January 6, 1969
Page 219
Mr. KENNEDY. I thank the Senator from Indiana for his exposition.
I should like to ask the Senator from Maine his opinion of the request of the Senator from Illinois with respect to the question of tabling. Does he feel that that would really reach the essence of the issue?
The PRESIDENT pro tempore. The Senator from Maine has a right to respond.
Mr. MUSKIE. Mr. President, I hope that the distinguished Senator from Illinois will reconsider his intention to make such a motion. This statutory procedure was clearly established for the purpose of coming to a decision. The purpose of the motion to table, as I take it, is to try to dilute whatever we do of its effect as a precedent. I do not think we can dilute what we do of its effect as a precedent.
We know how votes to table are interpreted by our opponents in election campaigns. We have an obligation, if we are to contribute to a clarification of this constitutional problem, to take a stand, to take positions, and to make a decision before reporting back to the joint session.
I hope the motion to table will not be made; and that if it is made, it will not be supported.
I am restive under this limitation of debate, as is the Senator from South Dakota. I have tried to liberalize it. I did not write the statute. But on this question we are a court of last resort.
With all the limitations of the statute, with all the limitations of time, I think we ought not to try to wash our hands of the responsibility to make a decision one way or the other, so that we will at least have one clear-cut decision to guide our deliberations on this particular problem.
Mr. HOLLAND. Mr. President, has the Senator from Illinois any time that he can yield to me?
Mr. DIRKSEN. Yes; but first I must yield to the Senator from Nebraska.
The PRESIDENT pro tempore. The Senator from Illinois designates the Senator from Nebraska to speak for 5 minutes.
Mr. CURTIS. Mr. President, I ask unanimous consent to have printed in the RECORD the 12th amendment to the Constitution of the United States; section 15 of chapter 1, title 3, of the Federal Statutes; and section 163-209 of the Statutes of North Carolina.
There being no objection, the items were ordered to be printed in the RECORD, as follows:
AMENDMENT XII
The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for, as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.] The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
SECTION 15. COUNTING ELECTORAL VOTES IN CONGRESS
Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this sub-chapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses.
Upon such reading of any such certificate 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 Representatives 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. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of. (June 25, 1948, ch. 644, 62 Stat. 675.)
SECTION 163-209 OF NORTH CAROLINA STATUTES.
NAMES OF PRESIDENTIAL ELECTORS NOT PRINTED ON BALLOTS
The names of candidates for electors of President and Vice President nominated by any political party recognized in this State under Section 163-96 shall be filed with the Secretary of State but shall not be printed on the ballot. In place of their names, in accordance with the provisions of Section 163-140 there shall be printed on the ballot the names of the candidates for President and Vice President of each political party recognized in this State. A vote for the candidates named on the ballot shall be a vote for the electors of the party by which those candidates were nominated and whose names have been filed with the Secretary of State.
Mr. CURTIS. Mr. President, the Senate is not called upon to perform a legislative duty at this time. We are not here to advance a proposal to become a statute. We are not here called upon to advance an amendment to the Constitution. We have met today to perform a ministerial, quasi-judicial function -- the counting of the electoral vote.
We are not called upon to decide how we think the vote ought to be counted.
We are not called upon to decide what we think ought to be the law. We are called upon to count the votes according to the law as it exists today and as it existed during the recent election.
The objections offered by the distinguished Senator from Maine fail to disclose or fail to enumerate any error in the certification of the elector. That has never been the question. There has not been one word of evidence that in the procedural form of casting his vote, that was not regularly done. In other words, the objection is to the way the elector voted. We are without authority to interfere in that.
The statute under which we are operating is not one dealing with how the resident shall be chosen; it is a statute dealing with the question of the counting of the electoral vote. It has been stated here that no electoral vote shall be rejected if but one return is made, unless an objection is made in writing, finding that it was not regularly given by the electors whose appointment has been so certified.
Not one word of testimony or argument has been presented that this elector was not duly certified. No criticism, argument, suggestion, or bill of particulars has been submitted that he did not, in the usual and regular way, cast his vote.
Guidelines are laid down in the statute -- admittedly. We all agree that perhaps a new law, perhaps a new amendment to the Constitution, is advisable. I for one do not want the electoral college abolished in its entirety. I think that would be wrong. But this is not the day to debate that. Today we are called upon to count the votes under the rules that existed last November and that exist today; not to take action, as the distinguished Senator from Maine says we should, that would be a guide for some future action.
The PRESIDENT pro tempore. The time yielded to the Senator from Nebraska has expired.
Mr. KENNEDY. Mr. President, I yield to the Senator from Missouri.
The PRESIDENT pro tempore. The Senator from Missouri is recognized for 5 minutes.
Mr. SYMINGTON. Mr. President, once again, in bringing this important question before the Senate, the distinguished Senator from Maine has earned our respect and esteem.
Whether or not one agrees with all the details of his presentation, we can be grateful for the contribution this effort should make toward eventually assuring that the citizens of this country, in fact as well as in form, will be responsible for the selection of the President and Vice President of the United States.
Many States, including my own State of Missouri as well as North Carolina, have, by law, removed the electors' names from the ballot, and have deemed that a vote for the candidates of a party determines the electors from the State.
If the Constitution actually endows an elector with an unbridled right to vote his own personal judgment, it would seem that no State could, by statute, infringe on that constitutional prerogative; but we note that in the case of Ray versus Blair the Supreme Court decided that, acting under Alabama law, the rule of the Democratic committee of that State requiring a party candidate for presidential elector to take a pledge to support the party's nominee for national office was valid under the 12th amendment to the Constitution.
In any case, the people of North Carolina, under their laws, have not chosen their electors by name or knowledge; rather, have instead voted for their presidential choices, and depended upon the electors appointed to carry out their will.
Under these circumstances -- whether they occurred in North Carolina or Missouri -- surely it would seem logical that the vote of an elector should not be cast against the candidate who had the plurality of the vote of the citizens of the State in question.
The PRESIDENT pro tempore. Is there any assignment of time by the majority leader or the minority leader?
Mr. DIRKSEN. Mr. President, I designate the Senator from Florida (Mr. HOLLAND).
The PRESIDENT pro tempore. The Senator from Florida is recognized for 5 minutes.
Mr. HOLLAND. Mr. President, most of us have been in elective office a long time. Most of us have been elected on platforms. I dare say not one Member of the Senate has not found some situation existing after his election which has required him, in his conscience, to deviate from some provision contained in that platform. The Senator from Florida, having been in the State senate and Governor and here in the Senate for 22 years, certainly has found it necessary to deviate from good intentions beforetime made.
What has happened here, as shown by the news article placed in the RECORD this morning by the Senator from North Carolina, is that this elector was interested in supporting Mr. Nixon because he thought he would undo what the present President and the present administration had done; that the elector had become convinced, since the election, by reason of certain appointments announced, that such was not the case, and that, therefore, he changed his intention and his position and so announced it ahead of time.
The second point I make is this: It makes no difference in this election what we do with respect to this one vote. But the kind of precedent we establish does make a great deal of difference. The last time the change of position of delegates or electors from the State of North Carolina was in question was a long time ago, but there were then 15 of them. On another occasion since then, seven electors from the State of New York violated their instructions.
Mr. President, the point I make is that we are asked to set a far-reaching precedent; and if made, it could establish a rule under which third-party efforts or efforts akin to that, where people have deep principle and deep convictions which lead them to go one way or another, can be defeated in their effort to do what they want to do.
In the last race, one of the presidential candidates, an independent candidate, said that he did not want the election to go to the House, and that in the event certain things would happen, he would throw his electoral vote, if he could, one way or the other, to prevent the matter from going to the House.
If any Member of the Senate likes the thought of elections going to the House of Representatives with each State having one vote, the way to do it is to vote for setting up the precedent suggested by the distinguished Senator from Maine.
In closing, may I say to the Senator from Maine that nobody can claim that he is personal about this matter. I heard him make many good speeches during the campaign, and I never heard him make a speech for Mr. Nixon; yet, Mr. Nixon would be the beneficiary of this proposed action. I congratulate the Senator from Maine. I believe he is going ultimately in the right direction. But the right direction is toward constitutional amendment which would clear up this matter, not toward setting up a precedent which would make matters much worse, in my opinion, than they are now, as would be the case if this precedent were established. If established, it would apply not only to the one vote about which we are talking, but also to any number of votes cast against the decisions of the electorate in any State or in any group of States. That seems to me to be something which would help to defeat our effort for constitutional amendment.
What I am trying very hard to do now is to promote the necessity for constitutional amendment. I shall offer one. Two others will be offered. The Senate, in its judgment, can take its choice among them. The House can do so, also. One was passed in the Senate many years ago by more than the two-thirds vote required. I hope we can do that again this year. But I believe that to pass something, in this idle moment, that would be a precedent in a much graver time would be a very grave mistake.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. HOLLAND. I yield, if I have time.
Mr. MUSKIE. May I say to the Senator that over the years of this Republic, well over 500 -- I believe that is the correct number; I am sure it is a minimal number -- resolutions have been introduced to reform the electoral college and the constitutional provisions dealing with it. I do not believe we should rely too heavily upon that prospect.
Mr. HOLLAND. Mr. President, a great many had been introduced on the poll tax question, but we finally got one through, and it was approved.
Mr. DIRKSEN. Mr. President, I suggest designating the Senator from Virginia (Mr. BYRD).
The PRESIDENT pro tempore. The Senator from Virginia (Mr. BYRD) has been designated to be recognized for 5 minutes.
Mr. BYRD of Virginia. Mr. President, I associate myself with the remarks recently made by the distinguished senior Senator from Texas, the distinguished junior Senator from Rhode Island, and the distinguished senior Senator from Florida.
However one may view the action of the North Carolina elector who chose to vote against the presidential candidate who received the largest number of votes in North Carolina, he acted within his constitutional rights.
The Constitution makes no mention of an obligation on the part of electors to vote for any particular candidate. Indeed, it was intended, as the distinguished Senator from Maine concedes, that these electors be men of independent judgment.
Moreover, the 12th amendment, adopted in 1804, provides that electors shall "vote by ballot," a procedure that further implies their legal independence.
Those who would void the ballot of the North Carolina elector would do so on the ground that over the years there has grown up a practice of voting for the party candidate. This most certainly is correct. In fact, since the foundation of the Republic, 16,510 electors have been chosen, yet only a handful of these votes have been cast for a person other than the individual who received the largest number of votes in the elector's State.
But this is unwritten custom. It is not a matter of constitutional law. Custom, however well established, cannot supersede the Constitution.
Congressional action denying the North Carolina elector the right to cast his ballot clearly would be contrary to the Constitution. More than that, it would establish a dangerous precedent and could make it possible at some later date that Congress in a close election could void enough elector ballots so that Congress itself could determine the election of a President.
The proponents of today's resolution to deny the vote to the North Carolina elector say that the action is taken to focus attention on the need for electoral reform.
I strongly favor a change in the presidential electoral system. I feel the electoral votes should be awarded automatically and in proportion to each candidate's popular vote. The electoral college as such should be abolished. It is outdated and useless.
But I submit that this should be done by constitutional amendment.
We should not seek to reform the electoral system by unconstitutional action such as is being proposed today.
The way to reform the electoral system is to introduce constitutional amendments bringing about such reform and then to have thorough committee hearings and full floor debates on the various proposals. The Senator from North Carolina (Mr. ERVIN) will introduce one plan; the Senator from South Dakota (Mr. MUNDT) has a proposal; and the Senator from Indiana (Mr. BAYH) has still a different plan.
Each of these can be debated at length, and Congress can choose the one it deems the most advisable, and then the people themselves can make the final decision. That is the legal and proper way to change the Constitution.
I state against that I strongly favor a change in the present electoral system. But I oppose the Muskie-O'Hara resolution as being clearly unconstitutional and as establishing a dangerous precedent.
As one who believes that Congress should not surrender any of its responsibilities to either the executive or the judicial branch, I likewise feel that Congress should not usurp power not given it by the Constitution.
I shall vote against the proposal of the distinguished Senator from Maine. Mr. President, I ask unanimous consent to have printed in the RECORD immediately following my remarks an article entitled "Electoral Reform by a New Avenue?" written by Merlo J. Pusey published in the Washington Post on January 5, 1969.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
ELECTORAL REFORM BY A NEW AVENUE?
(By Merlo J. Pusey )
Has Congress really found a means of correcting the votes of unfaithful electors in the strange system by which the President and Vice President are elected? Sen. Edmund S. Muskie and Rep. James G. O'Hara will ask their colleagues on Monday to reject the vote of North Carolina Elector Lloyd W. Bailey for George Wallace and to count the vote instead for Richard Nixon. If they succeed, they will have accomplished a substantial electoral reform, but by very dubious means.
Before taking this route, every member of Congress will want to know something about the old law which the Muskie-O'Hara team seeks to invoke. It was passed in 1887, and the problems which Congress had in mind were very different from those of today. How far will the Senate or the House try to go in reshaping the law as a weapon to use against unfaithful electors?
Congress was chagrined in 1887 by the manner in which it had disposed of the Hayes-Tilden contest more than a decade earlier. It had reason to be ashamed of that outcome, for a commission which it set up had given the election to Hayes despite many circumstances pointing to Tilden as the rightful winner. To avoid any repetition of that shabby performance. Congress sought to create a new means of determining electoral contests.
Sen. George F. Edmunds introduced a bill directing the House and Senate as to how the electoral votes sent in by the states should be counted. One provision of this bill would have allowed the Senate and House, acting concurrently, to reject the electoral votes of a state. That proposal produced a furor on the floor. Senators said it would deny the right of the states to control their own electoral votes. The bill was sent back to the Committee on Privileges and Elections and amended so as to give the states the right to settle their own disputes as to the validity of their electoral votes. The Senate passed it in this form.
The House went further to insure the right of a state to say whether its electoral votes were legal. A select committee amended the bill so as to require that "where there is but one return from a state the votes so returned shall be counted." Rep. W. C. Cooper contended that even if every member of Congress knew that none of the electors named in a state's certificate had been duly elected, Congress would have no authority to reject the vote. The state had the final word, if the state itself were speaking with a single voice.
This extreme form of the bill was modified, however, by an amendment sponsored by Rep. John R. Eden. His proposal, as he outlined it on the floor of the House, was that every electoral vote would have to be counted by Congress if there was but one return from the state and if "the vote was regularly given" and the credentials of the electors were in due form and in accordance with the laws of the state.
The Eden amendment was accepted by the House and was only slightly modified by the Senate-House conference committee. In his report to the two house of Congress the conference committee gave this assurance: "Taken as a whole this amendment will ensure the counting of lawfully certified votes of states, objections of a Senator or a Representative to the contrary notwithstanding."
The conference report, which was later accepted by both the House and Senate, went on to declare that the purpose of the act was to "circumscribe to the minimum" the power of Congress to disfranchise a state. "Such a result can only happen when the state shall fail to provide the means for the final and conclusive decision of all controversies."
The Muskie-O'Hara challenge assumes that the vote of Elector Bailey is illegal because it was cast contrary to the wishes of the voters who chose him at the polls. But North Carolina did not challenge the vote for this reason. That state certainly contemplates that Republican electors chosen by the voters shall vote for the Republican presidential candidate, for it puts the name of the candidate (not that of the electors) on its ballot. Yet it does not require them by law to be faithful to their trust.
It is interesting to note that Bailey explained his vote as conforming to the will of the voters in his district. He said that he was nominated as a district elector and that his district went for Wallace. This did not, of course, release him from his moral obligation to vote for the winning candidate in the state under the general ticket system. But the basic fact is that North Carolina did not legally bind him to support the winner of the popular vote in the state, and the Constitution leaves him free to make his own choice.
Under the Twelfth Amendment, Congress seems to have the duty of counting this vote as it was cast. Even if Congress should assert the right not to count it on the rather far-fetched assumption that it was not legally given, where could Congress find any authority to change it from a vote for Wallace to a vote for Nixon? The duty imposed by the Twelfth Amendment and the act of 1887 is merely to count the votes-not to say for whom they should have been cast.
Since Congress itself has no right to intervene, it is scarcely persuasive to say that it can do so by pretending to enforce a North Carolina law that does not exist. To say the least, it is a very strange undertaking.
Congress has been importuned on many occasions to amend the Constitution so that there would be no possibility that "dummy" electors might frustrate the will of the people in choosing the President. But Congress has failed to do so. It can scarcely excuse that neglect or overcome its unfortunate consequences now by asserting the right to count votes so as to deprive electors of the discretion the Constitution gives them.
Mr. KENNEDY. Mr. President, I ask that the Chair recognize the Senator from West Virginia.
The PRESIDENT pro tempore. The Senator from West Virginia, having been designated by the Senator from Massachusetts, is recognized for 5 minutes.
NORTH CAROLINA CHALLENGE DRAMATIZES NEED FOR ELECTORAL COLLEGE REFORM
Mr. RANDOLPH. Mr. President, I am grateful that the assistant majority leader has given me the opportunity to participate in this discussion.
After study and deliberation I was one of those Members of the Senate who this morning signed the objection to the vote from the State of North Carolina for George C. Wallace on the basis that "it was not regularly given in that the plurality of votes of the people of North Carolina was cast for Richard M. Nixon for President."
The controversy of the dissident elector dramatizes the urgent need for reform of the present system for selecting the President of the United States -- a reform which will make the system responsive to the will of the electorate by personal vote. I support in principle the measures instituting a direct election of the President and Vice President and authorizing a national system of presidential primaries. I am a cosponsor of the resolutions to effect these changes and I will continue to work for this reform.
Nevertheless, it is my belief that the Congress must act affirmatively in meeting the existing problem of an elector who cast his vote against the choice of the people of his State. He is a man who failed to follow the will of the people.
In my thinking it is totally clear that the function of the elector is to be the agent of the people, with the citizens who elected him actually making the selection of a President.
Certainly, the statutes of the State of North Carolina or of West Virginia intend that the electors will vote for the nominee of their party. The voters in North Carolina vote for President and Vice President with the slate of electors being appointed if their party candidate receives a plurality of the votes cast. The electors do not appear on the ballot. Assuredly, the voters of North Carolina would believe that they are casting a ballot for the candidates appearing on the ballot -- and not for an elector who has the right to make his own selection. To believe otherwise is to deny the right of the people of this State to cast an effective ballot for the President and Vice President.
I submit that the actions of Dr. Lloyd W. Bailey, North Carolina's dissident elector, confront us with a direct violation of the equal protection clause. The Congress has a constitutional mandate to redress this violation today.
There are those who argue that the Constitution permits us no role in passing on the actions of electors chosen by the respective States. They contend that the States have absolute power to establish or to remove whatever burdens, restraints, or limitations they please on the selection of electors. The Supreme Court has already rejected this argument in its recent decision in William against Rhodes. An examination of this case is most enlightening. I refer to this case as follows:
During the 1968 presidential campaign, the State of Ohio refused to list the name of George Wallace on its ballot. The State refused to recognize the slate of electors running on the Wallace ticket because his petitions had not been submitted by the filing deadline and because his party had not conducted a primary election. The State cited article II, section 1 of the U.S. Constitution to support its contention of absolute control over the electoral process. That provision reads
Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors....
The Court recognized that this language is broad and grants extensive power to the States. But the Court also pointed out that the Constitution is full of provisions which grant to Congress or the States specific powers to legislate. These specifically granted powers, the Court explained, are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.
The Supreme Court held in the Williams case that certain constitutional protections apply in the electoral setting. State law notwithstanding the Court ordered that Wallace's name be added to the Ohio ballot and that the Wallace electors be recognized as official representatives of the Ohio Independent Party. The basis of the Court's decision was that the strictures of the 14th amendment apply in the selection of presidential electors.
The State law was in violation of the 14th amendment, the Court said, because it interfered with the right of voters "to cast their vote effectively." The Court described the right to exercise a meaningful vote as that "most precious" freedom.
Certainly the existence of a dissident elector poses the exact same type of threat to an effective exercise of the franchise as did Ohio's refusal to add a candidate's name to the ballot. If electors are permitted to vote for whomever they please, if they are free to disregard the banner under which they ran, then, in effect they have the power to nullify the vote of the plurality of that State and deny those voters the right to an effective vote, guaranteed by the 14th amendment.
In all likelihood the overwhelming majority of North Carolina voters did not and do not know the names of their presidential electors. The names of the presidential and vice-presidential candidates appeared on the ballot and no mention was made of the names or even existence of a body of individuals who are presidential electors. When the North Carolina voters went to the polls and cast their ballots on November 5, they did so understanding that they were voting for one of the three candidates appearing on their ballot. Dr. Bailey's actions, if permitted to stand, would thwart that expectation. In fact, the voter's expectation can only be fulfilled if the presidential electors remain faithful to their party choices.
Unless the Congress moves to effectuate the choice of the people of North Carolina, the 14th amendment guarantee of a meaningful vote will be denied. Mr. President, I believe it is necessary to raise this issue in the Congress.
Mr. KENNEDY. Mr. President, I request that the Chair designate the Senator from New Hampshire.
The PRESIDENT pro tempore. The Senator from New Hampshire has been designated and the Senator is recognized for 5 minutes.
Mr. McINTYRE. I wish to inquire of the Senator from Maine as follows: First, I request that the Senator from Maine, for my benefit, go over how he rationalizes the fact that the electors, starting out as free agents, through their own conduct and actions lose this free agency. Then, I would like the Senator to expand on anything further in his argument to emphasize his reasons for the adoption of his proposal.
Mr. MUSKIE. I thank the Senator. With respect to the specific point the Senator raised, my position is that the elector, under the Constitution, is a free agent, and when, as a free agent, he begins to express his preference publicly under circumstances which would lead reasonable men to rely on his commitment to those preferences he cannot thereafter, at a point when those who relied upon his expression of preferences are powerless to act, repudiate his own commitment.
As the Senator from Idaho mentioned earlier, there is involved a situation similar to the doctrine of estoppel in the courts of equity of our country, and I think it is a responsibility which the electors for President should recognize. When he puts in motion an understanding of his commitment which he later repudiates, he should not be able to profit from it by stating his own individual preference on electoral college day.
Some mention has been made about the right of the Congress to take this matter under consideration and to make a decision today.
It might be helpful to refer to a commentary in Political Science Quarterly written in December of 1888, shortly after the statute under which we are proceeding was enacted. This is the observation with respect to the power of the Congress, and it might be helpful to some Senators:
No determination which a state can produce should be made conclusive against the judgment of both Houses of Congress in the counting of the electoral vote. In matters like this, the concurrent judgment of the two Houses of the Congress is the surest interpretation of justice and right which our political system affords; and the claim that they have no constitutional right to determine the legal genuineness of any electoral vote sent to them under any form of certification by any state, on the ground that the constitution vests the appointment of the electors wholly in the state, confounds the process of the appointment or election with that of the count, and seeks to rob the power of counting of its most important element, viz., the power of ascertaining what is to be counted.
On that point, let me refer to something the Supreme Court of the United States declared in the case of Ex Parte Yarborough, 110 U.S. 651:
If this government is anything more than a mere aggregation of delegated agents of other States and governments . . . . it must have the power to protect the elections on which its existence depends from violence and corruption.
Mr. President, that is the view of the Supreme Court of the United States with respect to the authority of Congress in counting the electoral votes to decide what shall be counted and to take into consideration whether the votes have been cast under fraudulent circumstances.