election, most of the incentives toward moderate, broadly based, two-party competition are removed. It is true that a sizable popular plurality—40 percent—would be required for victory. But that, without more, is insufficient to sustain two-party competition of the kind we have known. Under direct election, it is not the distribution of the vote which matters, but only the size. Votes would be sought without regard to the States which happened to contain them. Interest groups would face no necessity to moderate their views or to compromise with other groups within their resident States. Candidates, in turn, would face no necessity to present a broadly based platform within each State. Indeed, there would be little necessity for a candidate to campaign in most, or even many, States. He would be encouraged to build a numerically sizable following without regard to its character. Since the same strategy would be followed by many others at the same time, there would be a tendency toward a multiplicity of single-interest splinter parties, each uncompromisingly attached to a particular candidate. Only a few might realistically expect to win; but all would hope, at the very least, to maximize their bargaining by accumulating as many popular votes as they could, if for no other reason than to prevent someone else from winning.

As Mr. Richard Goodwin told the Judiciary Committee:

To see that this is more than a theoretical possibility let us look at the experience of New York. That State is as close to a miniature nation, in terms of diversity of population and interests, as any in the Union. It is as large as some countries. New York now has four parties. The two smaller parties—liberals and conservatives—cannot carry a single city or borough, but within a State that does not matter. Popular vote is everything in statewide contests. The result is that both minor parties are important, and can make a decisive difference in a close race. They behave on a State scale, exactly as we speculate that minor parties might act on the national scale: offering endorsements, making deals, and running their own candidate. For their members a separate party has proved the surest route to real power. If we move to direct election, there is no reason whatsoever why the same will not be true at the national level. In fact, operating just in New York both the liberal and conservative parties receive more votes than the total margin of national victory in tow of our last three presidential elections.

The proponents of direct election may reply that the 40 percent requirement would mitigate against the multiplication of parties. It must be noted, first, that proponents of direct election originally favored a 51 percent requirement. That was reduced to 40 percent precisely because they doubted whether anyone could get 51 percent under direct election. That concession, however, may prove fatal to the proponents of direct election, because it confirms one of our worst fears, namely, that direct election will undermine the two-party system.

Moreover, we cannot but think it somewhat disingenuous to condemn the electoral college for being “undemocratic” while at the same time embracing a 40 percent requirement under direct election. For that figure, turned upside down, says that the man who is not the choice of 60 percent of the electorate shall be President. To this, proponents of direct election like to reply that under the present system, Presidents have been elected with less than a simple majority of the popular vote even while winning a majority of the electoral vote. What this argument fails to recognize is the essential difference between the size of a plurality and the manner of its composition. A 43 percent vote under direct election, for example (assuming it could be acquired), represents a very different kind of popular plurality from a 43 percent popular vote under the electoral college. The popular vote is always widely dispersed geographically and ideologically and is distributed, moreover, throughout all the States. Thus, even when the winning percentage is less than a popular majority, it is still possible for the electoral vote majority winner to govern. Under the direct election scheme, which is indifferent to the way in which majorities are formed or where they are located, there is no guarantee that a winner will actually be able to govern.

The direct election proposal makes no provision whatsoever for any pre-election machinery capable of putting together a 40 percent coalition, or of insuring that the coalition will be truly representative of the Nation as a whole. The proponents of direct election assume that all else in the political process will go on pretty much as-is, that the negotiation, compromise, and coalition now undertaken by the two major parties within the States will be performed in the same way. No argument is made, no facts are listed, to indicate how or why this would be the case. We are asked to take it on faith that everything will continue in the accustomed manner. Needless to say, we have strong reservations about that prospect.

Dangers of the Run-off

Our reservations about direct election in general are in every respect strengthened when we come to consider the runoff provision. The general tendency of direct election toward party splintering is reinforced by the runoff. With a runoff, it is not only possible, but probably, that many candidates will enter the presidential race. With a runoff, there is absolutely no incentive for any candidate to withdraw until after the first election. Many candidates would run, not necessarily with the hopes of winning, but with the hope of maximizing their party’s bargaining position in between the first election and the runoff. The consequences are not pleasant to behold. In the words of Prof. Alexander Bickel of the Yale Law School:

I think it altogether probable that under a system of popular election the situation would be as follows: the runoff would be, not an occasional occurrence, but the typical event. The major party nomination would count for much less than it does now—and might even eventually begin to count against a candidate. There would be little inducement to unity in each party at or following conventions. Coalitions would be formed not at conventions, but during the period between the general election and the runoff. All in all, the dominant positions of the two major parties would not be sustainable.

This sort of unstructured, volatile multi-party politics may look more open. So it would be—infinitely more open to demagogues, to quick-cure medicine men, and to fascists of left and right. It would offer, no doubt, all kinds of opportunities for blowing off steam and for standing up uncompromisingly for this or that cause, or passionately for one or another prejudice. But people who think that our democracy would become more participatory fool themselves. Weaker, yes. More participatory in any real sense, no.

While men continue to take varying positions on issues, compromise and coalition remain unavoidable. The only question is when and how coalitions are formed and compromises take place. Coalitions are now formed chiefly in the two-party convention, which are relatively open and accessible and can certainly be made more so. In a multi-party system, the task of building coalitions will be relegated to a handful of candidates and their managers in the period between the election and the run-off. The net result will simply be that the task will be performed less openly, and that there will be less access to the process. Governments will be weaker, less stable and less capable than our governments are now of taking clear and coherent actions. Where multi-party systems have been tried, they have been found costly in just these ways, and they have scarcely yielded the ultimate in participatory democracy or good government. Nor have they lasted.

We are persuaded that direct election would encourage a disastrous multiplication of political parties.

Griffin-Tydings plan no cure for the ills of direct election

Some proponents of direct election, most notably Senators Griffin and Tydings, have expressed concern that the run-off provision of S.J. Res. 1 would encourage splinter party candidacies and therefore make it impossible for anyone to obtain 40 percent in the first election. They suggest that elimination of the run-off would insulate direct election against the threat of party proliferation.

For one thing, the elimination of the runoff is only a partial solution to the problem of splinter parties. It would discourage some, but by no means all, troublesome minor party candidacies. It would have little effect, for example, on so-called spoiler candidates—those who run, not to win, but to prevent someone else form winning. The only way to guarantee that someone will be able to garner at least 40 percent of the vote under direct election is to limit sharply the number of candidates in a race. Absent rigid, universally applicable rules narrowing the field of candidates, the “spoiler” strategy may still be profitably pursued under direct election even if the runoff provision is removed.

The decisive factor now discouraging the formation of splinter parties, including “spoiler” parties, is the power of the States in the nominating and election process—a power that derives from the institution of electoral votes. Once the electoral vote system is abandoned in favor of direct election—with or without a runoff—the States will no longer have a significant voice in regulating minor party candidacies. They form and content of extant laws governing party and candidate eligibility differ widely from State to State.

Under direct election, however, this diversity could not be tolerated, since it might produce a sufficient number of minor candidacies to prevent a major candidate from obtaining at least 40 percent of the vote. As we point out below, a uniform Federal rule on candidate eligibility will be necessary. Congress will have to pass and enforce laws covering all the matters now regulated by State law, and the myriad functions now undertaken by 50 secretaries of state will have to be performed by a single national authority.

The advocates of direct election, however—including those who would eliminate the run-off—have yet to inform us as to the nature and content of this newly required body of federal law. What criteria of eligibility will Congress use to narrow the field of candidates? Will it still be possible to appear on the ballots of some states but not others? What would be the qualifications to appear on the ballots of all 50 states? It simply will not do, as some propose, to put off until later the consideration of what these new federal regulations should be.

It is possible that the elimination of the run-off may reduce the threat of some splinter parties. But, with that qualification, our arguments against S.J. Res. 1 apply with equal force against the Griffin-Tydings proposal.

Moreover, we find it intriguing that the Griffine-Tydings plan should seize upon the allegedly antiquated and outmoded electoral vote system as the remedy for the deficiencies of direct election. If the electoral-vote system is good enough to save us from the pitfalls of direct election, why is it unacceptable in the first place? Why should we rely upon the electoral college to get us out of a mess when its retention would prevent the mess in the first place?

Direct election would destroy State political power

One of the distinctive features of the American party system is that our parties are essentially State-dominated: the so-called “national” parties are, in fact, coalitions of State parties; and the State parties, in turn, are coalitions of county and local party organizations. The major parties are thus organized from the grassroots up—a feature which enables them to accommodate a wide diversity of competing interests at the state and local level, and helps to keep elected officials responsive to State and local needs. What brings the hundreds, perhaps thousands of State and local party units together is the attempt, every 4 years, to capture the Presidency. It is the role of the States as States in that process which accounts for the fact that our “national” parties are State-based. And this structure of the parties reinforces the power of the States as members of the Union.

The most obvious symbol of the State orientation of the major parties is the national convention. Delegates come to the conventions as representatives of their States, and voting power is allocated in proportion to electoral vote strength. Direct election, of course, would destroy the utility of having delegates selected or votes distributed in this manner. There would be no reason whatsoever for the States as such to be represented; delegates would most likely represent interest groups. But without the states to act as mediators of compromise, there would be no way to determine beforehand what groups should be represented, or in what proportion. It is doubtful, indeed, whether there would be conventions at all under direct election. The logic of direct election leads inexorably toward presidential primaries, perhaps regional, but most likely national in scope. One could imagine without much difficulty a series of regional primaries, and, thereafter, a series of national primaries preceding the first election—to which must be added the likelihood of a run-off election after that.

It is apparent that the role of the States in the electoral college contributes greatly to national stability; it also contributes greatly to the cohesion of State party organizations. Cohesion—or the lack of it—will depend on may other factors as well, such as the strength and appeal of State and National party leaders, the volatility of issues at any given time, and the strength of the opposition party. But the importance of cohesion in State party organizations is obvious. In most states, most of the time, a single party organization is able to coordinate presidential, gubernatorial, senatorial, congressional, and other campaigns and can thus act as a mediator among the conflicting aims of politicians and interest groups. But once the States as States are removed from the presidential election process, a strong inducement toward State party cohesion will also be removed. We cannot with any confidence predict what new forms party organization might assume; we can confidently predict, however, that a significant restructuring of State and hence national party organizations would take place. That restructuring, in turn, would alter in unforeseen ways the power of the States to carry on political business, especially in relation to the National Government. We simply do not know with any precision how much of a Governor’s or a Senator’s or a Congressman’s power derives from his State’s role in the electoral college. We may be certain, however, that it is often considerable, and that Presidents are influenced by it.

But for the electoral college, we might have had very different, party organizations; and If we were at liberty to begin all over again, we might well wish to go about it differently. But we are now living in 1970 and we are carrying on political business according to laws, customs, and habits which have grown up around the attempt to carry a majority in the electoral college. An alteration in the mode of presidential election will necessarily affect the character of every institution related to the Presidency, just as it will affect the attitudes and expectations which accompany u a 150-year-old tradition. To pretend that such thing are not relevant, or to push them aside for “later” consideration, or to say that they must be abolished because they do not comport with the mathematical abstractions of “one-man, one-vote,” is to indulge a naiveté that borders on the irresponsible.

The electoral college asks, in effect, “Who is Maine’s choice for President?”, “Who is Kentucky’s?”, “Who is Texas’s?”, “Nebraska’s?”, “California’s?”, “Hawaii’s?”, and so on. In so doing, the electoral college shores up the power of the States in the Union. The commonly voiced argument that the Presidency is a “national” office and therefore demands a “national” as applied to the United States must include the most distinctive feature of our Constitution, a Constitution which established, in Mr. Justice Chase’s famous phrase from his opinion in Texas vs. White, 74 U.S. 700 “an indestructible union of indestructible states.” Some have lamented that fact, but no one can deny its significance. Nor can any proposal to reform the presidential election system ignore that fact without damaging the entire constitutional balance. What should be represented in the presidential elections are4 not only everyday political, social, and economic interests, but that paramount interest which is the precondition for the effectuation of all others: the preservation of those institutions which are essential to the maintenance of political equality. Chief among there, surely, is the federal system.

The details of the Philadelphia Convention have long since receded into the textbooks, but the substance of the Framers’ wok endures 200 years later in the structure of our governmental institutions. The key compromise at that convention was the creation of the federal system itself. This was not simply a compromise between large and small States on the matter of representation. It was a compromise on the natureof the Union, on the relationship between the National Government as a whole and the States as a whole. The Senate, with equal representation, was to represent the people as citizens of States. The House, with representation proportioned to population, was to represent the people as citizens of the Union. The bicameral structure of Congress, however, was not the only result of this great compromise. The federal principle was incorporated within the Presidency itself, by the involvement of the States in the presidential election process. The result is a delicately counterbalanced structure which, in the words of Prof. Alexander Bickel,

cures the inevitable under-representation of the large States in Congress, while at the same time requiring a sectional distribution of the vote that elects the President, thus making possible combinations that also give advantage to the smaller States. This is just a long way of saying that the genius of the present system is the genius of a popular democracy organized on the federal principle.

The proponents of direct election may reply that they bear no animus against the federal system; that, on the contrary, they support it by recommending retention of State equality in the Senate. State equality in the Senate is certainly a strong underpinning of federalism, but with the great powers at the disposal of the President, would it not be foolish to rely upon the Senate alone as the bulwark of the federal system? Certainly, the Framers did not think that equality of representation in the Senate would be sufficient—which is why they decided to give the States a role in the selection of Presidents, a role that has been reinforce by our federally structured political parties.

If one day, someone comes forward to say that it is surely an absurdity to give New York and Hawaii equal representation in the Senate; that a recent computer study has conclusively demonstrated that a citizen of New York is disfranchised 33 times relative to a citizen of Hawaii, and that, in so important a matter as the passage of national legislation this is tantamount to a denial of equal protection of the laws—when that day comes, what argument can the proponents of direct election make to defend State equality in the Senate?

The proponents of direct election must be asked how they proposed to defend the federal system in principle. It is one thing for them to say that they favor the retention of the federal system; it is quite another fro them to make an argument for federalism on the basis of the logic which impelled them to propose direct election in the first place.

The federal system is an explicit departure from the doctrine of mere numerical majorities, from the doctrine of “one-man, one vote.” If no departure from that doctrine is to be permitted in the Presidency, by what reasoning is it to be defended in the federal system? Conversely, if it is to be tolerated in the federal system, why should it not be tolerated in the Presidency?

Direct election would undermine the separation of power

One of the least discussed but most dangerous aspects of direct election is its tendency to undo the delicate balance among the three branches of the National Government. Proponents of direct election may argue that their proposal will have no effect upon the separation of powers, but we have nothing more than their unsubstantiated assertions that this will be the case.

Separation of powers is rightly and most commonly thought of as referring to the distribution of functions among the executive, legislative, and judicial branches; but the manner of that distribution exists in part by virtue of the balance which was struck between the States as a whole and the National Government as a whole. Among the considerations weighed by the Framers in designing the Presidency was the desirability of providing the President with a constituency essentially independent from that of Congress and that of the States. The purpose of an independent constituency was forthrightly stated: to give energy to the executive, to avoid that disunity and frustration which might arise if the President were overly indebted to Congress or to the States for his election or reelection. But there was an equally strong desire to prevent the President from abusing the great powers of his office. This latter desire was carried out, first, by involving the States in the election process; and second, by distributing governmental powers at the national level, chiefly as between the two dominant branches. In practice, the balance of power between the executive and legislative branches has sometimes rested with the White house, sometimes with Congress, and sometime—most frequently— somewhere in-between. The Constitution is content to remain flexible on this point; but its flexibility is not wholly subject to the contingencies of the moment. The balance can and does shift back and forth without adversely affecting he principle of separation.

Under direct election, there is a strong likelihood that the entire constitutional balance will come undone. For there is more to the relationship between President and Congress than the formal separation of powers on paper will reveal. Senators and Representatives are members of political parties, and on the national level parties derive what unity they have form the attempt to carry a majority in the electoral college. Insofar as the future under direct election can be foreseen at all, it is clear that there will be a radical restructuring of State and national party organizations. Just as it is difficult to say with precision how much of a State’s power derives from its role in presidential elections, it is difficult to say how much congressional influence with the President rests on the fact that Senators and Congressmen occupy positions of influence within State and national party organization. Once the States as States are excluded from the presidential election process, the subsequent restructuring of State and national party organizations will necessarily affect Members of Congress both in their capacity as representatives of their States and in their individual and collective relations with the President. But who will be affected, and whether favorably or unfavorably, cannot be predicted beforehand.

It is true that, even under direct election, the legislative powers of Congress would still account for the lion’s share of congressional influenced; but the contingencies affecting the use of those powers would be far different from those with which we are now familiar. Congress has been accustomed to deal with a President who is in part dependent upon, and therefore restrained by, the States. A President who is not only not dependent upon the States, but whose political obligations will bear no predictable relation to extant party organizations, may be an entirely different creature.

Direct election would radicalize American public opinion

The central political goal of the Constitution and the electoral college in particular is the creation of reasonable majorities, that is, of majorities which will not prey upon the rights of others. The Constitution and the electoral college seek to accomplish this task by providing salutary incentives to compromise—by rewarding moderation and penalizing extremism. This process requires for it effectuation a blurring rather than an accentuation of the differences among men. The genius of our present method of election may be said to consist precisely in its ability to reveal what men have in common and to conceal what they do not.

The significance of this accomplishment should not be underestimated. Given the paramount importance of the Presidency in political affairs generally and in party organization in particular, the compromises which are made before, during, and after a presidential campaign tend to filter down through the entire political system. Thus, in the normal course of events, presidential campaigns have a moderating influence on the character of American public opinion as a whole. Indeed, it is sometimes said that our presidential campaigns are drab, uninteresting affairs. It seldom occurs to those who make that comment that the phenomenon is more a virtue than a vice. The relatively mild tone of presidential campaigns derive from the fact that both major parties have to make eventually the same compromises because the electoral college forces both to campaign I all or most of the States. Most of the difficult compromises are worked out within the parties before election campaigns, rather than between the parties during or after election campaigns. And the major compromises are worked out at the State rather than the national level.

The fact that the major compromises re worked out early, within parties, and at the State level produces a number of salutary consequences; (1) it reduces the number of compromises which have to be made at the national conventions, and makes the job of party unification easier; (2) it leads to moderation in platforms and candidates; (3) contributes to the cohesion of State party organizations.

Under direct election, it is difficult to see how or when these salutary compromises would be worked out. It does not suffice to say that they will be worked out within extant party organizations, because there is no guarantee that extant party organizations will continue. Once the States as States are removed from the electoral process, an interest group would face little compulsion to compromise with competing groups in its resident State. In fact, it might be penalized for doing so. Far greater would be the incentive to aline with similar interest groups elsewhere, who would be under no compulsion to compromise within their States. There would thus be a national trend away from the major parties, which are State-based, toward single interest splinter parties; and since no one would be forced to compromise until after the election, there would be a widespread tendency toward extremism. Compromises would ultimately have to be made, but they would be made only at the last minute: and-because each group participating in the final compromise would have been encouraged toward extremism beforehand-the ultimate resolution of differences would be more difficult to achieve. The compromises, in short, would be both hastily contrived and inherently unstable. The winning coalition, however numerous would have difficulty governing.

The “Media Masters”

Mr. Theodore H. White quite rightly testified that direct election would change the nature of our presidential campaigns. He said:

Our presidential campaigns right now are balanced in each party to bring a compromise, to eliminate the extremes of both sides, and create a man who has at least the gift of unifying his party and thereafter the Nation.

Once you go to the plebiscite form of vote you get the more romantic, the more eloquent and the more extreme politicians, plus their hacks and TV agents polarizing the Nation rather than bringing it together. It is that fundamental erosion of the U.S.A. that horrified me…

And as Mr. White has written:

If States are abolished as voting units, TV becomes absolutely dominant. Campaign strategy changes from delicately assembling a winning coalition of States and becomes a media effort to capture the largest share of the national “vote market.” Instead of courting regional party leaders by compromise, candidates will reply on media masters. Issues will be shaped in national TV studios, and the heaviest swat will go to the candidate who raises the most money to buy the best time and most “creative” TV talent.

Direct election would undermine moderate influence

The creation of a reasonable majority in a country of this size and diversity is a task of enormous magnitude. The number and variety of interests are such that any majority must necessarily be a coalition of minorities, each of which, quite naturally, tends to prefer its own interest to those of others. The peculiar “magic” of our present system is precisely that it forces every group to see the satisfaction of its own interest as depending in large part on the satisfaction of other interests. But the majority retains the character of its parts, which is to say that a majority is only temporarily harmonious. A majority within either major party is constantly in tension, with the result that a party’s capacity to command the allegiance of its followers-in power or out-is constantly being challenged. A coalition which wins at one election may not win a at the next-a fact which induces party leaders and Presidents to seek new bases of support and to be very wary of alienating any significant group presently loyal to their party.

The electoral college says, in effect, that so long as Presidents are going to be indebted to certain interests for their election or -what may be more important-for their reelection, it is better to have those interests funneled through the mediating influence of the States (a) because the States as members of a Federal union ought properly to be represented as States in the Presidency: and (b) because the interests to which a President will be indebted will thereby be moderate in character. Under direct election, neither of these considerations are deemed important. The consequence is not only that the power of the States will be diminished, but that Presidents will be directly influenced by highly ideologized and uncompromising interest groups. Under direct election, a President would at once be driven toward demagogy and freed from the salutary restraints now imposed by the States and our State-based party organizations. We may obtain majorities under direct election, but will we be able to live with them?

Direct election would endanger minority rights

So successful has the electoral college been that most Americans are inclined to forget that they are, in one or more senses, members of a minority- geographic, ethnic, religious, social, or economic. Under our present system, to be a member of the losing party carries no long-term liability: it neither invites invidious discrimination nor endangers the security of one’s liberty. We are therefore inclined to think of “minorities” in terms of others, as those proverbial “other fellows”. Nonetheless, the fact remains that each of us is a member of a potentially vulnerable minority. What is true of one minority will, soon or late, be true of every other. This fact, as we say, has been obscured by the very success of the electoral college in putting together widely dispersed and virtually all-inclusive pluralities. But significance of being a member of one or more minorities, at present largely obscured for most, might be much greater under a different system of election, especially direct election. One’s fundamental rights may very well be affected by whether or not he is a member of the winning coalition.

The power of all minorities, everywhere, of whatever kind, comes from the skill with which they are able to join themselves to other minorities. It is a string of such minorities which constitutes a majority of a winning plurality. A minority which fails to aline itself with other minorities is a minority which finds its political power greatly diminished. One of the chief virtues of the electoral college is that it not only encourages such alliances, but virtually requires them. It builds moderate majorities while protecting the interest of all minorities that are willing to compromise.

Under direct election, with its emphasis on mere numbers, the strength of most so-called minorities-especially those which lack significant numbers-would likely be diminished. Congressman William Clay testified on this point:

I firmly believe that the direct popular vote would inhibit the political influence of minority groups. The present system maximizes the importance of urban regions and especially of the high cohesion minority groups. The black vote presently and potentially registered—is more effectively applied within the two-party system which has evolved from the electoral system. And I am convinced—that the minority vote would likely follow a separationist trend without the cohesive influence of that electoral system.

The price extracted by the electoral college for the political success of minorities is compromise. Anything which discourages compromise in fact, or delays it in time, diminishes the power of minorities and encourages extremism accordingly. Under our two-party system, which is held together by the electoral college, those minorities which are not permanently wedded to one party have an opportunity to switch their support with maximum effect; for the loss of one is compounded by a gain for the other. The consequence is, in the words of Prof. Harry V. Jaffa,

that each major party is under an inducement to be hospitable to minorities within the opposing party; and, on the other hand, that minorities are under an inducement so as to moderate their demands that they are negotiable within both major parties. (“The Nature and Origin of the American Party System,” in Equality and Liberty, 1965, p. 7)

The multiplication of parties, the removal of the States from the electoral process, and the other inducements toward extremism that would result from direct election—all these factors would diminish the power of minorities by encouraging them, so to speak, to price themselves out of the political market.

Direct election would be an invitation to fraud

One of the most calamitous and probable consequences of direct popular election will be the increased incidence of election fraud. At present, whenever and wherever fraud occurs, its impact is limited to determining the winner of a State’s electoral vote. The incentive to steal votes is now restricted to close contests in States which have a sufficiently large electoral vote to alter the final result. Thus, fraud can be profitable only in a few States, and is seldom capable of affecting the national outcome.

In his testimony during the Judiciary Committee hearings, Mr. Theodore White described this limitation on the impact of fraud. He said:

Right now, what you have in the country is a system of self-sealing containers. Again, I speak the language of the press. If the crooks in Illinois, if the crooks in Cook County are going to steal votes, each State has built up some sort of antibody system, so that it seals the theft, the stealing, the rigging of elections. There are certain States like Minnesota, or Connecticut, California, Oregon, where I think the votes are counted with scrupulous honesty. But if the margin is going to be as thin as they were in 1960 and 1968, I can see the majority of honest States crumbling just like that.

Under direct election, a premium would be placed on stealing every vote in every precinct in every State. There would be no mechanism to prevent voting fraud from having a direct impact on the choice of the President. As votes are tabulated and reported in the Eastern States, for example, great pressure will develop in Western States to get every possible vote—even for a candidate who has no chance of winning—in order to offset early election returns from the East.

Mr. White cautioned:

There is an almost unprecedented chaos that comes in the system where the change of one or two votes per precinct can switch the national election of the United States.

Now we have 180,000 voting boxes in the precincts in the Uni ted States, and if by 10 or 11 o’clock it is going to be as close as 1960 or 1968, I hesitate to think of what is going to happen in the Western precinct boxes and some of the Southern precinct boxes.

In the case of a close popular election, such as in 1960 and in 1968, the determination of the presidential candidates and their ardent supporters to win will place great temptations before every election official in the country. Those who control the polling places, whether they are State or Federal officials, may succumb to the pressure to obtain the largest popular vote margin for their favorite candidate.

Recalling the partisan nature of the deliberations of the National Election Commission established to resolve the Hayes-Tilden controversy of 1876, Professor Bickel told the Judiciary committee:

* * * it seems to me inevitable if you go to the popular election system to set up, not only on an ad hoc basis, but on a permanent basis, national vote-counting, and I for one…am not at all that happy about central vote-counting. Honest men, when centrally in charge of a computer in Washington may be even more tempted than honest men in this or that county in the western part of the country or in the eastern part of the country.

Mr. White dramatically described what might occur on election night under direct elections:

I wonder whether you can imagine what the scenario of election night might be with the entire nation hanging awake for the returns if we had another election as close as 1960 or 1968 with no one knowing what was happening.

You all remember how in 1960 when the Connecticut vote was coming in strong for John F. Kennedy. Eisenhower took to the air to plead with the people of California to get out there and vote. Connecticut closes 3 hours earlier than California; I think about 8 hours earlier than Hawaii. Once those eastern votes start piling up from the big cities one way or another, the pressure, the urge to—and if it is a close election—you can’t steal a real election, a real majority, but if it is a close election, that election night would be an invitation to have militia out guarding the ballot boxes the next morning.

The likelihood of an increase in minor party presidential candidacies and the probability, therefore, that a runoff will become a common occurrence under direct election, make even more likely the prospect of election fraud. The encouragement which direct popular election would give to fraud could very well turn American presidential elections into nightmares of charges and countercharges, of chaos and crisis. During the days following a presidential election, the determination of a winner could become the regular and expected focus of political turmoil.

Direct election would encourage challenges and recounts

One of the most serious threats to our national stability under direct election would be the probability of contested elections. A contested election under any system is certainly dangerous. But as Ernest Brown, Langdell Professor of Law at Harvard, testified, under direct election “the mere fact of contest is a disaster.”

Under the present system, the popular vote in most States most of the time is insulated against challenge and recount. Only extremely close and bitter contests in certain strategic States would even tempt one of the major parties to call for a recount. Under direct election, however, the popular vote in every State would be open to the perpetual threat of challenge. Whether a candidate wins or loses, a State by a large or small margin of votes, recounted votes in that State under direct election could still affect the national result. As Professor Brown explained:

* * *Close election lead to contest. And with direct election, the contest would be nation wide. Every ballot box, every voting machine, would be subject to contest.

He went on to illustrate how nationally contested elections would develop under direct election:

If one candidate contests a certain area, his opponent, to protect himself, warns of a contest where he thinks something might have been adverse to him. And in a little while, the whole electorate is involved.

The uncertainties surrounding a recount to determine the outcome of a close presidential election could paralyze our Nation. Even the mechanical aspects of a sizable recount would be dangerous enough, but if legal questions concerning voter qualifications and other matters were to be raised, as they surely would be, the period of the recount would be nothing short of chaotic.

To Theodore H. White, the spectre of the recount under direct election is a “nightmare.” He put it this way:

I do not think direct election would have worked. It would have failed us twice in the last election. In the 1960 election—I have never been able to get the full story—Mr. Nixon spent several hours wondering whether he should challenge or not, and they began to examine the laws of the various States. You could not have a recount in Missouri until some time in early spring. The laws as to recounts were different everywhere. It is a nightmare to me that we should live through 1960 and 1968 under the proposed amendment.

Prof. Charles Black explained to the committee how he felt the professional politicians would call for recounts under direct election in close contests:

It would become the duty of the manager of anybody’s campaign that might be advantaged by a recount to search very carefully in good faith for fraud, irregularity, and the sort of technical objections to voting that you refer to, so that even without those willful obstruction elements, I should think that in a close election, it would be almost inevitable that the vote everywhere would be scrutinized and contested, and every possible irregularity sought after, whereas, under the present system, it usually does not matter and people just do not bother with it.

Mr. Richard Goodwin outlined to the committee his thoughts on the recount problem under direct election:

Eliminating the electoral college can, as many have pointed out, transform the frequent and inevitable charges of election irregularity and fraud into demands for a nation wide recount. Since voting is now by State those charges are made with passion and they are allowed to lapse because even a charge in a particular state would rarely affect the national electorate result. However, if only the popular vote counted, then a recount in the few States could change the result. After all, two of our last three Presidents had popular vote margins smaller than 5 percent of the vote in the State of Illinois alone. In such a situation there would be incentive to pursue reasonable charges of irregularity and fraud. Counter charges would be inevitable. And of there was any substance to the allegations a nationwide recount would not be merely likely but inevitable. Such a protest could continue for months, in election commissions and in the courts, while the country waited to find out who had been elected.”

There can be no doubt that the present system protects the Nation from the paralysis of recounts. Professor Brown characterized the protection this way:

* * * the present system insulates the States. When the vote is counted by the States, those lines insulate the area of contest and keep it local, and they insulate the significance of the contest.

Professor Black also testified at length on the protections which the present system offers against the possibility of recounts and contests. He said:

We have now compartmentalization of the recount problem, like the compartmentalization of a ship. If it springs a leak in one part, that part is sealed off from the others. The recount problem is an infrequent incident, because very often the State in which fraud is charged of error is charged will be one which, on inspection of the electoral totals, does not matter anyway.

It is clear that recounts will be a disastrous problem of the United States should direct election of the President become law. Too may thoughtful experts have mentioned the recount problem for it to be only the idle speculation of those who would oppose direct election for political reasons. We believe the political stability of this Nation is the issue at stake; the Senate, before voting on the direct election proposal, should try to imagine this Nation, gripped by controversy, having to undergo a national recount every time there is a close election.

Direct election would necessitate Federal control of elections

There is no question that rigid uniformity must be an integral part of the direct election proposal if the one-man, one-vote rule is to be truly implemented. If the President is to be popularly elected in a nationwide election, State boundaries are jurisdictions will become inconveniences. All States would, of necessity, have to conform their election laws to a single Federal standard.

Serious questions must be raised concerning the new election machinery and standards which must be created in order to have a smoothly-run national plebiscite.

Federal laws or guidelines would have to be enacted to regulate, among other things, the eligibility of parties and candidates; the counting of ballots and the declaration of the winner; the validating and counting of absentee ballots; the penalties and prohibitions applicable to elections; the registration deadlines and a host of related matters now covered by State laws. Indeed, it is possible to envision a Federal Election Board charged with total responsibility for running the election down to and including the staffing of 180,000 polling places.

V. SPECIOUS ARGUMENTS CONCERNING THE ELECTORAL COLLEGE

Direct election would create some dramatic problems and bring some fundamental changes to our electoral process. These have been discussed in detail in the preceding section of this report. Before concluding this analysis of S.J. Res. 1, it is necessary to look at a few of the specious arguments made by the majority concerning the electoral college. Most of these take the form of “what might have happened if * * *”

The “faithless elector”

The “faithless elector” argument holds that electors may violate the implied pledges which bind them to vote for the most popular candidate in their State.

It is true that electors are frequently not bound by State law to vote for the winner of a popular plurality of their States, and it has been argued that Federal legislation would be powerless to compel them to do so. Nevertheless, custom, self-interest, and a sense of moral obligation have combined to do what the law has failed to require. The consequence is that electors, have for some symbolic purpose (as in 1968), hardly ever violate their pledges. The record on this point is unmistakable in its implications: out of more than 16,000 electoral votes which have been cast, electors have violated their pledges only six or seven times. In no case did the electors’ chicanery ever threaten to alter the outcome of an election. Still, the freedom of electors does not lend itself to mischief. That potential mischief, however, can be easily remedied without abolishing the electoral system altogether. Either the office of elector can be abolished, or the electors’ pledge made binding by constitutional amendment. But to abolish the electoral vote system because of potentially faithless electors is a classic case of throwing out the baby with the bath water.

“A Shift of Only So Many Votes . . .”

Among the most frequently heard arguments against the electoral system is that which holds that a shift of only x thousand votes in y number of States would have caused the winner of the popular vote to lose the electoral vote. Of all the specious arguments, this is perhaps the most specious. One is of course free to surmise, after election statistics are tabulated, that the shift of a few votes here or a few there might have changed the outcome. That, however, is true of election statistics generally and bears no special relation to the electoral college. What gives this specious argument the favor the favor it would not otherwise enjoy is the theoretical possibility under the electoral college of having a popular vote winner who is an electoral vote loser. In order for such to happen—and it never has—a precise number of votes must shift in specified States; otherwise, the shift will have no effect on the outcome.

The clinker in the argument, of course, is that these shifts, so horrible to imagine in retrospect, never in the point of fact take place. The shifting that critics of the electoral system are always talking about exists nowhere but in their own retrospective imaginations. It is shifting which might have taken place—mathematically speaking—but which never occurs in fact. As to why such shifts do not take place, the critics have never provided an answer.

“If We Had Had Direct Election Back in …”

Critics of the electoral college frequently attempt to apply electoral reform plans to prior election statistics in the effort to see whether a different result would have obtained. Although well-intentioned, this attempt is essentially futile, for it is simply impossible to say what the outcome of a prior election might have been under a different system. The size of the vote, its distribution, the candidates, even phenomena—are primarily the products of the particular election system in which they occur. Hence any effort to say that, in such-and-such a year, the outcome under direct election might have been different is only a playful speculative exercise; but it is not in any sense an argument against the existing system.

The 11 largest States

A commonly heard indictment of the electoral college, one which the majority report embraces, is that the 11 largest states (plus another small State or the District of Columbia) would suffice to carry a candidate into office. The conclusion one is supposed to draw from this argument is that the 11 largest States are therefore in a position to dictate to the other 39. But what those who use this essentially emotional argument always conveniently forget to add is that the very compromises which enable a candidate to carry the 11 larges States also enable him to carry many others as well. And that is precisely why no candidate has ever won with anything like 11 States. In point of fact, only one President in this century (John F. Kennedy) was ever elected with less than a majority of the States supporting him. That exception excluded, no one in this century has ever won with less than 29 States, and the average number carried by the winner has been nearly 37.

It should be noted that the proponents of direct election who fault the present system for giving undue weight to the large States, conveniently ignore the fact that under the their scheme, the popular votes in only nine States—as shown in Appendix B—could control the election.

VI. THE WALLACE PHENOMENON

Assaults against the electoral college seem to escalate in number and intensity during or just after nip-and-tuck election campaigns, or in years when a third party candidate has made inroads into traditional major-party areas. Most commonly, the hue and cry for reform comes from the ranks of the party which has just lost or fears it is about to lose the White House, or from that party which is most adversely affected by the third-party movement. One of the rallying cries of this particular brand of assault many be stated in two words: “George Wallace.”

We believe that opinion about Governor Wallace is, or should be, irrelevant to the discussion of election reform. It is inevitable and natural that we should speculate as to what his political power might be under one electorate system as opposed to another; but such speculation should be confined to its proper place—to political gatherings, to the classroom, to the newspapers and the journals of opinion, or wherever such things are discussed. It has no place in a senatorial debate when the subject in issue is a constitutional is a constitutional amendment. We take the strongest possible exception to the unwarranted intrusion of personality into a debate which concerns the highest matters of state and which, therefore, imposes upon us the obligation to remove, as far as we are able, those emotional considerations which might unduly affect our deliberations. The importance of deciding what kind of electoral system we shall have is obscured by the passions which are inevitably excited by the considerations of particular personalities. To encourage those passions is to render a disservice to the Senate and to the American people. A constitutional amendment will be with us long after Governor Wallace has disappeared from the scene. History is replete with examples of the danger of altering fundamental law in order to accomplish some immediate political purpose.

Since, however, the majority report raised the Wallace cry, we have no choice but to reply. We submit that the electoral college, far from making it possible for Governor Wallace to precipitate a constitutional crisis, in point of fact has prevented just such a crisis from taking place.

The majority report refers to the Wallace movement as “the most powerful third-party bid since 1924.” But the immediate and obvious question is: What happened to “the most powerful third-party bid since 1924”? And the immediate and obvious answer must come forth: the same thing that has happened to every third party movement in American history—nothing.

The decisive question is not what the Wallace movement intended in the past, or what it intends for the future. The decisive question, rather, is What actually happened? What actually happened was that, in spite of Governor Wallace’s intentions, his presidential effort was necessarily confined to a narrow sectional base. It was confined to a narrow sectional base precisely because the electoral college requires that a successful presidential campaign be conducted in all or most of the States, which requires, in turn, that a candidate make a broadly based appeal to the voters. Moreover, because of the strong two-party structure, many would-be Wallace supporters outside the South—and even many within the South—were induced to cast their ballots for one of the major party candidates.

It will be replied that the Wallace “problem” is not so much that of his winning as that of his being in a position to affect the outcome in the event no one obtains a majority of the electoral vote. A number of comments are in order: (1) Third-party movements are not created by the electoral college. They are the product of a discontent which asserts, in effect, that the major parties have abandoned a certain segment of the voters. Third party sometimes have a harmful influence on the major parties, sometimes a salutary influence; but there is no way, so long as we are a democracy, to prevent third parties altogether. The crucial question is not whether there shall be third parties, but what actually happens to them. (2) Despite third-party movements, not since 1824 has anyone failed to obtain an electoral majority. In fact, the failure of that year was the proximate cause of the party and convention system we have today, which makes it highly unlikely that a major party candidate will ever fail to garner an electoral majority. (3) Means exist to diminish “unscrupulous” bargaining other than by taking the radical step of abolishing the electorate college altogether. Moreover, those who are concerned about “deals” among electors or in the House of Representatives, might do well to ponder “deals” which would have to be made under Senate Joint Resolution 1 between the first election and the runoff.

Since the majority report ventures to speculate on what Governor Wallace might do in the future under the electoral college, we are invited to speculate on what he or others might do under direct election. Under direct election as we indicated earlier, there is absolutely no incentive for a candidate to moderate his views of to seek broad geographical support. Nor is there any incentive for a voter who is attracted by a third party candidate to cast his ballot for what is now called a “major” party candidate. Under the circumstances, a candidate would have everything to gain and nothing to lose by playing to deep-rooted fears and prejudices. Given the nature of the passions which are loosed in our time, on both the right and the left, and on a party candidate to out-poll one of the so-called “major party” candidates—especially since the “major” parties as we now know them will probably cease to exist under direct election.

Those who fear George Wallace, in short, will find more fertile ground to plow in direct election than they will in the electoral college.

VII. SUMMARY AND CONCLUSION

The current debate over electoral college reform has been unduly restricted by a myopic constitutional perspective. In this report, we have discussed the ultimate causes of that unfortunate shortsightedness: on the one hand, a well-meant but dangerously naïve attempt to apply the logic of the “one-man, one-vote” decision to presidential elections, regardless of the consequences; and, on the other, an understandable but unfounded fear that something might go wrong at some future election. Since in matters of constitutional reform perspective is everything, we have endeavored to show that “one-man, one-vote” can be bought only at the price of constitutional destruction and that the fears animating opponents of the electoral college have been greatly exaggerated.

We have attempted to restore a proper perspective by discussing electoral reform and the Presidency in relation to the constitutional and political structure of the Nation as a whole. It is only in the light of that perspective that the proposal for direct election can be understood as an unnecessary and dangerous undertaking. It is unnecessary because the major objections to the present system can be accommodated without its wholesale destruction; it is dangerous if for no other reason than that we cannot predict with any confidence what the character and structure of American politics will be like under it. Indeed, the matters left untouched by the proponents of direct election convince us that they are themselves rather unsure of the future under their own proposal. Unless and until they come forward with firmer assurance about crucial aspects of their proposal, constitutional duty requires us to oppose their recommendations in the strongest possible terms.

We do not intend, however, to rest our case solely on the ground of unforeseeable consequences. It is true that much of the future under direct election is murky and unpredictable; but there is much, also, that is not murky and what we can see seems to us perilous in the extreme. The electoral college is so intimately involved with the two-party system, federalism, and the separation of powers that we do not see how these institutional arrangements can possibly survive under direct election in the long-run. Nor do we see how it will be possible, once the logic of direct election is accepted, to defend them in principle. The burden of proof, it seems to us, is properly upon the proponents of direct election. We have made what we believe to be compelling arguments against direct election. Let the proponents now come forward and answer them. Let them now take up the burden they so long ago sought to thrust upon the opposition. But let them come forward with something more than passionate appeals and hopeful assurances. Let them come forward with sound arguments and hard facts.

The electoral college may have its faults, but its true sins of commission and omission are not always apparent in the various and passionate bills of indictment which have traditionally been raised against it. For nearly a century-and-a-half the electoral college has been condemned as the “tool” of every imaginable interest. Conservatives have attacked it for producing liberal Presidents; liberals have attacked it for producing conservative Presidents. Republicans have said that it favors Democrats; Democrats have said that it favors Republicans. Northerners have accused it of aiding the South; Southerners have accused it of aiding the North. Easterners have deplored an alleged advantage that it gives to the West; Westerners have deplored and alleged advantage it gives to the East. City dwellers have lamented that it exaggerates the influence of rural folk; rural inhabitants have lamented that it exaggerates the influence of city dwellers. Citizens of small States have argued that it is controlled by large States; citizens of large States have argued that it gives undue weight to the small States.

This list might be expanded to encompass almost every political, sectional, economic, and social interest in the Nation. Indeed, the fact that the electoral college has been criticized so variously is more significant than the fact that it has been criticized so persistently. The confusion among the critics suggests, at the very least, that there is more to the electoral college than meets the eye of the discontented. For the contradictory character of the criticisms is the most potent proof one might adduce to demonstrate that the electoral college is not no, and has never been, the “tool” of any narrow political, sectional, economic, or social interest. Yet, to take the more ardent critics at their word, one might well wonder how the Republic has managed to survive all these years.

Yet, survive it does, and with it, an allegedly antiquated electoral system. After everything has been said about the electoral college, after the last indictment is in—and perhaps even after the computers have had their day—the fact remains that the electoral college has provided us with an extraordinary number of distinguished Chief Executives who have entered office after a solid demonstration of public support and have governed the Nation honorably and well. It has given us men who, by and large, have been free from the corrupting influence of faction precisely because their method of election forces them to understand the public good as something more than the sum of the interests of their friends. It has given us Presidents who have been for the most part independent of Congress and the States, but well aware of the power and prerogatives of both. In short, the electoral college, in conjunction with the party system which grew up in response to it, now produces by more democratic means the very tasks that the Framers thought should be accomplished by a select body of enlightened men: an energetic and independent and yet responsible and limited Chief Executive. Thus, it will not do to say that the electoral college is antiquated or outmoded; no more viable institution, no a more salutary one, will be found today. Let us, if need be, repair it; but let us not abandon it for the sake of a mathematical abstraction, or because we are angry that the world is not perfect.

JAMES O. EASTLAND.JOHN L. MCCLELLAN. SAM J. ERVIN, JR. ROMAN L. HRUSKA. HIRAM L. FONG. STROM THURMOND.