January 3, 1969
CHALLENGE TO THE FAITHLESS ELECTOR
Mr. MUSKIE. Mr. President, I should like to take just a moment to alert my fellow Senators on both sides of the aisle to the questions which will be raised on Monday with respect to the challenge of the electoral vote of a North Carolina presidential elector.
On Monday, January 6, the Senate and the House of Representatives will meet in joint session to determine the count of electoral votes for President and Vice President of the United States.
Under ordinary circumstances this would be a ceremonial function. But this year, in the midst of increasing demands for reform of the presidential election system, for only the sixth time in the history of the Republic we are confronted with a presidential elector who rejected the mandate of the people who elected him.
Representative O'HARA, of Michigan, and I, together with a number of our colleagues, intend to challenge the vote of that elector.
The elector in question, Dr. Lloyd W. Bailey, of Rocky Mount, N.C., was appointed by the Republican Party of North Carolina to cast his vote for the Republican nominees for President and Vice President, should they be the choice of a plurality of the voters of North Carolina. A plurality of North Carolina voters did vote for Richard M. Nixon and Spiro T. Agnew, but Dr. Bailey chose to substitute his own judgment for that of the voters of North Carolina. He did so in defiance of the voters of his State, the 12th amendment to the Constitution, and North Carolina law.
Dr. Bailey's vote does not affect the outcome of the 1968 presidential election. It does have implications for future elections.
I intend to work with Senators in correcting the present limitations on the public will in our Presidential selection process. But while we are preparing for that reform we should serve notice that Congress will not countenance efforts to upset the results of a popular election of the President.
Dr. Bailey was not elected by the voters of North Carolina to exercise his independent judgment. His name did not appear on the ballot. His qualifications to make an independent judgment were not an issue.
I do not intend to discuss the substance of that question in the Senate today, but I should like to alert Senators to the fact that under the statute which now governs the procedure to be followed, the requirements governing debate are very rigid. For example, debate may not continue for more than 2 hours.
Second, no Senator may speak for more than 5 minutes nor more than once. Obviously, unless some way is found, with the cooperation of the Parliamentarian, to liberalize those conditions, the debate, once the issue has been laid before the Senate, will be under very difficult circumstances, circumstances with which Senators are not accustomed to deal.
So in order to perform the educational function which those of us who raise the issue desire to perform, it has been agreed by the leadership that the Senate will meet at 10:30 on Monday morning. That will be before the issue is laid before the Senate. Thus we shall have an hour and a half for the purpose of exposing the issue without the limitations on debate which I think we shall be faced with on Monday afternoon. So if Senators desire to participate in the exposure of this issue, I would urge their attendance at 10:30 Monday morning.
If it is possible, in the meantime, to find a way to liberalize the conditions of debate on Monday afternoon, we will implement them. But I am rather pessimistic about that.
Nevertheless, we have an opportunity, acting from nonpartisan considerations and proceeding at a time when our decision will not disturb the choice of the next President of the United States, to establish a precedent which can lead us closer to a more democratic, responsive, and safe system for selecting the Chief Executive of our Nation.
The year 1968 was a year of turmoil and anxiety, in which many of us feared for the safety of the Republic. The voters made their choice, and fortunately the choice was clear enough to avoid a constitutional crisis.
Remembering what might have been, however, we have an obligation to do everything we can to insure against such a crisis in the future, by voting next Monday to reject the vote of the "faithless elector."
Mr. President, I ask unanimous consent to have printed in the RECORD certain material bearing on the substance of this question, so that Senators may have easy access to it.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
[From the Raleigh (N.C.) News-Observer, Dec. 16, 1968]
STATE ELECTOR To BACK WALLACE
ROCKY MOUNT.-- Dr. Lloyd W. Bailey, a Republican presidential elector who intends to withhold his vote from President-elect Richard Nixon and cast it for George Wallace, said Sunday he is still a Republican but is "an American and a concerned father first." The Republican elector said he kept a Wallace sticker on the bumper of his car during the campaign, but said, "I was not an active campaigner for any candidate." He added, "My position is my own and I have no idea if any of the other electors intend to cast their vote for Wallace." Dr. Bailey said he does not personally know any of the other electors.
The Rocky Mount physician, father of three children, said his decision to vote for third-party candidate Wallace was based on three factors:
1. An effort to stress his belief in the importance of the Electoral College.
2. His conviction that Nixon does not intend to produce changes in Washington which are desired by the people.
3. The strong vote Wallace received in the 2nd Congressional District, from which Bailey had been chosen by the Republican party as a presidential elector. Wallace carried the district.
Dr. Bailey agreed it was premature to speculate what action the Republican party might take against him later.
The State's 13 Republican electors will meet at noon today in the House of Representative chambers in Raleigh to cast the State's electoral votes for president and vice-president. A similar process will be carried out in all other states.
President-elect Nixon and his running mate Agnew won North Carolina's 13 electoral votes in the Nov. 5 election. He is the first Republican to carry the State since 1928.
One Republican elector was selected at each of the GOP's 11 district conventions, with two selected at-large by the State Republican Convention. They were officially proclaimed by Democratic Governor Moore on Dec. 4.
The electors are:
A. W. (Billy) Houtz, 1st District; Dr. Bailey, 2nd District; Sam E. Godwin, 3rd District; Russell N. Barringer, 4th District; H. F. Stanley, 5th District; James Rodgers, 6th District; J. T. Clemons, 7th District; W. S. Bogle, 8th District; R. Powell Majors, 9th District; Edward H. Smith, 10th District; R. Curtis Ratcliff, 11th District; and H. J. Liverman and Mrs. Dorothy Presser Furr, at-large.
[From the Raleigh (N.C.) News-Observer, Dec. I7, I9681
STATE ELECTORS GIVE NIXON 12, WALLACE ONE
(By Russell Clay)
North Carolina's Electoral College delegation voted 12-1 for President-elect Richard M. Nixon here Monday at a session plagued by a leadership vacuum as well as a defection to George Wallace.
Dr. Lloyd W. Bailey, a Rocky Mount physician and member of the rightist John Birch Society, voted for the third party ticket of Wallace and Gen. Curtis LeMay.
The meeting, first of its kind in 40 years at which Republicans have held sway, was delayed an hour and a quarter by the absence of anyone acquainted with the procedures involved, the absence of a judge to administer the electors; oaths, and by an error in the minutes which had been prepared in advance.
State GOP Chairman Jim Holshouser of Boone had the flaws in the minutes corrected, rounded up a judge -- Chief Judge Raymond Mallard of the Court of Appeals -- and got the meeting under way as temporary chairman.
"I really shouldn't be standing up here -- this is a function which for years has been a function of the State government" Holshouser told the gathering in the House chamber of the State Legislative Building. "I'm sorry the secretary of state or somebody from the Governor's office is not here."
Democratic Secretary of State Thad Eure, who usually gives direction to the quadrennial proceedings, was home with the Hong Kong flu. Tom Walker, an aide to Democratic Governor Moore, delivered the prescribed documents to the meeting at the appointed hour of noon, gave an oral rundown on the order of business to be followed and then left.
It was 1:15 p.m. before Mallard administered the oaths, first to a group of 12 electors and then to a last-minute substitute.
The 12 piled their hands atop the only Bible available -- one Mallard brought with him -- and took their oaths.
The 13th, sworn separately, was Mrs. R. Curtis Ratcliff of the 11th Congressional District, who was elected to replace her husband rather than have him lose his job. Ratcliff is clerk of the Buncombe County Superior Court and, under the double officeholding prohibitions of State law, would have vacated his oath as court clerk if he had taken the oath as presidential elector.
The minutes of the meeting, prepared in advance by the State attorney general's office, were drafted on the assumption that all 13 of the GOP electors would cast their votes for the GOP ticket of Nixon and Spiro Agnew.
Dr. Bailey, elector from the Second Congressional District, held out for the American Party ticket, saying in a prepared statement that Nixon "has already clearly shown to us that we are going to have more of the same thing."
Bailey, questioned in an interview, said he is "a proud member of the John Birch Society" as well as "the Republican Party, the Boy Scouts, the Rotary Club and the Medical Society."
Bailey prefaced his comment by asking if his membership in the Birch group "is important" to the issue at hand. Afterwards, he observed that certain groups are "always trying to smear the John Birch Society."
Some sharp criticism of Bailey's position was voiced in interviews by fellow members of the delegation of electors.
Seventh District Elector J. T. Clemons of Charlotte said: "I think he's all wet, publicity hungry, radical . . ."
Fourth District Elector Russell Barringer Sr. of Durham, who served as permanent chairman of the meeting, said, gesturing upward with both hands: "I just don't know." Party Chairman Holshouser commented:
"I think it's unfortunate that Dr. Bailey did not see his duty to the people of the State of North Carolina to cast his vote in accordance with the vote of the people in the General Election. It actually points out another defect in the Electoral College system. I think it illustrates a need for some serious consideration of at least some reforms in the Electoral College system and possibly in State law."
North Carolina, unlike some states, has no legal requirement for the electors to vote for the ticket which carries the State in the general election.
CARE IN FUTURE
First District Elector A. W. (Billy) Houtz of Elizabeth City said of Bailey's position: "It will be incumbent upon future Republican district conventions to be a little more careful in the election of electors ... I can't criticize him too much, except that I don't agree with him."
Nixon was nominated by Sixth District Elector James Rodgers. Houtz nominated Agnew for vice president.
Dr. Bailey nominated Wallace for President and LeMay for vice president but did not get a second to either motion. Four separate roll call votes were taken, however, with only Bailey voting against Nixon and Agnew and only Bailey voting for Wallace and LeMay.
Bailey, who said he plans to remain a registered Republican, issued a statement saying: "Though it may not be the popular thing to do, I humbly take this position with the firm belief that it is my moral obligation to do so."
Some of Nixon's appointees to staff positions "are members of the un-American and infamous Council on Foreign Relations," Bailey said. They include Paul W. McCracken, Henry Cabot Lodge, Robert Murphy and Henry A. Kissinger. This organization, called the Invisible Government by Dan Smoot in his book by this title, is one which seeks to undermine our national sovereignty and merge us with the other nations under a world government, perhaps like the United Nations ...
“[I]t is apparent that we are going to have the same men running our government in spite of the large vote against their policies. Daniel Moynihan, a national board member of the Americans for Democratic Action, a left wing Democrat, is another appointee to a high position and it is abundantly clear from his record that he would not want to make any change toward Americanism and constitutional government for our Republic....
DEFENDS ELECTORAL COLLEGE
"The Electoral College is under fire as being antiquated. However, I wonder how many people stop to think of the fact that if it were not for the Electoral College, the federal government would run the elections and would be responsible for counting the votes....
"In view of these facts, and in view of the fact that Mr. Wallace polled 46.1 per cent of the vote in my district, I find that I cannot support Mr. Nixon until he gives definite evidence that he intends to make the changes which the people are demanding," Mr. Bailey said.
Bailey, who had been expected to hold out for Wallace, said: "I have been harassed and threatened all day (Sunday) by anonymous telephone calls." The callers, he said, "told me I'd better change my mind."
Wallace, Bailey said, "more nearly reflects the attitude toward our Constitution that is needed today."
The sealed vote of the Tar Heel electors, like that cast at simultaneous meetings held in all other state capitals, was sent to Washington. The votes will be tabulated Jan. 6 by Congress. ,
MEMORANDUM IN SUPPORT OF AN OBJECTION TO COUNTING THE VOTE OF A NORTH CAROLINA ELECTOR, JANUARY 6, 1969
I. HISTORICAL BACKGROUND
The office of Presidential elector was undeniably visualized by Article II, Section 1 of the Constitution as being one of judgment and independence. The Founding Fathers clearly intended that the electors should be chosen for their good judgment and discerning knowledge of public men and issues, and that they should elect the President, in fact as well as in form.
But the electoral function began to evolve in another direction almost as soon as the Constitution was put into effect. In the first two elections, it was clearly understood that the electors would cast one vote for George Washington, and limit their discretion to their second choice -- who would, under the original Constitutional provisions, become Vice-President. The electors in 1788 and 1792 did precisely this.
In 1796, the party system had begun to develop, and electors were uniformly chosen pledged to particular candidates. The first "faithless elector" case arose in Pennsylvania in that year when one Samuel Miles, chosen as a Federalist, pledged to John Adams, voted instead for Thomas Jefferson. One of his constituents voiced the view which was already current among the American people and which has since become a universal assumption when he said:
"Do I chose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chose him to act, not to think."
In the election of 1800, the principle of the pledged elector was so firmly established that 73 electors, chosen in States ranging the length and breadth of the Union, cast their votes uniformly for Jefferson and Burr, giving rise to an unexpected tie for the Presidency, which had to be resolved by the House of Representatives.
Far from looking upon the 1800 deadlock as some strange anomaly, the people of the time assumed that unless some action were taken every Presidential election would, under the provisions of Article II, Section 1, be thrown into the House of Representatives. To avoid this, the Congress in 1803 submitted to the States the Twelfth Amendment, altering the original Constitutional provisions and instructing the electors to distinguish in their votes between the Presidential and Vice-Presidential candidates. The Twelfth Amendment continues to be the basis for the operation of the electoral college, and for the count of the electoral vote in a joint session of the Congress.
The Members of the Congress who participated in the debates on the Twelfth Amendment made it perfectly clear that they understood the electors to be instructed "agents" of the people -- and that the choice of a President was to be made by the people themselves.
In 1826, the present system of bound electors, without a will of their own, was so thoroughly engrafted upon the system that Senator Thomas Hart Benton, speaking for a select Committee appointed to consider proposed amendments to the Constitution, could say in a Report to the Senate:
"(The electors) have degenerated into mere agents, in a case which requires no agency, and where the agent must be useless if he is faithful, and dangerous if he is not." (Senate Report No. 22, 19th Congress, 1st Session. January 19, 1826.)
In 1876, the present electoral system, faithfully adhered to on all sides, resulted in the controversial near-deadlock of Hayes and Tilden. In that tense year, with the possibility openly discussed that civil war might be resumed, a very intricate system of testing the validity of electoral votes was devised, and far-reaching political understandings were made to resolve the impasse. But even in this critical juncture, appeals to electors to change their votes and to exercise an independent judgment were wholly unsuccessful. James Russell Lowell, a Hayes elector from Massachusetts, was urged to change his vote to Tilden, but rejected the suggestion with these words:
"In my own judgment, I have no choice, and am honor bound to vote for Hayes, as the people who chose me expected me to do. They did not choose me because they had confidence in my judgment, but because they thought they knew what the judgment would be. If I had told them that I would vote for Tilden, they would never have nominated me. It is a plain question of trust."
Since the foundation of the Republic, 16,510 electors have been chosen to perform this formal duty. Only six of these votes have been cast in derogation of that duty.
II. LEGAL AND CONSTITUTIONAL ISSUES
Clearly the provisions of Article II and the 12th amendment do not require that electors be permitted to exercise independent judgment. In the 1952 case of Ray v. Blair (343 U.S. 214) the Supreme Court upheld the Alabama practice of requiring pledges of persons seeking nomination as presidential electors against such a claim.
The North Carolina law governing this situation certainly contemplates that the electors will vote for the nominees of their party.
In 1933 that state removed the names of candidates for elector from the ballot and instituted a system under which candidates for elector are named by party convention and are deemed to be appointed if the nominees of their party receives a plurality of the votes cast for President and Vice President. (N.C. Gen. Stats. (Supp. 1967 Sec. 163-209) ).
In a contemporary comment on the purpose of the change the North Carolina Law Review said:
"Here, the legislature, acting under its plenary power of determining the method of appointing Presidential electors has attained the desirable object of direct voting for President and Vice President ...” (11 N.C. Law Review 229)
Obviously North Carolina voters have been led to believe that they are voting for the presidential candidates named upon the ballot, a fact that we cannot in good conscience ignore.
Indeed, just a few months ago the Supreme Court directed that the name of George Wallace be placed on the Ohio ballot in spite of his failure to submit his petitions by the deadline or to hold a primary election as required by state law. The Court based its ruling upon the "equal protection" provision of the Fourteenth Amendment holding that it protected the right of voters "to cast their votes effectively". (Williams v. Rhodes, Nos. 543 to 544, Oct. 1968)
The failure of a presidential elector to support the candidate the people thought, with good reason, that they had supported is a more blatant violation of their right "to cast their votes effectively" in a presidential election.
III. POWER OF CONGRESS TO ACT
The Congress has the power and the duty to act in such a situation and has, in the past, settled disputes about electoral votes, most notably in the count of electoral votes in the Hayes-Tilden election of 1876.
This congressional duty arises from its constitutional role in the counting of electoral votes and from Article I, Section 8 of the Constitution which authorizes the Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any Department or officer thereof." That this applies to the election of a President is clearly confirmed by the decisions in Ex Parte Yarborough, 110 U.S. 651 and Burroughs v. U.S. 290 U.S. 534.
The Electoral Count Law (3 USC, Chapter I) under which we shall proceed was enacted in 1887 in an effort to codify congressional proceedings in electoral count cases which had been, prior to that time, undertaken under a set of Joint Rules. Section 15 of the Electoral Count Law (3 U.S.C. 15) provides:
"Upon such reading of any such certificates or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Repreaentatives for its decision; and no electoral vote or votes from any state which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified."
It is our position that the vote of the faithless elector of North Carolina was not "regularly given" and that it should not be counted. We propose instead that all thirteen of North Carolina's electoral votes be awarded to the candidate for whom a plurality of North Carolinians actually voted -- Richard M. Nixon.