DIRECT POPULAR ELECTION OF THE PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES FRIDAY, MARCH 30, 1979 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, Washington, D.C. The subcommittee met, pursuant to recess, at 9 a.m., in room 457, Russell Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding. Present: Senators Bayh, Thurmond, Simpson, and Heflin. Staff Present: Nels Ackerson, chief counsel and executive director; Mary K. Jolly, staff director; Linda Rogers-Kingsbury, chief clerk; Marcia Atcheson, counsel; Louise Milone, legislative assistant; Steven Holly, staff aide; Thomas Parry, minority chief counsel; James Lockemy, counsel to Senator Thurmond; Stephen Markman, minority counsel; and Charles Wood, counsel to Senator Simpson. Senator BAYH. We will reconvene our hearings this morning. Our first witness this morning is our distinguished colleague from Ohio, Congressman Louis Stokes. Congressman Stokes was on the Judiciary Committee during the term in which the House of Representatives studied this matter at some length, and the Judiciary Committee then reported it to the House and the House Subcommittee passed the similar proposal by, I think, 331 to 70 votes. Congressman Stokes, I know how busy you are, and I appreciate your taking the time to be with us this morning. TESTIMONY OF HON. LOUIS STOKES, REPRESENTATIVE IN CONGRESS FROM OHIO Mr. STOKES. Mr. Chairman, I appreciate the opportunity to be here today to testify for the constitutional amendment to establish direct popular election of the President of the United States. This is an amendment which I have supported ever since I first came to the Congress. I voted for its passage in the House in 1969, and have cosponsored the measure since. I have done so, fully mindful of the awesome historical ramifications of such a decision. The present method of selecting our Chief Executive has been an important part of our Constitution for 190 years. Any changes which the Congress and various State legislatures now choose to make are likely, God willing, to prevail an equal number of years. The more the evidence I have examined, the more my original determination has been reinforced-that the present system for choosing our (83) Presidents is outdated, unsafe, and undemocratic, and that the only truly just alternative is direct election. The defects of the electoral college system are numerous and grave. Mr. Chairman, I will not go into those dangers at any length now, since they are well known to this subcommittee, I will say that the problems of the faithless elector, of the unnatural and unfair disparities in both individual voting power and election results, and of the contingency procedures in the House of Representatives in the event that no candidate receives a majority in the electoral college, are not to be taken lightly. Another flaw in the present method is that it continuously creates the possibility of a President who has received less than a majority of the popular vote. Three times this has happened-in 1824, 1876, and 1888. There is nothing to prevent it from happening again. The problems which such a result would raise are only too apparent. A President elected by a slight majority is always faced with immense difficulties in harnessing the energies of the Congress and the voters. These would likely be multiplied tenfold. In addition, no one can safely project how our politically active, late 20th century society would react to such an outcome. At best, it would instill a pernicious mistrust of the democratic system. At worst, it would precipitate a first-rate constitutional crisis. And there is a final defect in the present system, one which might be of less practical import, but which may, nevertheless, be the most serious of all. The electoral college was based on a premise which has long since outlived its validity-that is, that the task of selecting our country's Chief Executive is too important a matter to be left to "commoners". In no other facet of our democratic voting system does this anachronism remain. We now recognize, at least legally, that the very foundation of our democracy is equal voting rights for all Americans. Exclusive voting by the "landed gentry" is long since gone. Women are now afforded full and equal voting rights. And continued efforts are being made to insure those same rights to the nonwhite minority groups of this Nation. Thus, the very existence of this idea in the Constitution is out of step with the trend of our history. For that reason alone, it should be removed. Once one realizes and accepts the inadequacies of the present way we choose our President, the logical leap to direct election is less difficult to make-for no possible alternative plan eliminates all of the fallacies of the electoral college except direct election. Direct election would not only eliminate all of the problems of the present system, but it also has several redeeming merits in its own right. By insuring that one's vote would never be "wasted", it would encourage full election participation in traditional one-party States. The fear of facing a runoff, and the requirement that any candidate must obtain at least 40 percent of the popular vote to be elected, will force the major parties to devote more attention to their noncentrist wings-thereby both making the parties more responsive to their memberships and also giving the voters a more meaningful choice at the polls. Finally, by eliminating the winnertake-all aspects of the present selection method, direct election should remove the permanent temptation of ballot stuffing and other forms of corruption. As the system works now, a few well placed fraudulent votes can change one-tenth of the vote-effectively a 20-percent shift. Under direct election, however, the same number of "stuffs" would be virtually innocuous. To those who favor retention of the present system because it is advantageous to urban and minority voters, I would note several points. First, there is a distinct split of opinion as to whether this is truly the situation. Many liberal politicians and political scientists believe that in any given election the natural, built-in advantages of the electoral college system which accrue to the smaller States far outweigh any theoretical advantages to the larger ones. Ten years ago a valid argument could be made that direct election should not become a part of out Constitution until all Americans were granted complete and equal voting rights. After great efforts in passing the Voting Rights Act and its extensions, that time is almost entirely here, and that argument is now out of date. Second, that theory assumes that progressive voting blocs, like minority groups and labor unions, are the only such blocs extant in urban areas. My observations of recent Presidential and mayoral elections would cast serious doubt on that premise. Third, the theory assumes that these voting blocs can be used as bargaining tools and political levers, and then herded to the voting booths like great masses of cattle to do their leaders' bidding. Do we not wish it were so easy? It would seem to be obvious from the difficulties encountered by the unions along these lines during past elections that the day of the "deliverable" votes are numbered. Similarly, the "advantage" theory seems to assume that black voting strength would not be transferable to a national level. I find this quite difficult to believe. For example, if all eligible black voters in New York, Pennsylvania, Ohio, and so forth, could join hands with those in Alabama, Mississippi, Louisiana, and so on, they would form a solid national phalanx of almost 16 million voters. That number of potential votes-approximately 21 percent of those needed for election-would be extremely dangerous for any candidate to ignore. As for the argument that black voters need an advantage in Presidential elections, I maintain that with the Voting Rights Act, all citizens are now protected in their right to vote, and there's no excuse for giving a voting advantage to some people and handicapping others. That's what we fought against in the reapportionment battles in the 1960's. Yet, I am equally concerned that once all citizens have the right to vote, that they also have the incentive to do so. There have been hundreds of thousands of black people registered in the South since the passage of the Voting Rights Act. But very, very few of these have ever cast a vote for President of the United States. It is a well-known fact that an overwhelming majority of these voters favored Mr. Humphrey in the 1968 election. But since Mr. Humphrey did not carry a single State covered by the act, those black votes were not only never counted, but were actually represented by a substantial number of electoral votes for George Wallace. The same thing happened in 1972 when 92 percent of the black vote was Democratic, but all the Southern States and their electoral votes went Republican. How much more effective the people's votes would have been if all popular votes had counted. I think direct election is essential to insure both that the blacks have reason to go to the polls and that their votes do become a part of the national tally. Is the voting power of this large group of people to be saddled with an outmoded, outdated, antiquated electoral college system which will still systematically invalidate their vote, State by State; or will their collective voting power be of more significance when measured, vote by vote, in a national tally? I choose to believe the latter. As a legislator I have the responsibility to analyze not only the position of black people in America today-but for generations to come. It seems to me that I will do an injustice to future generations if I do not today provide them with the wherewithal to not only enjoy the incentive to vote-but to give them the satisfaction of knowing that their vote counted. In any event, though, on an issue of such vast political importance and historical magnitude, is difficult to totally base my opinion on what I perceive as "advantages" or "disadvantages" to a particular philosphy. We are here deciding how several generations of future American voters will go about performing their single most important task-selecting the leader of this country. It would seem that if ever a question called for the setting aside of partisan thoughts and for statemanship of the first order, this would be the one. This is a vitally important issue-one of the most essential of the decade. It is not a time to cower before the unknown. It is time for strong and determined leadership-leadership from both the President and the Members of Congress. The test of time has demonstrated to the American people that this constitutional measure is needed in order to respond to change and to bring this Nation into the 20th century. As representatives of the people, we have a responsibility to give them nothing less. Mr. Chairman, I will be pleased to try to answer any questions that you or other members of the subcommittee might have. Senator BAYH. Congressman Stokes, I appreciate the special effort you made to get here in a very difficult schedule. So let me just confine my questions to one question, because there is mixed feeling among those who feel that the basic concerns that-let us say, Lou Stokes and Birch Bayh might be expected to have, to be very self-centered about it-might be better served under the electoral college system because of the impact that minority citizens have on it. Just looking at the returns from your personal experience, I suppose some of your constituents might say, "Well, in the last election, the minority votes in your own district made it possible for Jimmy Carter to carry Ohio.' What was the experience when President Kennedy ran and Hubert Humphrey ran and when George McGovern ran? How did most of your constituents vote, for which candidate and which candidate received all of their votes under the electoral college system means of counting votes? Mr. STOKES. We find that blacks went to the polls throughout the United States at a very high percentage rate in the past election when Mr. Carter won. I think that some 64 percent of those who were registered to vote went to the polls and voted in excess of 95 percent for Mr. Carter. In my own congressional district, he received about 96 percent. We found a similar trend with reference to the other individuals whom you mentioned. George McGovern received a very high percentage of the black vote throughout the Nation. Hubert Humphrey, prior to the election of Jimmy Carter, had the highest percentage. Blacks voted in excess of 90 percent for him at the polls. And of course, as we know, Mr. Nixon defeated Vice President Humphrey. He defeated Mr. McGovern, and so in that respect, the black vote was not effective under this particular system. Senator BAYH. Am I right to say that, although 90 percent of the vote, the black vote, in your constituency was cast for Mr. McGovern, Mr. Humphrey, and I assume also a great majority of it was also cast for the late President Kennedy, in each of those three particular elections Ohio's electoral votes were actually cast for the opposite candidate, were they not? Mr. STOKES. That is correct. Senator BAYH. The votes cast were counted on the other side. Mr. STOKES. This in spite of the large concentration of blacks in the urban centers in a State like Ohio such as Cincinnati, Cleveland, Columbus, Dayton where that high percentage concentration of votes is given to the Democratic candidate. Senator BAYH. Well, I really appreciate your sharing these thoughts with us. You already pointed out in your testimony the tremendous increase of black voter participation in the southern part of our country, as I recall, as a result of the Voting Rights Act and better organization. Mr. STOKES. That is correct. Senator BAYH. Senator Thurmond, do you have any questions to ask our witness? Senator THURMOND. Congressman Stokes, we are glad to have you with us. I believe a statement you made appears in the September 17, 1969, issue of the Congressional Record in support of direct election you stated, and I quote: "Ohio's 10 million people are represented by 26 Presidential electors, but the Nation's 16 smallest States which have a combined population of 10 million get 58 electoral votes." Does this mean that you feel that the electoral college has a built-in advantage for the smaller States? Mr. STOKES. Yes, it does, Senator Thurmond. That would be the thrust of my statement at that point. Senator THURMOND. Let us assume for a moment the problem of the faithless elector and the winner-take-all system in the electoral college is corrected, and you come down to the element that the President could be elected who did not receive the most popular votes. In the past, you have stated that if this was to occur, it could result in a first-rate constitutional crisis. Mr. STOKES. Yes, that is correct, Senator Thurmond. Senator THURMOND. Is it not also true that in 3 of our 48 Presidential elections this has occurred, namely, 1824, 1876, and 1888? Mr. STOKES. Yes, Senator. |