Senator CASE. That is right.

Senator KEFAUVER. We thank you very much, Senator Case.

Senator CASE. Thank you again, Mr. Chairman. I know of your long interest in this, and I know the matter is in good hands in your committee.

(The document submitted by Senator Case of New Jersey follows:)

[H. Rept. 1199, 82d Cong., 1st sess.]

MINORITY VIEWS

The pending resolution (H.J. Res. 19) and its identical counterpart in the Senate (S.J. Res. 52), commonly known as the Lodge-Gossett resolution, proposes several changes in the provisions of the Constitution relating to the election of the President and Vice President of the United States.

With full recognition of the sincerity of its sponsors, it is submitted that the adoption of the resolution in its present form would be a most grievous error. The resolution would make three relatively minor changes and one major change in our present electoral system. Two of the minor changes are desirable, the third is undesirable in its present form. The major change would have far-reaching and, quite likely, disastrous effects.

THE RELATIVELY MINOR CHANGES

1. The electoral college and the selection of individuals as electors would be abolished, but the assignment of electoral votes to the States on the present basis would be retained.1 This is wholly desirable.

2. The people would be given, by constitutional right, a direct vote for presidential and vice presidential candidates. This also is wholly desirable.

3. The President and Vice President would be chosen by a simple plurality of electoral votes in place of the present majority requirement, and the present provision for election by the House of Representatives in the absence of an electoral majority would be eliminated.

This change has the desirable objective of avoiding the danger of an election being thrown into the House of Representatives under the present unit-vote rule by which each State has but one vote. But it presents another danger, though one somewhat more remote. If there should be a large field of candidates, persons might be elected President and Vice President who received a very small percentage, though a plurality, of the total electoral votes and only a minor fraction of the total popular votes.

This danger could be obviated by providing that if no candidate for President or Vice President should receive a substantial percentage, say 35 percent, of the total electoral votes the election would go into the House of Representatives, but with one vote for each Member of the House, rather than one vote for each State. An amendment embodying this suggestion will be offered.

THE MAJOR CHANGE

Under the Lodge-Gossett resolution the electoral votes of each State, which now, by State law or custom, are generally given in a block to the candidates receiving the greatest number of popular votes in that State, would be divided among all the candidates-in proportion to their popular votes within the State.

The major arguments urged in support of this change are

1. That it would increase participation by the people generally in presidential elections, particularly in the "solid" States, and would encourage the effective extension to such States of the two-party system.

2. That it would eliminate the allegedly disproportionate power of minority groups in the so-called pivotal States.

3. That it would reduce the chances for the election as President and Vice President of candidates receiving a smaller number of popular votes than their opponents.

1 Each State has a number of electoral votes equal to the number of Senators and Representatives to which the State is entitled in the Congress.

The first of these objectives is most desirable. But there is no assurance that it would be reached by the proposed amendment. Indeed it is believed that the amendment would be more likely to have the opposite effect, with many unfortunate consequences.

The validity of the second objective depends upon whether, in fact, minority groups in pivotal States now have an undue voice in presidential elections. It is suggested that they do not and that the proposed amendment in this respect would involve grave dangers to the continuance of our two-party system.

The third objective is, on the whole, desirable, though of relatively minor importance as demonstrated by election results under our present system. But the proposed change is at least as likely to enhance the possibility of the election as President and Vice President of persons receiving a smaller popular vote than their opponents as it is to reduce that possibility.

The proposed proportional division of electoral votes would be more likely to result in further restrictions of the franchise than in its liberalization. It would tend to strengthen the grip of the dominant party on the "solid" States. The sponsors of the Lodge-Gossett resolution urge that in the "solid" or "safe" States there is no inducement for a minority party to campaign or for members of that party to vote in presidential elections since there is at present no possibility that any of the State's electoral votes will be cast for that party's candidates. It is claimed that if the electoral votes of such States were divided in proportion to the popular votes, the possibility of obtaining a part, however small, of the electoral votes of such States would stimulate campaigning by minority parties and participation in presidential elections by the members of such parties.

To the extent that the proposed amendment had this result its effect would be beneficial. But any such beneficial result would be far outweighed by the additional restrictions on the franchise in the "safe" States to which a proportional division of electoral votes would inevitably lead.

Individual voters in the "safe" States have, on the average, approximately three times as great a voice in presidential elections as individual voters in "larger" States. This imbalance is now compensated for, in a rough way, under the unit rule by which the entire electoral vote in the larger States goes to the candidates receiving a majority of the popular votes in those States.

Under the Lodge-Gossett proportional division of electoral votes, this compensating factor would be eliminated. The relative importance of the "safe" States would be greatly enhanced. The incentive to the dominant party in such States to keep them "safe" would be enormous.

It would be naive to suppose that in such States the dominant party would not do everything in its power to preserve its advantage, especially in those States where, by statute and by extralegal practices, the franchise is already severely restricted and great numbers of citizens are now in effect disenfranchised. It is too much to expect that the dominant party would voluntarily lift these restrictions and extend the franchise to those who might use it to threaten the political power of those now in control. On the contrary, there is every reason to expect that the dominant party would use its present power to insure the continuation of its control through legislation further restricting the franchise, and that extralegal restrictive practices would become more rather than less, severe.

Nor would the possibility of increased activity by minority parties be helpful in this situation. It is scarcely conceivable, for example, that the Republican Party could gain any substantial support among those persons who now have the privilege of the franchise in States of the solid South by a campaign urging the liberalization of the franchise and, in general, the extension of civil rights in that area. On the few occasions when the Republican candidates for President have carried one or more Southern States, it was not on the basis of such an appeal. For the foreseeable future, the only possible basis on which any outside party would hope to attract more than a negligible number of votes in the States where the franchise is now restricted would be to support, at least as strongly as the dominant party now supports, such restrictive laws and practices. The probability that the proposed proportional division of electoral votes would result in further restrictions on the right to vote in presidential elections in the "safe" States could be avoided.

Under the Constitution as it now stands, each State has a number of electoral votes equal to the whole number of Senators and Representatives it is entitled to have in the Congress. Under the Lodge-Gossett resolution, each State would

continue to have that number of electoral votes. Each State has, of course, two Senators and the number of its Representatives is based upon its total population (excluding Indians not taxed).

Congress has never exercised its power, under the 14th amendment to reduce the representation of a State in the House of Representatives because of its denial of the franchise to its citizens and there is no prospect that it will ever do so. Accordingly, no matter how many citizens in a State are prevented, by law or practice, from voting in presidential elections, the State now suffers, and under the Lodge-Gossett resolution would suffer, no reduction in its electoral vote in such elections.

An amendment will be proposed on the floor by which, in any particular election, each State's electoral votes for President and Vice President would be reduced in the proportion that the number of persons actually voting is less than the total number of persons of voting age in that State. This change is desirable in itself, and a reform long overdue. It is an essential change, if the proportional division of electoral votes proposed by the Lodge-Gossett resolution should be adopted, in order to counter the inevitable tendency which would result from that resolution to restrict further the franchise in the "safe" or "solid" States. It is recognized that the suggested amendment would make the adoption of the Lodge-Gossett resolution more difficult and might prevent the ratification of the proposed constitutional amendment by the necessary number of States. But it would be far better that the resolution should fail than that it should be adopted without that amendment.

Minority groups in pivotal States do not now have an undue influence in presidential elections or on national policy. Under the Lodge-Gossett proposal for proportional division of each State's electoral votes the major parties would tend to give less attention to the legitimate interests of minority groups and a dangerous weakening of the two-party system would result.

The necessity, under present electoral procedures, for both major parties to consider the legitimate interests of minority groups contributes importantly to the strength of the two-party system and to national unity.

It is true, of course, that minority groups, whether in the pivotal States or not, should not have an undue influence on national policy It is equally true that the legitimate interests of such groups should be fairly recognized, both as a matter of simple justice and in order that such groups may effectively be incorporated into the national community.

The importance of minority groups in the pivotal States now makes it necessary for both major parties to recognize the legitimate interests of such groups. Since this is so, most members of such groups feel no need to form special interest blocs or parties for their own protection and their radical elements are forced to moderate their more extreme demands. Thus, the creation of a number of special interest, splinter political parties from the many different racial, religious, and other minority groups in the country has been successfully avoided and the incorporation of the members of those groups into the life of the Nation has been successfully accomplished.

To the claim that undue consideration is given to these minority groups in pivotal States, it is a complete answer that neither major party could do this without losing the broad base of its support throughout the country as a whole. It seems clear that some of those who advocate the Lodge-Gossett resolution do so, not because they want the major parties freed from the necessity to give undue recognition to minority groups, but because they wish the major parties to give such groups no recognition whatever.

The following excerpts have been taken from the material included in the record of the hearings on the Lodge-Gossett resolution:

From the Wichita Daily Times, November 28, 1948:

"Southerners in Congress, laying plans for quieting the loud voices of racial and labor minorities in the Democratic Party, have high hopes of putting the Gossett-Lodge constitutional amendment through Congress next year. * * * Southerners were the first to rally in large numbers behind the amendment following President Truman's civil rights recommendation. They argued that if the President had not felt he needed the Negro vote of Harlem, Chicago, and Philadelphia to win the huge electoral votes of New York, Illinois, and Pennsylvania, the message would have never been written. ✶✶ ✶”

From the Macon (Ga.) News, March 12, 1948:

“*** Dividing a State's electoral vote on a basis of its popular vote would take from Walter White his ability to manipulate the votes of the mere 3 million Negroes living outside the South for a boasted control of 17 States and the Presidency."

From the Vernon (Tex.) Times, October 14, 1948:

"TO STOP CIVIL RIGHTS PROGRAM

"If the Republican Party succeeds in having the Gossett-Lodge resolution adopted and a constitutional amendment changing the method of counting electoral votes is ratified by the States, that will put an end to the bipartisan contest for Negro votes in pivotal States and eliminate the so-called civil rights issue from national politics. * * *"

Some persons have urged that the Lodge-Gossett resolution would tend to break down the two-party system because it would give a minor or splinter party the encouragement of actually receiving a few electoral votes for President and of the remote possibility of electing its own candidate if the field were very large. This argument does not seem to have much substance or present any real danger to the two-party system.

But the two-party system will inevitably break down if it ceases to be what it is. The essence of the two-party system is not that our major political parties are only two in number. The essence of the system is that our major political parties do not represent separate economic, social, sectional, religious, racial, or other groups. Neither major party excludes from its adherents any substantial element in the Nation. Both parties recognize and protect the legitimate interests of all such groups and elements. Under our system, the accommodations and adjustments which must be made between the conflicting interests of different groups in any nation if that nation is to remain free are made not between political parties but within the two major parties themselves.

There are only two alternatives to our system: a dictatorship, or a multiple, special-interest party system. There the adjustments are not made within the parties themselves, but those of different interests break away into small specialinterest, splinter groups. Neither dictatorship nor the weak and shifting coalition of splinter groups is acceptable to us. We must make our system work.

Up to the present we have made our system work, except on one occasion. Because we have succeeded in this, one party can follow another in power without revolution-the people of the country all know that neither party is a threat to the vital interests of any particular group. The Civil War was the result of our single failure in the past.

We must continue to make our system work. We must avoid any step by which it would be weakened or impaired. And any constitutional change, whether in the letter of that document or in deep-rooted constitutional practices, which would tend to make the two major parties less sensitive to the legitimate interests and needs of any important group would be a long step toward the destruction of that system.

There is no assurance that the proposed amendment would reduce the chances for the election of a President and Vice President receiving fewer popular votes than their opponents: the opposite result is more likely.

In only two presidential elections since 1860 has our present electoral system resulted in the election of a President who received fewer popular votes than his nearest opponent. If the Lodge-Gossett resolution had been in effect during that period the opponents of these two individuals would have been the successful candidates. On the other hand, during the same period the operation of the Lodge-Gossett resolution would have resulted in the election of two other persons who received fewer popular votes than their opponents who, under the present system, were the successful candidates. So that, assuming no change in the voting habits of the people, the result would have been a standoff.

The proponents of the Lodge-Gossett resolution argue, of course, that under different rules we should have had a different result because of the greater activity of minority parties in the so-called safe States, and the greater interest of members of such parties in presidential elections. For the reasons given above, it is submitted that more restrictions, rather than fewer, would be placed upon the franchise in the safe States, that the safe States would be made even safer, and that future elections under the Lodge-Gossett resolution would be far less representative of the popular will than has been the case in the past under our present system.

4

CONSTITUTIONAL AMENDMENTS ON ELECTIONS

CONCLUSION

It is most strongly recommended that the Lodge-Gossett resolution be amended as to limit its effect to the following:

1) The elimination of the electoral college, retaining the assignment of elecal votes to the States on the present basis.

(2) The granting to the people, as a constitutional right, of a direct vote for esidential and vice presidential candidates.

(3) The provision for the election of the President and Vice President by a aple plurality of electoral votes with the additional proviso that, if no canlate should receive 35 percent of the electoral votes, the election would go o the House of Representatives with one vote for each Member of the House, her than one vote for each State.

The proposed division of each State's electoral votes in proportion to the pular vote in that State would cut deeply and, it is believed, dangerously into è fabric of our American institutions. It would result in further restriction of è franchise in the "safe" States. It would entrench even more firmly than at esent one-party domination in those States. Lessening the necessity for attenn by the two major parties to the legitimate interests of minority groups, it uld dangerously weaken the two-party system. It would be a body blow to y effective program of civil rights.

It would be far better that this proposed change be not made. But if such change should be contemplated, it should in no event be approved by the ngress unless there is added to it a provision that in each presidential election State's electoral votes shall be reduced in the proportion that the popular ce at that election bears to the State's total population of voting age.

CLIFFORD P. CASE. No responsible person will want to pass final judgment on this proposal withcareful reading of two highly important articles : "The Will of the People," by Carl Becker, appearing in the Yale Review for rch 1945, vol. XXXIV, No. 3, reprinted at p. 329 of the transcript of the arings before Subcommittee No. 1 of the House Committee on the Judiciary 1 Cong., 1st sess., on H.J. Res. 19; and

'Presidential Elections and the Constitution: A Comment on Proposed Amendnt," by Herbert Wechsler, appearing in the American Bar Association Journal · March 1949, vol. 35, No. 3, reprinted at p. 319 of the transcript of the hearings fore a subcommittee of the Senate Judiciary Committee, 83d Cong., 1st sess., S.J. Res. 19.

O