President Carter has joined Sen. Birch Bayh's crusade to abolish the electoral college, the world's most tested and vindicated mechanism for choosing a Chief Executive. For years the Indiana Democrat has been advocating direct election so "the people" can choose presidents, and because the electoral college is "undemocratic" and dangerous. One of Bayh's terrors is the "faithless elector" who does not vote for the candidate who carries his state. Actually, of the 17,000 electors since 1789, about ten have been "faithless," none has altered an election. If this specter haunts Bayh, it can be exorcised by abolishing the office of elector, and leaving the electoral college in peace. Bayh also says the electoral college must go because in three elections (1824, 1876, 1888) the electoral-vote winner was not the popular-vote winner. Actually, even if in "only" 45 of 48 elections the same person won both, that would not justify Bayh's calling the electoral college "electoral roulette.' In 1876 and 1888, exuberant fraud on both sides probably involved more votes than the narrow victory margins. In 1824 all four candidates were together on ballots in only five of 24 states. Six states (including New York) had no elections: the legislatures selected the electors. Only about 350,000 of the 4 million eligible white males voted. Andrew Jackson won 38,149 more votes than John Quincy Adams, but neither had a majority of electoral votes. So the House of Representatives decided, picking Adams. JUSTIFYING REVISION This was before the emergency of the two-party system. But Bayh says the events of 1824 (and 1876 and 1888) justify fundamental constitutional revision. Actually, an electoral-vote victory by a candidate who loses the popular vote by a substantial margin is improbable and has never happened. And only extremely dogmatic majoritarians think democracy would be "subverted" (Bayh's word) if the electoral college gave the Presidency to a candidate who lost the popular vote by a wafer-thin margin. It is odd to say that the "nation's will" could be "frustrated" in a standoff. Bayh is fond of the somewhat feverish thought that under the electoral college a candidate "could" win with just 25 percent of the vote by narrowly winning in the eleven largest states, even if he did not get a single vote in any other state. But under direct election a candidate "could" sweep Alaska's 231,000 eligible voters, lose 49 states by an average of 4,700 votes, and win. This "possibility" is about as probable as the one that Bayh is fond of imagining. Bayh is not apt to produce what Madison was too sober to attempt, a constitutional arrangement under which no unwanted outcome is even theoretically possible. Serious people consider probabilities, not possibilities. And direct election would make probable a grave difficulty. The electoral-vote system, combined with the winner-take-all rule (a custom, not a constitutional requirement), discourages ideological third parties: such parties are unlikely to win pluralities in many states, so they are effectively shut out of the decisive electoral-vote competition. But direct elections would incite such parties. They could hope to prevent any candidate from receiving a national majority, or even an impressive plurality of popular votes. SUBSTANTIAL DANGER Bayh's remedy for this defect in direct elections poses a substantial danger. He proposes a second election, a runoff between the two leaders, if neither gets 40 per cent the first time. But as runoff would be an incentive to minor parties. They would try to force a second vote so they could sell their support. Bayh evidently is undisturbed by the fact that direct election might frequently produce "41 per cent" presidents. The electoral college has only produced three presidents with such low pluralities, in 1824, before the two-party system developed, and in 1860 and 1912, when the two-party system was in disarray. But Alexander Bickel of Yale warned that direct elections might make disarray permanent: "The monopoly of power enjoyed by the two major parties would not likely survive the demise of the electoral college. Now, the dominance of two major parties enables us to achieve a politics of coalition and accommodation rather than of ideological and charismatic fragmentation, governments that are moderate, and a regime that is stable." The genius of the Constitution is the effect it has on the character of majorities. The electoral college promotes unity and legitimacy by helping to generate majorities that are not narrow, geographically or ideologically, and by magnifying (as in 1960, 1968, 1976) narrow margins of victories in the popular vote. Such considerations are of no interest to single-minded majoritarians, who consider democracy a matter of mere numbers. They note that in 1976, 123,545 Alaskans determined three electoral votes, one for each 41,181 voters, but in California (7,867,043 voters, 45 electoral votes) there was only one electoral vote for each 174,824 voters. Is an Alaskan four times more powerful than a Californian? Is a Californian more powerful because he helps to determine a larger bloc of electoral votes? Bayh says that in any case, the system is "undemocratic." His understanding of democracy has the charm of simplicity: "Every vote should count the same." That, he says, is constitutional propriety, as stated by the Supreme Court in its "one man, one vote" reapportionment ruling. But Bickel revealed the foolishness of this argument by expressing it this way: "It is time for the system to be ideologically pure. The Court has said that the Constitution commands equal apportionment. We should, therefore, reapportion the Presidency. In effect, we must now amend the Constitution to make it mean what the Supreme Court says it means." ARITHMETICAL MAJORITARIANISM As Irving Kristol and Paul Weaver have written: "In recent decades, the democratic idea has been vulgarized and trivialized. From being a complex idea, implying a complex mode of government, appropriate to a large and complex society, the idea of democracy has been debased into a simple-minded arithmetical majoritarianism— government by adding machine." Defenders of the electoral college are defending not an eighteenth-century artifact, but a system that has evolved, shaping and shaped by all the instruments of politics, especially the two-party system. It is an integral part of a constitutional system with premises too subtle and purposes too varied to be summed up in slogans like "one man, one vote." Bayh insists that the electoral college "is, by simple definition, undemocratic." but this constitutional democracy was not devised by, and should not be revised by, persons addicted to simple definitions of democracy. Senator BAYH. I understand that Mrs. Neuman also has a plane problem. If Nancy Neuman, the vice president of the League of Women Voters, could let us have her thoughts. I understand that Mr. Feerick-if he could come up here on the firing line-will be next, and then we will get to Dr. Best. I am sorry this has dragged on this long. NANCY TESTIMONY OF Ms. NEUMAN. Thank you. Mr. Chairman, members of the committee, I am Nancy Neuman, vice president of the League of Women Voters of the United States. I live in Lewisburgh, Pa., and came today from the once obscure town of Middletown, Pa., where I am flying back shortly. Since we have heard quite a bit of hypothetical talk this afternoon, I thought perhaps I could just speak for a couple of minutes about the fact that I was an honorary officer of the 1976 electoral college in Pennsylvania. And I have an engraved invitation where I was invited to witness the election of the President and the Vice President, which I thought had been accomplished on November 2-this was November 13. I have my Presidential elector parking permit. A lot of this activity for the electoral college costs the Commonwealth money, but the automobile part didn't, because the electors got only 3 cents a mile, which I assume was adequate for feeding a horse, but is no longer adequate for a car. We had a very long script, which was followed word for word and was dress-rehearsed. It was a little like a Victorian drawing room drama, complete with a committee that was appointed to search the capitol grounds for the lieutenant governor, whom we all knew, he was supposed to be there-and a real live U.S. postman who came in stage right at one point with this brown bag over his shoulder and collected the ballots. I sat there thinking perhaps this was a bicentennial observation of an old institution, but then was wondering why I was so nervous. And I was really nervous because President Carter had only won by 123,000 votes, and I wasn't certain that the electors seated there really were going to vote the way they were supposed to vote. As you know, the League of Women Voters has supported direct election for a long time. We do know that our members support direct election. The long process the league goes through to gain its positions is considered tedious by some people, but it does give us a good backing for what the national board has to say. I think that every 4 years the public does become aware of the electoral college, and it is at that time that people want to change it, and then it is too late. No one called it the "electrical" college the day I was there, but some of the presiding officers did call it the "electorial" college. The members of the league are convinced that direct election without an electoral college to act as an intermediary is the best, most democratic, and least confusing process by which we can elect the President and the Vice President of the United States. We testified before this hearing during the extensive hearings held in the 95th Congress. While it is correct that amending our Constitution is a serious business, the accusation that this amendment has not been duly considered certainly cannot be made. And it has not been discussed today that the States also have to consider an amendment once it goes through the Congress. As we have said before, the League of Women Voters supports Senate Joint Resolution 1 (or 28). The time is now to pass it. The 1976 election showed once again the real danger that our electoral system would elect a candidate who was not the popular vote winner. A switch of only 9,245 votes in Ohio and Hawaii would have put an individual in the White House who was not the popular choice of the voters of our country. Doug Baily, the president of the political consulting firm employed by President Ford's 1976 campaign committee, said in his testimony before this committee "the only function the electoral college can serve * is to impose a constitutional crisis upon the country." In these times of very low public confidence in governmental institutions, must we delay action on reform of the system until we actually experience such a crisis? The answer is surely no. * The present system of channeling people's votes for President and Vice President through a State-related system of electoral votes is archaic and unnecessary. If Presidential electors are merely instruments of the popular vote, their function is redundant. If, on the other hand, they exercised their independence, they would be an obstacle to the popular will as it is expressed at the polls. We do not believe that the current system needs only patchwork reform to make it function well. Only a direct election will insure that, in Senator Hubert Humphrey's words, "the votes of the American people wherever cast (are) counted directly and equally in determining who shall be President of the United States." The arguments for the direct popular election of the President have been made time and time again by Senators, congressional representatives, constitutional scholars, and public interest groups. I would like to express the league's views on some of the objections that have been raised to direct election of the President. First, the influence of urban-oriented minorities. We do not accept the line of reasoning which says minority voices would be less important in a direct election. We believe that the votes of all Americans should count equally. We do not think that this country should retain an antiquated, potentially dangerous system of electing the President because some observers now believe it works in favor of urban areas or minority groups. Furthermore, while we understand minority groups desire to maximize their clout in the political system, we would point out that such support of the electoral college is based on present demographic patterns. We are not convinced of the wisdom of basing opinions on changing demographic characteristics. Instead we believe that our concern should be the justice of having the vote of each person in a minority group count equally regardless of whether the voter lives in New York City or in a Southern State. The issue of large versus small State advantage. In recent years much debate has centered over the issue of which States, large or small, benefit from the electoral college system of electing the President. In answer to Senator Bayh's request as to who benefits most from the electoral college, a 1979 Congressional Research Service study supported a conclusion that the electoral college gives a significant advantage to the most populous States, a smaller advantage to the less populous States and disadvantages to the greatest extent the medium States which have between 4 and 12 electors. The direct election system eliminates these inequities. Under a direct election system large States will retain their attractiveness for Presidential campaigning because candidates will continue to campaign heavily where voters live in large numbers. But the extra influence large States have in the winner-take-all system will disappear. In other words, an injustice will be rectified and every vote will count as much as every other vote, regardless of location. An added bonus, we believe, is that voter participation would be encouraged by a system in which each person's vote has the same weight as every other person's vote. Because small States enjoy, under the electoral college system, the advantage of each having two electoral votes corresponding to their number of Senators, it has been said that small States stand to lose power under a direct election plan. Actually, since under a direct election plan the votes of all citizens across the Nation will have equal effect, residents of small States stand to gain. On the question of increasing voter apathy, some critics of the direct election process look at the declining voter participation rate-37.9 percent of all eligible Americans voted in the 1978 general election—and erroneously conclude that abolition of the electoral college would further decrease voter participation. We reject that point of view and predict the exact opposite outcome. We think voting participation will increase under a direct election system since every vote will count. Because the total popular vote will be the determiner of the election, candidates will campaign in States that they once took for granted. Sure States will not be ignored, sure losers will not be written off. Candidates will have the incentive to turn out every vote in their favor that they possibly can. On splinter parties, some opponents of the direct election of the President and Vice President believe that the process would encourage the proliferation of single-issue and/or independent candidates. In fact, the danger of a third-party candidate brokering an election as the result of a deadlock in the electoral college is more threatening than the specter of an independent candidate, especially since the safeguard of runoff election between the top two votegetters, if no candidate receives more than 40 percent of the popular vote, has been carefully written into Senate Joint Resolution 1. There are those, too, like David Broder in his column of March 21, who argue that direct election, in fact, can be the glue that would hold the major political parties together. Broder says "By making it clear that the Presidency is a national office, the direct election system can help force national coalition building within each of the two major parties" and thereby revitalize them. On fraud and recounts, opponents of direct election point to the possibility of fraud tainting an entire election and say that recounts will present insurmountable difficulties. We cannot see why fraud should be more of a problem in a direct election than in an electoral college system. În a direct popular election, if fraud occurs, the effect is limited to the specific popular votes and States involved. It cannot have the mushrooming effect it may have in an electoral vote framework. As to vote counting and recounting, we realize that time can be the problem in a recount situation and that State recount laws are 43-848 O-79-16 |