Senator ScorT [acting chairman]. Our next witness is J. Edward Thornton. Mr. Thornton is an attorney from Alabama. He is here at the suggestion of our distinguished colleague from Alabama, Senator Allen.

We appreciate your presence.

Mr. Thornton, I understand that you practice law in Alabama at this time. Could you give us just a little bit of your background for the record. I have a statement here from Who's Who in America. TESTIMONY OF J. EDWARD THORNTON, ATTORNEY, MOBILE, ALA.

Mr. THORNTON. Mr. Chairman, I am glad to be here today. I am a practicing lawyer in a two-man firm in Mobile, Ala. I can't help but feel awed in the presence of this subcommittee, and I wonder what I am doing testifying in the company of such an august group as the candidate for Vice President on the Republican ticket, Senator Dole, and a Ph. D., who has written authoritatively on the electoral college, Dr. Judith Best. However, my friend, and a member of this subcommittee, Senator Jim Allen, stated that he thought I might make some contribution to the matters included in Senate Joint Resolutions 1, 8, and 18, and what Senator Allen requests of me is a command. I trust he will not be disappointed in what I have to say.

I understand, Senator, that you are now 5 minutes late for a meeting.

Senator SCOTT [acting chairman]. What our problem is, is that the meeting was called for 10:30. It is now 10:35. You heard Senator Bayh that he had a conflict. He had to go to an Intelligence Committee meeting.

The other meeting will start when a quorum arrives. We are on call. They will let us know when they get a quorum, so I may have to leave and recess or adjourn the meeting at any time.

Please go ahead and state the things that you feel are most important first. Then we can get the ripples from your main emphasis. Your entire statement will be in the record.

Mr. THORNTON. In my prepared remarks, I refer to a poll that was presented in the U.S. News and World Report. It shows that had the President been selected by the popular vote in 1968 there would have been a gain of political power in 15 States and the loss of power in 34 States. I ask leave to include a copy of this poll with my prepared remarks.

Regarding my prepared statement, I will go to the first point that I seek to make. It is one which I have not heard mentioned in the present discussion.

It is this. Under the present system-right, wrong, or indifferentthe several States select the President of the United States.

Now, when we change that method of selecting the President, and remove the selection of the President from the States, we get what is possibly the Achilles' heel of representative government; namely, the loss of an identifiable unit to enforce responsibility from the elected representative.

The Congressman from the First Congressional District of Alabama is responsible to the voters in that district. If he is faithless

in any way, they will hold him accountable. That First District of Alabama is a geographical area, and it is a social area. It is one that you can put your finger on, geographically and otherwise. It is the same with Senators in the States.

The suggestion here, of having the President elected by a popular majority, will destroy the identifiable unit which can demand responsibility from the President.

If the President is elected by an amorphous, inexact majority of people scattered throughout the country and he is faithless, there is no identifiable unit of any kind that will demand faithfulness from him. Of course, there are political parties. But I venture the suggestion that, when the candidates are freed from the Statesthat is, no longer do the States elect the President with the weighted electoral votes for the States-and the President is elected merely by a majority throughout the United States, I am sure that the field of candidates is going to increase materially.

There will not be an entity to hold that President responsible as there is now in the States where the President is elected. I think this is tremendously important. I think it is being overlooked.

Another point that I have made in my prepared statement is that the Constitution was adopted only by having this compromise: the electoral college. Nobody wanted it. But it was necessary in order to get the Constitution adopted. The largest States would not take one-State one-vote, and the smaller States refused to be destroyed by the large popular majority in the larger States.

So, ultimately, this compromise was worked out that actually no one was in favor of. But it had to be made. Lo and behold, it has operated for 200 years. It was accepted on the faith of the representation that this does increase the power of the smaller States. It weakens the power of the larger States.

That was a pledge, and it is still a pledge. The idea that we can brush it aside today, I suggest, is not appropriate or in good faith, anymore than was the destruction of gold clauses in public and private bonds some years back.

Senator Scott. Let me interrupt you now before you get to your next point, Mr. Thornton.

I asked for some brief biographical statement, and you expressed awe at the fact that we have some Ph. D.'s here and you are just a country lawyer, you know.

You are a graduate of Harvard Law School; are you not? You have been president of the Bar Association of Mobile, and the State of Alabama. You practiced law there for how many years? Mr. THORNTON. Since 1933.

Senator SCOTT. Well, that is a fair number of years.

You go ahead, sir. I just wanted that in the record.

Mr. THORNTON. In the third place, I see this thing as a matter of federalism. This country developed as "these United States." We used to use that expression; I still do: "these United States."

Well, no one else apparently seems to have thought well of that until now. Suddenly, for the first time, we notice in Canada that States rights are developing. Quebec would indicate that.

Even further, we notice in England that Scotland is asking for separate autonomy. And so with Wales.

So, it is strange that federalism, which developed in this country,

is now suddenly expanding into other countries. We are talking about abandoning it through abolishing the electoral college, whereby the States elect the President.

Am I infringing on other time?

Senator SCOTT. We almost have a quorum at the other meeting. We have you here. We are glad to have you here. We want to obtain as much information as we can from you. I wonder if you might take about 5 minutes and hit the high points of your dicsussion and then permit us to take 5 minutes to ask questions. Mr. THORNTON. Certainly, Senator.

I think that one further point, which I believe Senator Allen directed attention to-and I must say I am very much impressed by it. Today the election process is in the States. The States select the electors. That is a question of State law.

When the direct election of the Presidency occurs, this will then become a Federal election. This must be under Federal regulations. It must have Federal statutory safeguards. Senator Allen and I feel that we have enough Federal supervision now, and we do not think that this is indicated.

I think I will stop here. The rest of my remarks are in my prepared statement. I will stop with this.

Senator SCOTT. Thank you, Mr. Thornton.

Let me add that Jim Allen is one of the most respected members of our body. I am very fond of both of your Senators from Alabama.

Did not the American Bar Association adopt a resolution in 1967 to abolish the electoral college in favor of direct election of the President by popular vote? Can you, as a member of the American Bar Association, ignore the feelings of your brethren at the bar? Mr. THORNTON. Gladly.

It is true that in 1967 George Wallace offered for the office of Presidency. Very shortly thereafter, he was confronted by the media. The question was asked of him, "Governor Wallace, you don't really think that a majority of the people in the country would vote for you for President."

He said, quickly, "No, but I don't anticipate that. I anticipate that I will get sufficient electoral votes to throw the election for President into the House of Representatives. When that happens, the House of Representatives will have to select the President from among the three top candidates. I will be one of those three candidates. Then, either I will be elected President; or I will name the President; or, I will be approached by the man who will be President and will be able to exercise influence on him."

This created pandemonium. An explosion went all about. The question was, can he be right. The answer was yes; he was quite right.

Immediately, the American Bar Association went to work on the electoral college. What got it worked up was a statement by President-elect William T. Gosset in the ABA Journal of December of 1967. He starts his argument with this: "If former Governor Wallace of Alabama were to be a candidate, he could conceivably carry enough Southern States to prevent either of the major candidates, with their divided parties, from getting a majority, thus throwing the election into the House of Representatives."

Now, to this, I prepared an article entitled, "A Reply to the Report of the American Bar Association Commission on Electoral College Reform." I sent it to the American Bar Journal to show a contrary point of view. Interestingly enough, the American Bar Association Journal refused to published it.

So, I went back to Alabama and I had it published in the Alabama Lawyer in October, 1968. However, my friend, Senator Jim Allen, put that article in the Congressional Record on September 16, 1970 at page 15,673.

Even in June, 1977, the ABA Journal carried an article by a man from New York who writes: "The electoral college is ridden with defects and dangers that not only distort the popular vote but could operate to reject the people's choice for our highest national office."

People's choice? It is the choice of the States, I suggest, that is important.

This obsession with the fear that, by throwing the election into the House of Representatives would create revolution, I suggest, is groundless. I notice that only a year or so ago Georgia had an election of its Governor between Bo Calloway and Lestor Maddox. It was thrown into the Georgia legislature.

Interestingly enough, they elected the candidate with the lesser number of votes. Georgia survived that, and they have not attempted to amend their electoral statutes to prevent this happening

again.

So, this fear of the American Bar Association of George Wallace, I suggest, is excessive. Their continued opposition, seems to break along geographical lines as distinguished from, certainly, the views of the members of the bar association.

I think we in Alabama and in the smaller States will fight vigorously to protect the electoral college because it does protect the small States.

Senator SCOTT. Would you object, Mr. Thornton, to us putting your full response to the American Bar in the record?

Mr. THORNTON. I would be happy for you to.

Senator SCOTT. Without objection, we will include your full response in the record.

Mr. THORNTON. To sum up, the fact that the ABA has taken this position, I suggest-I question their motives. I think they were stimulated by a fear that was not really that bad. In the second place, the continued attitude has been largely geographical. I noticed a majority of those in the ABA who are opposed to it are those from the larger States. Those of us from down in the boondocks feel differently

Senator SCOTT. Thank you, Mr. Thornton.

In your opinion, is the election of the President by the electoral college violative of the one-man one-vote rule? I believe Mr. Justice Douglas had the opinion on that.

Mr. THORNTON. No, sir; I do not think so.

I think, in the first place, the one-man one-vote rule has to do with elections in districts or in small groups or in cities or places like that. I do not think it has any application to the elections in larger areas.

For example, there are the elections of the Senators.

Of course, the idea of one-man one-vote is a spurious concept to begin with. It is one of these epigrams that is thrown off and picked up and made much of. We really do not quite believe that.

The insane man should not have equal right to vote with the sane. The man that has been convicted of a crime does not have the right to vote. There are many other examples.

So, the one-man one-vote is, I think, first, a spurious concept in this connection. No. 2, it does not have application to the election of the President either by the direct election or through the electoral college. Therefore, I do not think that objection which is being made is a just or proper objection to it.

Senator SCOTT. Mr. Thornton, in your judgment, does the electoral college, with the 50-percent-plus-one selecting all of the electors of a State, constitute a winner-take-all and disenfranchise, in effect, the 50-percent-minus-one voters of a given State?

Mr. THORNTON. Definitely not, in my judgment.

The winner has to win. Therefore, someone will lose, and when he loses, he loses all. It cannot be any other way. Therefore, the suggestion that, for a winner to take all-if he doesn't take all, what does he take? He has to win.

To suggest that that is bad is entirely inappropriate.

Speaking of polls, which we have mentioned today already, Congressman Edwards from Mobile has a poll that he puts out every year. He put out one this year. The poll was this:

When you vote for President, you are in fact voting for electors who are pledged but not legally bound to vote for the nominees of their party. This is referred to as the electoral college system. Which of the following best suits your opinion?

A. Present Electoral College system of winner-take-all in each state is adequate.

B. Direct popular vote of the people (abolish the Electoral College).

C. Instead of winner-take-all system, electors should be proportioned in each state according to the popular vote (Proportional Plan).

D. A modified Proportional Plan with two electors chosen statewide and one elector chosen in each Congressional District (District Plan).

Well, you see, he had the question weighted: "Do you favor the present electoral college system of winner-take-all?" No one wanted to vote on that. So only 9 percent voted in favor of that.

The next one: "Are you in favor of the direct election of the President by all of the people?" Seventy-five percent said yes. So, Congressman Edwards says, "I join with the group"-I think his name is on a bill over in the House in favor of that.

Of course, he is loading the question there.

Senator SCOTT. I know the distinguished Congressman of whom you speak serves in the House. I believe, Mr. Thornton, you have been active in the Democratic Party over the years. I think at the present time that President Carter, from Georgia, supports this plan.

I am just wondering, why should Alabama be against it when we have a President from the South that supports it. Do you have any comments that you might share with us in this regard?

Mr. THORNTON. I just wonder if this may not be the colossal snow job of the decade.

In my article, which has now been inserted in the record, concerning the vote in 1964, I call attention to the fact that, at that