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HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

CONSTITUTIONAL AMENDMENTS 

OF THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-THIRD CONGRESS 

FIRST SESSION 
ON 

S.J. Res. 1 

PROPOSING AN AMENDMENT TO THE CONSTITUTION TO 
PROVIDE FOR THE DIRECT POPULAR ELECTION 
OF THE PRESIDENT AND VICE PRESIDENT 
OF THE UNITED STATES 



Printed for the use of the Committee on the Judiciary 




GOV DOCS 
KF 

4910 

j^25 U.S. GOVERNMENT PRINTING OFFICE 

1973x 26-147 WASHINGTON : 1973 

R Ul FRANKLIM FIERCE LAW CENTER 

KGSGdrClQ Concord. New Hampshire 03301 



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ON D'^POSIT '''AR i ) 1974 



Electoral reform 



HEARING 

BEFORE THE 

SUBCOMMIHEE ON 
CONSTITUTIONAL AMENDMENTS 

OF THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-THIRD CONGRESS 

FIRST SESSION 
ON 

S.J. Res. 1 

PROPOSING AN AMENDMENT TO THE CONSTITUTION TO 
PROVIDE FOR THE DIRECT POPULAR ELECTION 
OF THE PRESIDENT AND VICE PRESIDENT 
OF THE UNITED STATES 



Printed for the use of the Committee on the Judiciary 




GOV DOCS 
KF 

4910 

' ^^25 U.S. GOVERNMENT PRINTING OFFICE 

1973x 26-147 WASHINGTON : 1973 

mf ^m^ FRANKLIN FIERCE LAW CENTER 

KGSGdrCn Concord, New Hampshire 03301 

- Library . 

^ * ON DEPOSIT ^^ t i 1974 



Bosff '^"^-"^ ".'.brary 



COMMITTEE ON THE JUDICIARY 

93d Congress, 1st Session 

JAMES O. EASTLAND, Mississippi, Chairman 

JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska 

SAM J. ERVIN, Jr., North Carolina HIRAM L. FONG, Hawaii 

PHILIP A. HART, Michigan HUGH SCOTT, Pennsylvania 

EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina 

BIRCH BAYH, Indiana MARLOW W. COOK, Kentucky 

QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS. Jr., Maryland 

ROBERT C. BYRD. West Virginia EDWARD J. GURNEY, Florida 
JOHN V. TUNNEY. California 



Subcommittee on Constitutional Amendments 

BIRCH BAYH, Indiana, Chairman 

JAMES O. EASTLAND, Mississippi HIRAM L. FONG, Hawaii 

SAM J. ERVIN, Jr., North Carolina ROMAN L. HRUSKA, Nebraska 

ROBERT C. BYRD, West Virginia STROM THURMOND, South Carolina 

QUENTIN N. BURDICK, North Dakota MARLOW W. COOK, Kentucky 

JOHN V. TUNNEY, California HUGH SCOTT, Pennsylvania 

(D) 



CONTENTS 



September 26, 1973 

Page 

Bayh, Hon. Birch, a U.S. Senator from the State of Indiana 3 

Dole, Hon. Robert, a U.S. Senator from the State of Kansas 5 

Strauss, Robert, Chairman, Democratic National Party 15 

Benson, Lucy Wilson, President, National League of Women Voters 17 

Freund, Prof. Paul, Harvard Law School, Cambridge, Mass 24 

September 27, 1973 

Dixon, Robert G., Assistant Attorney General, Office of Legal Counsel, 

U.S. Department of Justice 33 

Schlossberg, Stephen I., General Counsel, United Auto Workers, 

accompanied by Mr. Jack Beidler 53 

Feerick, John D., American Bar Association 61 

Mazmanian, Daniel A., Research Associate, The Brookings Institution, 

Washington, D.C 126 

ADDITIONAL STATEMENTS AND MATERIALS 

Text of Senate Joint Resolution l._ 1 

American Federation of Labor and Congress of Industrial Organizations, 

statement 135 

Bennett, Hon. Charles E., a Representative from the State of Florida 138 

Hermens, Dr. F. A., "Democracy of Anarchy?; A Study of Proportional 

Representation, Johnson Reprint Corporation, 1972 145 

Library of Congress, Congressional Research Service. "The Electoral 
College: Historical Background, Development and the Movement for 
Reform, A Selected Bibliography, November 10, 1972 217 

Longley, Prof. Lawrence D. and JProf. John H. Yunker, "The Changing 
Biases of the Electoral College", a paper prepared for the American 
Political Science Association Copyright 1973 187 

McClellan, Jim, National Campaign Coordinator for Dr. Benjamin 

Spock's 1972 Presidential Campaign 212 

Shelton, William C, Special Assistant to the Commissioner, U.S. 
Bureau of Labor Statistics, "Majorities and Pluralities in Elections", 
The American Statistician, December 1972, Vol. 26, No. 5.. 214 

(m) 



ELECTORAL REFORM 



WEDNESDAY, SEPTEMBER 26, 1973 

U.S. Senate, 
Subcommittee on Constitutional Amendments 

OF the Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met at 10 :10 a.m., in room 2228, Dirksen Senate 
Office Building, Senator Birch Bayh, presiding. 

Present: Senator Birch Bayh, presiding. 

Also present: J. William Heckman, Jr., chief counsel and Abby 
Brezina, chief clerk. 

Senator Bayh. This morning we begin a new round of hearings 
directed toward the need to amend the Constitution by changing the 
way we elect our President and Vice President. 

A copy of Senate Joint Resolution 1 will be placed in the record at 
this point. 

[The above referred to document follows.] 

[S.J. Res. 1, 93d Cong., 1st sess.] 

JOINT resolution Proposing an amendment to the Constitution to provide for the 
direct popular election of the President and Vice President of the United States 

Resolved by the Senate and House of Representatives of the United States 
of America in Congress assemhled, {two-thirds of each House concurring therein). 
That the following article is proposed as an amendment to the Constitution of the 
United States, which shall be valid to all intents and purposes as part of the 
Constitution when ratified by the legislatures of three-fourths of the several 
States within seven years from the date of its submission by the Congress : 

"article — 

"Section 1. The people of the several States and the District constituting the 
seat of government of the United States shall elect the President and Vice Presi- 
dent. Each elector shall cast a single vote for two persons who shall have con- 
sented to the joining of their names as candidates for the oflSces of President and 
Vice President. No candidate shall consent to the joinder of his name with that 
of more than one other person. 

"Sec. 2. The electors of President and Vice President in each State shall have 
the qualifications requisite for electors of the most numerous branch of the State 
legislature, except that for electors of President and Vice President, the legisla- 
ture of any State may prescribe less restrictive residence qualifications and for 
electors of President and Vice President the Congress may establish uniform 
residence qualifications. 

"Sec. 3. The persons joined as candidates for President and Vice President 
having the greatest number of votes shall be elected President and Vice President, 
if such number be at least 40 per centum of the total number of votes cast. If 
none of the persons joined as candidates for President and Vice President shall 
have at least 40 per centum of the total number of votes, but the persons joined 
as candidates for President and Vice President having the greatest number of 
votes cast in the election received the greatest number of votes cast in each of 
several States which in combination are entitled to a number of Senators and 
Representatives in the Congress constituting a majority of the whole number of 

(1) 



Members of both Houses of the Congress, such persons shall be elected President 
and Vice President. For the purposes of the preceding sentence, the District of 
Columbia shall be considered to be a State, and to be entitled to a number of 
Senators and Representatives in the Congress equal to the number to which it 
would be entitled if it were a State, but in no event more than the number to 
which the least populous State is entitled. 

"If, after any such election, none of the persons joined as candidates for Presi- 
dent and Vice President is elected pursuant to the preceding paragraph, the 
Congress shall assemble in special session, in such manner as the Congress shall 
prescribe by law, on the thirty-fourth day after the date on which the election 
occurred. The Congress so assembled in special session shall be composed of those 
persons who are qualified to serve as Members of the Senate and the House of 
Representatives for the regular session beginning in the year next following the 
year in which the election occurred. In that special session the Senate and the 
House of Representatives so constituted sitting in joint session, each Member 
having one vote, shall choose immediately, from the two pairs of persons joined 
as candidates for President and Vice President who received the highest numbers 
of votes cast in the election, one such pair by ballot. For that purpose a quorum 
shall consist of three-fourths of the whole number of Senators and Represent- 
atives. The vote of each Member of each House shall be publicly announced and 
recorded. The pair of persons joined as candidates for President and Vice Presi- 
dent receiving the greater number of votes shall be elected President and Vice 
President. Immediately after such choosing, the special session shall be adjourned 
sine die. 

"No business other than the choosing of a President and Vice President shall 
be transacted in any special session in which the Congress is assembled under 
this section. A regular session of the Congress shall be adjourned during the 
period of any such special session, but may be continued after the adjournment 
of such special session. The assembly of the Congress in special session under this 
section shall not affect the term of office for which a Member of the Congress 
theretofore has been elected or appointed, and this section shall not impair the 
powers of any Member of the Congress with respect to any matter other than 
proceedings conducted in special session under this section. 

"Sec. 4. The times, places, and manner of holding such elections and entitle- 
ment to inclusion on the ballot shall be prescribed in each State by the legis- 
lature thereof; but the Congress may at any time by law make or alter such 
regulations. The days for such elections shall be determined by Congress and 
shall be uniform throughout the United States. The Congress shall prescribe 
by law the times, places, and manner in which the results of such elections shall 
be ascertained and declared. No such election shall be held later than the first 
Tuesday after the first Monday in November, and the results thereof shall be 
declared no later than the thirtieth day after the date on which the election 
occurs. 

"Sec. 5. The Congress may by law provide for the case of the death, inability, 
or withdrawal of any candidate for President or Vice President before a Presi- 
dent and Vice President have been elected, and for the case of the death of 
both the President-elect and Vice President-elect. 

"Sec. 6. Sections 1 through 4 of this article shall take effect two years after 
the ratification of this article. 

"Sec. 7. The Congress shall have power to enforce this article by appropriate 
legislation." 

I have a rather lenothy statement which I will put in the record 
at the conclusion of my brief introductory remarks. 

Senator Bayh. Senate Joint Resolution 1, proposing direct popular 
election has been kicking- around for some time. It is an amendment 
which narrowly was defeated on the basis of a filibuster the last time 
it was considered in the Senate, after passing the House by a 339-to- 
70 vote. 

As one who has been a chief proponent of this issue in the Senate, I 
must say that none of us who have joined in proposing direct popular 
election have presented it as a perfect solution to the problems with 
the electoral college. Rather, this is an effort to try to shore up some 
of the obvious weaknesses in an otherwise strong system. It would 



not protect us from instances where imprudent or unwise individuals 
mio^ht try to distort our system, and let me say this has nothing to do 
with the activities that have received so much publicity as a result of the 
last election. 

I am concerned about the need to maximize confidence in our political 
process. I think many people are asking is there a way that I, as one 
citizen, can make my contribution to the political systems. Then he is 
confronted with a system of electing the President that does not even 
allow him the opportunity of a direct vote. 

The time is here where we, who work within the system, can show 
that we have the ability to reform an otherwise good system in order to 
shore up these weaknesses. The people would feel that not only can the 
system reform itself but it can be reformed in such a way that each 
person's vote counts. They can cast their vote directly. And most sig- 
nificantly, we are going to guarantee that the man who is e'ected Presi- 
dent is the man who received the most popular votes. Historically that 
has not always been the case. 

[The above referred to statement follows :] 

Prepared Statement of Senator Bayh 

Today the Subcommittee once again begins hearings on one of the most pressing 
issues facing this Nation — determining the best method of electing the President 
and Vice President. Nothing short of the very best method will suflSce. 

I want to emphasize that point as strongly as I know how. Nothing short of the 
very best method will suflBce. I believe that direct popular election is the very best 
method for selecting the President. It is the only system that is truly democratic, 
truly equitable, and truly responsive to the will of the peop'e. 

Having already been fortunate enough to be a principal in the successful effort 
to secure passage of the Twenty-fifth Amendment, I know that amending the 
Constitution is an awesome responsibility that I do not take lightly. The burden 
in these hearings will be on those of us supporting direct popular election— as it 
rightly should. Certainly, the Congress should approve constitutional amendments 
only when there has been exhaustive study and the need for constitutional change 
has been clearly demonstrated. For more than seven years now we have been 
engaged in this study. Our antiquated electoral college system, where the prospect 
of electing a man who is not the popular choice of the voters is an ever-present 
danger and I believe the need for change is now clear. But more than change, the 
archaic and dangerous method by which we elect our presidents and vice presi- 
dents requires renewal and reform. 

In view of the national consensus on the need to replace the electoral college 
system with direct popular election, I am hopeful that two-thirds of the Senate in 
this 93rd Congress will agree with those of us who already have joined in sponsor- 
ing Senate Joint Resolution 1, that now is the best time to reform — and that 
direct popular election is the best reform. 

"The road to reform in the method of choosing the Presidents and Vice Presi- 
dents of the United States", Arthur Krock wryly commented more than twenty 
years ago, "is littered with the wrecks of previous attempts." The first attempts, 
I might point out, was as long ago as 1816. 

For more than a century and a half, we have recognized the perils of a system 
that leaves the choice of President to a group of independent electors — electors 
whose freedom to disregard the will of the people is presently guaranteed by the 
Constitution. We have recognized the inequities in a scheme that allocates all of a 
State's electoral votes to the candidate who wins a popular vote plurality in that 
State, regardless of whether that plurality is 1 vote or 1 million votes — a scheme 
that is nowhere to be found in the Constitution. We have recognized the grave 
risks that the popular will of the people can easily be thwarted, either by the 
strange arithmetic of the electoral system or by the mischievous deeds of a hand- 
ful of power brokers. 

Having long recognized these obvious inadequacies, we have yet to correct them. 
Why? Because repeatedly in the past we have failed to achieve agreement as to 
the most desirable route to reform. There has always been near unanimous agree- 



ment as to the need for reform, but never before has there been a national con- 
sensus as to what specific type of reform. 

In February, 1966, the American Bar Association established a Special Commis- 
sion on Electoral Reform. The Commission was composed of distinguished political 
scientists, lawyers, legal scholars, public officials and other leaders from every 
section of the country and reflecting various political views. It studied the present 
electoral system and considered all of the various proposals for reform. After an 
extensive ten month study, the Commission concluded that the existing electoral 
system is "archaic, undemocratic, complex, ambiguous, indirect, and dangerous." 

The Bar Association's blue-ribbon Commission further concluded that : 

"While there may be no perfect method of electing a President, we believe that 
direct, nationwide popular vote is the best of all possible methods. It offers the 
most direct and democratic way of electing a President and would more accurately 
reflect the will of the people than any other system." 

In urging the abolition of the present electoral system and replacing it with 
direct popular election, the Commission foreshadowed an emerging national con- 
sensus on the question of electoral reform. 

The Harris and Gallop polls have shown that 78 percent and 81 percent of the 
American people, respectively, favor direct popular election. The extent of this 
feeling, it is important to note, is nationwide — and fairly evenly distributed 
throughout the country. 

For years, one of the arguments often raised against direct popular election 
was that it could not be ratifled by the legislatures of three-fourths of the States. 
In fact, even a few direct popular election supporters, including Senator Estes 
Kefauver and Senator Henry Cabot Lodge, were deterred from pushing it be- 
cause of their doubts as to whether direct election could be ratified. 

In 1966, Senator Quentin Burdick dramatically refuted this argument by poll- 
ing 8,000 State legislators and finding that of the 2,500 respondents, nearly 60 
percent favored direct election. The results, once again, revealed very little varia- 
tion from State to State. More recently. Senator Griffin polled 4,000 legislators 
from the 27 States thought most likely to oppose direct election — and 64 percent 
of those responding endorsed direct election. 

In September, 1969, the House of Representatives reflected this national con- 
sensus by approving a constitutional amendment for direct election by an over- 
whelming 339-70. The people of the United States want reform. They want direct 
popular election of the President. Now is the time for reform. Now is the time for 
direct popular election. 

Mr. Bayh. Protocol would suggest that my distinguished colleague 
from Kansas, Senator Dole, should lead off. If my party chairman, 
Mr. Strauss, will give senatorial courtesy, and I am sure he will insist 
upon it. 

Mr. Strauss. Right. 

Senator Bayh. In discussing this amendment with other members 
of this subcommittee, we felt that we are not going to be successful in 
our whole efforts unless we have the support of the leaders of both 
parties. A major change in the constitutional electoral process effects 
men and women, the great and not-so-great of both parties. I think 
it is most appropriate that we have been able to invite and have the 
acceptance of two men who have and are providing the important in- 
gredients of national political leadership within the party structure. 
This is not an effort of one party to obtain an advantage over another. 
It is an effort on the part of all of us working within the system to 
build a stronger system in which the national chairman of both parties 
can work more effectively. 

I am deeply grateful on behalf of the committee and personally 
for myself to have two such busy men with experience in practical 
politics join us here today to inaugurate our hearings. 

Senator Dole, we are deeply grateful to you. 



STATEMENT OF HON. ROBERT DOLE, A U.S. SENATOR PROM KANSAS 

Senator Dole. First, I want to express my thanks to tlie chairman 
for liis leadership in this area. When I first came to the Congress as 
a ]\Iember of the House I didn't actually see a need for a change and 
held that feeling for maybe 4 or 5 or 6 years. Then some need to change 
our outmoded system began to be apparent, and 3 years ago with Sena- 
tor Eagleton we had an alternative plan. There were many others 
floating around the Senate, none of which were passed. But during 
all of this time I can say very honestly and truthfully that the Senator 
from Indiana, Senator Bayh, has been the leader in this effort. It is a 
bipartisan or nonpartisan eifort. There have been Republicans and 
still are Republicans who worked with the distinguished Senator from 
Indiana and others because as you have indicated, it takes this kind of 
eifort. 

Senator Bayh. If I might just interrupt. I think I should speak on 
behalf of my distinguished colleague, Senator Cook, who, as a Repub- 
lican, has been one of those who has led our eiforts on behalf of direct 
popular election. Unfortunately because of other business he can't be 
here but I want to emphasize the bipartisan nature of this issue. 

Senator Dole. Right. And he is the cosponsor of Senate Joint Reso- 
lution 1. 

But it brings me to the second point, that I think it should demon- 
strate that there are areas where the major parties as well as others 
have wide agreement, and I am very pleased to be at the witness table 
this morning with the chairman of the Democratic National Commit- 
tee, Bob Strauss. I am a past chairman of the Republican National 
Committee, but I don't want this to indicate in any way that the pres- 
ent chairman has any misgivings about direct elections. I am not cer- 
tain what his views may be. 

But as I traveled around the country during my tenure as chairman, 
there was a great deal of interest, and the fact that at least the past 
and present spokesmen of the two major parties are here would indi- 
cate* that this is not a threat to the two-party system which is one 
of the arguments raised. And I would point that out at the outset. 

Now, Mr. Chairman, I have a rather lengthy statement. Much of its 
ground has been plowed many times before, so I would request that 
my full statement be made a part of the record and would like to sum- 
marize very quickly what I think are the highlights and what I be- 
lieve we ought to consider as we look down the road. 

Senator Bayh. Without objection we will ask that Senator Dole's 
statement be put in the record at the conclusion of his remarks as if it 
has been read. 

Senator Dole. As we look toward 1976, 1 can see a real need for some 
action in this area now although I am not trying to predict what may 
happen in 1976. But there may be some real problems in the Republican 
Party and some problems in the Democratic Party. And there remains 
the threat of having to fall back on this archaic present system of the 
electoral college. It seems to me, even though there may not be as much 
obvious interest in this legislation as there was a year or two ago, that 
it is still there and it is something that we can take a look at now. 
With the efforts of the chairman and others in the House, perhaps we 
can arrive at some responsible position before the 1976 election. 



There are a whole number of reasons for reform .They can be cata- 
loged: A person becoming President through operation of the elec- 
toral college even though another candidate receives a greater share 
of the popular vote ; the outcome of the election being distorted or sub- 
verted in the electoral college by individual electors acting in disre- 
gard of the popular vote in their States ; the House and Senate choos- 
ing a President and Vice President from different political parties. 
These are only a few. A number of others can be mentioned, and every- 
body knows about the narrow miss in 1968 when President Nixon re- 
ceived only 43.3 percent of the vote as compared to Vice President 
Humphrey getting 42.6 and Governor Wallace 13.5. 

Was it a landslide or a squeaker ^ Was it a clear mandate or sort of a 
questionable annointment ? 

Well, to the credit of the candidates and the voters, the 1968 results 
were accepted as being conclusive, and President Nixon assumed office 
and launched into his firet term with the legitimacy of his powers and 
authority firmly established in the minds of the American people be- 
cause of the attitude of the candidates and the people. 

Then you raise all the iffy questions. What if there had been a shift 
of votes among the three candidates producing different results in two 
or three States that would have thrown it into the House of Repre- 
sentatives ? 

Senator Bayh. If the Senator will yield a moment, a change of as 
few as 71,000 votes in the right three States in 1968 would have pro- 
duced the kind of situation where neither President Nixon nor Vice 
President Humphrey would have had a majority of the electoral 
college. 

Senator Dole. Right. And I think Governor Wallace made it clear 
at that time what he thought would happen in the event there wasn t 
any — if anyone failed to receive the majority of the electoral votes. 
That should be fresh enough in our minds to compel us to take a look at 
it as Members of the Congress, regardless of party, and that is what 
we are doing today. 

So I look upon the proposal of the Senator from Indiana and the 
Senator from Kentucky, Senator Cook, as one that can be used as a 
proper vehicle, perhaps not a perfect solution. Others may testify that 
there may be some misgivings about this plan. Some still feel we should 
have the runoff provision. But it is simple in its operation, in its con- 
formity with patterns and practices of modern political life and it is 
compatible with the strength and growth of the two-party system. And 
I think the strength of the proposal is that it is direct election. It does 
rely directly on ballots to determine the outcome, and it does, in the 
event of that failure, throw it into the Congress very quickly for 
determination. 

I know I have some questions with reference to section 3 and the 
34-day provision for Congress to decide after the election. With the 
old Congress still in office. Members of the old Congress not leaving 
their seats, and then the newly elected Members coming in and mak- 
ing this decision, I am not certain just how that would work. The 
amendment refers to those newly elected Members of the Senate and 
House as "Members." but in fact, they wouldn't be Members until they 
were sworn in sometime in January. But I am certain that is an area 
that may not be important and if it is, it can be resolved. 



Senator Bath. I think it is an important area and I appreciate your 
focusing on it. I am hopeful that other witnesses will focus on it also. 
As someone who believes in the two-party system, I think the 40 per- 
that it was 50.1 percent before he can win, that just invited somebody 
to go on and proliferate but I think the 40 percent provision prevents 
that and we had only one time in our history, at the time of Lincoln's 
election 39.76 percent, the only time when we got below the 40 percent 
but we need to provide a contingency for that one time. So I appreciate 
your directing your attention to this. I am not wedded to this. I per- 
sonally would rather go the runoff. I have more recently, in fact in the 
latter part of the debate as the Senator from Kansas will remember, I 
was willing to go to a joint session of the House and I think it is impor- 
tant that we work out details so that we do either by constitutional 
amendment or immediately a statute following to implement the 
framework, have it as certain as we possibly can before the votes are 
counted because afterwards a person's reason might be clouded by not 
the merits of the case but the political results. 

Senator Dole. Well, I don't take issue with the proposal. Coming 
to the Congress, the House and the Senate, is a good idea, but I am just 
looking at the practical aspects of having Senators-elect and Members 
of the Congress-elect and still having those replaced in the Congress, 
I am hopeful that it can be resolved. We are going to have the problem 
of all the lameducks who are still around. 

I think much of the reason for the change in my attitude in addition 
to being exposed to national politics, at least national party politics — 
has been the change in the campaign techniques generally, the impact 
of television, for example, direct mail, all the new modern campaign 
techniques that make it so easy for a candidate for national oflGlce to be 
seen and be heard and have his views expressed. 

There was a time when every candidate went to Des Moines, Iowa, or 
somewhere in Minnesota to make his farm speech. And that was always 
a must for any candidate for the Presidency, to go somewhere to make 
the farm speech, somewhere to make the labor speech, somewhere else 
to make some other speech on the economy, but that isn't so neces- 
sary anymore with all the changing techniques and the impact that we 
see because of electronic media. 

But all this by way of showing that a Presidential campaign is much 
more than a matter of where the candidates has been, where he is, and 
where he is going. And the votes he seeks are much more than a matter 
of geographic location, political boundaries, or party registration, for 
by use of electronic and printed media a candidate today can be every- 
where at once or nearly so. And this ability or this requirement I be- 
lieve greatly reduces the impact of the argument that direct election 
would cause smaller States to be ignored and relegated to some sort of 
second-class voter citizenship. 

So I think we could say that with today's modern techniques under 
direct election the voter, the housewife in Syracuse, N.Y., would be no 
more important to the candidate for President than a housewife in 
Syracuse, Kans., and we do have a Syracuse, Kans. It is not quite as 
large as Syracuse, N.Y. 

One of the frequent critciisms of direct election has been that it 
would, in effect, destroy the two-party system. I strongly believe in 



8 

the two-party system. It is one of the major influences for stability in 
America, and order and rationality in our political process. The Dem- 
ocrats and Republicans have been great adversaries over the years 
but the fruits of their struggles over the majority vote in America can 
be measured far more effectively in terms of unity achieved than divi- 
sion wrought in our social fabric and that doesn't mean I would agree 
with Larry O'Brien, or would have, or Bob Strauss now in many areas. 
But I think this is an area where we can find agreement and I believe 
we have a responsibility as leaders of our parties, or as former leaders 
of our parties, in areas where we can work together to do so. That 
doesn't mean we have the same attitudes on every legislative measure, 
on the economy, or whatever the issues may be, but there are certain 
basic areas involving the political process and I believe this is one 
where there should be a strong push by both major parties, because I 
think we have a common interest. 

So I am very pleased to be here and as the chairman has made clear, 
no one is wedded to every line and every word in this proposal. It may 
be changed for the better. There may be compromises. But I think that 
we have, as we look down the road to 1976, not only an obligation but 
a real opportunity with this early start, and I will end as I started, 
in commending the chairman for his efforts. 

Senator Bayh. Thank you very much for taking the time. 

Just one quick question. Do you have any problems with the equity 
of going to a joint session of the House and the Senate if we can make a 
definite procedure on which the Members will make a determination ? 

Senator Dole. I don't have any problem. You know, as a member 
of the minority party now, I can see some practical j^roblems. I could 
see a few problems if the Congress stays as it is if one of the top two 
candidates might be a Republican. But I tliink we have to take a longer 
look than that. There have been some problems raised with reference 
to the 25th amendment on whether or not there should be a caretaker 
Vice President, if that should happen, and other matters that perhaps 
will give you — will cause us to be maybe more specific or delineate even 
more carefully what would happen if it goes to the Congress. But 
that doesn't bother me in the long pull. I think in the short pull it 
might bother some of my colleagues. 

Senator Bayh. I appreciate your approaching this in a very states- 
manlike manner. Considering the mathematics as they now are, we 
have got to take the long view. Of course, I am. sure we will continue to 
have the situation where Congressmen are asked if they would sup- 
port the candidate that carried their district if it looks like it is going 
to be close. This would tend to ameliorate the concern you as a Repub- 
lican leader would have on the mathematics as the situation is now. 

Senator Dole. On national parties, I think the candidate is a 
national candidate and it just seems to me we have got to approach it 
on that basis and work out any problems we have. And I think we 
can do that. There are a number of outstanding political leaders in 
both parties who may have some differences, but I do really believe in 
these areas of politics there is much that can be done to strengthen both 
parties and give both parties more credibility with the American 
people. And certainly if we need anything these days, it is credibility. 

Senator Bayh. Thank you very much, Senator Dole. I appreciate 
your taking time to be with us. 

[Senator Dole's statement in full follows :] 



Statement of Senatob Bob Dole — Hearings on Electoral Reform — Direct 
Popular Election of the President — Subcommittee on Constitutional 
Amendments — September 26. 1973 

Mr. Dole. Mr. Chairman, I appreciate this opportunity to join in the discus- 
sion of electoral reform, an issue which is of profound importance to this coun- 
try. Change in the method and mechanics of electing the President and Vice 
President of the United States is extremely serious business, and it should not be 
undertaken without the most searching investigation and its desirability and 
the prospects for bringing about a significant public benefit. 

At the outset, I would commend you, Senator Bayh, for your record of pursu- 
ing positive reform in this area. The Senator from Indiana is recognized as one 
of the most knowledgeable leaders in this field, and the hearings he has con- 
ducted over the years have added greatly to the dialog over these issues and to 
the public's understanding of them. 

These hearings are in the highest congressional tradition of providing a plat- 
form for the exchange and discussion of the various viewpoints, positions and 
proposals on major issues. And I am pleased to be participating. 

These hearings come at an appropriate moment. Other problems are com- 
manding the attention of Congress and the Nation — the economy, relations be- 
tween Congress and the Executive Branch, national defense and many others. 
These are undoubtedly important, but I believe it is necessary for the Nation 
to look at basic issues before becoming totally absorbed in the resolution of 
others. And I know of no more basic issue than the constitutional process for 
filling the office of President of the United States. 

need for reform 

Let me say, initially, I have felt for some time that the present system of 
choosing a President requires major improvement. It has, of course, seen the 
country through forty-three elections since it was first set in motion by the 
twelfth amendment to the Constitution in 1804. But the fact that it has worked 
so far, does not obscure the haunting prospect that a number of eminently plau- 
sible circumstances could result in the presidential mandate being cast under 
a cloud that would threaten our tradition of orderly succession of power. 

There is a whole catalog of possible election year scripts, and the realization 
of any one of them could result in 1) a person becoming President through 
operation of the electoral college even though another candidate received a 
greater share of the popular vote; 2) the outcome of the election being distorted 
or subverted in the electoral college by individual electors acting in disregard of 
the popular vote in their states; 3) the House and Senate choosing a President 
and "Vice President from different political parties ; 4 ) the House and Senate, vot- 
ing by state delegation, choosing of a President or Vice President in contra- 
vention of the popular vote; or 5) a deadlock in the House or Senate resulting 
either in an inability to fill one or both offices or a massive power struggle which 
would produce serious discontent and division within the country. 

Any one of these eventualities could seriously jeopardize the governing and 
leadership ability of a person chosen to be President. The more bizzare of them 
could plunge the country into paralysis and chaos. None of them can be said to 
be so far-fetched as to be dismissed lightly. 

NARROW miss IN 1968 

As we all know the realization of a few "ifs" in 1968 could have triggered any 
one or more of these crises. Fortunately, we got through, and President Nixon 
was elected carrying 32 states to win by a vote of 301 out of 538 votes in the 
electoral college. But, he received only 43.3% of the popular vote, the remainder 
going 42.6% to Vice President Humphrey and 13.5% to Governor Wallace. 

Was it a landslide or a squeaker, a clear mandate or a questionable anoint- 
ment? 

To the credit of the candidates and the voters, the 1968 results were accepted 
as being conclusive. President Nixon assumed office and launched into his first 
term with the legitimacy of his powers and authority firmly established in the 
minds of the American people. 

But what if ... ? 

The shift of a few votes among the three candidates producing different results 
in two or three states, might have set the stage for an entire range of unprece- 
dented consequences. 



10 

The records of the subcommittee from the testimony of prior years' witnesses 
contain ample illustrations of these contingencies, so I will not go into them 
again today. It is suflBcient to recall that the Nation was only a narrow margin 
away from an unprecedented situation which might have plunged us into real 
danger. 

Like many others in public life and millions of private citizens, the 1968 pres- 
idential contest left me convinced that we could not continue to risk the future 
of this Nation by further reliance on an electoral system so undermined by the 
prospect of uncertainty, unpredictability and instability. 

Many Proposals 

I began looking around at a number of proposals then being discussed as vehi- 
cles for bringing about this needed change. There was the direct election system, 
the proportional system, the district plan, the automatic electoral plan and many 
other variations, combinations and permutations. Each seemed to offer some 
advantages over the present system, but serious drawbacks were also evident. 
In an effort to resolve the many conflicts and inconsistencies between these dif- 
ferent proposals, I joined with Senator Tom Eagleton of Missouri in proposing 
the Federal System Plan. Frankly, I felt it went a long way toward anticipating 
most of the hypothetical situations which could be posed for electoral irregu- 
larities. However, in accomplishing this goal it became so complicated and intri- 
cate that the forest of reform was lost from sight due to the trees. 

When Senate debate on Electoral Reform began in the fall of 1970, I must 
admit suffering a large degree of uncertainty and ambiguity over the entire mat- 
ter. Not being sure enough about any single proposal to feel confident in seeing 
it presented for ratification as a constitutional amendment, I did not support 
passage of any measure during the 91st Congress. 

Support For Direct Election 

The experiences of nearly three years and opportunities for further study, 
however, have lead me to the conclusion that one electoral reform proposal ap- 
pears to meet the need for change and in ways which satisfy the most important 
requirements of our democratic system. This is the direct election plan embodied 
in S.J. Res. 1. This plan has been modified and refined considerably since the 
Senate debated the proposal in the 91st Congress. And, I believe these changes 
have gone a long way toward curing the major points over which I and many 
others had serious reservations. I believe S.J. Res. 1 provides an acceptable ap- 
proach to electoral reform on the basis of three considerations : 

1 ) Its simplicity and certainty of operation, 

2) Its conformity with the patterns and practices of modern political life, and 

3) Its compatibility with the strength and growth of the two party system. 

Confidence In The System 

Direct election is the most straightforward electoral reform measure I have 
seen so far, and I feel this simplicity and the understanding which flows from 
it are absolutely vital to the establishment of public confidence in our electoral 
process. 

This confidence requires a system which will deliver a clear-cut result, with 
the least delay and the minimum opportunity for outside factors to distort the 
will of the people. A proposal which involves a great many conditions, alterna- 
tives, mechanisms, and subtle distinctions would inevitably be tainted with the 
suspicion that somewhere in there among all the "whereas," "howevers," and 
"unlesses'' somebody had concealed a monkey wrench which might be put to 
use at exactly the wrong moment by the wrong person, to upset the workings of 
our democracy. That which is not plainly understood in political life is usually 
distrusted — ^and not without reason. 

The direct election plan avoids these pitfalls of complexity. It is clean, neat 
and out in the open — to the greatest possible extent, consistent with the need 
to have a system which can be relied on to produce a result under the maximum 
number of conceivable circumstances. 

Ballots Determine the Outcome 

It makes the ballots cast by the individual voters the primary determinants of 
any election. 



11 

If any one ticket does not receive a majority the election is still decided by it 
receiving at least a forty percent plurality. And if such a plurality is not received, 
a decision can be reached by the leading ticket carrying enough states to consti- 
tute what we have previously known as an electoral majority. 

Up to this point, the direct vote of the people controls without the interference 
of an electoral college, individual or automatic electoral votes, or any activities of 
the Congress to collect, count, or ratify the results of the election. Everything is 
c'ear. clean and simple — just a matter of counting the people's votes. And if 
future elections follow anywhere near the pattern of the past there is little likeli- 
hood that any method beyond merely tallying the popular vote would ever be 
needed. And even the second step of looking to the strength of the states carried by 
a ticket would rarely if ever be used. 

Congressional Decision 

If, due to highly unusual circumstances, additional steps are required to deter- 
mine the outcome of the election, SJRes 1 turns directly to Congress, thus 
eliminating the runoff election feature of the earlier direct election plan. Meet- 
ing in special session, each newly -elected Congressman and Senator, along with 
each incumbent member of the Senate, casts a vote to choose only between the 
Presidential and Vice Presidential tickets which received the two greatest num- 
bers of popu'ar votes. Unlike the present system, the House and the Senate do not 
separately decide the Presidential and Vice Presidential winners; each Member 
casts a separate vote for an entire ticket, and this action must be accomplished 
within 34 days of the election. Also, unlike the previous direct election plan, no 
chance is provided for a third, minority or splinter party to play a role in this 
final process, because Congress is given only two tickets to choose between. 

Turning to the Congress as the ultimate decision maker may not be the abso- 
lutely best means of resolving an election, but its advantages far outweigh what- 
ever is in second place. Again, it is readily understandable by the people — in con- 
trast to some tortured juggling of congressional districts, proportional percent- 
ages or other gymnastics. Its relatively quick operation is vastly preferable to 
conducting a runoff election in terms of time, expense and certainty of producing 
a result. And the fact that most electoral reform plans eventually arrive at it indi- 
cates a certain consensus that Congress is the most practical and realistic last re- 
sort. 

Modern Election Patterns 

The direct election plan conforms to the established practice, if not the electoral 
college reality, of our modern presidential campaign life. The idea in the minds of 
the candidates — and the voters as well — is to roll up the greatest number of 
votes. Every presidential candidate realizes that the electoral votes are the decid- 
ing factors, but candidates do not campaign for electoral votes. As a practical 
matter they cannot ; they must go after the popular votes. 

I think it is crucial in understanding this aspect of direct election to recognize 
the vast changes which have undertaken presidential campaign practices in the 
last 10 or 15 years. 

Back in the days up through the Truman-Dewey and Eisenhower-Stevenson 
races the physical location of the candidate fairly well defined the scope of the 
campaign. And a candidate literally and personally had to reach the people if he 
wanted to get his message across to them. If Harry Truman whistle-stopped 
through 15 states, he had campaigned in those states. 

When Ike made his famous candidacy announcement in Abilene, Kansas, he got 
his campaign under way there. And it went with him from there on. 

The candidate really was the campaign, and where he went so, too, went the 
campaign. 

Impact of Television 

But even in those days powerful changes were taking place, and that 1951 
Abilene announcement of General Eisenhower's was the first appearance of one of 
the most revolutionary changes — television. It was the first live television cover- 
age of such a political event. And little did those who participated that day appre- 
ciate the impact this new broadcast medium would have on the style and prac- 
tices of presidential campaigning. 

In less than 10 years television had rewritten the rules of the presidential race, 
and Richard Nixon in 1960 will probably be recorded as the last candidate to 
touch all 50 states in the course of a campaign. 



12 

Physical campaigning — at rallies, whistle-stops, parades and county fairs — is 
simply not an efficient means for a candidate to reach more than 200 million 
people with his views, his programs and his ideas. 

This is not to say that a presidential campaign does not require any physical 
effort on the part of a candidate. It still remains probably the most grueling 
and taxing endeavor known to modern man. But physical stamina is not the 
most important attribute in a prospective President. And, to the extent that 
television has freed a presidential candidate from making his campaign an 
odessey for its own sake and thereby gives him a better opportunity to formulate 
well-considered programs and engage in intelligent discussion of the issues, tele- 
vision is a positive element in presidential campaigns. If it has failed to live up 
to its promise or could do better, that is a matter for those of us who pass laws 
or campaign for office or run the networks to deal with. 

And in a recent series of campaign reform laws we have enacted, I believe we 
have done a great deal to make television a more constructive campaign tool. 
Limits have been placed on the amounts candidates can spend on broadcast adver- 
tising and repeal of the equal time provision of the Federal Commimications Act 
will make debates on the issues between major party candidates for all federal 
offices possible. 

But to condemn television out of hand is merely avoiding the facts of life. It 
is with us to stay, and it has fundamentally changed all political campaigning, 
particularly in the presidential area. 

We should also remember that the presidential primary system retains much 
of the old flavor and practice of earlier days. The physical presence of the candi- 
date is much more important in primary states because of the smaller numbers 
of voters and more confined geography involved. So I do not think there is too 
great a likelihood of a purely videotaped, robo-lettered, artificial candidate being 
successfully sold to the voters. 

Direct Mail Communications 

But television is not the only element of change in presidential campaigns. 
Indeed, it has given rise to several unrelated developments, most notably direct 
mail contact with the voters. 

Beginning, I suppose, with the small contributor phenomenon first recognized 
and responded to by the Republican National Committee in the early 1960's, con- 
tact with voters through individual mailings of letters, pamphlets and other infor- 
mation has grown to be one of the most important elements of all campaigns — 
particularly on the presidential level. The effectiveness of this approach to 
making contact with the public was demonstrated by Senator Goldwater's 1964 
campaign. Facing an incumbent President Johnson, with the tragic death of Pres- 
ident Kennedy still a vivid memory in the public mind, the Goldwater Campaign 
was widely regarded as futile from the start. But even in the face of these ob- 
stacles the Republican Party's small contribution program, run chiefly through 
direct mail communications of the candidate's program and proposals, supported 
a full-scale national campaign that closed its books after the November election 
with all its bills paid and money still in the bank. 

Since 1964, direct-mail has been expanded and refined considerably. In 1972 
both the Nixon and McGovern campaigns relied heavily upon it. 

Changed Techniques 

I point to television and direct mail as two examples of the fact that the tech- 
niques for reaching the voters have changed remarkably in the past few years. 
These changes have required presidential campaigners to use both broader and 
finer brushes to touch the voters, but they have given candidates opportunities 
to conduct far better and more informative campaigns than ever before. 

On the far-reaching, general issues the candidate can get his message to count- 
less times more people through one network advertisement, interview program 
or debate than in a month of whistle-stopping or barnstorming. And on the nar- 
rower, more specialized issues a candidate can be much more effective in present- 
ing his views to voters who have a particular or specialized interest. 

No longer does a candidate have to deliver a farm speech when he goes to 
Des Moines or does he have to send only one general letter or position paper to 
every voter. 

His speech in Des Moines can be broadcast nationwide or throughout the region 
and be keyed to any topic which is current. His correspondence can pinpoint 



13 

his views on food prices to suburban housewives, can explain his trade policy pro- 
posals to the workers in selected industries, and can single out Mexican-Amer- 
ican voters to elaborate his views on bilingual education. 

Equal Values of Votes 

All of this is by way of showing that a presidential campaign is much more 
than a matter of where the candidate has been, where he is, and where he is 
going. And the votes he seeks are much more than a matter of geographic loca- 
tion, political boundaries or party registration. For by use of electronic and 
printed media, a candidate today can be everywhere at once — or nearly so. And 
this ability, or this requirement, I believe greatly reduces the impact of the 
argument that direct election would cause smaller States to be ignored and 
relegated to some sort of second-class voter citizenship. To the contrary, I 
believe direct election will give greater equality to all voters. Under this system 
a 42 year-old, suburban housewife with 2.4 children, a high-school diploma and 
a history of supporting environmental causes is just as valuable to a candidate, 
and she can be reached just as effectively, whether she lives in Syracuse, New 
York, or Syracuse, Kensas. 

Under our present electoral system there is a built-in bias to a choice between 
spending a candidate's efforts or funds to reach one or the other of these two 
women. The bias would clearly favor going after the New York Woman's vote 
with the hope of securing her State's 41 electoral votes, rather than pursuing 
her counterpart from Kansas, a State with only 7 electoral votes. 

But under a direct election system each vote would have equal weight, and 
the decision could be made on further information on each housewife and the 
likelihood of winning her vote. 

As the technologies of direct mail communications, public opinion research and 
broadcast campaigning develop, there will be a continuing trend toward treat- 
ing every voter alike, regardless of his State's size or the prevailing political ma- 
jority in his State or precinct. Direct election of the President would be entirely 
in step with this trend, and in my view would strengthen the positions of smaller 
States — such as Kansas — by making the ballots of each of their voters just as 
important and valuable and deserving of pursuit by a candidate as any in Cali- 
fornia, Illinois or Ohio. 

Strong Two-Party System 

Just briefly, I would like to respond to one of the more frequent criticisms of 
direct election. Some have raised the alarm that direct election would under- 
mine the strength and stability of our unique two-party i)olitical system by en- 
couraging the formation and growth of numerous splinter parties with only nar- 
row ideological or geographic appeal. 

At the outset, let me emphasize my unshakable conviction that the two-party 
system as it has developed in America is one of the major influences for sta- 
bility, order and rationality in our political processes. 

Democrats and Republicans have been great adversaries over the years, but 
the fruit.s of their struggles over the majority vote in America can be measured 
far more effectively in terms of unity achieved than division wrought in our social 
fabric. For rather than appealing to opposing poles of thought and practice in 
our society, their major efforts — especially the successful ones — have been di- 
rected toward persuading the greatest number at the center of the spectrum. 
This great tugging and hauling at the central mass of the voting public has been 
aimed at formulating the broadest possible platform appealing to the maximum 
number of voters while alienating the fewest These efforts to stretch the party 
umbrellas and offer something politically for everyone have woven a very strong 
bond of mutual interest and shared concern between the two parties. And they 
have prevented the proliferation of a fanatical party mentality about election 
outcomes. Of course some individual always says "if so-and-so wins, I'm moving 
to Australia." But that commonwealth's immigration statistics will show very 
few four-year surges in American visa applications. 

Basic Agreement 

This is not to minimize the real and valid distinctions to be drawn between the 
two parties, but their mutual dedication to a strong, secure, prosperous and 
equitable society has promoted the development of our unparalleled degree of 
domestic harmony and jwlitical effectiveness. 



25-147 0—74- 



14 

I imagine that anonymous questionnaires filled out by Larry O'Brien and my- 
self at the time we were serving as our parties' national chairmen would have 
disclosed few if any differences in our views on the basic institutions and proces- 
ses of our system. We, of course, disagreed strongly over certain priorities and 
the ways and means of achieving them. But I doubt that Larry and I — or Bob 
Strauss and George Bush — are much more than a hair apart in our belief in and 
support for the fundamental values of this country. And this similarity — admitted 
or not — pervades the majorities of both parties down to the smallest precinct 
committees. 

Our consensus politics, regardless of the formal system for electing the Presi- 
dent, is the most powerful influence against development of third parties. But 
the single-party institution of the presidency, the plurality election of Con- 
gressmen from single member districts, established social patterns, and many 
other legal, economic and traditional influences also support the two-party 
structure. I would point out that S.J. Res. 1, by allowing only the two strongest 
national tickets to be presented to the Congress for ultimate choice, also pro- 
vides additional influence to strengthen the two-party system. 

Valuable Stimulus 

My two years' service as Republican National Chairman only increased my deep 
belief in the value of the two party system. And I would oppose any statutory or 
constitutional change which appeared likely to impair or weaken the strength 
of our two parties. But direct election would not — in my \aew — undermine the 
parties. In fact I feel it would provide them still greater opportunities for their 
consensus-building efforts. It would make a likely voter in a Republican state like 
Kansas just as attractive to the Democrats as one of their died-in-the-wool 
stalwarts in Massachusetts. And it would give the Republicans the same incen- 
tive for going after a likely vote in the District of Columbia as one in Arizona. 

I would look with favor on any stimulus such as this which encourages one 
party to go into the territory — philosophical or geographical — of the other, for 
it cannot help but have a strengthening influence on the entire system. Every 
possible impetus should be provided for Democrats and Republicans to extend 
their missionary efforts to the faithful of their own party, to the heathen un- 
believers of the opposition, or to the great unbaptized mass of independent voters, 
A healthier and more vigorous political climate would follow — to the benefit ol 
the entire nation. 

Conclusion 

So, Mr. Chairman, I would conclude by observing that you have chosen an 
appropriate and fitting moment to renew the quest for electoral reform. The 
next presidential election is three years away, and thus we have an ideal atmos- 
phere to have a rational and studied discussion of these issues. 

The ofiices of President and Vice President are national oflSces. I believe it is 
time to place the electoral process for these oflBces on a national basis also. By so 
doing we will be strengthening the nation by improving the electorial system 
and eliminating a significant source of potential peril for the whole political 
process. Direct election offers real hope of promoting the interest of every Ameri- 
can in seeing that his vote for the highest offices in the laud is equal to that of any 
other citizen, regardless of the size of his state. It also holds the seeds of oppor- 
tunities and incentives for the Republican and Democratic parties to expand 
their efforts to reach the voting population and build broader and more effective 
consensus coalitions to lead our Nation. 

The direct election system of S.J. Res. 1 has undergone constructive change 
since the proposal of 1970 was considered. I believe it should again be presented 
to the full Senate, so it can be examined, criticized, defended and debated. Perhaps 
additional changes will be proposed. Perhaps they will be shown to be desirable. 

But I believe the Senate has a real obligation to deal with these issues now — 
before another presidential election is upon us — and before the crisis of another 
1968-type situation threatens our political institutions again. 

I thank the Chairman for his invitation to participate in these hearings, and I 
look forward to working with him to bring about real and positive reform in our 
electoral system. 

Senator Bayh. Chairman Strauss, I know how busy you are, count- 
ing all that money through Telethon and getting ready to run another 
one equally successful, I hope. Although that is a light comment, let 



15 

me say in all seriousness I do appreciate you taking the time to let us 
have the benefit of your thoughts as the leader of the Democratic Party. 
Let me say for the record, you have been doing an exceptionally credit- 
able job. 

Senator Dole. Let me say that, too. I hope he doesn't do too good a 
job. I have to say he is doing a pretty good job, and if we can share 
in the next Telethon I am sure we can work out some arrangements. 

Senator Bayh. You mean in giving or spending ? 

Senator Dole. No ; we are good givers. 

STATEMENT OF ROBERT STRAUSS, CHAIRMAN, NATIONAL 

DEMOCRATIC PARTY 

Mr. Strauss. Mr. Chairman, between now and the next Telethon, 
if there be a next one, I have several things I had better direct myself to. 
Among those thing-s, I think, is the participation in the continued im- 
provement of the process and certainly the matter that brings us to- 
gether here today is one of those very important and very significant 
items as I view my priorities, and I am, of course, very proud to sit 
here as chairman of the Democratic Party with the very distinguished 
former chairman and present Senator of the Kepublican Party, Senator 
Dole, and appear before you. 

Let me at the outset say, that my statement will be very brief. I 
would like to, in general, associate myself with the remarks of the 
chairman and with the remarks of Senator Dole. Also, let me say, that 
I am very pleased, personally, to be here. 

With respect to the matter at hand, in my judgment, it seems to me, 
that at this point in our Nation's history, with our very constitutional 
institutions under assault as they are, with the average American's 
faith and confidence in his Government at a low point, one of the 
very low points, I think it is the Congress' very serious responsibility 
to take a serious look at some of the fundamental problems that have 
been on the minds of our people and that you hear talked about along 
the streets of the average communities in America. Not the least of 
these problems, I think, is the question of the basic purpose of the 
Electoral College in the 20th century in America. And of the constitu- 
tional amendment to provide for a direct popular election of the 
President. 

I think one of the most serious problems we have is to get more 
people talking about it, get more attention focused upn it, so that 
hopefully, something will take place. I think we have been moving 
in this country, in the courts, and in the State legislatures, and in the 
Democratic Party toward the principle of one man, one vote, and 
equal protection under the law and certainly this goes to the very 
heart of that and the electoral college obviously violates that principle 
on the very simple basis I think when the man and woman in America 
goes to vote, he wants to vote for a President and Vice President 
and he thinks he is doing so. He doesn't understand, nor does he want 
to really understand, the complexity of the Electoral College and its 
indirect form of election. He doesn't really know, nor like, that there 
is something standing between him and the individuals whom he 
thought he was voting for. 

Whatever the reasons were that our Founding Fathers provided 
for the use of the electoral college, and there is no point in my trying 



.16 

to get into that now, I think they rest in the past and we look to the 
fiitvire and without in any way trying to get into the technical aspects 
of the problem, I feel confident that we have the responsibility to 
streamline this constitutional process in a way that lets Americans 
feel that they are speaking equally and directly whether they come 
from small States or large States or whatever their backgrounds. 

I think another fallout, plus fallout, on a peripheral basis, is the fact 
that the average man and woman today is bewildered enough by this 
whole complex Government of ours without another complexity that is 
difficult to explain. 

Let me also say that I have some serious misgivings about the 
ability of the Nation to withstand, without a lot of grief and a lot of 
pain and suffering, a situation in which a man or woman was elected 
President of these United States with less popular votes than his or 
her opponent. It would be a traumatic experience. This isn't 1876 
and I don't think that what appears to be electoral shams will be 
tolerated by the people, whether they be Republicans or Democrats. 

Our Party, in its 1972 platform, endorsed the general thrust of 
this bill and let me quote. It states : "We favor a constitutional change 
to abolish the Electoral College and to give every voter a direct and 
equal vote in Presidential elections. The amendment should provide 
for a runoff election if no candidate receives more than 40 percent 
of the popular vote." 

While I am not married, nor is our party, to the exactness of that 
language or to the exactness and firmness of that approach, I think our 
party, and I as chairman of that party, stand by that statement in our 
platform and c-ertainly by its general thrust. 

I^t me conclude again by saying I am pleased to be here. I commend 
you for what you are doing and I tender to you my assistance as 
chairman in helping dramatize, publicize, and hoiDefully do something 
about the electoral college. 

Thank you, sir. 

Senator Bayh. Thank you very much, Chaii-man Strauss. You and 
Senator Dole by your presence here, have helped dramatize the need 
for reform of our electoral process. 

Let me just add one word before you leave. 

The language in our platform, as you know, is a direct reference to 
Senate Joint Resolution 1 as it was introduced in the last session and 
as it passed the House with the runoff provision supported by Mr. 
McCormack, Mr. Albert, Mr. O'Neill, Mr. Boggs, God rest his soul, 
Mr. Mansfield, Mr. Kennedy, Mr. Byrd, Mr. Long, among others. 

I made the judgment in the latter part of the last session that we 
could pick up a half dozen votes by yielding on the runoff. I would 
prefer the runoff but to me the use of the runoff, hopefully, would never 
occur. I appreciate your bringing out this issue and I am hopeful 
that some of our other expert witnesses can direct their attention to 
whether we are asking for more grief by giving than getting in ex- 
change for additional votes. 

I appreciate your saying you are not wedded to every jot and tittle. 

Mr. Strauss. That is exactly why I made that statement, knowing 
the background. 

Senator Bayh. Thank you very much. I know how busy you are. Bob. 

Mr. Strauss. Thank you very much. 



17 

Senator Bayh. Our next witness this morning is Mrs. Lucy Wilson 
Benson, president of the Leagjue of Women Voters. 

Mrs. Benson, we are very grateful to have you once again lending 
your voice and your talents in this effort to try to reform our consti- 
tutional structure ; I would like to say for the record that one of the 
amazing things ahout the direct popular vote is that it has had very 
strong popular support all the way from 78 percent — Gallup and 
Harris, when they polled the average American. I think most Ameri- 
cans think that is what they have already and this compounds the 
problem. 

Part of this strong citizen support is directly the result of strong 
organizational support from some very sensitive organizations 
throughout the country who are concerned not only about their own 
l>ersonal constituencies but the constituency of the United States of 
America. I don't know of any effort that is before the Congress since 
I have been here that has had the strong blue ribbon organization sup- 
port that this particular amendment has had, and one of the most 
credible blue ribbon organizations to lend its significant influence and 
talents to this effort has been the League of Women Voters. 

It has been my privilege to be associated with various endeavors 
of the league since my first session of the legislature, which was so 
long ago we will not mention the specific date. Let me say that I know 
of no other organization that excels the league in its efforts to find out 
what its membership truly believes. There is a democratic process for 
determining whether an issue should be studied. I think the committee 
and Congress owe their gratitude to Mrs. Benson personally and 
others for making it possible for that particular ingredient of the 
league study process to be abbreviated a bit because of constitutional 
crisis that could have confronted us in the critical nature of this hour, 
but even more important, the way in which the league members 
throughout the country not only answer a questionnaire, or vote yea 
or nay at a meeting but in which these women go to some outstanding 
studies to find out the pluses and the minuses of an issue and then 
vote and then that is relayed onto the national headquarters. I think 
this is an excellent example of the way the democratic process works. 
Hopefully, with the continued influence of the league and others here, 
we can make it work more in that direction. 

So, JVIrs. Benson, here I have already detained you too long by giv- 
ing that background but I wanted the record to show the credibility 
of your testimony as far as any representative of the membership. Too 
many times there are presidents of national organizations that say my 
organization with 10,975,333 members believe thus and so, and all too 
often that thought has been a trickle down instead of a trickle up proc- 
ess. The league is in the finest tradition of the trickle up process. 
I think that is the best example of how democracy works. 

So, with deep appreciation we welcome you once again. 

STATEMENT OF MRS. LUCY WILSON BENSON, PRESIDENT, LEAGUE 

OF WOMEN VOTERS 

Mrs. Benson. Thank you very much, Mr. Chairman. Especially 
thank you for your highly informed remarks about the way in which 
the League of Women Voters operates. We are frequently accused of 



18 

being too slow and dragging our feet. It is very true that sometimes 
we are slow. It takes a great deal of time to give a great many people 
an opportunity to study an issue and make up their minds. 

Mr. Chairman, members of the committee, I am Lucy Wilson Ben- 
son, president of the League of Women Voters of the United States, 
a volunteer citizens' education and political organization of 1,350 
leagues with approximately 150,000 members in the 50 States, the 
District of Columbia, Puerto Eico, and the Virgin Islands. We wel- 
come the opportunity, once again, to state our support for a consti- 
tutional amendment providing for the direct popular election of the 
President and Vice President. 

It is hardly news that we are experiencing a crisis of confidence in 
our governmental institutions today. The credibility gap we heard 
so much about in the Johnson years has become a chasm in the wake 
of Watergate. Scandals, campaign tactics based on the principle of 
the end justifying the means, and excessive secrecy practiced under 
the protective labels of national security or executive privilege have 
outraged and alienated many. In the face of a powerful and often 
remote Government, citizens experience a feeling of political ineffi- 
cacy — a feeling that popular access to elected officials is something of 
an obstacle course and that the voter has little control over, or input 
into, public policy. In these times, the league believes, efforts to democ- 
ratize our procedures for electing a President and Vice President 
assume a heightened sense of urgency. 

The LWVUS supports Senate Joint Resolution 1, because we believe 
that the present system of channeling people's votes for President and 
Vice President through a State-related system of electoral votes is 
archaic and unnecessary. If Presidential electors are merely instru- 
ments of political parties, their function is redundant. If, on the other 
hand, they exercised their independence, they would be an obstacle to 
the popular will as it is expressed at the polls. 

We believe that the present outmoded system should be replaced by 
a method that incorporates the principle of one person, one vote 
through direct popular election. I would like to point out, on the 
side, that though we used to call it one man, one vote, in order to 
come in line with the new thinking, we are now calling it one person, 
one vote. 

Senator Bayh. That finds no objection from the chairman of the 
subcommittee. 

Mrs. Benson. It took us a little while to get used to it, but now we 
notice it when someone says one man, one vote. 

Senator Bayh. I will resist the temptation of calling you Madam 
President. 

Mrs. Benson. For one thing, the President and Vice President are 
the only elected officials with national constituencies, and yet they 
are not elected by their constituents. For another, the present system 
is unsuited to a mobile population whose identities are national rather 
than regional or State oriented. We believe that voter participation 
would be encouraged by a system in which each person's vote in an 
election had the same weight as every other person's vote. 

We also advocate the direct popular election method because it 
would correct serious defects in the present system. The worst defect 
of any system other than direct popular election is the possibility 



19 

that a President and Vice President can be elected who have not re- 
ceived the most popular votes — who are not the choice of the majority 
of the people. Other serious defects eliminated by the direct election 
method supported by the league are the winner-take-all system of 
allocating electoral votes with its attendant injustices, the office of 
elector and the possibility of the "faithless elector." 

Our members have clearly stated their preference for a system of 
direct popular election with a provision for a runoif if neither set of 
candidates receives 40 percent of the popular vote. Senate Joint Reso- 
lution 1 eliminates the runoff provision in favor of a compromise 
procedure originally suggested by Senators Griffin and Tydings : that 
is, election of candidates winning a majority of electoral votes. We 
understand that the computation of votes would be purely mechanical 
since the office of Presidential elector would be abolished. 

We sympathize with your efforts, Mr. Chairman, as you know, to 
replace a controversial provision with one that may increase our 
chances for reforming this important area of electoral law. We are 
not at all certain about the compromise, however. We do prefer the 
runoff provision and we are not necessarily averse to this proposal in 
Senate Joint Resolution 1. We are unequivocably firm in our support 
for direct popular election but we are willing to consider 
a compromise on contingency procedures if such compromise would 
move us toward our primary objective. Our question, of course, about 
the proposed compromise is that it may end up creating the same 
problems that the original system creates. 

At this point I would like to submit to you our members' views on 
some of the objections which have been raised to direct popular elec- 
tion of the President. 

The first objection has to do with the large versus small State 
advantage. Under the electoral college system of electing the President, 
voters residing in large States enjoy advantages over those in medium 
sized or small States. The large number of electoral votes of the big 
States are prime targets of Presidential campaigning. Under a direct 
election system large States will retain their attractiveness for Presi- 
dential campaigning because candidates will continue to campaign 
heavily where voters live in large numbers. But the extra influence 
large States have in the winner-take-all system will disappear. In 
other words, an injustice will be rectified and every vote will count 
as much as every other vote, regardless of location. 

Because small States enjoy, under the electoral college system, the 
advantage of each having two electoral votes corresponding to their 
number of Senators, it has been said that small States would not ratify 
a direct election plan. Actually, since under a direct election plan the 
votes of all citizens across the Nation will have equal effect, residents 
of small States stand to gain. In the 1969 House vote on House Joint 
Resolution 681, Congressmen from six small States favored direct 
election. Six other small-State delegations were evenly di\aded in 
support and opposition and only three small-State delegations opposed 
it. 

As to ratification possibilities, in the summer of 1969 Senator Robert 
Griffin took a poll of almost 4.000 legislators from 27 States of varying 
sizes. Of the legislators responding 64 percent said they favored the di- 
rect election system. Of the 27 States surveyed only Idaho and North 



20 

Dakota were opposed. Thirteen small States approved — Alaska, Dela- 
ware, Hawaii, Maine, Montana, New Hampshire, Nevada, Rhode Is- 
land, South Dakota, Utah, Vermont, and Wyoming. 

Another area is the influence of large States and urban-oriented 
minorities : One of the arguments in favor of retaining the present elec- 
toral college system has been that the disproportionate power it gives 
to large States in Presidential elections counterbalances the influence 
of smaller, less urbanized States in congressional elections and the 
conservative weighting these latter States give to committee chair- 
men. We reject this argument because it is irrelevant in light of recent 
moves toward congressional reform. The Congress itself is seeking a 
more equitable distribution of power in its committee structure. We 
also support that. 

We also reject the argument that the electoral college should be re- 
tained because it increases the influence of urban-oriented minorities. 
We do not think that the votes of the residents of some States should 
have more weight than the votes of residents of other States. We do 
not think that the country should deliberately choose to retain an an- 
tiquated, potentially dangerous system of electing the President on the 
premise that it provides extra clout to urban minority groups and to 
so-called "swing" States. Instead we should be concerned with the jus- 
tice of having the vote of each person in a minority group count 
equally, regardless of whether the voter lives in New York City or 
in a Southern State. 

SPLINTER PARTIES 

Fear is being expressed about splinter parties, that direct election 
would encourage a proliferation of ideological parties, when actually, 
it is the electoral college method that invites third party participation. 
In half of the Presidential elections in this century a third party has 
participated nationally. But only on three occasions have the electors 
of a third party candidate received more than 3.5 percent of the 
popular vote. 

The reasons for our two-party system are many and varied. We 
would submit that electoral procedures do not make or break party 
systems because party systems grow out of the political traditions of 
a nation. For example, the French have been experimenting unsuccess- 
fully with different electoral systems for 100 years in an effort to cut 
down on the number of political parties. It seems to us that the 
strength of the two-party system depends not so much on the electoral 
system but on the ability of each party to i^espond to the needs of the 
people and to offer them candidates who jDresent a meaningful choice. 

Mounting a nationwide Presidential campaign is too expensive an 
undertaking for splinter parties. Besides money, a campaign requires 
an efficiently functioning, nationwide political organization. Even 
when a third party has managed to do this in the past, the percentage 
of popular votes it has been able to win has never reduced the winning 
candidate's percentage to less than 40 except when Abraham Lincoln 
was not on the ballot in 10 States and yet his electors won 39.8 percent 
of the popular vote. 

The League believes that there is no reason to think that, under a 
direct election system, the two-party system would not be strengthened 
rather than weakened. 



21 



FRAUD AND RECOUNTS 



Opponents of direct election point to the possibility of fraud taint- 
ing an entire election and say that recounts will present insurmounta- 
ble difficulties. We do not see why fraud should be more of a problem 
in a direct election system than in an electoral college system. In a 
direct popular election, if fraud occurs, the effect is limited to the 
specific popular votes involved. It cannot have the mushrooming ef- 
fect it may have in an electoral vote framework. 

As to vote counting and recounting, we realize, of course, that time 
can be the problem in a recount situation and that State recount laws 
are slow in functioning and difficult to implement. Therefore, we would 
suggest that the Congress, which we believe has the authority and the 
expertise to do so, consider writing a statute which would assure uni- 
form and prompt count and recount procedures in each State. 

ANOTHER AREA IS UNIFORM VOTING QUALIFICATIONS AND PROCEDURES 

The possibility that uniform voting procedures and qualifications 
might be considered necessary to direct popular election or might re- 
sult from such a system is feared by some people. Such matters as 
registration qualifications are held to be exclusively the prerogatives 
of the individual States. This objection is becoming a debatable point, 
however, as Congress has already established voting age and residence 
requirements for Presidential elections. Could not the Congress enact 
legislation to insure an honest count in a Presidential election and fast 
recounts, if they should become necessary ? 

If indeed, uniform voting procedures and qualifications for Presi- 
dential elections should eventually materialize, the league of Women 
Voters would consider this to be a step forward toward truly repre- 
sentative government for all of the people and we support this 
principle. 

The League of Women Voters of the United States commends you, 
Mr. Chairman, for your continued leadership in Presidential elec- 
tion reform. We hope that the 93d Congress will be credited with en- 
acting this historical change. 

Senator Bayh. Mrs. Benson, I can't express my gratiude any more 
than I have previously. 

When you say that you prefer the runoff but you are not neces- 
sarily adverse to the proposals of Senate Joint Resolution 1, I find 
myself in that same position. Have you or any of your staff paid 
any attention to the possible horror stories that might result from 
the auxiliary proposal that we have provided ? This, of course, is an 
effort to try to say, "All right, we have some Senators who are very 
much concerned about the small State argument." Now, I was con- 
cerned about that not from the equity standpoint but from the prag- 
matic standpoint that if you have all the small States against you, 
there is no way of making any change at all. When we got to break- 
ing it down, as you have found out in your study and as we found out 
in Gallup and Harris we found that we had the support of many 
of the small State Senators : two from Rhode Island, two from Alaska, 
two from Montana, two from Maine, one from Idaho, two from New 
Mexico, two from Kansas, and two from Oklahoma. Nevertheless in 
order to get this measure passed or any measure passed we have to pick 



22 

up a handful of votes from the remaining small State Senators, maybe 
as few as two or three or four. Some of these Senators are concerned 
about the small State argument. They feel, although I do not agree, 
that their State is going to lose influence, and if you really feel that 
way, you ought to say, wait a minute. Our effort is designed to say we 
will have direct popular vote, one man, one vote. However in the event 
we have to go to a contingency, we will then go to a provision which 
gives the exact representation in that decisionmaking process as is now 
contained in the electoral college auxiliary process. 

That is thinking which persuaded me to accept what I feel is a less 
laudatory alternative. 

Now, do you care to expand your thinking on that ? 

Mrs. Benson. Well, I think our thinking is very similar to yours. 
We have not really ever been able to understand why the small States 
seem to think they are going to lose influence. And not being able to 
understand that, we haven't been able to counter it as effectively as it 
needs to be countered and we recognize the opposition which has in 
the past at least arisen to the runoff idea. 

Here again we have difficulty nailing down just what the source of 
this opposition is and why it causes fear because it seems so illogical to 
us. But. in face of the need to bring about this reform, as I said during 
my statement, we are willing to consider this compromise. 

We haven't done any research into possible horror stories. It may be 
that it is a perfectly good compromise and if the committee after its 
deliberations and hearing all the people whom you are going to hear 
from decides that this looks like the best compromise, I feel fairly 
confident we will support it. 

We are principally interested in the direct election. We would prefer 
the runoff but we are highly likely to accept this if this is what you 
come out with in the best of your judgment. 

Senator Bayh. Well, I appreciate your understanding of the quan- 
dary under which we are operating. 

IVtrs. Benson. I think the quandary has now become the main ob- 
stacle and we are anxious to, within reason, and with care, remove that 
obstacle because the major reform to be brought about, that is, the 
direct election, is terribly important. 

Senator Bayh. I think it is only prudent to consider all possible con- 
tingencies o each proposal and, not take the best thing that can hap- 
pen under one proposal and then compare that to the worst that can 
happen under another. 

I appreciate more than I can say your taking the time to be here and 
the tremendous effort that you and your fellow League of Women 
Voters members have made to study this problem. More enlightenment 
will mean more recognition of the downright equity of the proposal. 

The best example I can think of is my distinguished colleague, the 
senior Senator from Oklahoma, Senator Bellmon, who is one of the 
major supporters of the direct popular vote and was a member of the 
bar association study commission that I requested to study electoral 
reform. He was sitting as Governor of one of our least populated 
States, Oklahoma, and he was very concerned that any proposal not 
be passed to the detriment of the small States. He had reservations 
about the direct popular vote because of the masses of large States 
taking over. He explains that this concern evaporated during the study 



23 

group's discussions and he is now a strong advocate and main propo- 
nent of the proposed direct popular vote amendment, I think, shows 
what can happen when you have a chance to view it in historical 
perspective. 

Now, am I not right in my memory that 80 some percent of the 
chapters of the League of Women Voters throughout the country were 
in favor of direct election ? 

Mrs. Benson. It was 88 percent. And in addition to that, not only 
were 88 percent in favor of the direct election, but there was — I think 
there were three local leagues, and I don't know what percent that 
is, three local leagues who opposed it and the rest either had not for 
a variety of reasons been able to undertake the study or simply had 
not finished it, and so did not get their work done in time to be 
counted. There was literally no opposition. 

Senator Bayh. As I recall the very detailed study that you pre- 
sented, the affirmative response, was not the traditional kind of re- 
sponse that one might anticipate when looking at the opposition that 
exists here on the Hill. As I recall, there was strong support for direct 
election in the South and in the small States. Is that accurate ? 

Mrs. Benson. That is correct. There was actually no perceptable 
difference in terms of size of local leagues, geographical distribution, 
or size of community, size, that is, of the local community or State. 
There was no difference across the country. It was a very unified 
reaction. 

This is not unusual in the league. There are rarely strong differences. 
By the time we get finished with the kind of exhaustive study we do, 
regional differences which usually are not based on facts to begin 
with, or differences of size of community, tend to w^ash themselves 
out in discussion and the final decisionmaking process. So it is not 
unusual that we had this uniformity of reaction. It is not even unusual 
that the percentage of the leagues agreeing was so high. I think the 
most unusual thing about it was the amount of interest which it 
engendered in the league and the fact that so many leagues spent so 
much time in the study and in the whole decisionmaking process. 
That was very high, 88 percent. 

Senator Bayh. Thank you very much. I appreciate your taking the 
time to be here. 

Mrs. Benson. You are welcome, Senator. 

Senator Bayh. Our next witness this morning is Prof. Paul Freund 
of the Harvard Law School. Professor Freund has been a long time 
advisor and counselor to this committee on matters of constitutional 
affairs. It is much too short in an appropriate review of his back- 
ground, to say that he is one of the leading constitutional scholars 
in the country. But I think that suffices for the moment, not that he 
needs any introduction before this committee on the matter which now 
is being discussed at some length. The possibility of having a Vice 
Presidential vacancy and the response of this Congress to such a pos- 
sibility in the guise of the 25th amendment, is one area where Professor 
Freund was not only helpful to this committee but was a keystone in 
our study. We appreciate his willingness to give so abundantly of his 
time and his knowledge to again explore this area of direct election 
where he has been one of our leading scholars. 

So, Professor Freund, as they say, the ball is in your court. 



24 

STATEMENT OF PROF. PAUL FREUND, HARVARD LAW SCHOOL, 

CAMBRIDGE, MASS. 

Professor Freund. Thank you, Mr. Chairman. 

Let me say at the outset that it is always a very o;reat satisfaction 
to appear before this subcommittee under your thoughtful and bene- 
volent guidance. I appreciate the opportunity to present my views 
on the subject of reform of the system for electing the President and 
Vice President. 

I should add that while I have been a member of the American Bar 
Association Commission on Electoral College Reform, which has, of 
course, you know fully well, supported direct popular vote, I speak 
in a purely individual capacity. The commission so far as I am aware 
has not met to consider the present version, Senate Joint Resolution 
1, this session. 

The two principle features 

Senator Bayh. May I just interrupt ? I am sure you are familiar, but 
I want to direct your attention to a concern that I have that we not, 
from the standpoint of political expediency, accept a proposal that is 
not as good as another. The time may come, and I think frankly it is 
here, when we are going to have to make some sort of an overture to 
pick up a handful of additional votes. I don't think that is caving in 
unnecessarily, as some might describe it. So I am anxious to have your 
personal expertise relative to the comparative shortcomings of some 
of the procedures that exist in the present Senate Joint Resolution 1. 
So I appreciate your personal presence here. 
Excuse me for interrupting. 

Professor Freuxd. Thank you very much. I have a statement which 
I would be very glad to read before answering questions in any sys- 
tematic w^ay. 

Senator Bayh. That will be fine. 

Professor Freund. The two principal features of the electoral col- 
lege system as conceived by the f ramers were the independence of the 
electors and the contingency election of the President in the House, in 
the event of no majority among the electors, with each State having 
a single vote. The system w^as a product of 18th century distrust of 
the direct popular will, the fear of political parties — "factions" — as 
they were called, confidence in the superior discernment of a few men 
detached from the political arena, and a concession to the equality of 
the States comprising the Union. The so-called electoral college was 
not to be a college at all, since the electors were to meet in their several 
States on the same day, thus precluding combinations and negotia- 
tions — what the framers called consolidations and intrigue. It was 
thought likely, therefore, in the absence of a George Washington, 
that elections of the President and Vice President would have to be 
referred to the House and Senate, respectively, with the electors serv- 
ing as a kind of a nominating body. 

Of course, the emergence of political parties at the beginning of 
the 19th century made the electors an anachronism. They were either 
useless, or, if they were to assert their autonomy, dangerous. Today 
there is no one to do reverence to the two cardinal features of the 
historic system — the "wild card" electors and the separate contingency 
elections in the House and Senate w^ith the unit vote. 



25 

In the election of 1968 we came dangerously close to a constitutional 
crisis that would almost surely have precipitated a constitutional 
amendment, as the assassin's bullets in Dallas sped the adoption of 
amendment 25. Given the 45 electoral votes for Governor Wallace in 
1968, if California's 40 votes had gfone for Senator Huniphrey there 
would have been a deadlock in the electoral vote, no candidate having 
a majority. How the Wallace electors would in fact have voted; 
whether, if they had thrown their votes to one of the major party 
candidates their action would have been set aside by the courts; 
whether it would have been set aside by the two Houses of Congress 
on challenges to the returns; whether, if this had been done and the 
electoral deadlock restored, the House, on a State-by-State basis, 
could have mustered a majority — these are all questions that were 
painfully close to reality 5 years ago and that could be upon us in any 
Presidential election year. 

But the risks and deficiencies inherent in the system go deeper, and 
to these other features I now turn. 

Three times in our history — in 1824, 1876, and 1888, a candidate 
who did not even receive a plurality of the popular vote was never- 
theless elected President — in 1824 through election in the House, in 
the other 2 years through the electoral count. This disparity is always 
a threat, particularly because of the unit count in each State — a system 
akin to the county unit system for the election of the Governor of 
Georgia, which was held unconstitutional by the Supreme Court as a 
denial of equal protection of the laws to those voters who were in a 
minority in a given district and whose votes therefore had no effect 
in the statewide tally. The unit count in Presidential elections is not 
embedded in the the Constitution, but it was adopted in the early 
part of the 19th century by the large States for the sake of augment- 
ing their weight, and was then taken by all States and will not be 
voluntarily relinquished. To eliminate the unit count without 
changing other features of the system would increase the risk that 
no candidate would receive the necessary majority of the electoral 
vote, and thus the highly objectionable contingency election in the 
House, with each State having one vote, would have to be resorted to. 
Thus, in eliminating one undemocratic feature — ^^the unit count in the 
States — we would be substituting an equally undemocratic feature — 
the unit rule in the House. Clearly, any effective reform must be more 
than superficial. 

Senator Bayh. Let me just interrupt here and say that this is the 
first time I have heard that particular aspect stressed and I have been 
struggling with this proposal for a long time. Most of the arguments 
relative to the unit rule have been on the pragmatic basis that the 
largest States aren't going to give u]^ the unit rule, et cetera, et cetera. 
But it is absolutely right, that that increases the chances of prolif- 
eration and of not getting a final result and just reverting to that one- 
State, one-vote situation in the House. 

Those five bells mean I have about 61/2 minutes to get over and vote. 
I will be right back. Sorry to ask you to sit there. 

Professor Freund. That is quite all right. 

[A short recess was taken.] 

Professor Freund. Senator, you mentioned the issue of the unit 
count as one strand in the complex system that we now have. I brought 



26 

it up really because a few years ago, as you may recall, the State of 
Delaware petitioned the Supreme Court in its original jurisdiction 
in a suit against many other States to declare the unit count unconsti- 
tutional. The Supreme Court denied leave to file, without explanation. 

One explanation may have be^n some doubt as to whether the suit 
was authorized properly by the State of Delaware. It was brought 
by the attorney general. There was, I think, no legislative act author- 
izing the suit. Moreover, Delaware itself had the unit rule. 

But my own feeling is that there may have entered into the Supreme 
Court's action the realization that even if the Supreme Court granted 
the prayer ultimately, the remedy would be worse than the disease 
because, as I said in my testimony, it would have left a very greatly 
increased likelihood that elections would be tossed into the House 
where the unit rule would obtain and where the Court would be power- 
less to act because in the House the unit rule is ordained by the Con- 
stitution itself, unlike the unit rule in a State. 

So in thinking about the case, and why leave was denied, it occurred 
to me that any relief possible in the existing state of the Constitution 
would, as I say, have been quixotic, would have been more undemo- 
cratic than at present by magnifying the role of the House in the 
election of the President. 

Senator Bayh. Thank you. 

Professor Freuxd. If it be suggested as a ground for complacency 
that in only 3 of the 47 elections to date has a loser in the popular 
vote emerged as the victor, one might as well boast that of every 15 
planes taking off from the local airport 14 reach their destination 
safely. 

Other features of the present system contribute to the disparity 
between the popular and the electoral vote, and are objectionable on 
their own account both in principle and in their practical side effects. 
These features all revolve about the fact that under the present system 
the weight of an individual's vote depends on where he resides and 
casts his ballot. Even the most full-hearted supporters of our federal- 
ism must surely agree that in voting for President and Vice President 
a citizen's place of residence ought not to determine how his vote is 
weighted and counted. 

The significance of a voter's State of residence is reflected in several 
ways: 

1. The State's electoral vote is determined basically by its popula- 
tion, not at all by the voter turnout. Thus, given two States of equal 
population, where the voter turnout in one is twice that in another, 
their effective electoral votes are nevertheless the same. 

2. This effect is aggravated by the deviation from the population 
base created by the bonus electors reflecting the equality of the States 
in the Senate, and by the bonus to the smallest States reflecting their 
entitlemen to one Representative in the House. 

3. The unit count provides a distortion in favor of the larger States. 
Votes cast for the winning candidate in a State enjoy a large leverage, 
while votes cast for the local loser are counted out without ever reach- 
ing the national scoreboard. 

It might be argued that these are "theoretical" considerations, and 
that so long as the national popular plurality and the electoral ma- 
jority are won by the same candidate, no actual consequences flow 



27 

from these distortions, bonuses, and leverages. To such an argurnent 
there are at least two answers. First, the principle of equal participa- 
tion matters for its own sake, as a symbol of our democracy and as a 
source of satisfaction to the eligible voters. Suppose it could be shown 
that to exclude from the final count the votes of residents of the Dis- 
trict of Columbia or to give double weight to the vote of college pro- 
fessors would almost always make no difierence in the final result; 
would this circumstance make such a system acceptable? 

Second, the distortions in the electoral college system do in fact 
have consequences apart from the risk of a popular loser securing an 
electoral majority. One consequence is a loss of incentive to vote, on 
the part of a member of a minority party in a "safe" State. Another 
effect is the concentration on closely divided States in the conduct 
of elections and the shaping of programs. 

The importance attachecl to the leverage of votes in the large States 
may have had some justification at a time when malapportioned dis- 
tricts produced underrepresentation for urban interests. This idea of 
counterbalancing legislative malapportionment by an opposite bias 
in Presidential elections was at the root of Senator John F. Kennedy's 
opposition to a change in the system. But reapportionment has altered 
the premises of that position. Furthermore, the large States will get 
their fair share of attention simply because of the concentration of 
voters. And urban interests will be well served, and surely more fairly 
reflected in the electoral count, when voters in urban centers in agri- 
cultural States are not erased from the count but can see their votes 
conjoined with those of like-minded voters in urban States. Con- 
versely, agricultural interests in predominantly urban States will like- 
wise be more fairly treated when votes are effective regardless of the 
voters' State of residence. 

The same point can be made regarding group interest generally, 
whether occupational group or ethnic group or otherwise. 

Why, then, has the electoral college system not been reformed? 
Partly the reason lies in the supposed advantages the distortions of 
the system give to one group of States or another. On principle it is 
hard to justify the system in this way, and in actual practice it is hard 
to justify the system in this way, and in actual practice it is hard to 
know Aviiich set of advantages, on balance, predominates. Another 
reason for inertia has been an inability to agree on any one of the 
various substitutes that have been proposed. 

I should like to examine briefly the two principal proposals other 
than the direct popular vote. 

The district system would apply the unit rule to each congressional 
district (with a provision, probably, for two statewide units to be 
added to the total of the winner in the State). Under this system it 
would still be possible for the loser in the national popular vote to 
be elected, and indeed for a popular loser within a State to carry a 
majority of the State's district unit votes. It would introduce new 
disparities by accentuating the importance of contests over congres- 
sional districting; gerrymandering could have an effect far wider 
than the borders of the State itself. Large States would lose the 
leverage of the statewide unit vote, and if there were two at-large 
electors in each State, there would be no offset to the latter advantage. 
In districts regarded as "safe" for one candidate (more numerous 



28 

than "one-party" States), voter turnout would be discouraged in those 
districts. 

The proportionate-count system would retain the basic features of 
the electoral college except the unit count. It would retain the possi- 
bility of the loser in the national popular vote being elected, because 
of the weighting by population figures rather than the actual votes 
cast, and by the effect of the two bonus electoral votes in each State. 
It would retain the advantage of the smaller States without the 
countervailing effect of the unit count. If a majority of the electoral 
vote were still to be required, the chances of the need for a contingency 
election would be greatly increased, since the electoral count would 
more closely approximate the popular vote than at present, and in 
some 14 elections the winner has received less than an absolute major- 
ity of the popular vote. 

Attention has now focused, understandably, on the direct popular 
election. 

Direct popular election would eliminate the risks and distortions 
of the present system and bring the method of Presidential election 
into line with those of our Senators, Representatives, and Governor. 
Since it is not uncommon for the successful Presidential candidate to 
have polled less than 50 percent of the popular vote, provision must 
be made for that contingency. By adopting a minimum of 40 percent. 
Senate Joint Resolution 1 conforms to actual experience. We have 
come to accept as normal a popular plurality of less than 50 but more 
than 40 percent of the vote. Lincoln, to be sure, was elected with 39 
percent or 39.76, as the chairman gave it this morning, of the popu- 
lar vote — his name was not placed on the ballot in several Southern 
States. 

If no candidate receives 40 percent of the vote some form of con- 
tingency election must be provided. Together with the American Bar 
Association commission, I favored a runoff election between the two 
leading candidates. Recognizing that it would be a cumbersome proc- 
ess on the rare occasions when it would be likely to occur, I neverthe- 
less believed that it would be the method most faithful to the spirit 
of direct election and that it would not stimulate the emergence of 
minor parties. I believed that whatever bargaining might occur with 
the major parties would not differ essentially from what occurs now 
in advance of an election to forestall active candidacies, and that in- 
deed the bargaining before a runoff would be more subject to public 
scrutiny and would be moderated by the necessity of not making ex- 
treme concessions to a minor party to gain votes at the expense of 
alienating a larger number of regular voters in the major party. 
Nevertheless, objection to the direct popular vote tended to coalesce 
around the issue of the runoff election, and if that is the remaining 
obstacle, I am prepared to support, an alternative. 

The alternative of a joint session of the newly elected Congress, with 
each iNIember having one vote, appears to be the most satisfactory al- 
ternative. In the event of no candidate having 40 percent of the popu- 
lar vote it would be a strengthening and legitimating step to assure 
the incoming President the support of the Congress. 

Two questions should be considered in connection with this plan for 
a contingency election : Will there be more frequent occasions when no 
candidate polls 40 percent of the vote, and will the proliferation of 



29 

minor parties be stimulated? These questions are obviously inter- 
related. 

If minor parties can look forward simply to an election in the Con- 
gress their leverage would be minimal, for the reason that the two- 
party system is entrenched in the Congress. One foundation for this 
is the single-member congressional districts, which prevent minor 
parties from securing the advantages that would accrue to them from 
proportional representation. Another foundation is the organization 
of the Congress, seniority and committee assignments, which are not 
calculated to foster splinter parties. Thus the safeguards of the two- 
party system would remain, as a check on the bargaining leverage in 
case of a contingency election in the Congress, and as a deterrent to 
the spawning of minor parties. 

There remains to be noticed one proviso of Senate Joint Kesolution 
1, namely, that if no candidate receives 40 percent of the vote but one 
does receive a plurality of popular votes and also a majority of elec- 
toral votes — on a dehumanized, arithmetic basis — that candidate is 
elected. This is, I take it, a "Lincoln proviso," one highly unlikely to 
come into effect and thus not likely to affect the calculations of candi- 
dates or voters. For note that even if a candidate receives a majority 
of the electoral vote and more than 40 percent of the popular vote he 
is not necessarily elected; he must receive a plurality of the popular 
vote. The popular vote thus remains in Senate Joint Resolution 1, the 
effectively controlling factor in the election and thus in the tactics 
of candidates and the calculations of eligible voters. 

I might add one minor comment on the detailed draftsmanship in 
section 5 which provides for the case of death, inability, or with- 
drawal, and provides that the Congress may, by law, provide for such 
cases. 

The term "death, inability, or withdrawal" is used with respect to 
any candidate for President or Vice President before the election, 
but in the case of a postelection tragedy, only death is mentioned. 

It seems to me, since as the chairman said earlier this morning we 
ought to envisage all contingencies, that the same series of events 
ought to be listed in the case of President-elect and Vice-President- 
elect. I am thinking, for example, of withdrawal for one reason or 
another, possibly disabling illness, though not death, of one and death 
of the other, or' indeed if one can face up to ultimate horrors, a case- 
where no quorum is had in the joint session and thus a contingency 
election is aborted. 

Congi-ess ought to be given power to provide for such remote con- 
tingencies after the "election" as well as for the contingency of a 
double death. 

Senator Bayh. I appreciate that comment. I think that is well 
taken. I am scratching my head here trying to figure out how it can 
happen. 

Professor Freund. Yes; three-fourths of the whole number are 
required for a quorum. Perhaps one ought to conceive just for the 
sake of draftsmanship that more than one-fourth of the elected Mem- 
bers refuse to assemble. Could they thereby cause an irremediable 
vacancy in the Office of President and Vice President ? 

Senator Bayh. Yes; I think that is another point well taken. In 
other words, you could have a diselection by one-fourth plus one. 



25-147 O — 74- 



30 

Professor Frfund. Yes; I would hope that the reaction of the 
public would prevent any such display, but after all, all that is done 
jn section 5 is to give Congress the power to provide for such con- 
tingencies and I see no harm in doing it and good reason to make 
the provision. 

Senator Bayh. In the specific instance of where a President dies, 
should wx give the Congress the opportunity, by law, to subvert the 
clear intention of the public vis-a-vis the election of a team, President 
and Vice President? 

Is it not assumed that if the President dies after he is elected, the 
Vice President is going to take his place, and thus the same assump- 
tion could be made of a President-elect and that this is a different, 
situation than prior to the election where a candidate dies. 

Professor Freund. Yes ; but I think we are talking here about the 
death of both the President-elect and Vice-President-elect after the 
election. 

Senator Bayh. That is right. So you confine your attention to the 
death, inability, or withdrawal of both candidates ? 

Professor Freund. xlfter the popular election, yes, and before tak- 
ing office. 

Senator Bayh. After the election ? 

Professor Freund. Yes. 

Senator Bayh. Do you have any suggestion to make relative to 
other details which we should include in a constitutional amendment 
as far as the specific formula for how a new Congress makes this de- 
cision during a time in which the old Congress is technically still 
seated? This was a matter that was brought to our attention this 
morning by Senator Dole. Is this proper groimds for constitutional 
language or should this be legislative language? 

Professor Freund. I would think it should be left to legislation. I 
hadn't really focused on that and I should think it ought not to be 
inflexible given possibly changing procedures in the Congress. It 
seems to me that could be worked out by something less entrenched 
than a constitutional provision. 

Senator Bayh. That is my first reaction, is to try to confine the 
Constitution to the framework, not the shingles and the coat of paint. 

Professor Freund. Yes. "Who sits in whose seat, and so on, I would 
leave to the good sense of Congress. 

Senator Bayh. However, you apparently are not concerned about 
the compromise to go to a joint session of the electoral college? 

Professor Freund. Senator, I would still prefer the runoff but 
witnesses whose judgment I respect have focused on the runoff as the 
serious obstacle to their approval of direct popular vote. They argue, 
if I understand them right, that a runoff in addition to being some- 
what cumbersome, time consuming, and additionally expensive, would 
more importantly, stimulate the worst kind of bargaining for the sup- 
port of losing candidates in the runoff whose position is likely to be 
an extremist position. They envisage splinter parties, one-issue par- 
ties, puristic in their political philosophy. And drawing in some cases 
on their observation of runoff elections in party primaries in certain 
States, they fear that the worst excesses of extremism would predom- 
inate when the two major parties vied for the favor of the extremist 
groups in a runoff, and that this would be extremely harmful for 
obvious reasons if it occurred. 



31 

My own feeling is that analogy to the experience in certain States 
is not a fair analogy because on the national scale a major party to 
begin with has got to be a coalition group and it can't afford by 
catering to the extremist views of a splinter group to alienate a large 
number of its regular members. 

Moreover, we all know that bargaining takes place before a con- 
vention and during a convention in order to keep dissident groups 
in the fold and we know very little about the nature of that bargaining, 
the substance of it. I think we are likely to know" more if it occurs 
at the time of a runoff because there will be a great focus of attention 
on every move that is made. 

So, for these reasons I have not shared the fear that a runoff would 
bring out the worst in our system, meaning weight to the extremist 
elements. I think myself that is exaggerated. Nevertheless, it is the 
judgment of people whom I do respect. 

Now, one has to compare the risks of that system not only with 
the risks of the present system as I have tried to do from the stand- 
point of bargaining and wheeling and dealing but also with the risks 
of a joint congressional contingency election. At that point what 
leverage can the minor parties exert or expect to exert ? 

On the one hand, of course, they are dealing with far fewer people 
and one might say the risk of bargaining is greater. Deals can be 
made for a small number of votes. There doesn't have to be any ex- 
pectation of delivering a great many popular votes which maybe can't 
be delivered in any case. So from that point of view one might say 
there is a greater risk of undesirable dealings in the congressional 
contingency election, but we have to remember that the runoff is be- 
tween the two highest candidates and unless there are a number of 
swing votes in the Congress holding a balance of power between the 
two major parties, it seems to me that splinter parties have veiy little 
leverage. The major parties will determine the outcome. And I see 
no reason to doubt that the two-party system will maintain itself in 
the Congress for the reasons I have indicated. One is the single- 
member districts for the election of the House, which is a unit rule 
on a smaller scale, and that depresses the chances of minor party 
success such as proportional representation would give, plus as I say 
the organization of the Houses of Congress which disfavor, if I under- 
stand the organization, disfavor members not attached to one of the 
two major parties. 

So I would think that the two-party system in the Congress would 
be a safeguard against undue leverage on the part of splinter parties 
at the time of a contingency election. 

As I say, I still prefer the popular vote basically for this reason. 
If one candidate has, say, 38 percent of the popular vote, another 
candidate has 35 percent, and the others are scattered, one doesn't 
know whether the candidate having 38 percent of the popular vote 
would prevail in a two-man race because one doesn't know how the 
minor party votes would be distributed since we don't have a system 
of preferential voting. We would find out, of course, in a two-party 
runoff and the position of the incoming President would I think be 
stronger if he had a majority vote in a popular runoff than if he 
comes into office with a 38 percent popular vote. 



32 

Senator Bayh. Is it fair to say — excuse me for interrupting — 
that perhaps you share my final assessment that it would be much 
better for the the President and for the country to not be propelled 
into that Oval Office with the kind of situation where the popular 
vote remains at 38 percent and a joint session of Congress is at 50.1 
percent, that it would be a stronger position govemmentally but that 
if it is necessary to forgo that, that the joint session of the Congress 
is a sufficient expression of public will and that less than desirable 
or less than the best alternative must be weighed ao^ainst the infre- 
quency of it happening compared to the great good that would be 
accomplished if we are able to take care of that very popular vote 
instance in the first place with the guarantee that we could shore up 
against that possibility ? 

Professor Freund. That puts 

Senator Bayh. Is that the sort of question you are close enough to 
answer ? 

Professor Freund. I think that puts the problem very well from my 
point of view and I entirely go along with you. I don't feel strongly 
enough that the direct popular runoff is a nonnegotiable issue to sac- 
rifice the basic trend, and as you say, one hopes and expects that this 
problem of no one having 40 percent of the popular vote would be a 
very rare one in any case. 

Senator Bayh. Well, thank you very much, Professor. You have 
been very helpful and again I want to say how much I appreciate 
your making this special effort. I am sorry for the delay necessitated 
by the vote but inasmuch as you have been one of those who has 
studied this with a greater degree of particularity than any one else, 
and you have the constitutional background, I think it is very helpful 
to us, me personally, and as well as those who will look at this record 
to see what Professor Freund had to say. I am grateful to you for 
making this effort. 

Professor Freund. I appreciate very much your courtesy and 
patience. 

Senator Bayh. Thank you. 

We will reconvene tomorrow at 10 o'clock. 

[Whereupon, at 12 :20 p.m., the subcommittee was adjourned until 
Thursday, September 27, 1973, at 10 a.m.] 



ELECTORAL REFORM 



THURSDAY, SEPTEMBER 27, 1973 

U.S. Senate, 
Subcommittee on Constitutional Amendments, 

OF THE Committee on the Judiciary, 

Washington., B.C. 

The subcommittee met, pursuant to recess, at 10 :35 a.m., in room 
457, Russell Senate Office Building, Senator Birch Bayh, presiding. 

Present : Senator Bayh. 

Also present: J. William Heckman, Jr., chief counsel, and Abby 
Brezina, chief clerk. 

Senator Bayh. Our first witness this morning is Mr. Robert G. 
Dixon, Assistant Attorney General, Office of Legal Counsel, Depart- 
ment of Justice. He is no stranger to constitutional issues and to this 
committee, and we appreciate, sir, your taking the time to be with 
us this morning. 

STATEMENT OF ROBERT G. DIXON, ASSISTANT ATTORNEY GEN- 
ERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, 
ACCOMPANIED BY NATHAN SIEGEL, ATTORNEY ADVISER, OF- 
FICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE 

Mr. Dixon. Thank you, Senator Bayh. 

I appreciate being here this morning and appearing in a somewhat 
different guise than I have before, as you note, when I testified as a 
professor on this issue maybe as many as four times before the Senate 
Subcommittee on Constitutional Amendments, going way back, I 
think, to 1955 before Senator Kefauver at the outset. 

I am pleased to have the opportunity to appear today to discuss the 
electoral college reform question. It is rather surprising that an insti- 
tution so much criticized, with so many hazardous contingencies, has 
withstood change for so long. 

This subcommittee is to be commended for its dedicated quest for 
the right solutions. 

I might interject the note that I do not propose to go through every 
line of the statement. I will try to reduce it as I go through, and will 
appreciate having the full statement appear in the record in its usual 
form. 

[The prepared statement of Robert G. Dixon follows :] 

Statement of Robert G. Dixon, Jb., Assistant Attorney General, Office of 
Legal Counsel, Before the Subcommittee on Constitutional Amendments 
OF the Senate Judiciary Committee on Direct Popular Election, Senate 
Joint Resolution 1. September 27. 1973 

I am pleased to have the opportunity to appear before this Subcommittee today 
to discuss electoral college reform. It is rather surprising that an institution so 
much criticized, and with so many hazardous contingencies, has withstood change 
for so long. This Subcommittee is to be commended for its dedicated quest for the 
right solutions. 

(33) 



34 

As has been tnie for more than a century, there is today a consensus that the 
electoral college is an anachronism, although we may question the extent to which 
this view is an informed consensus or merely a willingness to embrace conven- 
tional wisdom. The system does have its supporters. Nevertheless, the system can 
be undemocratic in operation, and, moreover, it can thwart the will of the people 
as expressed at the popu'ar election of the President. 

Although a need for electoral college reform is generally accepted, observers 
disagree on the l)est means to correct existing defects without creating even 
more difficult problems. The question before this Subcommittee is whether S.J. 
Res. 1, a proposed amendment to the Constitution, introduced by Senators Bayh 
and Cook, provides viable solutions. 

S.J. Res. 1 embodies the principle, whieh we endorse, of election of the Presi- 
dent by a direct popular election. It qualifies this principle, however, by pro- 
viding that if the successful candidate does not capture at least 40 ijercent of 
the popular vote, two alternate but independent procedures will come into play : 
(1) resort to the electoral college machinery, but without the individual elector, 
and (2) a vote by a joint session of Congress, each member voting individually. 
I will discuss briefly (1) the establishment of the existing system, (2) its 
historical development, (3) its major defects, (4) corrections proposed by S.J. 
Res. 1, (5) objections to tliis proposal, and (6) the question whether S.J. Res. 1 
merits support. 

A. Establishment 

Direct popular election of the President was supported at the Constitutional 
Convention in 1787 by such leading delegates as James Madison of Virginia, 
James Wilson of Pennsylvania, and John Dickinson of Delaware. Madison be- 
lieved that an election of the Chief Executive by popular vote was desirable be- 
cause the people generally could be counted on to perceive and to vote for a 
candidate of character and accomplishment. 1 Madison, Debates on the Federal 
Constitution, 286. 

Other delegates opposed direct popular election. It was said that the people 
would not be adequately informed of the candidates' qualifications ; turmoil and 
confusion would be produced, the smaller States would be deprived of an effective 
voice in the election of a President. Proposals such as election by the Congress or 
by the State legislatures were rejected because it was thought that they would 
deprive the President of independence. 

The compromise that prevailed provided for election of the President by an 
independent body of electors — the electoral college. They would be appointed in 
each State, in such manner as its legislature might direct, to perform that single 
function. It was hoped that distinguished citizens would be chosen as electors and 
that they in turn, free from the stress and excitement of the political campaign, 
could be relied on to select a person well qualified for the office. The Federalist, 
No. 68 (Cooke Ed.), pp. 458-^60. The opposition of the less populous States was 
removed by giving each State two extra electors regardless of its population. The 
independence of the President was to be assured by the transience of the electing 
body. 

B. How the System Developed 

In practice, the electoral college system never operated as the framers antic- 
ipated. Few voters knew or cared who the electors were, and they were seldom 
selected in a manner to inspire confidence as to their judgment. With the rise of 
political parties, electors promptly became mere figureheads, almost invariably 
casting their votes for the party nominee on whose ticket they ran. State laws 
providing for the short ballot and related devices institutionalized this practice. 
The result is the present system, with the people voting directly for the President 
and Vice President, and with all of each State's electoral votes (the "winner-take- 
all" or "unit" system), being cast for the candidate receiving the greatest number 
of the popular vote in that State. The phenomenon of an independent elector is 
today rare. 

Dissatisfaction with the existing electoral college machinery, and support of 
direct popular election plans, commenced early. A constitutional amendment 
introduced in 1826 to provide for the direct election of the President and Vice 
President was the beginning of many such proposals. In his first annual Message 
to the Congress, and reacting to his own defeat in 1824, President Andrew Jackson 
on December 8, 1829, urged adoption of the direct popular election p'an so that no 
President may be elected, "but in pursuance to a fair expression of the will of the 
majority." 2 Richardson, Messages and Papers of the Presidents. 448. 



35 

Although support for the direct popular election plan has been persistent, it 
was believed until recently that the Congress was unlikely to accept it. This plan 
would operate to deprive the small States of the arithmetical advantage they now 
seem to enjoy through the two non-population electoral votes accorded each 
State. Some members of Congress felt, therefore, that there was no alternative 
but to support other plans. Similar pessimism has been expressed by noted 
scholars in the field. See, e.g., Wilmerding, The Electoral College (1958), 96-97; 
Pritchett, The American Constitution (1958), 292. 

This objection is no longer so formidable. Recent polls demonstrate con- 
siderable public support in both small and large States for the direct popular 
election plan. Correspondingly, support has grown in Congress even from those 
members representing small States. 

Indeed, more sophisticated mathematical studies have challenged the proposi- 
tion that the Electoral College favors the smaller States, and suggest that the 
reverse is true — the voters in the more populous States are favored. This analysis 
uses a voting power concept keyed to the frequency with which the delegates 
elected by a given set of voters may prevail, i.e., be the last added members of a 
winning coalition. Under this analysis (treating presidential electors as dele- 
gates), the voters in the larger States, controlling more electors, theoretically 
have greater opportunity to put together a winning coalition. One writer has 
summarized his computations as follows : ^ 

The existing Electoral College system discriminates against voters in the 
small and middle-sized states by giving citizens of the large states an excessive 
amount of voting power. Citizens of states like New York and California have 
over two and one-half times as much chance to affect the election of the Presi- 
dent as residents of some of the smaller states and over three times as much 
chance as citizens of the District of Columbia. . . . Citizens of 32 states and the 
District of Columbia have less than average voting power. 

C. Deficiencies of the Existing System 

The claim is often made that the electoral college system has worked well for 
the most part, because it rarely produces a minority President. It suffers, however, 
from many serious defects. Among these, the more important are the following : 

1. It makes it possible, as just noted, for a President to be elected who has not 
prevailed in the popular vote. On at least three occasions in our history, and 
possibly four, this possibility became a reality. Three successful candidates for 
President — John Quincy Adams, Rutherford B. Hayes, and Benjamin Harrison — 
clearly received fewer popular votes in the election than their opponents. To these 
three, a fourth, John F. Kennedy, is now addeti by many scholars because the 
Alabama Democratic vote, instead of having been divided between Kennedy and 
Harry Byrd was counted twice in the national totals — once for Kennedy and once 
for Byrd. Sayre and Parris, Voting for President (1970), 37, n. 11; Longley and 
Braun, The Politics of Electoral College Reform (1972), 5-6; Pierce, The Peoples 
President (1968), 103-104. 

2. If no candidate receives a majority of the electoral vote, the unjust and un- 
democratic nature of the system is aggravated. In such an instance, the Constitu- 
tion provides that the President shall be elected by the House of Representatives 
with each State delegation voting as a unit. Each delegation thus has one vote 
and the election is decided by a majority of the States. The result is that States 
with a small population have the same voting power as States with a large 
population. 

The possibility that the present system may operate to throw an election into 
the House of Representatives is real. Such a contingent election occurred in the 
1800 election after the Jefferson-Burr deadlock ; and it occurred again in the 1824 
election when John Quincy Adams took office. Besides these two presidential elec- 
tions, it has been observed that "a number of others — including those of 1836, 1856, 
1860, 1892, 1948, 1960 and 1968— could have been thrown into the House by only 
a small shift in the popular vote." Cong. Q. Guide to the Congress of the United 
States (1971), 322. In this contingency, a State with fewer than 100,000 popular 
votes and merely three electoral votes would assert the same weight in the elec- 



i John F. Banzhnf, "One Man, 3. .312 Votes : A Mathematical Analysis of the Electoral 
College," 13 U. Villanova Laic Review 303, 324-32.5 (1968). This type of analysis was 
pioneerfd by Irwin Mann and Al S. Shapley "Values of Larpe Gains — Evaluating the 
Electoral College Exactly," Rand Corporation Memorandum, RM-3158 P R (1962). 



36 

tion of a President as a State which has about eight million popular votes and 
45 electoral votes. Thus, as I observed in a boolv written during my professional 
pursuits, "because Alaskan voters and New York voters each control only one vote 
for President at this stage, the former [Alaska] would exert 74.2 times the voting 
power of the latter [New York] (ratio of the two States' census population."" 
As I pointed out, although the House has not often exercised this function, it can- 
not be denied that "third party presidential candidates, such as that of former 
Alabama Governor George C. Wallace in 1968 always raise this prospect." ^ 

3. In such a contingent election, as described above, there is a strong possibility 
that should a deadlock develop, it could continue beyond inauguration day. be- 
cause an absolute majority of the States is required. As a consequence, the Nation 
could be left without a President. The Acting President would then be the Vice 
President or, if his election in the Senate were also deadlocked, the Speaker of 
the House. Obviously, this is not a satisfactory solution. Moreover, the breaking 
of the deadlock might be accompanied, at least in appearance, with the making 
of "political deals" in exchange for votes. When the House of Representatives 
elected John Quiney Adams to the Presidency in 1825, there was widespread be- 
lief that Heni-y Clay, whose support was vital in that election, agreed to support 
Adams in return for an appointment as Secretary of State.'' 

4. In a contingent election, it would be possible for the House and Senate to 
elect a President and Vice President representing different parties with result- 
ant disharmony. 

5. There is always the possibility that electors may forsake the yoke of custom 
and cast their vote for someone other than the candidate they purport to rep- 
resent. In a close race the constitutional independence of electors is susceptible 
to exploitation and their votes capable of manipulation so as to block the election 
of a major party candidate, and thereby throw the election of the President into 
the House of Representatives. 

Although the "faithless elector" possibility has not yet caused a problem, it 
cannot be ignored. For example, in 1948 a Tennessee elector, running on both the 
Democratic and States Rights tickets, voted for the State Rights candidate even 
though the Democratic candidate had a substantial plurality in the State. In 1960, 
Alabama and Mississippi elected 14 unpledged electors who then voted for a 
person who was not even a Presidential candidate — as did an Oklahoma elector 
who had been elected on the Republican ticket. iYew York Times Election Book- 
let 1964, p. 122. In 1968, a North Carolina elector, elected as a Republican, chose 
to vote for the Wallace-LeMay ticket instead of the Nixon and Agnew ticket. 
When Congress met in joint session on January 6, 1969, to count the electoral 
votes, a number of Senators and Representatives challenged this vote on the 
ground that it was not properly given since the State's voters had chosen elec- 
tors to vote for Nixon and Agnew. After a vote, both Houses refused to sustain 
the challenge. Cong. Q. Guide to the Congress (1971), p. 325. 

6. Finally, the constitutional independence of electors may give rise to another 
acute problem if a candidate for President were to die after the November elec- 
tions but before the electors voted in December, as did Horace Greeley in 1872. 
In such a situation, electors would feel free to vote as they choose. They could 
vote for their party's candidate for Vice President or some other person des- 
ignated by their party; they could vote for someone of their own choosing; or 
they could .scatter their votes among the other candidates, as did most of the 
Horace Greeley electors.^ Nevertheless, regardless of what they did, the fact 
would remain that the selection of a President would be placed in a group of 
individuals who were merely figureheads. Similar confusion would arise if the 
President-elect and the Vice-President-elect both died before taking oflBce. At 
present, the Constitution does not cover such a contingency. 

D. How S.J. Res. 1 would deal with existing deficiencies. 

S.J. Res. 1 goes far toward eliminating the major deficiencies I have just 
described. 

Section 1 would abolish the electoral college and provide for election of the 
President and Vice President by direct, nationwide popular vote. The people of 
every state and the District of Columbia would vote directly for President and 
Vice President. (I will deal with sections 2 and 4 at a later point.) 

2 Dixon, Democratic Representation, Reapportionment in Law and Politics (1968), 570. 

^ Id. 

* Guide to Congress, p. 322 (1971). 

" O'Neil, The American Electoral System (1887), 182. 



37 

Section 3 provides two alternate methods in tlie event that no pair of the 
persons joined as candidates receives at least 40 percent of the popular vote. Un- 
der the first "backstop" provision the slate of candidates with the largest popular 
vote would be elected President and Vice President provided its popular votes are 
so distributed that the slate would have had an electoral college majority under 
the electoral college system. Unlike the situation which now exists, however, a 
state's electoral votes would be cast as a unit automatically on the basis of the 
popular outcome in that State, and the office of presidential elector would be 
abolished. 

The second alternate method would come into play only if no pair of candidates 
were elected either by a direct popular vote plurality of 40 percent or more, or by 
substituting the electoral college-type calculation. Section 3 would then provide 
for immediate election by a vote of the newly-elected Congress assembled in a 
special joint session on the thirty-fourth day after the popular election, with 
each member of the Senate and House casting one vote. Their choice would be 
made from the two pairs of candidates which had received the highest number 
of votes in the popular election. The pair receiving the greater number of con- 
gressional votes would be elected President and Vice President. For this pur- 
pose, a quorum would consist of three-fourths of the whole number of Senators 
and Representatives. 

In summary, S.J. Res. 1 would have these results : 

It would eliminate the following possible hazards : First, election of a candi- 
date who had received fewer popular votes than another candidate ; second, the 
possibility of a contingent election by the House of Representatives ; third, elec- 
tion of a President and Vice President from different parties ; fourth, exploitation 
of the "faithless" elector. 

In addition, the proposal clarifies two areas not now explicitly covered by the 
Constitution. Congress would be authorized by section 5 to provide by legislation 
for the death, inability, or withdrawal of any candidate for President or Vice 
President before a President and Vice President have been elected, and for the 
case of the death of both the President-elect and Vice President-elect. 

In these respects S.J. Res. 1 is similar to H.J. Res. 681, 91st Congress, 1969, 
a proposed constitutional amendment for the direct election of the President and 
Vice President, passed by the House of Representatives. The President sup- 
ported H.J. Res. 681, but the Senate was unable to agree on any one plan and 
did not complete action on the Senate counterpart of H.J. Res. 681. 

The present proposal differs from H.J. Res. 681 in one substantial respect. 
H.J. Res. 681 provided a runoff election between the two top candidates in the 
event no candidate received at least 40 percent of the popular vote. This figure 
was and still is deemed to be a reasonable plurality. At least 15 Presidents have 
been elected, either by the electoral college itself or by the House of Repre- 
sentatives, who did not reecive an absolute majority of popular votes. On the 
other hand, the 40 percent figure is not so high as to result in unnecessary run- 
off elections. Only once has a successful candidate for President received less 
than 40 percent of the popular vote. This happened in 1860, when Lincoln re- 
ceived 39.79 percent of the vote, but at that time his name did not appear on the 
ballot in ten States. 

E. Considerations of Objections to S.J. Res. 1 

Although S.J. Res. 1 has much to commend it, it should be noted that the direct 
popular election concept has been subjected to criticism. 

1. The Concern over Splinter Parties 

One common fear is that a direct popular election system may encourage 
splinter parties and thereby weaken the two-party system. At present, minor 
parties must capture an entire State's electoral vote to have any impact on the 
outcome. Under the direct popular election, it is not the distribution of the 
vote that matters, but only its size. A splinter party under this proposal pos- 
sibly could draw on a substantial following scattered throughout the various 
States. Therefore, there would be little incentive, it is said, to work within the 
framework of a major party. 

At first blush, this objection might appear to be somewhat more plausible 
if S.J. Res. 1 provided for a runoff provision as did H.J. Res. 681. With a runoff, 
it is possible that many candidates would enter the initial race, not necessarily in 
the hope of winning but to maximize their ability to wring concessions from a 



38 

particular candidate as the price for support in the runoff. This technique argu- 
ably would be less effective if the initial popular election, which fails to produce 
for any candidate at least 40 percent of the votes cast, is followed by a procedure 
making the popular vote winner the President provided he also obtains an old- 
style electoral vote majority. In this setting the argument goes, splinter parties 
could have litt e impact on the outcome, and little inducement to operate. 

A fallacy, of course, in associating the danger of splinter parties primarily 
with the run-off election provision is that, historically, most of our third parties 
have been regional parties, with a capacity to carry one or more states, and 
therefore perhaps to deny an electoral college majority to the popular vote front- 
runner. It may be, therefore, the alternative of the electoral college-type cal- 
culation, and not the run-off election alternative, which poses the greater danger 
of splinter parties — if history is a guide. Additionally, in a close election where a 
run-off would be a real possibility voters might be inclined to reject minor can- 
didates in order to vote in the first place for a major candidate with an actual 
chance of election." 

It should also be recalled, as Professor Paul Freunds testimony a few years 
ago noted, that "the two-party system rests also on the political structure of Con- 
gress, which would not be affected." There is, moreover, he stated "the method 
of nominating presidential candidates by convention" which as he said "will 
give importance to diverse State interests and promote accommodations at this 
stage of the electoral process." '' 

So also the Report of the Commission on Electoral College Reform of the 
American Bar Association in 1967 points out that several factors, not the electoral 
college system alone, have worked to produce our two-party system. For exam- 
ple, it is said that "there is general agreement that" — now quoting from the ABA 
Report — "institutionally, the selection of representatives by plurality vote from 
single member districts has strongly encouraged and reenforced the two-party 
structure." The proposal for direct election of the President makes no change 
in this regard. 

2. The Alternate Provision for Election by the Congress Sitting in Joint Session 

A more important objection rests with the alternative provision for election 
of the President if no candidate receives 40% of the popular vote. Thits second 
alternative provides for election by the Congress. 

The Congress has a role at present, as a backstop for the electoral college, but 
the voting rule is the grossly undemocratic one of state equality. Certainly, if any 
reference to Congress is to be retained as we switch to direct popular vote for the 
President, the provision for selection in a joint session of Congress with each 
member voting individually is a vast improvement. S.J. Res. 1 has such a joint 
session provision. 

Arguments for making a reference to Congress, in lieu of some other backstop 
provision such as a run-off election, include the following : that the burden 
would be too great on a candidate for President, after one strenuous campaign, to 
embark shortly thereafter on still another ; that the mechanical burdens of holding 
a run-off election would be onerous ; that the costs of presidential campaigning 
would be greatly increased (but other provisions such as time limitations on the 
run off, public financing, and the like could ease the burden) ; that splinter 
parties would be encouraged (alrealy analyzed above) ; and the irrelevant point 
that there already is the precedent of a joint session of Congress to determine 
presidential inability under the 25th Amendment. 

There are, of course, formidable opposing arguments. It is claimed that 
reference to Congress risks the election of a President who lost the popular 
election and defeats the pristine purpose of S.J. Res. 1, which we favor, namely, 
the election of the President by the popular will. 

Perhaps more significantly, but slighted in most writing I have seen, the 
reference to Congress defeats the core principle of separation of powers. It 
would be — should such references occur frequently — a long step toward the 
parliamentary system. If we ever are to adopt such a system, we should not enter 
by the backdoor. In any event, reference to Congress is likely to place the Presi- 
dent under obligation to those members of the Congress who voted for him. 

As the ABA Report states, "if voting in Congress followed party lines and the 
winner of the popular plurality in the Nation were a member of the minority 
party in Congress, he would lose the election." 

8 Electing the President, A Report of the Commission on Electoral College Reform, 
American Bar Association (Jan. 1907) at p. 10. 

^ Testimony of Paul A. Freund, Harvard Law School, and a member of the American 
Bar Association Commission, Election of a President, Hearings before the Subcommittee 
on Constitutional Amendments. U.S. Senate, 89th Cong., 2d Sess. and &Oth Cong., 1st Sess.. 
May 17, 1967, 369 (referred to hereafter as the 1966-1967 Hearings). 



39 

The nub of the matter may be this. As political scientists know, there is an 
inexact correlation between the direct national will as expressed in voting for 
the Presidency, and the congressional will as filtered through 435 House con- 
stituencies and 50 Senate constituencies (with only one-third of the latter 
being elected every two years). The inexact correlation flows from many factory 
specially affecting congressional elections, these factors may affect a majority 
of the seats, such as safe districts, seniority, and incumbency — all of which tend 
to return familiar faces to Congress. We have little quarrel with this set of cir- 
cumstances so far as Congress as an institution is concerned. There are advan- 
tages in continuity, as well as in turn-over. The point is that from the 
standpoint of separation of powers, from the standpoint of replication of the 
national will, we should hesitate before turning the selection of the President 
over to Congress, even on a contingent basis. 

To be sure, a run-off election has costs, inconveniences, tensions, and uncer- 
tainties of its own. And yet the ABA Report also considered the practical objec- 
tions to a national run-off, and concluded on the basis of its surveys and inquir- 
ies that the run-off technique had worked successfully in various States and in 
foreign countries where used in connection with the direct election of a President. 

On this issue, considerable weight may also be given to the 1970 Majority Re- 
port of the Committee on prior S. J. Res. 1. 

I do not know how these recorded views by the respected ABA Committee in 
their report can be reconciled with the reference to Congress approach six taken 
by S.J. Res. 1. For similar reas(ms, I have considerable reservations about 
.section 5 of S. J. Res. 1 to the extent that it would allow Congress to fill the 
vacuum in the event of death of both winning candidates, viz : "for the case of 
the death of both the President-elect and Vice-President-elect." In such an in- 
stance, the 1967 Report of the Committee on Federal Legislation of the Associa- 
tion of the Bar of the City of New York ( referred to hereafter as the "Bar Associa- 
tion Report of 1967") suggests that "the amendment should provide for a new 
popular election rather than leaving the matter to Congress." " We cannot ignore 
this comment. 

If the primary purpose of the S. J. Res. 1 procedure is to enable the people to 
select their President by direct popular vote — and unless that principle is vindi- 
cated there is little reason to amend the Constitution— the reference to the peo- 
ple should prevail also when both winning candidates die prior to taking oflSce. 

3. Election Regulations and Uniformity of Voting Qualifications 

Section 2 of S.J. Res. 1 would empower the States to establish voter qualifica- 
tions. It would provide in part that the electors of President and Vice President 
shall have the qualifications requisite for electors of the most numerous branch 
of the State legislature. This provision would permit nonuniformity of voter qual- 
ification in a Presidential election." 

The States are further empowered by section 2 to prescribe less restric- 
tive requirements — a provision deemed necessary to prevent invalidation of 
relaxed residence requirements for voting in presidential elections — than are 
already in effect or which may be enacted. Section 2 also grants Congress the 
authority to establish "uniform residence qualifications". In addition, section 4 
of S.J. Res. 1 vests in the State Legislatures authority to prescribe the times, 
places and manner of holding such elections and entitlement to inclusion on the 
ballot, but authorizes the Congress by law to make or alter such regulations. 
Moreover, authority is reserved to the Congress by section 4 to determine the 
day for such elections, which shall be uniform throughout the United States, 
and to prescribe the times, places and manner in which the results of such elec- 
tions shall be ascertained and declared. Accordingly, while the mechanical de- 
tails of providing for a direct popular election are left largely to Congress to 
legislate the States would appear to retain exclusive authority in the crucial 
area of voter qualification and primary authority over residence qualifications. 

Presumably, the theory for this treatment is that the States are unlikely to 
lower age qualifications for a presidential ^lection if it would also result in 
lowering age qualifications for the election of Members of Congress." 

8 1966-67 Hearings, supra, at 552. 

9 Article 1, section 2, of the Constitution has a similar provision for the election of 
Representatives ; the 17th Amendment embodies such a provision for the election of 
Senators; and under Article II, section 1, the States also have broad po.ver "to appoint 
in such manner as the Legislature thereof may direct, a Number of Electors." 

^0 "Senator Bayh. In other words, a Congressman sitting over on the other side of this 
body is going to be very concerned about the detrimental aspect that a lowering of the 
qualification would have on him, more so really than on the President. So this would be a 
safeguard." (1966-1967 Hearings at 395). 



40 

While the exercise of such authority by the States has not created a substan- 
tial problem under the existing electoral college system because the impact of 
such authority is confined to the State's own presidential electors, the situation 
may be entirely different under the direct popular plan. The ABA Report (pp. 
12-13) recommended that Congress be given the reserve power to adopt uniform 
age qualifications, although it was probable that Congress might not have to 
exercise this authority because of the increasing tendency on the part of the 
States to make uniform their voting qualifications. This prediction may be cor- 
rect particularly in view of the fact that the Voting Rights Amendments of 1970, 
as upheld in Oregon v. Mitchell, 404 U.S. 112 (1970. lower the voting age in presi- 
dential elections from 21 to 18. 

Obviously, this is not an area which should be left open to controversy after 
a constitutional amendment is adopted. Nor should there be opportunity for 
affording different States a different weight in a Presidential election through 
the device of adjusting the size of their electorate. Yet such controversy would 
be inevitable under S.J. Res. 1 since section 2 expressly gives the Congress a 
reserve power only with respect to uniform residence qualifications. It could 
reasonably be argued that the failure of .section 5 to provide the Congress with 
corresponding authority regarding uniform age qualifications manifests an in- 
tention to vest such power in the States exclusively. This could be a deficiency 
in the amendment, as bad as, if not perhaps worse than, some of the existing 
deficiencies. 

In the 1966-1967 hearings, Senator Bayh, the Chairman of this Subcommittee, 
asked Profesor Freund whetrer the matter would be remedied if the States were 
given the right to establish election qualification standards identical to stand- 
ards for voting for Members of the most popular branch of Congress. The Chair- 
man stated that "without some safeguard by the Congress, we can envision the 
possibility of the States indulging in a headlong crash to lower the qualifica- 
tions," and he wanted to know if Professor Freund felt that this would be the 
ease under the direct election system. Professor Freund replied as follows : " 

There must, at least, be a reserve power in Congre.-s, it seems to me, lest the 
disparities between the States become glaring, or alternatively, a kind of Gresh- 
am's law sets in so that a State with a markedly lower qualification in age, for 
example, would set the level as a practical matter for all the States. 

I think it is very important that there be at least a reserve power in 
Congress. . . . Professor Kallenbach reiterated this point : 

A clause authorizing Congress to set nationally uniform suffrage standards in 
the matters of local residence and minimum age provides a control, if needed, in 
the event that disparities of too serious a kind in these respects should come to 
exist in the practices of the states.-''^ 

At the very least, therefore, it seems to me that Congress should have the re- 
serve power to make all voting qualifications uniform for presidential elections. 
Even the grant of reserve authority might not suffice, if Congress lacked the 
time to override an enactment by some States to lower the voting age below 18 
for presidential elections, or change other qualifications, such as foreign resi- 
dence. The outcome of a presidential election might well be decided by the action 
of some States reducing voting age from 18 to 16 or 15, or enfranchising citizens 
abroad, even though they are exempt from domestic taxation. The point is 
summed up in my work Democratic Representation, op. fit., supra, p. 571: 

The essence of the direct popular vote idea for the presidency is that we are 
dealing with a national election for a single national oflBce. Each voter has a right 
to expect that he will stand in the exact same relation to this national office 
as any other voter. Such an equal and fair voter status can be achieved only if 
there are uniform standards of voter qualification, uniforndy administered, and 
a nationally safeguarded ballot with a nationally safeguarded fair count . . . 

We understand that the reason for preserving State control over voting quali- 
fications is to avoid alienating the support which some members of the Congress 
might otherwise give to S.J. Res. 1. As it is, there is already a charge that federal 
regulation will be imposed with "rigid uniformity"' if the direct popular election 
plan is adopted. Minority Report on S.J. Res. 1, S. Rept. No. 91-1123, supra, p. 46. 
We appreciate the problems which the Committee faces in obtaining a consensus. 
We have no wish to add to these problems. On the other hand, this is a matter 
that should be clear beyond question and not be left open to judicial construction. 
Above all else, there must be certainty in the outcome of the election of a Presi- 



" 1966-1967 Hearings at 379. 

12 Trt nt .'IRS 



•■ Id., at 388. 



41 

dent in the manner that the Constitution provides. It is essential if the people 
are to have faith in the electoral process, and if the elected President is to have 
their support, that federal regulation, particularly as it involves voter qualifica- 
tion, shall be uniform under the direct popular election plan. 

Conclusion 

In this area, which always seems to move from simplicity to complexity when 
subjected to close scrutiny, one agreed major goal is to avoid the election of a 
minority President. Another goal is — or should be, we feel — to maintain the in- 
dependence of the Presidency. 

As the President said in his Message to Congress of February 24j 1969, "the 
candidate who wins the most popular votes should become President." And yet 
he shared with President Johnson a concern for the spirit of federalism em- 
bodied in our present system of "awarding electoral votes by states," and won- 
dered whether a total abolition of this federalism feature would be acceptable 
to Congress or to the people. 

In seeking a break-through from this apparent impasse the President saw some 
merit iu retaining the electoral vote but proportionalizing it according to the 
popular vote within each state, and using a run-off election if no slate received 
40 percent of the thus proportionalized electoral vote. 

Whether, given the passage of time, widespread sentiment has crystallized in 
favor of the direct popular vote plan so as to make it a realistic first option is 
a matter best judged by Congress. There certainly are logically compelling rea- 
sons for this plan, even though its adoption might radically change our present 
federally-diffused nomination and campaign tactics, and elevate a mass media 
appeal mode to a state-less national constituency. 

If we make the assumption that direct popular election of the President is at 
last an idea whose time has come, the remaining necessary choices center on the 
nature of the contingency devices to specify in the event the leading candidate 
fails to receive a specified popular vote plurality (e.g., 40 percent, or some 
other figure). Although the likelihood of any contingency plan being utilized 
may be statistically remote, the selection should be a matter of principle, ration- 
ally determined. 

On this basis, a contingency option to be avoided is the second S.J. Res. 1 alter- 
native, i.e., the congressional election of the President, for reasons I have al- 
ready given. S.J. Res. 1 itself puts in first position the contingency option of an 
electoral college-type computation of the popular vote. We seriously wonder, at 
this point, why attention should not be given, as the first contingent alternative, 
to the proportional plan of computing the electoral vote, which was considered 
favorably by the President iu the 1969 Message, as noted above. 

If it is the considered judgment of Congress that a runoff election is not feasi- 
ble, despite the American Bar Association Commission's endorsement of it, and 
if congressional election of the President would violate the separation of powers, 
the only viable options left are first, an electoral college-type count, or second 
the proiwrtional plan, both of which would have produced major failures in the 
past. [No one apparently now supports seriously the district plan because of 
the gross distortions which could occur through a winner-take-all factor operat- 
ing in each of the 486 "districts" across the nation — e.g., 435 congressional con- 
stituencies ; 50 state constituencies.] 

Although both the electoral college-type plan and the proportional plan risk 
the election of a minority President, the proportional plan seems statistically 
fairer on its face. We would welcome fresh Subcommittee research on this point. 
We share, we feel, most of the fundamental goals of the Subcommittee, and we 
will try to join in the quest for a viable, principled solution to the problem. 

As has been true for more than a century, there is today a consensus 
that the electoral college is an anachronism, although we may question 
the extent to which this view is an informed consensus or merely a will- 
ingness to embrace conventional wisdom. The system does have its sup- 
porters. Nevertheless, the system can be undemocratic in operation, 
and, moreover, it can thwart the will of the people as expressed at the 
popular election of the President. 

Although a need for electoral college reform is generally accepted, 
observers disagree on the best means to correct existing defects with- 



42 

out creating even more difficult problems. The question before this sub- 
committee IS whether Senate Joint Resolution 1, a proposed amend- 
ment to the Constitution, introduced by Senators Bayli and Cook, 
provides viable solutions. 

Senate Joint Resolution 1 embodies the principle, which we endorse, 
of election of the President by a direct popular election. It qualifies 
the principle, however, by providing that if the successful candidate 
does not capture at least 40 percent of the popular vote, two alternate 
but independent procedures will come into play: (1) resort to the 
electoral college-type calculation, but without the individual elector, 
and (2) a vote by a joint session of Congress, each member voting 
individually. 

My full statement briefly covers the establishment of the existing 
system, its historical development, its major defects, corrections pro- 
posed by Senate Joint Resolution 1, objections to this proposal, and 
the question whether Senate Joint Resolution 1 merits support. 

I propose to substantially omit from my remarks the first two 
aspects of establishment and historical development, except to say this 
much : That regarding the development of the system, dissatisfaction 
with the existing electoral college machinery and support of direct 
popular election plans commenced early. A constitutional amendment 
introduced in 1826 to provide for the direct election of the President 
and Vice President was the beginning of many such proposals. It was 
supported by President Jackson in his first annual message to Con- 
gress, following his election in 1828 after having been defeated in 
1824 in an election where the electoral college system really failed. 

Objections to the direct popular election plan have tended to be 
centered in the concern for the arithmetical advantage which the small 
States might lose in an election under direct popular vote. This objec- 
tion we no longer think is so formidable as it once was. 

Turning now to the deficiencies of the existing system, on page 7 
of my prepared testimony 

Senator Bayh. Of course we will put your entire statement in the 
record. I am presumptuous perhaps to even suggest it, and if I am, 
forgive me. The shortcomings of the system have been brought by you 
and others to this committee on numerous occasions, and we could slip 
on over that and get your critique of the present resolution that is 
before us. 

I think you might want to develop some dialog beyond what is in 
your very well prepared statement regarding your assessment of the 
shortcomings and strengths of the major pro]30sal that is now before 
us, plus any other proposals that I have not yet heard in detail. In the 
past it has not been uncommon to make one or two other suggestions 
that might be preferable to the immediate one before us, and if that is 
the case, I would like to stretch your thinking a little bit on that, or 
have you stretch mine, might be a better way to look at it. 

Mr. Dixon. Mr. Chairman, that would be an excellent suggestion. 
Let me just note before we go directly to page 13 that in the prior sec- 
tion on deficiencies in the existing system, we ticked off about six 
points. 

Senator Bayh. And they are very well taken. 

Mr. Dixon. And I think they do summarize much of the past learn- 
ing in this field, and probably have general support as a summary of 
defects. 



43 

Given the broad consensus that the present electoral college system 
has many defects ; even given agreement on the nature of the defects, 
the next question is how does Senate Joint Resolution 1 deal with these 
deficiencies? 

It does go far toward eliminating the objections and criticisms that 
have been made with regard to the electoral college system. 

Section 1 of the bill would abolish the electoral college and provide 
for election of the President and Vice President by direct nationwide 
popular vote. 

Then section 3 provides two alternate methods in the event no pair 
of the persons joined as candidates receives at least 40 percent of the 
popular vote. Under the first backstop provision if no pair of can- 
didates received 40 percent of popular vote, the slate of candidates 
with the largest popular vote would be elected President and Vice 
President, provided that the slate's popular votes are so distributed 
that the slate would have had an electoral college majority under the 
electoral college system. However, the State's electoral college type 
vote would be cast as a unit, because the electors themselves would 
have been abolished. 

Now, the second alternate method would come into play only if 
no pair of candidates were elected either by direct popular vote 
plurality of 40 percent or more, or by substituting the electoral col- 
lege type calculation. 

Section 3 would then provide for immediate election by a vote of 
the newly elected Congress assembled in a special joint session on the 
34th day after the popular election, with each Member of the Sen- 
ate and House casting one vote. 

In summary, therefore. Senate Joint Resolution 1 would have these 
results. It would eliminate the following possible hazards: First, 
election of a candidate who had received fewer popular votes than an- 
other candidate ; second, the possibility of a contingent election by the 
House of Representatives, which now may occur under our present 
Constitution. It is held under a voting rule of State equality. 

Third, election of a President and Vice President from different 
parties would be avoided ; fourth, exploitation of the faithless elector 
as a possibility would be avoided. 

In addition, the proposal clarifies two areas not now explicitly cov- 
ered by the Constitution. Congress would be authorized by section 5 
to provide by legislation for the death, inability, or withdrawal of 
any candidate for President or Vice President before a President and 
Vice President have been elected, and to provide also for the case of 
the death of both the President-elect and the Vice President-elect. 

In these respects Senate Joint Resolution 1 is similar to the House 
Joint Resolution 681 of the 91st Congress in 1969, a proposed con- 
stitutional amendment for the direct election of the President and 
Vice President passed by the House. The President supported this 
House joint resolution — that number being 681 — the President sup- 
ported House Joint Resolution 681, but the Senate was unable to agree 
on any one plan and did not complete action on the Senate counter- 
part of House Joint Resolution 681. 

Senator Bath. May I interject just one thought here? 

You realize I am sure, because you were very much involved in your 
study at that time, that the parliamentary position which finally ter- 



44 

minated the Senate or the House resolution, as the case may be, was 
a filibuster in which it was necessary to get two-thirds of my col- 
leagues not only to vote on the issue, but to vote on the even more 
sacred matter, the matter of shutting off debate. 

We were able to get rather strong bipartisan support, still do. I guess 
I ask for advice here without any acrimony in my heart at all, because 
I think the difference between getting that filibuster turned off and 
not getting it turned off would have been the enthusiastic support of the 
Executive. And this is a matter that affects the President, the sitting 
President whomever he may be ; and it is always touch and go when 
you have to get two-thirds of the U.S. Senate on a controversial issue, 
as you know very well. 

If you could give me any suggestions as to what I could do to get the 
President of the United States enthusiastic and concerned about show- 
ing the country that we can make a major reform in the system, that 
we can give the people a reality of direct participation in the electoral 
process. 

I just feel in talking to a lot of people that that is probably the num- 
ber one contribution. We could write out all the horror stories, and a 
few of them have come to pass. As you point out, the system has 
managed to keep from running us off into dead ends most of the time, 
but right now I think there is a real need for the average citizen to 
feel that some of us here in Washington are really concerned about him 
or her, and that we want to revise this system so that there is a more ac- 
tive role for him or her to play in the system. 

Now, I just bring that up because you mentioned the situation we got 
into last time. And the President, as you pointed out, did support this 
amendment after it passed the House. He did have two other sugges- 
tions prior to that time. 

But considering the kinds of influence that the President can use — 
I do not mean just this President, but any President — and has used 
in legislative issues of other dimensions that I have been involved in, 
we just did not feel that influence. 

So I think it merits more Presidential attention than it has had in the 
past. 

But you are sitting down there now. If you have any way that you 
could do it, or if you can tell me what we might do, I would appreciate 
your suggestions. We have representatives here today from the Ameri- 
can Bar Association and the UAW. We had the League of Women 
Voters here yesterday. We have had the Chamber of Commerce in the 
past. 

You are familiar with the great consensus, as you very accurately de- 
scribe it, of support for this. Is there any way that consensus and the 
fact that it represents a lot of very concerned citizens and very dedi- 
cated citizens, is there any way we can increase the chance of that kind 
of interest being felt down there ? 

Mr. Dixon. Mr. Chairman, of course only the President can give the 
ultimate response to that question ; but I think it might be observed 
that we have a continued interest in the matter. I am speaking here 
for the Department of Justice. But the Office of Management and 
Budget has seen the testimony and has no objection to it. 

We also, I might add, are involved in the Department of Justice in a 
larger ongoing study group on election reform in the broadest concept. 
So we have it in an active posture, not a passive posture. 



45 

Senator Bayii. Well, perhaps private conversation is a better way 
to discuss this. I just brought it out. I really am a little bit reassured 
to hear that the Office of Management and Budget has all that con- 
stitutional expertise, and is willing to endorse the statement from the 
man who knows more about constitutional law than probably every- 
body they have got working down there. 

]Vir. Dixon. Well, thank you very much, Mr. Chairman. I will take 
that word back to the right 

Senator Bayh. Maybe you had just as well not. 

Mr. Dixon. The present proposal, Senate Joint Resolution 1, differs 
from the 1969 bill in one substantial respect. The 1969 bill. House 
Joint Resolution 681, provided for a runoff election between the top 
two candidates in the event no candidate received at least 40 percent 
of the popular vote. This figure was and still is deemed to be a reason- 
able plurality. At least 15 Presidents have been elected either by the 
electoral college itself or by the House of Representatives who did not 
receive an absolute majority of the popular vote. 

On the other hand, the 40 percent figure is not so high as to result 
in unnecessary runoff elections or other fallback contingent devices. 
Only once has a successful candidate for President received less than 
40 percent of the popular vote. This happened in 1860 when Lincoln 
received 39.79 percent of the vote ; but at this time his name did not 
appear on the ballot in 10 States. 

Let me turn now to a consideration of objections which may surface 
in regard to Senate Joint Resolution 1. 

It has much to commend it, but it should be noted that the direct 
popular election concept has been subjected to criticism over the years 
from a variety of sources well known to this subcommittee. 

One common fear is that a direct popular election system may en- 
courage splinter parties and thereby weaken the two-party system. 
At present, minor parties must capture an entire State's electoral vote 
to have any impact on the outcome. To do that they have to run first 
in the popular election in that State. 

Under the direct popular election system, it is not the distribution 
of the vote that matters, but only its size. A splinter party under this 
proposal possibly could draw on a substantial following scattered 
throughout the various States. Therefore, there would be little incen- 
tive, it is said, for such persons to work within the framework of a 
major part.v. 

At first blush this objection might appear to be somewhat more 
plausible if Senate Joint Resolution 1 provided for a runoff' position, 
as did the 1969 bill. With a runoff it is possible that many candidates 
would enter the initial race not necessarily in hope of winning, but 
to maximize their ability to wring concessions from a particular 
candidate as the price for support in the runoff. 

This technique arguably would be less effective if the initial popular 
election, which fails to produce for any candidate at least 40 percent 
of the votes cast, is followed by a procedure making the popular vote 
winner the President, provided he also obtains an old-style electoral 
college majority. In this setting the argument goes, splinter parties 
could have little impact on the outcome and little inducement to 
operate. 



25-147 0—74- 



46 

A fallacy, of course, in associating the danger of splinter parties 
primarily with the runoff election provision is that, historically, most 
of our third parties have been regional parties, with a capacity to 
carry one or more States, and therefore perhaps to deny an electoral 
college majority to the popular vote frontrunner. It may be, there- 
fore, the alternative of the electoral college type calculation, and not 
the runoff election alternative, which poses the greater danger of 
splinter parties, if history is a guide. 

Additionally, in a close election where a runoff would be a real pos- 
sibility, voters might be inclined to reject minor candidates in order 
to vote in the first place for a major candidate with an actual chance 
of election. 

It should also be recalled, as Prof. Paul Freund's testimony a few 
years ago noted, that "the two-party system rests also on the political 
structure of Congress, which would not be affected." There is, more- 
over, he stated "the method of nominating Presidential candidates by 
convention" which, as he said, "will give importance to diverse State 
interests and promote accommodations at this stage of the electoral 
process." 

So also the report of the Commission on Electoral College Eeform 
of the American Bar Association in 1967 points out that several fac- 
tors, not the electoral college system alone, have worked to produce 
our two-party system. For example, it is said that "there is general 
agreement that," now quoting from the ABA report, "institutionally, 
the selection of representatives by plurality vote from single member 
districts has strongly encouraged and reinforced the two-party struc- 
ture." The proposal for direct election of the President makes no 
change in this regard. 

I turn now to the alternate provision for election by the Congress 
sitting in joint session. An important objection arises from this alter- 
nate provision for election of the President if no candidate receives 
40 percent of the popular vote. I speak now of the second alternate 
provision of election by Congress, which we get to only if the candi- 
date does not have a 40 percent popular plurality and does not have 
an electoral college-type plurality under the terms of Senate Joint 
Resolution 1. 

Turning to this second backstop, so to speak, of election by Con- 
gress provided in Senate Joint Resolution 1, we note that the Congress 
does have a role under the present Constitution as a backstop for the 
electoral college, but the voting rule is the grossly undemocratic one 
of State equality. 

Certainlj^, if any reference to Congress is going to be retained as we 
switch to direct popular vote for the President, a provision for selec- 
tion in a joint session of Congress with each Member voting individ- 
ually is a vast improvement over the State equality formula. Senate 
Joint Resolution 1 does have such a joint session provision. 

Senator Bayh. May I interrupt just a moment? 

Is it fair to say that you and most constitutional authorities would 
concur that one of the major ingredients of any Presidential election 
system would be to increase the possibility of the choice being made by 
the people at the ballot box ; and conversely, to decrease the possibility 
of having to use whatever contingency plan might be recommended ? 

Is that a rather fundamental ingredient? 



47 

Mr, Dixon. I believe that is a fair statement, because to put it in the 
larger context of a general agreement, we should not have a minority 
President. The only ultimate foolproof guarantee of avoiding a minor- 
ity President is direct popular vote, and a rule that the plurality 
winner becomes President. 

Of course, there are additionally, els we know, discussions about the 
relation of the election of our President to the so-called federal system 
imperatives, and it is these that have been the hangup for a long 
while, as we work on the kind of backstop provision which should be 
associated with an initial direct popular- vote formula. 

Senator Bayh. I appreciate your bringing out the contingencies 
there, and I just confess that at the time we were searching for some- 
thing that would be acceptable, that would get us the necessary two- 
thirds, without doing irreparable damage. 

As I reflect on it now, I think perhaps I would rather have a con- 
tingency that was even more certain than the either/or double-barrel 
program; but there were a couple of our brethren that could be 
persuaded that the double-barrel approach was preferable. 

I am anxious for certainty. Whenever you have confusion in the 
choice of the President, you have to think about a slide rule approach 
to certain events. I think that tends to erode the confidence, and I think 
again you need to shore up confidence now. 

I am a little bit concerned about that double-barrel approach in my 
plan here, or our plan. Which would you prefer — just a straight refer- 
ral to the joint session, or are you comfortable with the dual approach 
as it is now ? 

Mr. DixoN. We recognize that the 1969 bill had in it as its first 
alternative a runoff provision, or indeed, the only provision; if you 
have a runoff election, that is all you need. 

Senator Bayh. I would prefer that, but frankly, that is hard to fly. 

Mr. Dixon. Again, there is a mutual concern for what kind of a 
provision can muster the necessary two-thirds vote in both Houses, 
avoid a filibuster, and engender support in three- fourths of the State 
legislatures. And therefore, the runoff provision is not in Senate Joint 
Resolution 1, we note, perhaps because of a considered political 
judgment. 

We do have a problem with this second backstop provision with 
reference to Congress, because it does seem to us to pose the danger of 
undercutting our very basic separation of powers concept. And I have 
explained that in just the next two paragraphs here. Perhaps it is 
an appropriate point to circle back to it. 

Senator Bayh. Get those in, and then I want to concur with 
your critique there; but then I am going to ask you, so be prepared, 
is that any worse than the contingency we have now, which also goes 
to that same violation? 

Go ahead. 

Mr. Dixon. Regarding what we have now in the 12th amendment, I 
have already stated that if we are going to have reference to Con- 
gress — good, bad, or indifferent, if we are going to have it, then most 
certainly the vote should be by joint session and not merely by the 
lower House following a principle of State equality. I have stated that. 

But the "if" clause goes to the original question, should there be 
reference to Congress in the first place as part of our backstop pro- 



48 

visions, regardless of the nature of the vote taken in the Congress, 
regardless of what formula. 

Here we have difficulties. There are, of course, several arguments 
in favor of going to Congress. I summarize these at the bottom of 
page 20. It would avoid a runojff election. It said the burden would be 
too great on a Presidential candidate, after one strenuous campaign, 
to embark on another one shortly. The mechanical burdens would be 
enormous ; and the cost of Presidential campaigning would be greatly 
increased. 

However, other provisions such as a time restriction on the runoff 
period, or public financing, or the like could ease that burden. 

It is also said — I think I disposed of this before, about splinter 
parties — splinter parties would be encouraged. 

Let me turn to the opposing arguments, against making any ref- 
erence to Congress, whether under a State equality formula as now, 
or under the much improved formula of Senate Joint Resolution 1 
of a joint session-type vote. 

Opposing arguments are the following : It is claimed that reference 
to Congress risks the election of a President who has lost the popular 
election and defeats likewise the pristine purpose of Senate Joint 
Resolution 1, which we favor in principle, namely, the election of the 
President by the popular will. 

Perhaps more important, but slighted in most of the writing I 
have seen, is that reference to Congress defeats the core principle of 
separation of powers. It would be — should such references occur 
frequently — a long step toward the parliamentary system. If we ever 
are to adopt such a system, we should not enter by the backdoor. In any 
event, reference to Congress is likely to place the President under 
obligation to those Membere of Congress who voted for him. 

This, as you may recall, is one of the reasons the framers rejected 
the idea of having the Congress elect the President. 

As the ABA report states, "if voting in Congress followed party 
lines and the winner of the popular plurality in the Nation were a 
member of the minority party in Congress, he would lose the election." 

The nub of the matter may be this. As political scientists know, 
there is an inexact correlation between the direct national will as 
expressed in voting for the Presidency, and the congressional will as 
filtered through 435 House constituencies and 50 Senate constituencies, 
with only one-third of the latter being elected every 2 years. 

The inexact correlation flows from many factors specially affecting 
congressional elections — these factors may affect a majority of the 
seats — such as safe districts, seniority, and incumbency, all of which 
tend to return familiar faces to Congress. 

We have little quarrel with this set of circiunstances so far as Con- 
gress as an institution is concerned. There are advantages in continu- 
ity, as well as in turnover. The point is that from the standpoint of 
separation of powers, from the standpoint of replication of the na- 
tional will, we should hesitate before turning the selection of the Pres- 
ident over to Congress, even on a contingent basis. 

To be sure, a runoff election has costs, inconveniences, tensions, and 
uncertainties of its own. And, yet, the ABA report also considered the 
practical objections to a national nmoff, and concluded on the basis 
of its surveys and inquiries that the runoff technique had worked sue- 



49 

cessfully in various States and also in foreiofii countries when used in 
connection with the direct election of a President. 

On this issue, considerable weig'ht may also be gn^ven to the 1970 
majority report of the committee on prior Senate Joint Resolution 1 
in 1970. 

I do not loiow how these recorded views by the respected ABA 
committee in theii* report can be reconciled with the reference to Con- 
gress approach in the present version of Senate Joint Resolution 1. 

For similar reasons, I have reservations about, section 5 of Senate 
Joint Resolution 1, to the extent that section 5 would allow Congress 
to fill the vacuum in the event of death of both winning candidates; 
namely, to provide for the case of the death of both the President-elect 
and Vice-President-elect. 

In such an instance, the 1967 report of the committee on Federal 
legislation of the association of the bar of the city of New York sug- 
gests that "the amendment should provide for a new popular election 
rather than leaving the matter to Congress." We cannot ignore this 
comment. 

So, in summary on that line of thought, we have great reservations 
about congressional election of a President, even at the backstop level, 
because the term would last for 4 years, and it would be a sharp 
departure from the present tradition of giving the President a con- 
stituency and a power base wholly apart from the constituency and 
power base of the Congress. 

Lastly, in my comments on the bill, let me turn to that part of the 
bill which deals with election regulations and uniformity of voting 
qualifications. 

Section 2 of Senate Joint Resolution 1 would empower the States 
to establish voter qualifications and would provide, in part, that the 
electors of the President or the Vice President should have the qualifi- 
cations requisite of the electoi-s of the most numerous branch of the 
State legislature. This provision would permit disuniformity of voter 
qualifications in a Presidential election. 

"While the mechanical details of providing for direct popular election 
are left largely for Congress to legislate, the States would appear 
to retain exclusive authority in the ci-ucial area of voter qualifications, 
and primary authority over residence qualifications. 

If I read section 2 correctly, while the exercise of such authority 
by the States has not created a substantial problem under the existing 
electoral college system because the impact of such authority is con- 
fined to the State's own Presidential electors, the situation might be 
entirely different under the direct popular plan. 

The ABA report recommended that Congress be given reserve 
power to adopt uniform age qualifications. Obviously, this is an area 
which should not be left open to controversy after a constitutional 
amendment is adopted, nor should there be opportunity for affording 
different States a different weight in a Presidential election through 
the device of adjusting the size of the electorate. 

On this point, in the 1966-67 hearings, Mr. Chairman, as you recall, 
you asked Professor Freund if the matter would be remedied if the 
States were given the right to establish election qualification standards 
identical to standards for voting for members of the most popular 
branch of Congress. 



50 

You stated that "'without some safe^juard bv the Couirress, we can 
envision the possibility of the States indulofin^ in a lieadlon^ crash 
to lower the qualifications.'' Your concern led to your question to 
Professor Freund whether he felt this would be the case under the 
direct popular election system. 

Senator Bayh. May I just interject to that ? 

Mr. Dixon. Yes. 

Senator Bayh. That was of concern of others who had, I thought, 
set up rather specious arguments as to all the horror- stories, you 
know. One State would lower the voting age to 16 so that they would 
have more impact on the electoral process. Of course, that has pretty ^ 
well been laid to rest now with the 26th amendment. 

Mr. Dixon. Yes ; at least down to 18. 

Senator Bayh. Excuse me for interrupting. 

Mr. Dixon. I realize it is often only the chairman that can propound 
the questions on all the relevant points that arise. 

The real point is that Prof. Paul Freund did say in this context 
that he thought that at least a reserve power in Congress was essential. 
And at that hearing Professor Kallenbach agreed. 

At the very least, therefore, it seems to me that Congress should 
have the reserve power to make all voting qualifications uniform for 
Presidential elections. Even the grant of reserve authority might not 
suffice if Congress lacked the time to override an enactment by some 
States to low^er the voting age below 18 for Presidential elections, or to 
change other qualifications such as foreign residence. 

The outcome of a Presidential election might well be decided by the 
action of some States in reducing the voting age from 18 to 17 or 
lower, or enfranchising citizens aJbroad on a broader basis than at 
present, even though such citizens are exempt from domestic taxation. 

To digress for a moment on this point, I became aware recently of 
two bills now pending elsewhere in the Senate, S. 2384 and S. 2102. 
One of my deputies, Ms. Mary Lawton, is now testifying on these 
two bills before Senator PelPs subcommittee. And the point is that 
these bills are very, very broad in their concept of congressional power 
to override State residence qualifications and make them uniform. 
These bills are designed to extend voting rights in Federal elections, 
congressional as well as Presidential, to citizens residing or domiciled 
outside of the United States, notwithstanding any State or local laws 
requiring residence or domicile as a condition for voting in congres- 
sional elections. 

Senator Bayh. I would like to interrupt you a moment. This is a 
very critical vote, and I am going to have to go over and vote. 

Mr. Dixon. I would be pleased to wait here for your return, if you 
wish. 

Senator Bayh. I will return as quickly as I can, and I am sorry to 
take this much of your time. I know how busy you are, but I have two 
hats this morning. 

I will be right back, 

Mr. Dixon. I would say this is priority business, not knowing even 
the subject. 

[A brief recess was taken.] 

Senator Bayh. We will reconvene, if we may. 

I apologize. We had two votes instead of one. 



51 

Please proceed, Mr. Dixon. 

Mr. Dixon. Mr. Chairman, at the time of our intermission I was 
discussing the question of the desirability of national control over 
A'oting qualifications and other matters if there were to l^e a direct 
popular vote system for President. 

I recognize that in the past some persons have felt that such national 
control either was not needed, or if added to the proposed amendment 
would cost some support because of States' rights feelings and that 
kind of thing. And I took a digression to point out that a very 
advanced view of national power to override States' control of voting 
is embodied in the two bills, S. 2884 and S. 2102, now before the Senate 
Subcommittee on Privileges and Elections ; and on which we — ^that is, 
the Office of Legal Counsel, Department of Justice— have testified 
this very morning; that being handled by my deputy, Ms. Mary 
Lawton. 

These two bills express, as I said, a very strong view^point on congres- 
sional power to override State laws. They would go so far as to over- 
ride all State residence qualifications without exception and allow citi- 
zens, American citizens abroad, to vote in all Federal elections. 

My point is that if such bills as these can be seriously considered^ — 
and our position on these is they do pose serious constitutional problems 
under existing case law — then we perhaps should not boggle quite so 
much about adding to a direct popular vote amendment a broad con- 
gressional power to make uniform qualifications and provide the 
needed oversight. 

I can summarize this whole point perhaps simply by quoting a few 
lines from a book I wrote a few years ago and cited in the full testi- 
mony— "Democratic Representation" is the main title — as follows : 

The essence of the direct popular vote idea for the Presidency is that we are 
dealing with a national election for a single national oflBce. Each voter has a right 
to expect that he will stand in the exact same re'ation to this national office as 
any other voters. Such an equal and fair voter status can be achieved only if there 
are uniform standards of voter qualification, uniformly administered, and a 
nationally safeguarded ballot with a nationally safeguarded fair count. . . . 

Let me turn now to our overall conclusion in this area, which always 
seems to move from simplicity to complexity when subjected to close 
scrutiny. 

One agreed major goal is to avoid the election of a minority Presi- 
dent. Another goal is, or should be, we feel, to maintain the independ- 
ence of the presidency. 

As the President said in his message to Congress of February 24. 
1969, "The candidate who wins the most popular votes should become 
President.-' And yet, he shared with President Johnson a concern for 
the spirit of federalism embodied in our pi'esent system of awarding 
electoral votes by States, and wondered whether a total abolition of 
this federation feature would be acceptable to Congress or to the people. 

In seeking a breakthrough from this apparent impasse, the President 
saw some merit in retaining the electoral vote but proportionalizing it 
according to the popular vote within each State, and using a runoff 
election if no slate received 40 percent of the thus proportionalized 
electoral vote. 

"\^niether, given the passage of time, widespread sentiment has crys- 
tallized in favor of the direct popular vote plan so as to make it a 
realistic first option is a matter best judged by Congress. There cer- 



52 

tainly are logically compelling reasons for this plan, even though its 
adoption might radically change our present federally diffused nomi- 
nation and campaign tactics, and elevate a mass media appeal made to 
a stateless national constituency. 

If we make the assumption that direct popular election of the Presi- 
dent is at last an idea whose time has come, the remaining necessary 
choices center on the nature of the contingency devices to specify in the 
event the leading candidate fails to receive a specified popular vote 
plurality such as 40 percent or some other figure. Although the likeli- 
hood of any contingency plan being utilized may be statistically remote, 
the selection should be a matter of principle, rationally determined. 

On this basis, a contingency option to be avoided is the second Sen- 
ate Joint Resolution 1 alternative, namely, the congressional election 
of the President, for reasons I have already given. Senate Joint Reso- 
lution 1 itself puts in first position the contingency option of an elec- 
toral college-type computation of the popular vote. 

We seriously wonder, at this point, why attention should not be 
given, as the first contingent alternative, to the proportional plan of 
computing the electoral vote, which was considered favorably by the 
President in his 1969 message, as noted above. 

If it is the considered judgment of Congress that a runoff election is 
not feasible, despite the American Bar Association Commission's en- 
dorsement of it, and if congressional election of the President would 
violate the separation of powers, the only viable options left are first, 
an electoral college-type count, or, two, the proportional plan, both 
of which would have produced major failures in the past. 

No one apparently now supports seriously the district plan because 
the district plan would provide gross distortions through a winner- 
take-all factor operating in each of the 486 districts across the 
Nation, namely the 435 congressional constituencies and the 50 
State constituencies. 

Although both the electoral college-type plan and the proportional 
plan risk the election of a minority President, the proportional plan 
seems fairer on its face. We would welcome fresh subcommittee re- 
search on this point. 

We do share, we feel, most of the fundamental goals of the subcom- 
mittee, and will try to join in the quest for a viable principled solution 
to the problem. 

Thank you, Mr. Chainnan. 

Senator Bayh. Thank you very much, Mr. Assistant Attorney Gen- 
eral. I appreciate your taking the time, and I hope we can continue to 
be in communication personally and at the staff level to get your input 
as we move toward perfecting the amendment, and as we go through 
the legislative process, perhaps to deal with the more pragmatic ques- 
tion of how we can use your influence and your boss' influence and his 
boss' influence, and that may be as far as we go in the scheme of things, 
to stress the importance of this to some who may not otherwise be 
persuaded at this moment. 

Mr. Dixon. I do wish to assure you, Mr. Chairman, that there is a 
deep concern for this matter in the'Department of Justice ; and we do 
hope that we can proceed to discuss knotty issues and, as vou say, work 
out the pragmatics which may be so important to success in the long 



run. 



53 

Senator Bayh. Thank you very much. 

Mr. Dixon. Thank you. 

Senator Bayh. Our next witness this morning is Mr. Stephen I. 
Schlossberg, general counsel of the United Auto Workers. He is accom- 
panied by Jack Beidler. 

Mr. Schlossberg. Good morning, Mr. Chairman. 

Senator Bayh. We appreciate your being with us, and Mr. Beidler. 

For the record, I will state again that the Ignited Auto Workers haA^e 
been one of those very sensitive organizations which has gone to some 
length to study this problem and has lent its not inconsidered weight 
to try to get something done about it. 

We appreciate your being with us to again bring your expert testi- 
mony to bear on the problem. 

STATEMENT BY STEPHEN I. SCHLOSSBERG, GENERAL COUNSEL, 
UNITED AUTO WORKERS, ACCOMPANIED BY JACK BEIDLER 

Mr. Schlossberg. Thank you, ]Mr. Chairman. 

We are extremely thankful to have the opportunity to be here at 
these hearings and to give whatever input we can, and to express the 
gratitude of President Woodcock and the members of our organiza- 
tion for the valiant fight that you have conducted over these many 
years to try to reform the method of electing a President and a Vice 
President. 

If it is satisfactory, Mr. Chairman, I would like to submit my state- 
ment for the record in its entirety and then speak to you informally 
about some of the matters that are contained in it. 

Senator Bayh. Without objection, we will place the entire statement 
in the record as if it has been read. 

[The prepared statement of Stephen I. Schlossberg follows :] 

UAW Statement on S.J. Resolution 1 to the Subcommittee on Constitutional 
Amendments of the Senate Judiciary Committee 

Mr. Chairman, my name is Steplien I. Schlossberg. I am General Counsel of 
the International Union. United Automobile, Aerospace. Agricultural Implement 
Workers of America (UAW), and I testify in its behalf. Former UAW President, 
Walter Reuther was a member of the ABA Commission on Electoral College Re- 
form and he was vitally interested in the direct election of the President. 
Walter Reuther was convinced that the amendment of the Constitution to accom- 
plish the democratic purpose embodied in S..T. 1 would improve the character 
and quality of American democracy. President Leonard AVoodcock and the other 
leaders of the UAW, carrying on the same tradition, feel keenly the need for this 
amendment. Successive UAW^ Conventions have gone on record on this vital issue. 
The 1972 UAW Convention unanimously passed the following resolution : 

America in the 20th century still elects its President as it did in the ISth 
century. Through the anachronistic machinery of the Electoral College the 
people of America are not permitted to vote directly for the President and 
Vice President and. instead, are compelled to vote for nameless and faceless 
electors who, in recent years, have at times been so callous as to cast their 
vote in the Electoral College for a candidate other than the one to wliich 
they were pledged. Moreover, when there is no majority in the Electoral 
College, the election of the President and Vice President is thrown into the 
House of Representatives with each state having one vote so that the one- 
man, one-vote principle is made a hollow mockery. 

Resolved : The UAW urges the direct election of the President by public 
vote. The Electoral College should be abolished and the vote of every in- 
dividual should count the same. A runoff election should be held only if no 
candidate gets as much as 40% of the total votes cast. We support tlie vali- 



54 

ant efforts of Senator Birch Bayh to amend the Constitution to permit the 
people to elect their President. 

The UAW is the largest industrial union in the world. We represent approxi- 
mately a million and a half workers and their families. Our members are con- 
centrated mainly in the automobile, aerospace, and agricultural implement in- 
dustries. Taken together with their wives and children, UAW represents more 
than 41/^ million persons throughout the United States and Canada. These work- 
ers are organized into some 1400 local, self-governing unions. The UAW does 
much more than bargain for its members. It is active in civic affairs and citizen- 
ship and legislative activities, conducts schools and camps for active members, 
and drop-in centers for retired members. We are by mandate of our constitution 
and tradition deeply involved in the larger issues of the quality of life and the 
improvement of democratic institutions. 

We are grateful for the opi)ortunity to express our views on this resolution. . 
We state here the UAW's support for an amendment which would abolish the 
electoral college system of electing the President and Vice President and substi- 
tute for it a direct election by the people. We urge, further, that the amendment 
should provide that if a candidate receives a greater number of popular votes 
than others, but does not receive at least 40% of the vote, there would be a 
popular runoff between the two leading candidates, or, in the alternative, but 
we think, less desirable, the election would go directly to a joint session of the 
Senate and the House, with each member casting one vote for President and 
Vice President. 

The UAW's interest in electoral college reform is a logical one that springs 
directly from the basic principle on which the UAW was founded and on which 
it has always operated. That is the principle of equality of individuals, equality 
of economic opportunity, equality of educational opportunity, equality of social 
opportunity, and equality of political participation. It was to secure a greater 
measure of equality and equity for the working people of this country that the 
UAW came into existence. The UAW has never subscribed to the narrow phi- 
losophy that says that a labor union's only function is to secure higher wages 
for its members. Our Officers and members believe that a union's interests ^o 
far beyond the shop. Indeed, no one can accuse the UAW of having taken a paro- 
chial point of view on any major public issue. We are interested in every im- 
portant aspect of national life. While it is important to secure a decent wage to 
make a worker a first-class citizen, the UAW has, from its inception, recognized 
the importance of participation in the total society. There are many things that 
workers cannot achieve for themselves at a bargaining table or on a picket line. 
Some of those things, dealing with the quality of a society, can only be achieved 
through the election of executive and legislative representatives responsive to 
the needs and desires of their constituents, who can create the legal framework 
of an equitable, just society. To this end the UAW has, for many years, main- 
tained an extensive group of programs to educate its members to be intelligent, 
informed members of the electorate and to ensure that they exercise their right 
to vote. 

Your consideration of this amendment is timely. It comes at a time when 
startling revelations of the misuse of the political process is still fresh in the 
public mind. The great danger to the democratic process is that the people 
will become so disillusioned with Watergate, dirty tricks, criminal violations 
by those in high places and the cynical manipulation of the election process 
that they will simply drop out and leave politics to the "bad guys." If you can 
succeed with this Resolution, you will have started the process to bring presi- 
dential elections to the people. Such a movement is not only desirable, but is 
essential. In the aftermath of Watergate and its related crimes, we need to 
do everything possible to strengthen public confidence in our democratic system. 
Considering the potential for mischief in the outmoded institution of the Elec- 
toral College, it should be replaced with a simple, direct system not susceptible 
to manipulation. There is abroad now a feeling that contributors are more 
important than voters. This amendment can help to reverse that attitude. Now 
is the time for us to promise every voter that hi.<< vote will count and that all 
voters will be treated equally regardless of where they live. 

The proposed amendment involves the basic principle of equality — of the 
right of every citizen of age to vote and have his vote count exactly the same as 
that of every other voter. This is, of course, the theoretical basis of the one-man. 
one-vote decisions that the courts have handed down. The logic and morality 
of those decisions is inescapable. And if the principle is right and important 
in the election of state legislators, surely it is just as right and just as important 



55 

in the election of tlie two executives of our country— officials who represent the 
constituency of all Americans — all equal participants, by constitutional mandate, 
in the political process. That this constituency wants its collective voice heard 
more directly, by abolition of the Electral College and substitution of direct 
election has been made manifestly clear in the public opinion polls. 

Tlie many weaknesses and dangers inherent in the present Electoral College 
mechanism have been discussed before this subcommittee on this as well as 
previous occasions. However, it is worth noting some of these weaknesses, the 
ways in which they frustrate the democratic prwess, and the reasons why we 
feel that Senate Joint Resolution 1 provides a solution to the problems. 

First, and most striking, is the possibility, allowed by the Electoral College 
system, that a candidate with fewer popular votes than a rival will be elected 
President. A President with a minority of votes is sworn in and the choice of 
most voters is ignored. When this occurs, and it has occurred in our history, 
the basic principle of our democratic republic — majority rule — is negated. That 
the direct election mechanism, which would give victory to that candidate 
receiving the largest number of popular votes and at least 40% of the vote, is 
the most forthright, foolproof answer to this problem is .so apparent as to need 
no elaboration. 

Second, in that the Electoral College system gives all of a state's electoral votes 
to the candidate receiving the majority of the popular votes cast in the state, it, 
in effect, cancels all of the other candidates' votes. It is this cancellation of votes, 
of course, that allows a candidate with a minority of votes to win. Perhaps, just 
as important, the unit rule discourages voting by those certain that they will be in 
the minority in their state. It is undeniable that some states have strong tradi- 
tions of voting for a single party's candidates. In these cases, citizens who favor 
the minority party candidate, often fail to vote because they know their vote 
will be meaningless. Again, direct voting is the surest, simplest answer to the 
problem. 

Third, there is the possibility of presidential electors voting against the na- 
tional candidates of their party. This is perhaps, the most anti-democratic poten- 
tiality of the present system, and may become a reality in two ways. First, the 
laws of some states permit the election of a state of unpledged electors if they 
are nominated in the party primaries. These electors may vote as they please. We 
have seen the realizatin of this possibility in 1948 and 1964 when unpledged elec- 
tors created a situation where the Democratic candidate for President did not 
appear on the ballot in several states. Because the election of either the national 
Democratic or Republican candidates was virtually certain, the citizens of tho.se 
states were effectively foreclosed from playing any role in the selection of the 
nation's highest oflBcials. Even more harmful to democratic processes is the pos- 
sibility that a maverick pledged elector will vote against his party's candidates. 
A plan to do just that in the 1960 election was uncovered by this Subcommittee 
during its 1961 hearings. 

Fourth, because each state, regardless of population, has a minimum of three 
electoral votes, disproportionate vote weightings are structurally built into the 
system : the votes of citizens of the smallest states are given more than their 
fair value. This is clearly contrary to the one-man. one-vote application of the 
principle of equalit.v. And yet, we have recently seen court attacks on the Elec- 
toral College system by several of the small states. This is because in a situation 
where the popular vote in a state is close, an individual's vote may become de- 
cisive. And the decisive vote in the large state will swing a larger number of 
electoral votes than in the small states. Thus, in different ways the citizens of 
larger and the smaller states are disadvantaged. 

Not only is there built-in disproportionality because of the three-vote minimum, 
but between censuses there is no adjustment of electoral vote allocation for 
population changes, thus further ensuring disproportionality. 

Last, but very far from the least objectionable, is the machinery which pres- 
ently exists to take care of those situations where no candidate gets a majority 
of the electoral votes. In these cases the House of Representatives chooses the 
President, each state having one vote. At this point, there is resemblance to 
majority rule. This amendment must eliminate that inequality — preferably by 
providing for a runoff if no candidate gets at least 40% of the popular vote, but, 
at the very least, by permitting the House and Senate to vote with each member 
having one vote so that the relative populations of the states are properly re- 
flected. One vote per state obviously unfairly disadvantages the East and West 
Coasts, Texas, Michigan, Illinois, and other populous states. 



56 

It has been said that direct election will endanger the two-party system by 
encouraging splinter parties to run candidates for national office. I believe that 
the requirement to be a winner, the candidate must have a minimum of 40% of 
the vote cast — hardly a likelihood for any minor party candidate — takes care of 
this objection. In some ways, direct election will strengthen the two-party system. 
The iwssibility of maverick electors splintering from and weakening one of the 
major parties will be eliminated. Never again would we see the ludicrous situa- 
tions of 1948 and 1964, when the candidate who was actually elected did not 
appear on the ballot in several states. 

The need for making the change to direct popular election is particularly 
compelling at this time, when we are still seeing the possibility of a fragmentation 
of political groupings that may well result in there being minor party candidates 
of both the left and the right attracting substantial numbers of voters in coming 
presidential elections. The fact that there may be such candidates — and that 
they may attract substantial support — will signify different things to different" 
I)eople. But the one possibility that it clearly raises for all of us is that no one 
candidate may receive a majority of the electoral votes, and that consequently, 
an election will be thrown into the House of Representatives under the present 
one-vote per state formula. This is an eventuality that I think no one will wel- 
come. 

In conclusion, I would like to note several of the salutary by-products that 
would accompany a change to the direct election method. I think that direct 
election will provide a great impetus to registration and voting. Those persons 
in our country who have been virtually disenfranchised in national elections 
by virtue of being adherents of a minority party in a state will be encouraged to 
vote because they will not see their action as futile as they must have in the 
past. Greater participation in presidential elections is, we urge, a positive value 
for democracy. 

There will be a strengthening of confidence in the democratic nature of our 
institutions. No longer will we have to live with the nagging fear each election 
day that perhaps this time the loser will have more popular votes than the win- 
ner, or that no one will have enough electoral votes. 

Finally, I suggest that the simplicity of direct election is a virtue in and of 
itself. The basic principles of democracy have always been simple. But the 
Electoral College system is not simple. I would be loath to guess how many 
persons in this country fully understand its workings. Surely everyone should 
understand how the President and Vice President of the United States are 
elected. Everyone should understand that the candidate receiving the most 
votes — every citizen casting an equal vote — will be elected the President of all 
the people. 

At one time in our history the Electoral College may have served a useful 
purpose. Today it is nothing more than an unhappy anachronism and a device 
with a tremendous potential for mischief. 

Mr. ScHLOSSBERG. First of all, I think there is very little doubt that 
this is an idea whose time has come : and I think tliat we have a duty 
to the American people really to reform this aspect of the election of 
a President and Vice President. 

It is, however, only one small piece of the larger ji^aw puzzle that 
has to be put together to improve our political system and the method 
by which we choose our leaders. 

We have a very deep allegiance to the principle of this bill. As you 
know, our former president, Walter Reuther, was a member of the 
ABA commission that worked on this; and I had the honor to be his 
alternate in many of those meetings. Our leadership was deeply con- 
cerned about this problem; and at convention after convention our 
membership, through its highest delegate body, has unanimously en- 
dorsed the principle not only of the direct election of the President, but 
the principle of direct election in the event there has to be a runoif. 

Our theory is — and we found ourselves somewhat in agreement 
with the administration on this, which is in itself a rather surprising 
situation — that if the principle is right, it really is right; and if people 
should elect their President, then they should elect him in the runoff. 



57 

We do, however, bow to your expertise as a parliamentarian and as 
a skilled Senator in whom we have great confidence, and while we 
prefer the runoff because it is pure, and because it is rational, and 
it is principled, and it is consistent, if the only way we can eliminate 
tlie problem of the faithless elector and the problem of a possibility of 
a minority Piesident, and the abolition of an anachronistic instru- 
ment such as the electoral college admittedly is — if the only way we 
can do that is to accept an. alternative where a joint session of the 
House and Senate would vote, with each person liaHng one vote, we 
would accept that, because v,'e bow to your expertise in this area; and 
if you say it is not politically feasible to do it the other way, we think 
it is important enough to be done in one way or another. 

The present method whereby the matter would be resolved by the 
House of Representatives with each State having one vote is some- 
what like horse and rabbit stew in which you put one rabbit and one 
liorse. It is grossly inequitable. It is on its face a violation of the prin- 
ciple of equality, which l^AW has sworn allegiance to, and which 
we believe our Constitution ought to swear allegiance to. 

I do want to say that circumstances do change rhetoric in cases. I 
remember when we testified before, and when others testified, we 
talked about the spectre of having a minority President and whether 
the system could survive many of those. 

If the system, I say, can survive the situation we have today where 
both the President and the Vice President are under a serious cloud, 
I suspect some of our rhetoric may have been excessive. The system 
might survive no matter what, whether we had minority Presidents 
or what. 

I say that in the light of recent revelations of the misuse of the 
political process by the present incumbent in the White House and by 
what appeal's to be so by others, we believe the system can survive. So 
it is not a matter of survival to eliminate the possibility of a minority 
President. It is. though, a matter of making the election of the Presi- 
dent and the Vice President more responsive directly to the people; 
and in that sense it is particularly timely. 

It seems to us there is a tremendous danger today that the American 
people, the great body of the American people, will become disil- 
lusioned with the political process. We have had Watergates, and 
dirty tricks, and the cynical manipulation of public opinion polls, 
and phony letters, and the laundering of money, and all of this kind of 
thing. 

We should work to prevent the people from just turning off, saying 
our vote does not count ; all that counts is a contributor. Consequently, 
any way we can bring the electoral process more directly to the people 
is important. 

I wish now to comment specifically on one aspect of Senate Joint 
Resolution 1, which you raised in your discussions with Mr. Dixon this 
morning, Mr. Chairman. One alternative presently in the bill which 
even you question, and which I think really should be eliminated, is the 
alternative of not referring the matter to the Congress but using the 
electoral majority in the less than 40-percent case. 

The UAW views the electoral college, much as a diseased appendix. 
If it is a diseased organ and has no function, I think it should be 
removed altogether and vestiges should not be used in this contingency. 



58 

In other words, if we abolish the electoral college, Mr. Chairman, 
we submit that we should abolish the electoral college and not rely 
on any of its vestiges to solve that very rare situation in which nobody 
has 40 percent. I think it will be a rare situation. 

As I say, we prefer the direct election, because we believe that that 
is a better way to do it ; but if it cannot be done that way, then we 
think it should be done with the two Houses of Congress, everybody 
voting, every vote counting. 

Three times in our history people were elected to the office of the 
Presidency without a majority. In the light of these recent develop- 
ments, which are fresh in everyone's mind and need not be detailed, 
it seems to me it is encumbent on all of us, not only those of us who 
are interested in helping the Senate do the right thing and pass 
this amendment, but the Executive, too, to try and bring these elec- 
tions closer to the people. 

And having said that I will rely on my statement unless you have 
some questions, Mr, Chairman. 

Senator Bayh. I can think of a number of questions, but most of 
them have been laid to rest by your statement in advance. I might 
ask you to give your thoughts on an area that frankly did not occur 
to me until yesterday when I was listening to Professor Freund, and 
he touched on it in his testimony for the first time that I recollect — 
and maybe my memory is hazy on this, but I have been kicking around 
in this business for some time, as you know — perhaps somebody has 
alerted us to this possible danger before, but I do not remember it. 

There tends to be almost a 90-percent concurrence that there is 
something wrong with the electoral college system the way it now 
operates. Even most of the vociferous opponents of our efforts for 
direct election last time will say, "Yes, this is bad, but here is a better 
way of doing it," which is a reasonable approach. 

Some people say damn the torpedoes, full speed ahead, we are 
going to go ahead with this present system the way it is now operating, 
despite its rather obvious shortcomings. 

But in the debates, if you recall, that we had in the House and the 
Senate, those that opposed us rather than saying what we have now is 
foolproof, they said we recognize the shortcomings of the present sys- 
tem, but we have a better way of solving it than the direct election 
program. 

And two of the most often discussed and I think strongly supported 
alternatives were the district plans and the proportionate plan. 

Now, in the past I have opposed both of these as less desirable alter- 
natives than the present system. I oppose them for two reasons : one, 
it is less desirable because it increases the chance that we mi^'lit 
elect a President that had fewer votes than the man he is runnnig 
against ; and two, from a very pragmatic standpoint, we are now at a 
Mexican standoff situation where mathematically the small States have 
the advantage realistically as far as implementation ; the large States 
have the advantge with the unit rule. 

And there is just no way that I can see the large State legislator's 
giving up the large State advantage now under the unit rule in ex- 
change for something that tips it 180° and permits the prolifera- 
tion on the district basis or proportion basis, where the mathematic 
advantage will then shift to the small States. 

Now, I took the long way around to get to my immediate question. 
Yesterday Professor Freund pointed out that in his judgment resort- 



59 

ing to either the proportional system or the district system would in- 
crease the chances of neither of the majoi- political parties getting a 
majority of the electoral college vote, and thus requiring a contingency 
that very few people like. 

This system we have got works pretty well as long as it is not close, 
but when it is close you get a dangerous situation, as in the 1960, 1968 
situation. But just a quick computation of the numbers here, in 1968, 
without reference to the percentages which I will do in the future, but 
in the top 10 — if you take the top 10 States where the unit rule was in 
effect, you totally discount — or take all the States as far as that is con- 
cerned — you totally discount the third party, the Wallace vote, or the 
third party X-out here ; so that you have large blocks of electors going 
from one party to the other, and you tend to comjjile large blocks of 
electoral votes behind the two leading parties, and thus lose the rather 
significant votes of a third party camp. 

And Professor Freund's argument was that since you have to count 
these if they carry the congressional district, or a percentage, you would 
have to add that up to ultimately the total that would accrue to a strong 
third party candidate would be greater nationwide, and thus a propen- 
sity to deny the two major parties an electoral vote majority. 

Do you have any thoughts on that ? That is the first time I had ever 
been hit with that, and it makes a lot of sense. I do not know why I had 
not thought about it at first. 

Mr. ScHLOssBERG. Well, I had not focused on it either. Senator, but 
I think that is correct. It sounds correct to me, as much as I dislike the 
unit rule in the present system. And I guess the best way I can explain 
to you my dislike of it is to tell you that my brother came to see me 
recently. He lives in Eoanoke, Va. ; he is a lawyer there. He is a little 
order than I am, and he is a little more conservative; and I suspect 
that makes him make some mistakes that he would not have made 10, 
15, years ago. And he told me, he said I am sorry I voted for Nixon 
now ; but he said, "It would not have made any difference in Virginia. 
It would not have made a bit of difference, so you can forgive me." 

And I think that is an unfortunate view, that a citizen knows in 
advance that his vote does not make any difference. And as bad as T 
think the unit rule is under the present system, I do think that the 
danger that Professor Freund pointed out is a real danger ; and I do 
value the two-party system, as I am sure most of the proponents of 
Senate Joint Resolution 1 do. 

And by the way, we are pleased to be in such distinguished company. 
We like associating ourselves with the American Bar ^Association when 
they are correct, and we believe they p,re in this instance ; and with the 
League of Women Voters. We do not even mind being with the 
Chamber of Commerce, because they are right in this situation. 

But I believe that we all have an allegiance to our two-party system, 
and I believe that the danger that Professor Freund points up there, 
particularly with reference to these sometime, particularly sectional - 
ized or peculiar creatures of their time, the third parties, would work 
to do that. And it would put us in a situation that we do not want to 
be in ; that is, a contingency situation where there would not be a clear 
winner; and we do not want that. We want a clear winner. We want 
somebodv who can be President, exercise the prerogatives of the 
office, and run the office like it should be run. 



60 

It seems to me that there is only one answer. Now, there may be 
pragmatic difficulties and quibbles as to how you would handle the 
runoff situation in these areas in a matter such as that. But there is 
little controversy on the main matter. 

We believe there should be as much uniformity as possible in the 
rules that would be set for the qualification of voters in the Presidential 
elections, so that States could not meddle in the national election. 

And we believe the simplest way to do it and the greatest virtue of 
Senate Joint Resolution 1 and of the American Bar Association's 
Commission, and of all the real advocates of this thing, is simplicity. 
And that is, we do it by direct vote. After all, we elect our Congress- 
men by direct vote; we elect our Senators. We in the UAW have just 
gone through a great democratic process in the ratification of a con- 
tract with Chrysler Corp., in which over 100,000 members of the 
UAW democratically voted on the way their lives are going to be run 
at the workplace for the next 3 years. 

And we think that who is going to be the Chief Executive in this 
country and who is going to be the Vice President, as certainly every- 
body in this country should appreciate now, is a matter which concerns 
every citizen. And the way to do that is to have every citizen's vote 
count the same as every other citizen's vote, and to do it in a simple, 
honest, direct way, which is the people elect their President by going to 
the polls and having those votes count, one against the other, to elect 
the President. 

And so, I would agree with Professor Freund, and I would say that 
these alternative systems, proportional and district systems, especi- 
ally the district system, it seems to me, but almost equally the pro- 
portional system, are really solutions that are not solutions, and it 
might lead us into more difficulties than the present system. 

In conclusion, we believe that we have a malignant growth, if you 
please, on the electoral system now, and that it should be removed. 
And we should go back to the views of James Madison and have 
enough confidence in our people to rely on those people to be able to 
choose their Chief Executive directly. 

Senator Bayh. Thank you very much, Mr, Schlossberg, Mr. 
Beidler. I do appreciate your taking the time. I know how busy you 
are. It has been very helpful, once again, to have you and the United 
Auto Workers on the record as only you can put them there. 

Our next witness this morning is Mr. John Feerick, American Bar 
Association. 

I might say as Mr. Feerick is coming forward that his expertise 
has been extremely helpful to the committee and to the chairman, as 
we have dealt with a number of constitutional amendments, the first 
of which was the 25th amendment, which received a great deal of 
discussion now because of the unfortunate situation we find ourselves 
in nationwide vis-a-vis the Vice President and the possibility of va- 
cancy which, personally, I hope does not occur. 

He was instrumental in assisting this committee and the bar asso- 
ciation in moving toward filling a rather significant gap in our con- 
stitutional structure. Subsequently he has played an equally im- 
portant role in our efforts to move toward doing something about the 
electoral college anachronism. 

Mr. Feerick. 



61 
STATEMENT OF JOHN FEERICK, AMERICAN BAR ASSOCIATION 

Mr. Feerk^k. Thank you very much, Mr. Chaii-man. 

It is a very great pleasure and honor to appear before this commit- 
tee once again. 

I would like to submit a rather extensive statement for the record, 
together with a copy of the American Bar Association Commission's 
report, and like the preceding witness, to engage in an informal discus- 
sion with this committee with reference to several areas I think are of 
some importance. I offer my statement and report for the record. 

Senator Bayii. Without objection, so ordered. 

[The prepared statement of John Feerick and the report of the 
American Bar Association follow :] 

Statement of John D. Feerick on Behalf of the American Bar Association 
Concerning the Direct Popular Election of the President 

Mr. Chairman and members of this distinguished Subcommittee, my name is 
John D. Feericli. I reside and practice law in New Yorlc. I appear to express the 
views of the American Bar Association on the issue of reform of our system of 
electing a President. As you know, the American Bar Association long has taken 
a deep interest in constitutional problems affecting the office of the President. 
I recall vividly the close working relationship the Association had with this Sub- 
committee in the development of the Twenty-Fifth Amendment. I am therefore 
especially happy and proud to be here today. 

I know you are very familiar with the recommendations of the Association 
with respect to electoral college reform. Representatives of the Association testi- 
fied before this Subcommittee on May 17, 1967 and before the full Senate Judi- 
ciary Committee on April 17, 1970. On those occasions we set forth in great detail 
the views of the Association. I would resiKK'tfully refer this Subcommittee to 
the statements of Dean Robert Storey and William T. Gossett at the hearings of 
May 17. 1967 and April 17. 1970, respectively. 

In an effort to be of service to the Congress and our Country, Mr. Chairman, 
you may recall that the American Bar Association created in 1966 a Special 
Commission headed by Dean Robert Storey to make a thorough study of the sub- 
ject \\ith a view to developing a nonpartisan formula for electing the President 
and Vice-President. The Association appointed fifteen persons to the Commis- 
sion, representing different walks of life, professions and parts of the United 
States. The membei-ship of the Commission consisted of governors of both major 
parties, judges, lawyers, constitutional law authorities, political scientists, lead- 
ers of the bar and representatives of labor and management. I had the honor of 
serving as advisor to the Commission. 

After an exhaustive study, the Commission overwhelmingly concluded that di- 
rect popular election, while not perfect, was the best method of electing our 
President and Vice-President. The Commission came down hard on the electoral 
college, calling it "archaic, undemocratic, complex, ambiguous, indirect and dan- 
gerous." "Mr. Chairman, I would like to insert in the record a copy of this 
report." 

I consider the principal burden of my statement this morning to analyze and 
respond to some of the objections to direct election. Before doing so, I would 
like to list briefly some of the advantages and merits of such a system of elect- 
ing our President. They are overwhelming. 

It would eliminate the winner-tiike-all feature of the present system which 
oi>erates to cancel out completely and reject at an intermediate stage all pop- 
lUar votes east in a state for candidates other than the plurality winner and 
which prevents voters of a similar disposition throughout the country from pool- 
ing their popular votes across state lines. It also would eliminate other major 
defects of our present system such as the danger of an election being decided in 
the electoral college by a relative handful of third-party electors; the danger 
of an election being thrown into the House of Representatives where each state 
would have one vote ; and the danger of presidential electors making a mockery of 
our election system by a cavalierly substituting their judgment for the judgment 
of the people who elected them. In addition, it would assure that the popular 



25-147 0—74- 



62 

vote winner is eleeted President and give every voter tlie same voting i>o\ver as 
every other person. 

Tun]ing toward the objections that have been voiced, Mr. Chaiiuian, some 
claim that direct election would weaken our two-party system by leading to a 
proliferation of parties. This objection ignores the findings of those who have 
studied the reasons for the two-party system. They are virtually in agreement on 
the point that election of legislators and executives by plurality votes from 
single-member districts is a principal pillar of two-partyism. This is the one ele- 
ment that all two-party systems have in common. Direct election, of course, 
would not change our practice of electing Members of Congress and State Legis- 
lators, Governors and Mayors. The direct election proposal supported by the 
American Bar Association would place presidential elections on this same basis 
and thus perfect and extend the feature that best serves the two-party system. 
It is interesting that some of these authorities list the college as a factor that 
may contribute to the maintenance of the two-party system ; others ignore it as 
a factor; and some suggest that the electoral college is functionally opposed to 
two-partyism, and that our party system may have survived despite the electoral 
college rather than because of it. 

Under the ABA's proposal, in order to be elected, a candidate would have to 
attain at least 40 per cent of the popular vote. AVhy 40 per cent? The Commission 
felt the required vote should be high enough to furnish a sufiicient mandate for 
the Presidency and, at the same time, be low enough so that one election would 
decide the contest. The Commission felt that a majority vote requirement was 
not desirable because it would frequently hapi>en that no candidate had a ma- 
jority and therefore a second election would be required to decide the outcome. 
In making the judgment that 40 per cent was the best figure, the Commis.sion 
was influenced by the fact that one-third of our Presidents received less than a 
majority of the ix>pular vote. The Commission was also influenced by the view 
that too low a figure might have the effect of weakening our two-party structure, 
since the chances of a minority candidate becoming President would be increased. 
A 40 i>er cent figure, the Commission concluded, w^ould render remote the possi- 
bility of having to resort to any contingent election because of the unlikelihood 
of a major candidate not receiving such a vote. 

P"'or the case where no candidate received at least 40 ijer cent of the popular 
vote, the Commission recommended that a national runoff be held between the 
top two candidates. The Commission was unanimous in its belief that the present 
contingent procedure, under which each state has one vote in the House of Repre- 
sentatives, regardless of size, was archaic and undemocratic. In its report, the 
Commission noted that following the election of 1824, the last time the House 
of Representatives had to choose the President, a major attempt was made by 
the House itself to prevent a presidential election from ever again being decided 
in the House. In fact, a resolution to that effect passed the House in 1826 by 
a vote of 138 to r)2. 

The Commission considered the possibility of a joint session of both Houses, 
with each member having one vote. Several members of the Commission favored 
that metho<l. Others felt an election in Congress might involve wheeling and 
dealing and lack the necessary public confidence in the final selection. In the 
final analysis, the Commission decided upon the runoff where the public will 
could not be frustrated and the people would elect their President under all cir- 
cumstances. The Commission also believed a runoff between the top two can- 
didates would be conducive to the maintenance of our two-party system. The 
most a splinter group could hope for would be to cause a runoff between the top 
two, an accomplishment that probably would not be worth tlie effort in the first 
place, particularly in view of the unlikelihood that it could deny 40 per cent to 
both major candidate.s. The runoff, the Commission believed, would encourage 
splinter groups to exercise their influence inside, instead of outside, the existing 
party .structure. As Paul Freund, a member of the ABA Commission, said before 
the House Judiciary Committee in 1970 : 

''This provision for a run-off is important not only as a democratic solu- 
tion to the problem of a deadlock, but as a deterrent to the rise of splinter 
parties. Some critics of a direc-t popular vote have feared that by giving 
effect to every vote in the final tally, the plan would foster the growth of 
minor parties and would jeopardize the two-party system. If, however, the 
only achievement that such splinter parties could hope for would be to force 
a run-off between the two leading candidates, their gain would probably 
not .seem to be worth the candle in the first place, and there would be an 
incentive to come to terms with a major party, as at present. 



I 



I 
I 



63 

"The two-party system, in addition, is buttressed by more than the unit 
count of the present electoral system ; it rests on the foundations of the 
party system in Congress and the st.ites. and there is no solid reason to ex- 
pect that these foundations would be shaken by the direct election of the 
President." 
I would also make the point, Mr. Chairman, that the functioning of our two- 
party system in presidential elections would actually be strengthened by direct 
election. By eliminating the disfranchisement of state minorities, it would pre- 
vent any votes from being written off as worthless, stimulating, I think, genuine 
two-party competition in every state. 

Those who advance the two-party objection frequently overlook the fact that 
the present system offers special incentives to third-party candidates and can 
easily give them power disproportionate to their numbers. Direct election would 
fully cure the defects in our system which third-party candidacies in 1912, 1924, 
1948 and 1968 sought to exploit. It would also remedy other faults that could 
magnify third-party efforts. Close analysis proves that direct election will actu- 
ally strengthen the two-party system — not weaken it — by removing special incen- 
tives to third parties and equalizing all voters throughout the nation. 

Some opjwnents of the direct election plan argue that a benefit of the electoral 
system is that it minimizes the risks of voting frauds and other irregularities. It is 
the Association's view that voting irregularities and demands for recount are 
much more likely to arise under the electoral college system than under a direct 
election arrangement. In large states especially, fraud and other voting irregii- 
larities involving relatively few popular votes could deliver an entire bloc of elec- 
toral votes. But in a national, direct election, where millions of votes are involved, 
a much larger sliift of votes, on a multi-state basis, would be required. Professor 
Freund, in his 1970 statement before the House Judiciary Committee, discussed 
voting frauds and recounts : 

"Another fear sometimes expressed about a direct election vote is that it 
would encourage fraudulent counting and would involve widespread recounts 
in a close contest. The fraudulently disposed, however, could operate more 
readily under the present system where a few votes in one or two heavily 
populated states can swing a decisive electoral bloc. If ai>art from fraud, 
recounts are called for. this is a sign that every vote counts, not a bad thing 
in itself. Rather than paper over the problem of a close election by assigning 
different w^eights to the votes in different states, as we now do, it might be 
advisable to establish a uniform procedure for conducting any necessary 
recounts." 
The vote-counting problems that are likely to be encountered under a direct 
election system — recounts, fraud, challenged ballots and other irregularities — are 
really no different in kind from those that exist in the election of a governor or a 
United States Senator. The principal difference is that in every election some 
states are written off by one or more parties. When a party has little or no chance 
of winning the state, it is not likely to be active in the presidential election because 
the minority votes in the state are cancelled under the electoral system. If, how- 
ever, every vote counted in the national total, both parties would participate 
actively in the election, including policing the polls, thus minimizing fraud and 
other voting irregularities. 

The trend to^'ard better regulated and more scientific vote counting has reduced 
and in our opinion will continue to reduce the possibilities of irregularities while 
expediting the final outcome. With a cooperative effort on the part of the states 
and federal government, the Association is confident that procedures and methods 
can be adopted to assure an effective system of direct i)opular election of the 
President. 

Some defend the present electoral system on the ground that it is one of coun- 
tervailing centers of power. It is argued that representation in Congress is 
weighted in favor of the interests of rural residents while the electoral college 
is weighted in favor of the interests of urban areas and therefore makes the Pres- 
ident responsive to the views of minority groups. 

This argument encounters serious difficulties as applied to a number of presi- 
dential ejections, including that of 1968. Tlie large states have tended to cancel 
each others out in the electoral count. However, we do not believe that as a mat- 
ter of principle and practice that the voice of any minority group is best expressed 
through this kind of magnification. We believe that the best way is to give effect 
to similar votes in states where they are now ineffectual under the winner-take-all 
method of counting. 



64 

Another argument against direct election is that it would be futile for Congress 
to submit a direct election amendment to the states. It is reasoned that it would 
have no chance of ratification because a substantial number of states have added 
weight in the electoral college which would be eliminated by the passage of such 
an amendment. Here direct election is caught in a curious crossfire. Some who 
make this argument assert that small states have the electoral advantage under 
the present system because they are accorded two bonus electoral votes regardless 
of size. Others claim that this small state advantage, in ratio of electors to popu- 
lation, is offset by the advantages accruing to large states by reason of the win- 
ner-take-all laws. The present system obviously cannot favor both large and small 
states. One of the two opposing views must be unsound in its premises. Today, 
with the ascendancy of one-man-cme-vote, it is impos.sible to justify, we submit, 
any system on the ground of voter inequality. Both arguments are unsound in 
principle. 

Some claim that the abolition of the electoral college in favor of direct election 
would destroy our federal system. We do not agree. As we see it, the principal 
safeguards of our federal system are Congress and our state governments — in- 
stitutions that would not be affected by direct election of the President. 

Direct election would eliminate whatever unfair advantage either small or 
large states may have by virtue of the present system. Public opinion polls have 
shown that citizens of both types of states want no such advantage. Senators and 
Representatives from both types of states have said they want no such advantage. 
As a matter of constitutional structure surely no citizen's influence on his Presi- 
dent should depend upon his geographical location within the United States. Only 
direct election will achieve this voter equality and make our system truly respon- 
sive to the will of the people. As a committee of the Congress said almost 30 years 
ago: 

"The only legitimate object of an election is to accomplish the will of the 
people. If we permit a system to prevail that thwarts that will, we trifle with 
one of the most serious purposes of Government. . . . When that may happen 
. . . we needlessly test the serenity and security of our Government. We 
plant hate, discord, and distrust where we could have Nationwide concur- 
rence in the good-will acceptance of the just verdict of the American people." 
H. Rep. 262. 73d Cong., 1st Sess. (1940). 
And Abraham Lincoln said in his first inaugural address : : 

"This country, with its institutions, belongs to the people who inhabit it. 
. . . Why should there not be a patient confidence in the ultimate justice of 
the people? Is there any better or equal hope in the world?" 



I 



I 



ELECTING 
THE PRESIDENT 

A Report 

of the 

Commission on Electoral College Reform 



American Bar Association 



January 

1967 

65 



66 



American Bar Association 

Commission on Electoral College Reform 

COMMISSION MEMBERS 

Robert G. Storey, Chairman, Texas 

Henry Bellmon, Oklahoma 

Paul Freund, Massachusetts 

E. Smythe Gambrell, Georgia 

Ed Gossett, Texas 

William T. Gossett, Michigan 

William J. Jameson, Montana 

Kenneth B. Keating, New York 

Otto Kerner, Illinois 

James C. Kirby, Jr., Illinois 

James M. Nabrit, Jr., Washington, D.C. 

Herman Phleger, California 

C. Herman Pritchett, California 

Walter P. Reuther, Michigan 

Whitney North Seymour, New York 

John D. Feerick, Advisor to Commission 

Edward W. Kuhn, Board of Governors Liaison 

STAFF 

American Bar Association Washington Office 

1705 DeSales Street, N. W., Washington, D.C. 20036 

Donald E. Channell, Director 

Lowell R. Beck, Associate Director 

Harry W. Swegle, Assistant Director for Public Information 



The recommendations contained herein were approved 

by the American Bar Association House of Delegates, 

February 13, 1967. ^ 



I 



67 



Foreword 



The Commission on Electoral College Reform was formed by the 
American Bar Association at the midyear session of the House of 
Delegates in February, 1966. Edward W. Kuhn, then President of 
the American Bar Association, reported at the time that congres- 
sional and executive leaders had urged the Association to examine 
the subject of electoral reform. He stated that this was due in some 
measure to the results the American Bar Association had achieved 
in promoting the proposed Twenty-fifth Amendment on Presidential 
Inability and the Vice-Presidential Vacancy. 

In selecting the members of the Commission, the American Bar 
Association endeavored to have different walks of life, professions, 
and parts of the United States represented. Thus, governors, judges, 
lawyers, constitutional law authorities, political scientists, and repre- 
sentatives from labor and management were invited to be members 
of the Commission. Comprising the Commission are: Henry Bellmon, 
the Governor of Oklahoma; Paul Freund, Professor of Constitutional 
Law, Harvard Law School; E. Smythe Gambrell, Georgia attorney 
and former President of the American Bar Association (1955-1956); 
Ed Gossett, Texas attorney and former member of Congress from 
Texas (1939-1951); WiUiam T. Gossett, Michigan attorney, former 
President of the American Bar Foundation, and former General Coun- 
sel to the Ford Motor Company; William J. Jameson, United States 
District Court Judge for Montana and former President of the Ameri- 
can Bar Association (1953-1954); Kenneth B. Keating, Associate 
Judge of the New York Court of Appeals, former United States 
Representative (1947-1959), and United States Senator from New 
York (1959-1965); Otto E. Kerner, the Governor of Illinois; James 
C. Kirby, Jr., Professor of Constitutional Law, Northwestern Uni- 
versity Law School, and former Chief Counsel to the Subcommittee 
on Constitutional Amendments of the Senate Judiciary Committee; 
James M, Nabrit, Jr., Deputy United States Representative to the 



vu 



68 



United Nations and President of Howard University (on leave of 
absence); Herman Phleger, California attorney and former Legal 
Advisor to the United States Department of State (1953-1957); C. 
Herman Pritchett, Professor of Political Science, University of Chi- 
cago, on leave of absence at the University of California at Santa 
Barbara, and former President of the American Political Science Asso- 
ciation; Walter P. Reuther, President of the United Automobile Work- 
ers Union and Vice-President of the AFL-CIO; and Whitney North 
Seymour, New York attorney and former President of the American 
Bar Association (1960-1961). The Commission's advisor, John D. 
Feerick, is a New York attorney who served as a member of the 
American Bar Association Conference on Presidential Inability and 
Succession and also as an advisor to the Special American Bar As- 
sociation Committee on Presidential Inability and the Vice Presiden- 
tial Vacancy. The Commission's liaison with the American Bar Asso- 
ciation is Edward W. Kuhn, former President of the American Bar 
Association (1965-1966). 

Upon its creation, the Commission was directed to seek a non- 
partisan formula for electing a President and a Vice-President of the 
United States. In accordance with this direction, the Commission had 
its staff undertake a comprehensive study of the electoral college 
system. After this study was supplied to the Commission, the 
Commission convened in Washington, D.C., on May 19 and 20, 
1966. 

At these meetings the Commission explored all of the pending 
proposals for reform of the electoral college system of electing a 
President and a Vice-President. It then decided that detailed studies 
of a number of specific questions were necessary. During the next 
few months the staff collected and compiled information and data 
regarding these questions. It studied the electoral systems of other 
countries, solicited the opinions of state officials regarding various 
aspects of the state election laws, and consulted with numerous per- 
sons and organizations knowledgeable in the area of electoral reform. 
The results of this comprehensive investigation were embodied in 
reports and memoranda which were sent to the Commission between 
June and October, 1966. 

The Commission reconvened in Chicago, Illinois, on October 7, 
1966. At that meeting the Commission discussed the subject of elec- 
toral reform in considerable detail and reached a consensus as to 
what it considered to be the best method of electing a President and 
a Vice-President. Although there was general agreement on the 



Vlll 



69 



recommendations, it should be understood that not every member of 
the Commission subscribes to every recommendation. There was, 
however, unanimous agreement on the need for substantial reform 
in t'he present system. 

In this report the Commission submits its recommendations. In 
addition to setting forth and explaining the recommendations, the 
report includes a brief history of electoral college developments from 
1787 to 1966. 

ROBERT G. STOREY, 
Chairman 



IX 



70 



Contents 



Foreword, vii 

I Introduction 1 

II Recommendations 3 

Direct, nationwide popular vote, 3 
Plurality of at least 40 percent, 8 
National runoff between highest two, 8 
Election regulations, 1 1 
Voting qualifications, 12 
Death of a candidate, 13 

III Constitutional Convention of 1787 14 
Election by Congress considered, 14 

Direct election considered, 15 
Election by electors adopted, 15 

IV Ratifying conventions 18 

V The Electoral College and the Constitution 19 

Amendment XII, 19 
Amendment XX, 20 
Amendment XXIII, 20 
Amendment XXIV, 21 
Proposed Amendment XXV, 21 

VI The Electoral College in practice 22 

Winner take all, 22 
Electors as automata, 23 
Electors voting contrary to instructions, 25 
Unpledged electors, 26 
Election of minority Presidents, 27 
Disproportion between popular vote and 
electoral vote, 28 

Election by the House of Representatives 
and Senate, 30 
1800, 30 



XI 



J 



i 



71 



1824, 30 

1836, 31 

1876, 31 

Near misses, 32 

Death of a candidate, 32 

VII Reform of the electoral college system 34 

District vote plans, 34 
Proportional vote plans, 34 
Direct election vote plans, 35 
Congressional hearings, 35 
The Delaware lawsuit, 35 

VIII Conclusion 37 



Appendix A Popular and electoral vote for President 40 

B Major candidates' votes, 1856-1964 42 

C Victorious party in each state, 1856-1964 44 

D Percentages of votes, winning candidates 46 

E Popular vote of minority Presidents 47 

F Ratio of electoral votes to population, 

1964 and 1968 48 

G Home states of major candidates, 1868-1964 49 

H Number of Presidents from each state 50 

I Present distribution of electoral votes 51 



XII 



72 



I 

Introduction 



In messages to the Congress in 1965 and 1966, President Johnson 
urged adoption of an amendment to the Constitution to reform the 
electoral college system. The President described several major defects 
in the system which he said "should be eliminated in order to assure 
that the people's will shall not be frustrated in the choice of their 
President and Vice-President." The President urged in his special 
message of January 20, 1966, that "elimination of these defects in 
our Constitution is long overdue. Our concepts of self-government 
and sound government require it." 

Among the defects to which the President referred was the pos- 
sibility that the constitutional independence of unpledged electors 
might be exploited and their votes manipulated in a close election 
to prevent the election of a major candidate and to throw the election 
of President into the House of Representatives. He referred to the 
undemocratic procedure of electing a President in the House, under 
which each state has one vote regardless of population. The President 
also called attention to the fact that there exists no provision in law 
covering the case of death of a candidate before the counting of the 
electoral votes. 

To accomplish the objective of electoral reform, various pro- 
posals on the subject have been introduced in Congress. Three of 
the four basic proposals would retain the system of allocating to each 
state a number of electoral votes equal to the number of Senators 
and Representatives to which the state is entitled in Congress. The 
"unit vote" proposal would write into the Constitution the present 
practice of awarding all of a state's electoral votes to the candidate 
who wins the greatest number of popular votes in the state. The 
"proportional vote" proposal would divide the electoral vote of each 
state among the candidates in proportion to the division of the popular 
vote in the state. The "district vote" proposal would divide each state 
into electoral districts comparable to congressional districts; the 



i 



73 



winner of the popular plurality within the district would receive that 
district's electoral vote, and two additional electoral votes would go 
to the candidate receiving a plurality of the popular vote in the state. 
Most of these proposals would eliminate the office of presidential 
elector. 

The fourth basic proposal would abolish the electoral college 
system altogether and provide for the election of the President on 
the basis of a direct, nationwide popular vote. 



74 



II 

Recommendations 



It is the consensus of the Commission that an amendment to the 
United States Constitution should be adopted to reform the method 
of electing a President and Vice-President. The amendment should: 

1 provide for the election of the President and Vice-President by 
direct, nationwide popular vote; 

2 require a candidate to obtain at least forty percent of the popular 
vote in order to be elected President or Vice-President; 

3 provide for a national runoff election between the two top can- 
didates in the event no candidate receives at least forty percent 
of the popular vote; 

4 require the President and Vice-President to be voted for jointly; 

5 empower Congress to determine the days on which the original 
election and the runoff election are to be held, which days shall 
be uniform throughout the United States; 

6 provide that the places and manner of holding the presidential 
election and the inclusion of the names of candidates on the 
ballot shall be prescribed in each state by the legislature thereof, 
with the proviso that Congress may at any time by law make 
or alter such regulations; 

7 require that the voters for President and Vice-President in each 
state shall have the qualifications requisite for persons voting 
therein for Members of Congress, with the proviso that each 
state may adopt a less restrictive residence requirement for 
voting for President and Vice-President provided that Congress 
may adopt uniform age and residence requirements; and 

8 contain appropriate provisions in case of the death of a candi- 
date. 

Direct, nationwide popular vote 

The electoral college method of electing a President of the United J 
States is archaic, undemocratic, complex, ambiguous, indirect, and 



75 



dangerous. Among other things, the present system allows a person 
to become President with fewer popular votes than his major op- 
ponent; grants all of a state's electoral votes to the winner of the 
most popular votes in the state, thereby cancelling all minority votes 
cast in the state; makes it possible for presidential electors to vote 
against the national candidates of their party; awards all of a state's 
electoral votes to the popular winner in the state regardless of voter 
turnout in the state; assigns to each state at least three electoral votes 
regardless of its size; fails to take into account population changes 
in a state between censuses; allows for the possibility of a President 
and a Vice-President from different political parties; and employs 
an unrepresentative system of voting for President in the House of 
Representatives. 

It is claimed that the system gives too much weight to some 
voters and too little to others; discourages voter turnout in many 
states; gives excessive power to organized groups in states where the 
parties are evenly matched, since such groups sometimes are able to 
swing the entire electoral vote of a state to one candidate or the 
other; limits campaigns to pivotal states and nominations for the 
Presidency to persons from large states; places an undue premium 
on the effects of fraud, accident, and other factors since a slight 
change in the popular vote may determine who receives a state's 
entire electoral vote; and allows for possible abuse and frustration 
of the popular will because state legislatures have the plenary power 
to establish the method of appointment of electors. 

While there may be no perfect method of electing a President, 
we believe that direct, nationwide popular vote is the best of all 
possible methods.^ It offers the most direct and democratic way of 
electing a President and would more accurately reflect the will of the 
people than any other system. The vote of every individual in the con- 
stituency (including the District of Columbia) would be of equal 
weight, as it now is in elections for the United States Senate and 
House of Representatives and for statewide, municipal, county, town, 
and village offices throughout the United States. 

Direct popular vote would eliminate the principal defects in 
the present system. It would eliminate the unit vote rule or the winner- 
take-all feature which totally suppresses at an intermediate stage all 



1 Our recommendations are applicable to both the President and Vice-President, 
whom, we believe, should be voted for as a team, i.e., there should be but 
one vote for the two officers. 



76 



minority votes cast in a state. It would do away with the ever-present 
possibihty of a person being elected President with fewer popular 
votes than his major opponent, as has happened on a few occasions 
in American history. It would abolish the office of presidential elector, 
which is an anachronism and a threat to the smooth functioning of 
the elective process. It would minimize the effects of accident and 
fraud in controlling the outcome of an entire election. It would put a 
premium on voter turnout and encourage increased political activi- 
ties throughout the country. 

We do not consider the objections that have been made to direct 
popular vote as sufficient to overcome the numerous advantages which 
attach to such a method. 

Perhaps the most important objection that has been voiced to 
direct election is that it would lead to a proliferation of parties and 
weaken the American two-party system. The winner-take-all feature 
of the electoral college system undoubtedly is conducive to the bi- 
partisan pattern by limiting the effectiveness of votes for minority- 
party candidates, although there have been times when third parties 
have played an important, if not decisive, role in presidential elections. 

It should be noted that several factors, not the electoral college 
alone, have worked to produce our two-party system. Authorities 
wlio have studied our party system in great depth attribute the dual- 
ism to both noninstitutional and institutional factors.' There is gen- 
eral agreement that, institutionally, the selection of representatives by 
plurality vote from single member districts has strongly encouraged 
and reenforced the two-party structure. Neither this factor nor other 
contributing factors would be changed by direct election of the 
President. They would continue to operate to support the two-party 
system.' Moreover, our recommendations do include factors which, 
we think, would have a substantial tendency to support the two- 
party system. 

We recommend that a candidate should receive at least 40 per- 
cent of the popular vote in order to be elected President. A 40 percent 
plurality requirement would encourage factions and splinter groups 

2 See, e.g., Key, Politics, Parties, & Pressure Groups 205-11 (5th ed. Thomas Y. 
Crowell Co. 1964); Schattschneider, Party Government 65-84 (Farrar & Rine- 
hart 1942); Sindler, Political Parties in the United States 49-59 (St. Martin's 
Press 1966). 

3 The Presidential Election Campaign Fund established by Public Law 89-809 
(1966) surely will be a new factor tending to preserve the two-party pattern. 
Under this law minor parties are entitled to receive no payments unless they 
polled more than 5,000,000 votes in the preceding presidential election. 



77 



to operate, as now, within the framework of the major parties, since 
only a major candidate would be in a position to obtain such a vote. 
At present, third parties have the power to "tip the balance" in a 
relatively close election by drawing crucial votes from a candidate. 
The power of third parties would be considerably reduced under a 
40 percent rule because the likelihood of a third party candidate 
obtaining 20 percent of the popular vote is small. A group existing 
outside of either of the major parties would not be able to thrive 
in view of the certainty of defeat. 

We further recommend that there be a national runoff popular 
election between the top two candidates in the event that no candidate 
receives at least 40 percent of the popular vote. A runoff between the 
highest two would seem to have the tendency to limit the number of 
minor party candidates in the field in the original election because it 
is improbable that a minor candidate would be one of the top two; and 
the influence of such a group would be asserted more effectively, as 
now, before the major party nominations and platforms are determined. 
In addition, it should be mentioned that it is no easy matter for a 
group to become a national party. It would have to comply with the 
various state requirements for the formation of a party. These re- 
quirements are not easily met by minor parties. 

It is also said that direct election of the President would wipe 
out state lines or destroy our federal system. The following should 
be noted: 

The President is our highest nationally elected official. He occu- 
pies the most powerful office in the world. The problems and the 
issues with which he deals are largely national in character. It is only 
fitting that he be elected directly by the people. 

Under direct election as embodied in our recommendations, 
states would continue to play a vital role in the elective process. They 
would continue to have the primary responsibility for regulating the 
places and manner of holding the presidential election, for establish- 
ing qualifications for voting in such elections, and for controlling polit- 
ical activity within their state boundaries. 

We do not believe that our federal system would be destroyed by 
direct election of the President and Vice-President. As Senator Mike 
Mansfield has stated: 

[T]he Federal system is not strengthened through an antiquated 
device which has not worked as it was intended to work when it 
was included in the Constitution and which, if anything, has be- 
come a divisive force in the Federal system by pitting groups of 



25-147 O — 74- 



78 



States against groups of States. As I see the Federal system in 
contemporary practice, the House of Representatives is the key 
to the protection of district interests as district interests, just as 
the Senate is the key to the protection of State interests as State 
interests. These instrumentahties, and particularly the Senate, are 
the principal constitutional safeguards of the Federal system, but 
the Presidency has evolved, out of necessity, into the principal 
political office, as the courts have become the principal legal 
bulwark beyond districts, beyond States, for safeguarding the in- 
terests of all the people in all the States. And since such is the 
case, in my opinion, the Presidency should be subject to the 
direct and equal control of all the people.^ 

There is the view that the practical objection to direct election 
is that it would never be proposed by Congress as a constitutional 
amendment or ratified by the necessary number of state legislatures. 
In this connection, it is interesting to note that members of Congress 
from both large and small states have been leading proponents of di- 
rect election. Recent supporters include Senators Aiken, Bayh, 
Bible, Burdick, Byrd, Clark, Douglas, Magnuson, Mansfield, Morse, 
Muskie, Nelson, and Smith. Moreover, thirteen states, both large 
and small, recently attempted to have the Supreme Court of the 
United States strike down as unconstitutional the unit vote feature 
of our system.^ 

Significantly, a recent poll of state legislators was conducted 
by Senator Quentin N. Burdick of North Dakota to determine their 
preferences regarding electoral reform. The published results re- 
vealed that over 59 percent of the more than 2,200 legislators who 
responded indicated that they would support a direct popular vote for 
President." We are advised that since the published results, over 1,000 
additional legislators have responded, with a similar ratio of support 
for direct popular vote. This support, moreover, comes from both 
small and large states in all parts of the country. 

In summary, direct election of the President would be in har- 
mony with the prevailing philosophy of one person, one vote. "The 
conception of political equality from the Declaration of Inde- 
pendence, to Lincoln's Gettysburg Address, to the Fifteenth, Seven- 
teenth, and Nineteenth Amendments can mean only one thing— one 

4 107 Cong. Rec. 350 (1961). 

5 See pages 35-36 infra. 

6 Cong. Quart. Fact Sheet on Electoral Reform, Dec. 16, 1966. 



79 



person, one vote."' This equality in voting should extend above all 
to the Presidency. 

Plurality of at least 40 percent 

We recommend that a candidate should receive at least 40 per- 
cent of the popular vote to be elected President. We chose a 40 
percent limitation rather than a lesser or greater one for several 
reasons. 

A figure less than 40 percent would not furnish a sufficient 
mandate for election to the Presidency. It also could have the effect 
of weakening the two-party system by encouraging the formation of 
splinter parties, since a figure less than 40 percent would increase the 
chances of a minor party candidate being able to become President. 

On the other hand, a majority vote requirement or a limitation 
of greater than 40 percent would increase the possibility of having 
to use the machinery established to handle a case where no candidate 
receives the required vote. That this possibility would be increased 
is underscored by the fact that fourteen Presidents received less than 
a majority of the popular vote. Eleven of the fourteen received be- 
tween 45 and 50 percent, and one between 40 and 45 percent. 
Abraham Lincoln received 39.79 percent in 1860, but his name did 
not appear on the ballot in ten states. John Quincy Adams received 
30.54 percent in 1824, but Andrew Jackson received 43.13 percent, 
and six states did not choose their electors by popular vote. 

Guided by what is reasonably foreseeable under a method of 
direct election, a figure of 40 percent would render extremely remote 
the possibility of having to resort to the contingent election procedure. 
A 40 percent rule, as noted, would be conducive to the maintenance 
of our two-party tradition, and it would be consistent with the prin- 
ciple of plurality voting which operates in congressional elections 
and in elections for statewide and local offices throughout the United 
States. 

National runoff between highest two 

Although we believe that the use of any contingent election 
machinery would be rare, it nevertheless is essential to provide in an 
amendment for the case where no candidate receives the required 
vote. In such event, we recommend that a national runoff election 

7 Gray v. Sanders, 372 U.S. 368, 381 (1963). 



80 



be held between the two top candidates.** This would assure that who- 
ever was elected President was the winner of the most popular votes, 
and it would keep the election of the President where it belongs— 
directly with the people. 

The present procedure of handling a contingent election not 
only is archaic and undemocratic but is fraught with perils. Under 
it, the House of Representatives chooses the President from the top 
three candidates, with each state having one vote regardless of its 
population. If a state delegation is evenly divided, the delegation 
will have no vote. In casting their votes, the state's representatives 
can disregard completely the popular vote received by the candidates 
in their state or in the nation at large. As the political alignment of 
the House of Representatives in 1948 demonstrated, an election 
there could well have resulted in a deadlock. Moreover, since the 
Senate selects the Vice-President under present contingent election 
procedure, there could be a President from one party and a Vice- 
President from another. This is possible because the political align- 
ment of each House might be different, the method of voting and 
the requirement for election is not the same in each House, and the 
House selects the President from the "highest three" while the Senate 
chooses the Vice-President from the "highest two." 

We gave serious consideration to the proposal that the contin- 
gent election procedure be changed to a joint session of Congress 
with each member having one vote. This method is certainly superior 
to present procedure, but it is not as desirable as having the people 
elect the President under all circumstances. 

Realistically, an election in Congress is likely to involve po- 
litical deals and pressures and to place the President in a position of 
indebtedness to those who voted for him. It could result, as past 
history shows, in members casting their votes contrary to the popular 
vote received by the various candidates in their districts or states or 
in the nation at large. If voting in Congress followed party lines, and 
the winner of thj popular plurality in the nation were a member of 
the minority party in Congress, he would lose the election. 

Significantly, following the election of 1824, the last time the 
House of Representatives had to choose the President, a concerted 
effort was made to amend the Constitution to eliminate the possi- 
bility of an election ever again devolving on the House. In 1826 a 



8 The theoretical possibility of ties also will have to be dealt with in the amend- 
ment. 



81 



resolution to this effect passed the House by a vote of 138 to 52." 
It has been suggested that, with provision for a runoff election, 
voters might be more inclined to cast "protest" votes for minor 
candidates in the original election on the assumption that they will 
have another opportunity to make their votes "count." We do not 
subscribe to this view. In a close election where a runoff would be 
a real possibility, we believe voters would be more inclined to vote 
for a candidate with an actual chance of election. 

Admittedly, there are some practical objections to a national 
runoff, but we do not think that they are by any means such as 
to make it unworkable. Our surveys and inquiries indicate that the 
runoff has worked successfully in various states and in foreign coun- 
tries where it is used in connection with the direct election of a 
President. In the recent presidential election in France, for example, 
no candidate received a majority of the popular vote, which required 
a runoff to be held between the top two candidates fourteen days 
later. Almost 23,900,000 votes were cast in the first election; more 
than 23,700,000 in the runoff. 

In the United States the runoff has been used extensively for 
many years in primary elections in the South, where nomination by 
a single party has been tantamount to election.'" In recognition of 
this fact and in order to prevent the nomination of a person with 
possibly a small minority of the total vote, the runoff was developed. 
It usually is brought into play where no candidate receives a ma- 
jority of the popular vote in the first primary. 

With respect to a national runoff, we suggest that the date for 
the second election not be written into the Constitution. It should 
be left for implementing legislation, as the Constitution now provides 
for the date of the original election. 

We recommend that the amendment specifically authorize Con- 
gress to determine the days for the original election and the runoff 
election. The former is necessary because the present language of the 
Constitution is cast in terms of the day for the selection of the electors. 

Decision upon the runoff date should involve a detailed con- 
sideration of the time needed by the states for canvassing and cer- 
tifying votes, deciding disputed questions, and handling the details 
for a second election. The replies of various state election officials 



9 II Register of Debates (pt. II), 19th Cong., 1st Sess. 2003 (1826). 
10 See Ewing, Primary Elections in the South (University of Oklahoma Press 
1953). 



10 



82 



to our inquiries indicate that at least several weeks would be required 
before a runoff could be held. In that connection, we note that the 
present runoff dates in the southern state primaries are approxi- 
mately five weeks after the first election in one state, four weeks in 
three, three weeks in three, and two weeks in two states. 

There now exist state procedures for canvassing the popular 
vote, certifying the number of votes received by each candidate, and 
deciding election contests pertaining to the selection of the electors, 
who are required to meet to cast their votes on the Monday after 
the second Wednesday in December (or forty-one days after the 
November election). Many of these procedures, with appropriate 
amendments, could be used if the President were elected directly in 
November. In the case of a runoff, they would have to be reemployed 
after the runoff in declaring the results. 

Under present federal law, if a contest arises in any state over 
the appointment of electors, the state itself is authorized to determine 
the contest." It must do so by a "final determination" at least six 
days before the meeting of the electors in December. If the state 
so determines, its determination is conclusive when certified by the 
Governor under the state's seal. If the state does not so determine, 
the approval of both Houses of Congress is necessary before the 
state's electoral votes can be counted. It is not, however, until Janu- 
ary 6 that the electoral votes are counted before a joint session of 
Congress. It would seem that much of this procedure could be adapted 
to a system of direct election. 

We have no doubt of the American capacity to work out the 
practical aspects of a runoff election, as have other nations and 
certain states. 

Election regulations 

We recommend that the state legislatures continue to have, as 
at present, the primary responsibility for prescribing the places and 
manner of holding the presidential election and for including the 
names of the candidates on the ballot. These matters have been 
handled locally since the first presidential election and, if possible, 
should continue to be so dealt with under a system of direct election. 
However, we believe that Congress should have the reserve power 
to make or alter such regulations. Congress now has this power with 
respect to the places and manner of holding the election for the 

11 3 U.S.C. § § 5, 6, 15 (1964). 

11 



83 



House of Representatives and the manner of holding the senatorial 
election.'- There is no sound reason why Congress should not have 
the same power in a presidential election. 

Under a system of direct election, it is of great importance 
that the names of the major candidates appear on the ballot in every 
state. We recommend, therefore, that Congress be given the power 
to deal with a case where a state attempts to exclude the name of 
a major candidate from the ballot. In making this recommendation, 
we are influenced by the fact that there have been times in the 
history of our country when the name of a major candidate did not 
appear on the ballot in every state. As has been stated, in 1860 the 
name of Abraham Lincoln was left off the ballot in ten states. Simi- 
larly, in 1948 and again in 1964, the voters of one state were not 
afforded any opportunity to vote for the national candidates of the 
Democratic party because of the device of unpledged electors. 

Consequently, it is essential that Congress have the power to 
deal with such a case. 

Voting qualifications 

Under the Constitution the appointment of electors lies with the 
state legislatures. As with other aspects dealing with the appoint- 
ment of electors, the states set the qualifications for voting for electors. 
Direct election of the President would require some provision in the 
Constitution regarding the qualifications for voting in a presidential 
election. The Constitution now provides that the qualifications for 
voting for Congressmen and Senators are the same as those for mem- 
bers of the most numerous branch of the state legislatures.^^ The 
actual qualifications are defined by state law. 

We recommend that the qualifications for voting in a presiden- 
tial election be the same as those for voting for members of Congress. 
This would make substantially uniform the qualifications for voting 
in both state and federal elections. Of course, any amendment will 
have to use language which could not be construed so as to nullify 
by implication the proscriptions of the Twenty-fourth Amendment 
(anti-poll-tax) with respect to voting in federal elections. In addition, 
there should be a permissive clause in any amendment allowing the 
states to adopt less restrictive residence requirements for voting in 
presidential elections. This is necessary in order not to invalidate the 



12 U.S. Const, art. I, § 4, cl. 4. 

13 U.S. Const, art. I, § 2, cl. 1; amend. XVII. 



12 



84 



laws of those states that have established special residence require- 
ments for voting in presidential elections. These laws extend the right 
to vote either to new residents, even though they do not meet the 
residence requirements for voting in other elections, or to former 
residents until they are eligible to qualify to vote in their new states. 

We also recommend that Congress be given the reserve power 
to adopt uniform age and residence qualifications. It is probable 
that, as with other reserve powers, Congress might not have to ex- 
ercise this power particularly in view of the increasing tendency on 
the part of the states to make uniform their qualifications for voting 
in elections. This tendency is certainly to be encouraged. Thus, forty- 
six states now have age twenty-one as the minimum voting age; and 
more than one-third, with others soon to follow, have adopted special 
residence requirements for voting in presidential elections. Moreover, 
the Twenty-fourth Amendment prevents a state from imposing a poll 
tax or other tax as a condition for voting in federal elections. 

Should the need ever arise for Congress to adopt uniform age 
and residence requirements for presidential elections, it should have 
the power to do so. It can be argued that Congress now has this 
power,'^ but, in any event, the existence of such power should not 
be in doubt under a system of direct election. 

Death of a candidate 

Almost all of the pending proposals would remedy the defects 
in our system caused by the death of a candidate. An amendment 
dealing with direct election should embody the necessary provisions 
to eliminate any possible gaps caused by such an eventuality. We 
have no specific provisions to recommend, believing that this is a 
matter which can best be worked out after congressional hearings. 
We suggest that serious consideration be given not only to a case 
of death occurring after the election but also shortly before the elec- 
tion. It would seem that various contingencies might best be dealt 
with by the amendment empowering Congress to provide for such 
cases by statute. 

A system of direct election would reduce some of the risks in- 
herent in the present system because the results of the election would 
probably be known far sooner than at present, where forty-one days 
must pass before the electors meet and another few weeks elapse 
before their votes are counted before a joint session of Congress. 

14 See, e.g., Katzenbach v. Morgan, 384 U.S. 641 (1966). 

13 



85 



I I I 



Constitutional 

Convention of 1787 



On September 4, 1787, delegate James Wilson of Pennsylvania said 
of the debates at the Constitutional Convention regarding a method 
for electing a President: 

This subject has greatly divided the house, and will also divide 
people out of doors. It is in truth the most difficult of all on 
which we have had to decide.^^ 

During the preceding months of 1787, the delegates to the 
Constitutional Convention offered various plans for electing a Presi- 
dent. The suggestions were that election be by the national legisla- 
ture; the Senate alone; the people at large; the state Governors or 
electors chosen by them; electors chosen by the state legislatures; 
a small group of national legislators, not exceeding fifteen, chosen 
by lot; electors chosen by the people in districts in each state, who 
would meet at one place to elect the President; the national legisla- 
ture, with electors chosen by the state legislatures taking over when- 
ever the President sought reelection; and the national legislature from 
among the best citizens (one nominated by the people of each 
state ) . 

Election by Congress considered 

Election of the President by Congress was approved by the 
delegates on two occasions. Each time this method later was rejected 
because of the belief that the President should be independent of 
Congress and that a legislative election would result in cabal, in- 
trigue, and corruption. It also was felt that in order for such a method 
to have a chance of succeeding, the President would have to be in- 
eligible for a second term; otherwise, he would be too dependent on 
Congress. An ineligibility requirement was not favored. 

15 Farrand, 2 The Records of the Federal Convention of 1787, 501 (Yale Uni- 
versity Press 1911 and 1937). 



14 



86 



Direct election considered 

Many delegates thought that direct election of the President by 
the people would be the best method. Views to this effect were ex- 
pressed by such leading delegates as James Madison of Virginia, 
James Wilson and Gouverneur Morris of Pennsylvania, Hugh Wil- 
liamson of North Carolina, John Dickinson of Delaware, Elbridge 
Gerry of Massachusetts, and Daniel Carroll of Maryland. 

In opposition to direct election, it was argued that the people 
would not be sufficiently informed as to the qualifications of the 
various candidates and that the southern states would be placed at 
a disadvantage because of suffrage problems. (This was a time, it will 
be remembered, before political parties were conceived.) Another 
objection was that the people would vote for candidates from their 
own states, with the result that the large states would control the elec- 
tion or that no candidate would receive a majority of votes. Delegate 
George Mason remarked that "it would be as unnatural to refer the 
choice of a proper character for chief Magistrate to the people, as it 
would, to refer a trial of colours to a blind man.'"" The direct election 
proposal was rejected first on July 17, 1787, by a vote of nine to one, 
and then on August 24 by a vote of nine to two. It was approved 
by Delaware and Pennsylvania. 

Election by electors adopted 

An electoral college method of electing a President was sug- 
gested early in the Convention by James Wilson. His proposal con- 
templated the people choosing the electors in districts. It was rejected 
on the same day it was proposed by a vote of eight to two. On July 
17, 1787, the delegates defeated, by a similar vote, a proposal that 
the President be chosen by electors appointed by the state legislatures. 
On July 19 this proposal was approved by a divided vote. One week 
later, it was defeated in favor of election by Congress. On August 24 
a motion was made and defeated that the President be selected by 
electors chosen by the people. 

On September 4, 1787, during the closing days of the Conven- 
tion, a Committee of Eleven recommended that the President be 
elected by electors. These electors, the delegates believed, would be 
among the most knowledgeable and capable persons in the country. 
The electors would meet quadrennially in their respective states, de- 
liberate, and then select the President and the Vice-President. In 

16 Farrand, supra note 15, at 31. 

15 



87 



casting their votes, they would exercise good and independent judg- 
ment. Alexander Hamilton expressed in No. 68 of the Federalist the 
widely held view that under the electoral college system the election 
of the President 

should be made by men most capable of analyzing the qualities 
adapted to the station, and acting under circumstances favour- 
able to deliberation, and to a judicious combination of all the 
reasons and inducements which were proper to govern their 
choice. A small number of persons, selected by their fellow- 
citizens from the general mass, will be most likely to possess 
the information and discernment requisite to such complicated 
investigations. 

Hamilton also remarked that if the manner of election "be not perfect, 
it is at least excellent." 

Under the electoral college plan as approved by the Convention 
and embodied in Article II of the Constitution, each state was to be 
entitled to as many electors as it had Senators (two) and Repre- 
sentatives (at least one). The electors were to be chosen in the 
manner prescribed by the state legislatures, but no member of Con- 
gress or person holding a federal office of trust or profit could serve 
as an elector. 

The electors were to meet in their respective states and vote by 
ballot for two persons, one of whom could not be an inhabitant of 
their state. This requirement seems to have been based largely on 
the view that electors would likely vote for persons residing in their 
own states. 

After the presidential election the electors were to make up a 
list showing the persons voted for and the number of votes for each. 
The list was to be signed, certified, sealed, and then transmitted to 
the seat of the government of the United States, directed to the Presi- 
dent of the Senate. He was to open the certificates from the electors 
and count the votes before a joint session of Congress. 

The person having the greatest number of votes was to become 
President, provided that number were a majority of the total number 
of electors appointed. If two had a majority and were tied, the House 
of Representatives, by ballot, was to choose one of them to be Presi- 
dent. If no person had a majority, the House was to select the 
President from among the five highest on the list. 

Whenever the election of President devolved on the House, the 
vote was to be by states, with each state delegation having one vote. 



16 



L 



88 



A member or members from two-thirds of the states would be neces- 
sary for a quorum, and a majority of all the states would be required 
for election. Some delegates thought most elections would fall into 
the House because the electors would vote for persons from their 
own states, throwing away one vote, and because the number of "con- 
tinental characters" would decrease as the years passed. 

Under the electoral college method the Vice-President was to 
be the person having the greatest number of electoral votes (not 
necessarily a majority) after the President had been chosen. If more 
than one person had such number, the Senate, by ballot, was to 
choose the Vice-President from among them. 

It is interesting to note that the original proposal of the Com- 
mittee of Eleven was for the Senate, not the House, to handle con- 
tingent elections for the Presidency. This feature of their report came 
under heavy attack during the debates on September 4, 5, and 6, 
1787. A principal ground of objection was that the Senate would 
come close to being an aristocracy because of its roles in the ap- 
pointive, treaty-making, and impeachment processes. In an effort to 
avoid ever having an election by other than the electors, several 
delegates, including George Mason, Hugh Williamson, and Alexander 
Hamilton, suggested eliminating the majority vote requirement alto- 
gether. Their suggestion was not adopted, but, in the end, the Senate 
was rejected and the House substituted in its place. 



17 



89 



IV 

Ratifying conventions 



There appears to have been little criticism of the electoral college 
method during the debates at the various state ratifying conventions. 
As Alexander Hamilton noted in No. 68 of the Federalist: 

The mode of appointment of the Chief Magistrate of the United 
States is almost the only part of the system, of any consequence, 
which has escaped without severe censure, or which has received 
the slightest mark of approbation from its opponents. 

Some of the Framers expressed to their state ratifying conven- 
tions the view that the electors were not to be completely independent 
but were to ascertain and consider the public will in voting for the 
President." 



17 See Wilmerding, The Electoral College 19-22 (Rutgers University Press 1958). 

18 



90 



V 



The Electoral College 
and the Constitution 



The electoral college system of Article II, together with certain 
changes, has governed the manner of electing a President and a Vice- 
President of the United States for 177 years. 

Amendment XII 

The Twelfth Amendment was adopted in 1804 and amended 
Article II to provide that the electors cast two ballots, as distinguished 
from one with two names. ^* One ballot designates the person voted 
for as President; the other, the person voted for as Vice-President. 
Distinct lists of all persons voted for as President and of all persons 
voted for as Vice-President, and the number of votes for each, 
are prepared and transmitted to the President of the Senate. If no 
person receives a majority of the total number of electors appointed, 
the House immediately chooses the President from "the persons hav- 
ing the highest numbers not exceeding three [reduced from five] on 
the list of those voted for as President." If the House does not choose 
a President by the following fourth of March, the Vice-President acts 
"as President, as in the case of the death or other constitutional disa- 
bility of the President." 

The Twelfth Amendment further provides that the person having 
the greatest number of votes as Vice-President, if that number be a 
majority (changed from a plurality) of the total number of electors 
appointed, becomes Vice-President. If none receives a majority, the 
Vice-President is chosen by the Senate from those candidates having 
the highest two numbers. A quorum for this purpose consists of two- 
thirds of the whole number of Senators. A majority of the Senators 
is necessary to a choice. 

The Twelfth Amendment contemplated the old or lame-duck 
House of Representatives selecting the President since the new 

18 The events that led to this Amendment are described on page 30, infra. 

19 



91 



Congress did not assemble until the December following the March 
during which the President's term began.'" 

Amendment XX 

The Twentieth Amendment established January 3 (unless a dif- 
ferent date is appointed by law) as the date of the first meeting of 
the new Congress and January 20 as the date of the commencement 
of the President's term. 

As a result, under present law the newly elected House would 
elect the President when and if an election fell into the House. This 
is because Congress, pursuant to its power to determine the day of 
selecting the electors and the day on which the electors are to cast 
their votes,'-" has established: ( 1 ) the Tuesday after the first Monday 
in November of every presidential election year as the day of select- 
ing the electors; (2) the Monday after the second Wednesday in the 
following December as the day the electors meet in their state capitols 
to cast their votes; and (3) the sixth of the following January as the 
day when the votes are opened, announced, and counted before a joint 
session of Congress."' 

Section 3 of the Twentieth Amendment provides that if a 
President-elect dies before January 20, the Vice-President-elect be- 
comes President. If a President is not chosen by January 20 or has 
failed to qualify, then the Vice-President-elect acts as President until 
the President has qualified. The Amendment empowers Congress to 
provide for the case where neither a President-elect nor a Vice- 
President has qualified by January 20. In such case, the person 
selected acts as President until a President or a Vice-President quali- 
fies. The Succession Law of 1947 provides for this contingency. '■'- 

Section 4 of the Tvv'entieth Amendment provides that Congress 
may by law provide for the case of death of any of the persons from 
whom the House may choose a President and the Senate a Vice- 
President. This provision has never been implemented by Congress. 

Amendment XXIII 

The Twenty-third Amendment, adopted in 1961, provides that 
the District of Columbia shall appoint in the manner directed by 
Congress "a number of electors . . . equal to the whole number of 

19 U.S. Const, art. I, § 4, cl. 2. 

20 U.S. Const, art. II, § 1, cl. 3. 

21 3 U.S.C. § § 1, 7, 15 (1964). 

22 3 U.S.C. § 19 (1964). 

20 



92 



Senators and Representatives in Congress to which the District would 
be entitled if it were a State, but in no event more than the least 
populous State. . . ." The District presently has three electoral votes. 

Amendment XXIV 

The Twenty-fourth Amendment, adopted in 1964, outlaws the 
poll tax or other tax as a qualification for voting in any primary or 
other election for President or Vice-President, for electors for these 
offices, or for members of Congress. 

Proposed Amendment XXV 

The proposed Twenty-fifth Amendment, in addition to establish- 
ing procedures for handling a case of presidential inability, provides 
for the filling of a vacancy in the Vice-Presidency. The President is em- 
powered to nominate for Vice-President a person who takes office 
when confirmed by a majority vote of both Houses of Congress. 



21 



93 



V I 

The Electoral College 
in practice 



Winner take all 

The Constitution leaves it to the state legislatures to determine 
the manner by which the electors are to be selected. In the early days 
of the nation, electors were chosen in a variety of ways: by the legis- 
lature, either on joint ballot or by the concurrent vote of both houses; 
by the vote of the people in districts; by the vote of the people on a 
general ticket; by the legislatures from candidates voted for by the 
people in districts; partly by the vote of the people in districts and 
partly by the legislature; partly by the vote of the people in districts 
and partly by the vote of the people in the state at large; and by three 
persons designated by the legislature in each of the state's three 
districts."^ 

Voting for electors by the people in districts was thought to be 
the fairest method by leaders such as Thomas Jefferson, James Madi- 
son, John Quincy Adams, Martin Van Buren, Alexander Hamilton, 
and Daniel Webster. Madison said that this method "was mostly, 
if not exclusively, in view when the Constitution was framed and 
adopted.-* 

States which employed a unit vote or general ticket system were 
able to assign all their electoral votes to the candidate receiving the 
highest popular vote, with the result that these states were able to 
exert greater influence in presidential elections. Not surprisingly, 
therefore, the district system soon disappeared from the scene, and 
the general ticket became accepted as the method of casting the elec- 
toral votes of a state. Madison remarked that the district system "was 
exchanged for the general ticket & the legislative election, as the 
only expedient for baffling the policy of the particular States which 



23 See generally Paullin, Political Parlies and Opinions, 1788-1930, The Atlas of 
the Historical Geography of the United States (1932). 

24 Letter from James Madison to George Hay, August 23, 1823, in 3 Farrand, 
supra note 15 at 458-59. 



22 



25-147 0—74 7 



94 



had set the example."" When Virginia changed from the district 
system in 1800, Jefferson wrote to James Monroe: "All agree that 
an election by districts would be best if it could be general but while 
ten states choose either by their legislatures or by a general ticket, 
it is folly and worse than folly for the other states not to do it."-® 

By 1836 every state except South Carolina had abandoned the 
system of having the electors appointed by the legislature. South 
Carolina discontinued this practice in 1860. It was used, under special 
circumstances, by Colorado in 1868 and Florida in 1876. In 1892 
the Michigan Legislature changed from the general ticket system to 
a district system to divide the state's electoral votes in the presidential 
election to be held later in the year. This action was upheld by the 
Supreme Court.-' 

Today the general ticket system exists in every state. It credits 
the winner of the popular vote in the state with all of the state's 
electoral votes, regardless of the vote received by the other candi- 
dates or the number of people who voted. 

Electors as automata 

The Framers did not contemplate the development of political 
parties, pledged electors, or nominating conventions. They envisioned, 
as previously noted, an electoral system under which the most knowl- 
edgeable and capable persons in each state would be chosen as elec- 
tors. The electors would examine the merits of the various candidates 
for President and exercise sound and independent judgment in casting 
their votes. 

The emergence of political parties put an end to these beliefs. 
In short order, the electors became automata, mere agents without 
discretion. They were nominated by their parties as part of a slate 
of electors with instructions to vote automatically for their party 
nominees for President and Vice-President. 

In the election of 1796, a Pennsylvania elector voted contrary 
to instruction, causing a Federalist voter to say: "Do I choose Samuel 
Miles to determine for me whether John Adams or Thomas Jefferson 
is the fittest man for President of these United States? No, I choose 
him to act, not to think. "-^ 

25 Ibid. p. 459. 

26 Jeflferson, X The Writings of Thomas Jefferson 134 (Library ed. Jefferson 
Memorial Ass'n 1903). 

27 McPherson v. Blacker, 146 U.S. 1 (1892). 

28 O'Neil, American Electoral System 65 (G. P. Putnam's Sons 1889). 

23 



95 



This unanticipated change in the role of the presidential elector 
led a Senate Select Committee to state in 1826: 

In the first election held under the Constitution, the people 
looked beyond these agents, fixed upon their candidates for 
President and Vice President, and took pledges from the electoral 
candidates to obey their will. In every subsequent election the 
same thing has been done. Electors, therefore, have not answered 
the design of their institution. They are not the independent body 
and superior characters which they were intended to be. They 
are not left to the exercise of their own judgment; on the con- 
trary, they give their vote, or bind themselves to give it, according 
to the will of their constituents. They 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."' 

One commentator later said: 

What demoted the electoral college from a deliberative body to 
a puppet show was the rise of political parties. As people began 
taking sides on public questions, they were unwilling to leave 
the crucial choice of the chief executive to a sort of lottery. In- 
stead, each party publicly announced its slate of electors and 
the candidate they would support. This usurpation of the elec- 
tors' functions, though peaceably achieved, amounted to a coup 
d'etat. It was an amendment of the written Constitution by the 
unwritten Constitution. The electors, while retaining the legal 
status of independence, became henceforth hardly more than 
men in livery taking orders from their parties. 



31) 



Today presidential electors are chosen by popular vote in every 
state (plus the District of Columbia), although the state legislatures 
retain the power to change this practice. They are nominated by 
state conventions of the political parties, state committees of the 
political parties, state primaries, the presidential nominees, or 
the Governor upon the recommendation of the state executive com- 
mittees of the political parties. The states have various provisions 
regarding electors of new parties or electors pledged to specific 
candidates. 



29 Senate Select Committee, Resolutions Proposing Amendments to the Consti- 
tution of the United States, S. Rep. No. 22, 19th Cong., 1st Sess. 4 (1826). 

30 Schlesinger, Paths to the Present 114 (The Macmillan Company 1949). 



24 



96 



In almost three-fourths of the states, the presidential short ballot 
is used. This ballot does not set forth the names of the electors but 
merely the expression "presidential electors for," followed by the 
names of the candidates for President and Vice-President. Some states 
list the candidates for President and Vice-President and below them 
the names of the electors. A mark in the appropriate box designates 
a vote for the entire slate of electors of one party. A few states list 
the names of the electors but not the presidential candidates. 

It can be fairly said that most voters do not know the names 
of the electors for whom they vote and in whose hands they place 
the choice of President and Vice-President. 

Electors voting contrary to instructions 

Ahhough electors usually have voted for their party candidates, 
there have been several occasions on which they have voted contrary 
to expectations. The most notable cases have occurred in this cen- 
tury. 

In 1948 a Tennessee elector running on both the Democratic 
and States' Rights tickets was elected as a result of the popular vote 
in Tennessee for the Democratic ticket. (The Democrats received 
49.1 percent of the vote; the Republicans, 36.9 percent; and the 
States' Rights, 13.4 percent.) This elector, however, cast his electoral 
vote for the States' Rights candidate, as he had announced prior to 
the election that he would do. 

In 1956 W. F. Turner of Alabama, a Democratic elector, voted 
for Judge Walter B. Jones of Alabama for President instead of for 
Adlai E. Stevenson and for Herman Talmadge of Georgia for Vice- 
President instead of for Estes Kefauver. Yet Stevenson and Kefauver 
had carried the state with 56.5 percent of the popular vote. 

In 1960 Henry D. Irwin of Oklahoma, a Republican elector, 
voted for Democratic Senator Harry F. Byrd of Virginia for President 
and Republican Senator Barry H. Goldwater of Arizona for Vice- 
President. Yet the Republican candidates, Richard M. Nixon and 
Henry Cabot Lodge, had carried Oklahoma by more than 162,000 
popular votes (or 59 percent of the total cast in Oklahoma). 

Other cases are: In 1820 a New Hampshire elector voted against 
his party's candidate and for John Quincy Adams, who was not even 
running for office; in 1824 the electors of North Carolina were pledged 
to two presidential candidates, Jackson and Adams, with the under- 
standing that they would vote for the candidate with the best chance; 
and in 1912 the Theodore Roosevelt slate of electors in South Dakota 



25 



97 



declared before election that they would vote for Taft if Roosevelt 
could not be elected and the contest was between Taft and Wilson. 
In view of the possibility of elector defection, a few states have 
passed laws requiring electors to vote for their party nominees. The 
constitutionality of these laws has never been passed on by the Su- 
preme Court. ^^ 

Unpledged electors 

The laws of several states permit the election of a slate of un- 
pledged electors if they are nominated in the party primaries. These 
electors can vote as they please. Thus, in 1960 six unpledged electors 
from Alabama and eight unpledged electors from Mississippi cast 
their votes for Senator Harry Byrd for President. In 1964 the Demo- 
cratic electors of Alabama were unpledged. Because the names of the 
Democratic national candidates did not appear on the ballot, the 
people of Alabama had no opportunity to vote for them. 

As previously indicated (p. 23), the Framers did not contem- 
plate pledged electors. Yet unpledged electors are a serious threat to 
the stability of the American electoral system. The use of unpledged 
electors is a device which could frustrate completely the public will. 
If unpledged electors held the balance of power, they could dictate 
the outcome by voting for either major candidate, or they could throw 
the election into the House of Representatives by voting for a third 
candidate. 

This peril in our system, coupled with the ability of a pledged 
elector to vote against his party's candidates, was underscored during 
the 1961 hearings before the Subcommittee on Constitutional Amend- 
ments of the Senate Judiciary Committee.'- The record indicates that 
between the election on November 8, 1960, and the meeting of the 
electors on December 19 Republican elector Irwin participated in a 
movement that was designed to elect a President other than Kennedy 
or Nixon. The plan focused on getting electors of both parties, plus 
unpledged electors, to join together so that neither major candidate 



31 See State v. Hummel, 150 Ohio St. 127, 80 N.E. 2d 899 (1948); Opinion of 
the Justices No. 87, 250 Ala. 399, 34 So. 2d 598 (1948), holding invalid a 
statute binding electors. A contrary dictum is found in Matter of Thomas v. 
Cohen, 146 Misc. 836, 841-42, 262 N.Y. Supp. 320, 331 (Sup. Ct. 1933). Cf. 
Ray V. Blair, 343 U.S. 214 (1952). 

32 Hearings Before the Subcommittee on Constitutional Amendments of the 
Senate Judiciary Committee on S.J. Res. 1, 2, 4, 7, 12, 16, 17, 23, 26, 28, 48, 
96, 102, 113, 114, 87th Cong., 1st Sess. 596-656 (1961). 



26 



98 



would be able to obtain a majority of the electoral votes. Fortunately, 
the plan was unsuccessful. 

Election of minority Presidents 

The electoral college method of electing a President has gov- 
erned forty-five presidential elections and has produced fourteen 
Presidents who did not obtain a majority of the popular votes cast 
in the election. They are: John Quincy Adams in 1824'' (with 30.54 
percent of the popular vote) ; James K. Polk in 1844 (49.56 percent) ; 
Zachary Taylor in 1848 (47.35 percent); James C. Buchanan in 
1856 (45.63 percent); Abraham Lincoln in 1860 (39.79 percent)^'; 
Rutherford B. Hayes in 1876 (48.04 percent); James A. Garfield in 
1880 (48.32 percent); Grover Cleveland in 1884 (48.53 percent); 
Benjamin Harrison in 1888 (47.86 percent); Grover Cleveland in 
1892 (46.04 percent); Woodrow Wilson in 1912 (41.85 percent); 
Woodrow Wilson in 1916 (49.26 percent); Harry S Truman in 1948 
(49.51 percent); and John F. Kennedy in 1960 (49.71 percent). 

Of the fourteen minority Presidents, three of them each received 
fewer popular votes than his major opponent. 

In 1824: Andrew Jackson received 43.13 percent of the popular 
vote and 37.93 percent of the electoral vote; John Q. Adams, 30.54 
percent of the popular and 32.18 percent of the electoral; Henry 
Clay, 13.24 percent of the popular and 14.18 percent of the electoral; 
and William H. Crawford, 13.09 percent of the popular and 15.71 
percent of the electoral. Because no candidate received a majority 
of the electoral vote, the selection of President devolved on the House 
of Representatives. Adams was selected President, receiving the votes 
of thirteen states to seven states for Jackson and four for Craw- 
ford. It is alleged that Adams won the election because of Clay's 
support. ■'''' 

In 1876: Democratic presidential candidate Samuel J. Tilden 
won a majority of the popular vote (50.99 percent). He had over 
250,000 popular votes more than the Republican candidate, Ruther- 
ford B. Hayes. Yet Tilden lost the election by one electoral vote (185 
to 184), after certain disputed electoral votes from four states had 



33 In 1824 the electors were chosen by the legislature in six of the twenty-four 
states. 

34 Lincoln's name did not appear on the ballot in ten states. 

35 See Roseboom, A History of Presidential Elections 84-86 (The Macmillan 
Company 1965). 

27 



99 



been determined (two days before Inauguration Day) adversely to 
him by an Electoral Commission created by Congress.^'^ 

In 1888: Grover Cleveland received 48.66 percent of the pop- 
ular vote and 42 percent of the electoral vote. On the other hand, 
Benjamin Harrison obtained a popular vote of 47.86 percent and 
an electoral majority of 58 percent. Harrison was elected President. 
Although Cleveland had about 100,000 popular votes more than 
Harrison, Harrison won pivotal states by small margins. A switch of 
a few thousand votes in New York would have swung the election 
to Cleveland. 

Disproportion between popular vote 
and electoral vote 

The relationship between the popular vote and the electoral vote 
is such that, conceivably, a candidate could win the popular vote of 
eleven large states and one small state by a slight margin and there- 
fore win the election, although having less than 25 percent of the 
total popular vote cast in the country. Several elections have under- 
scored the fact that the number of electoral votes may be drastically 
unrelated to the popular vote. 

In 1860 Stephen A. Douglas received 29 percent of the popular 
vote but only 4 percent of the electoral vote; in 1912 Woodrow Wilson 
received 42 percent of the popular vote and 82 percent of the electoral 
vote; in 1936 Alfred M. Landon received 37 percent of the popular 
vote but only 2 percent of the electoral vote (or, conversely, Franklin 
D. Roosevelt received 61 percent of the popular vote and all but eight 
electoral votes); in 1944 Franklin D. Roosevelt received 54 percent 
of the popular vote and 81 percent of the electoral vote. 

In every election, millions of popular votes are cancelled out at 
an intermediate stage and are never reflected in any electoral votes. In 
1928, for example, 2,089,863 Democratic popular votes in New York 
and 1,067,586 in Pennsylvania failed to yield even one Democratic 
electoral vote. In 1924 John W. Davis received 136 electoral votes 
in the states where he received about 2,000,000 popular votes. But he 
received no electoral votes for approximately another 6,000,000 popu- 
lar votes. In 1932 Herbert Hoover received 15,761,841 popular 
votes, of which more than 13,600,000 were not reflected in any elec- 
toral votes for him. In 1944 Thomas E. Dewey received approximately 



36 See pages 31-32, infra. 

28 



100 



2,996,647 votes in ten states from which he received sixty-tv^o elec- 
toral votes. In New York, on the other hand, he received 2,987,647 
popular votes but no electoral votes. 

In several elections a mere shift of the popular vote in one state 
would have swung the election to the other major candidate. In 1844 
a switch of 3,000 votes in New York would have given the election 
to Clay, who would have had about 34,000 popular votes fewer 
than Polk. In 1884 a change of 600 popular votes in New York 
would have brought the victory to James G. Blaine, with over 
23,000 fewer popular votes than Cleveland. In 1888, as noted, 
Benjamin Harrison won all of New York's electoral votes (and the 
election) by about 13,000 popular votes. In 1916 a so-called snub 
of California's Governor Hiram Johnson by Charles Evans Hughes 
supposedly resulted in Hughes' loss of the electoral votes of California 
and, as a consequence, of the election. '' Had Hughes carried Cali- 
fornia, which he lost by 3,806 votes, he would have won the election. 
Yet Wilson would have had over 583,000 more popular votes. 
In 1928 a shift of less than 500,000 votes in several states out of 
a national total of more than 36,000,000 would have given the elec- 
tion to Alfred E. Smith, who would have had approximately 5,000,000 
fewer popular votes than Hoover. In 1948 a shift of about 17,000 
votes in Illinois, 9,000 in California, and 3,500 in Ohio would have 
given Dewey seventy-eight additional electoral votes and the election, 
with Truman having over 2,000,000 more popular votes. In 1960 a 
change of about 4,500 votes in Illinois and 23,000 in Texas would 
have given the election to Nixon. 

Wide differences between a candidate's popular vote and his 
electoral vote are possible under the present system even apart from 
the unit count because each state is assigned three electoral votes 
regardless of its size, because a state's total electoral vote remains 
the same whether one person or 10,000,000 people vote in the state, 
and because population changes which take place in a state after 
a census are not taken into account until the following census has 
been taken.^^ 



37 Roseboom, supra note 35, at 385-86. The so-called snub involved Hughes not 
meeting with Johnson when Hughes was campaigning in California. However, 
there is compelling evidence that Hughes made numerous attempts to see 
Johnson. At one point, they were in the same hotel, but Hughes was not aware 
of it. 

38 See Appendix F. 



29 



101 



Election by the House 

of Representatives and Senate 

On several occasions in American history, one House of Con- 
gress has been assigned the role of selecting a President or a Vice- 
President. 

1800 

In the election of 1800, the Republican electors voted for Thomas 
Jefferson and Aaron Burr, intending Jefferson for President and Burr 
for Vice-President. Burr received as many electoral votes as Jefferson 
for President since under the original method of election there was 
no separate ballot for Vice-President. The lame-duck House of Rep- 
resentatives was required to choose between them for President. 

On each of the first thirty-five ballots, eight states voted for 
Jefferson, six for Burr, and two were divided. The vote of nine states 
was necessary for a choice. On the thirty-sixth ballot, after almost a 
week of balloting, Jefferson received the votes of ten states and Burr 
the votes of four states. Two states (Maryland and Vermont), being 
evenly divided, cast blank votes. 

Jefferson's election was assured when a Vermont Federalist ab- 
sented himself for the thirty-sixth ballot and the Delaware, Maryland, 
and South Carolina Federalists voted blanks. This gave Vermont and 
Maryland to Jefferson since the Republicans were left to cast the 
votes of those states. Delaware and South Carolina, which had voted 
for Burr on each of the first thirty-five ballots, had no Republicans 
and therefore cast no votes on the deciding ballot.^" 

Of the ten states that cast their votes for Jefferson, two had 
awarded their electoral votes to John Adams and three had divided 
their electoral votes among Jefferson, Burr, Adams, and Pinckney. In 
two of these five states, the electors were elected by popular vote. 

The defect in the Constitution underscored by this election led 
to the adoption of the Twelfth Amendment and the requirement of 
separate ballots for President and Vice-President. 

1824 

In the election of 1824, as previously noted, the House of Rep- 
resentatives was required to choose the President when none of the 
candidates received a majority of the electoral vote. Adams was de- 
clared elected President on the first ballot, receiving the votes of 

39 See Roseboom, supra note 35, at 44-47. 

30 



102 



thirteen of the twenty-four states. Jackson won the votes of seven 
states and Crawford of four states. 

In six of the thirteen states that voted for Adams, a change of 
only one vote in each of the state delegations would have deprived 
Adams of their vote. It is interesting to note that three of the thirteen 
states had cast all of their electoral votes for Henry Clay, three had 
cast a majority of their electoral votes for Jackson, and one had 
divided its electoral votes among the four candidates, with a majority 
for Adams. In only the last state mentioned were the electors selected 
by the legislature. 

1836 

In the election of 1836, Democratic candidate Martin Van Buren 
received 57.82 percent of the electoral votes (170 votes). His vice- 
presidential running mate, Richard Mentor Johnson, received only 
one-half of the electoral votes for Vice-President (147 votes). The 
remaining votes were divided among Whig favorite son candidates 
Francis Granger (77 votes), John Tyler (47 votes), and William 
Smith (23 votes). Consequently, the Senate had to choose the Vice- 
President from between Johnson and Granger. 

At the time there were a total of fifty-two Senators. Three were 
not present for the voting. The names of the Senators were called in 
order, and they voted viva voce. Johnson was elected by the votes 
of thirty-three Senators as against sixteen for Granger. Among those 
who voted for Johnson were three Democratic Senators from two 
states that had awarded their electoral votes to Granger (and Whig 
presidential candidate William Harrison). The fourth Senator from 
these states, a Whig, voted for Granger. Granger, on the other hand, 
received the vote of one Senator whose state had given its electoral 
votes to Johnson (and Van Buren). Johnson received the votes of 
five Senators and Granger won two from states that had awarded 
their electoral votes to either Tyler or Smith. Three of the five who 
voted for Johnson were from two states that had cast their electoral 
votes for President for Whig candidate Hugh L. White. 

1876 

In the controversial election of 1876, Samuel J. Tilden won a 
clear majority of the popular vote.^" However, a dispute arose over 

40 See Koenig, The Election That Got Away (American Heritage Oct. 1960); 
Haworth, The Hayes-Tilden Presidential Election of 1876 (Burrows Bros. Co. 
1906). 



31 



103 



which electors should be certified in four states. A Republican-con- 
trolled Senate and a Democratic-controlled House could not agree 
on which electors should be certified. After many weeks of discussion, 
Congress finally agreed to form a bipartisan Electoral Commission 
to resolve the controversy. Its membership consisted of five Senators, 
five Representatives, and five Supreme Court Justices. Eight of these 
members were Republicans, and seven were Democrats. Hayes, the 
Republican presidential candidate, became President by being awarded 
the disputed votes by a strict party vote of eight to seven. The out- 
come was not known until a few days before the inauguration. 

Near misses 

On other occasions in American history, a slight change of the 
popular votes in a few states for the winning candidate would have 
thrown the election into the House of Representatives. Thus, in 1948 
a shift of less than 0.6 percent of the popular vote for Truman in 
two states would have devolved the election of President on the House. 
It seems likely, in view of the political alignment of the House at the 
time, that there would have been a deadlock in the balloting for 
President. 

Death of a candidate 

At present, there is no doubt about who would become Presi- 
dent on January 20 if the winning candidate died after the counting 
of the electoral votes on January 6 and before Inauguration Day. 
Section 3 of the Twentieth Amendment provides that if a President- 
elect dies before the time fixed for his term to begin (January 20), 
the Vice-President-elect becomes President. In such a case, the new 
President would be empowered, under the proposed Twenty-fifth 
Amendment, to fill the resulting vacancy in the Vice-Presidency. 
Similarly, if the Vice-President-elect died, the President-elect, upon 
becoming President, would be authorized to fill the vice-presidential 
vacancy. The Succession Law of 1947 would apply in the event 
both the President-elect and the Vice-President-elect died before 
January 20. 

The term President-elect is nowhere defined in the Constitution. 
It is clear, however, that until the electors meet in December to cast 
their votes, there is no President-elect. No provision is made in law 
for the death of a presidential candidate in the forty-one-day period 
between election day in November and the meeting of the electors in 



32 



104 



December.*' Consequently, the electors would be free to choose any- 
one they pleased. 

Only once has a presidential candidate died after the election 
and before the electors met. In the election of 1872, Democratic 
presidential candidate Horace Greeley won the popular vote of six 
states. Greeley died shortly after the election, causing his electoral 
votes to be scattered among four persons. Three were cast for Greeley 
himself, but they were not counted. This was because he was dead 
at the time the votes were cast so that he was not a "person" within 
the meaning of the Twelfth Amendment. 

In the election of 1912, the incumbent Vice-President, James S. 
Sherman, who was running for reelection on the Republican ticket, 
died six days before the election. Shortly after the election, the na- 
tional committee of the Republican party met and, pursuant to an 
authorizing resolution adopted at the previous party convention, nom- 
inated Nicholas Murray Butler to receive the eight electoral votes 
that would have gone to Sherman. The eight electors cast their votes 
for Butler. 

The death of a presidential candidate after the meeting of the 
electors in December but before the counting of the votes has never 
occurred. It is in doubt whether this situation is covered by law. 
There is the view that the electoral votes cast for this candidate would 
have to be counted, since he was a "person" when the votes were 
cast. If he were the winner of the election, he would be declared 
President-elect, and Section 3 of the Twentieth Amendment would 
become operative. However, this vital matter should not be in doubt 
and therefore is in need of clarification. 



41 The Democratic and Republican parties both provide for the death of a candi- 
date occurring either before the election or after the election but before the 
meeting of the electors. The national committees are authorized to fill a 
vacancy. Alternatively, the Republican national committee could convene a 
new national convention. 



33 



105 



V I I 

Reform of the electoral 
college system 



It was not long after the adoption of the Constitution that proposals 
were introduced in Congress to reform the electoral college system 
of electing a President. Since then, hundreds have been introduced. 
Some have passed one House of Congress but not the other. Each 
Congress usually finds a number of additional proposals for reform. 
There seems to be general agreement that electoral reform is neces- 
sary but disagreement over what kind of reform. 

The proposed amendments to the Constitution on the subject 
of electoral reform have fallen into four general categories: (1) 
district vote plans; (2) proportional vote plans; (3) unit vote or 
automatic electoral vote plans; and (4) direct election vote plans. *- 
The action taken on these various plans is noted below. 

District vote plans 

Four times between 1813 and 1824 the United States Senate 
approved constitutional amendments embodying some form of the 
district plan. In 1820 the House of Representatives voted ninety-two 
to fifty-four in favor of a district plan, but it was short of the two- 
thirds vote necessary for a constitutional amendment. In 1826 a dis- 
trict proposal was defeated in the House by a vote of 102 to ninety. 
In 1876 it was recommended by a Special House Committee on 
Elections. 

Proportional vote plans 

In 1950 the proportional system was approved by the Senate 
by a vote of sixty-four to twenty-seven. A motion to suspend the 
rules and pass this proposal was rejected in the House by a vote of 



42 For an excellent summary, see Proposals to Reform Our Electoral System, 
Library of Congress Legislative Reference Service (1966). 



34 



106 



210 to 134. In 1955 the Senate Judiciary Committee favorably re- 
ported this plan. In the following year an amendment to the propor- 
tional plan authorizing each state to adopt either the proportional 
plan or the district plan was offered in the Senate. This amendment 
was agreed to by a vote of forty-eight to thirty-seven. Since the vote 
was not sufficient to pass it as a constitutional amendment, the plan 
was recommitted to the Senate Judiciary Committee. 

Direct election vote plans 

A direct election plan was first introduced in Congress in 1826, 
and since then about one hundred such plans have been introduced. 
In 1950 when the proportional plan was approved, a direct election 
proposal, coupled with national nominating primaries, was rejected in 
the Senate by a vote of sixty to thirty-one. Senator Hubert Humphrey 
of Minnesota offered an amendment for direct election by itself. It was 
defeated by a vote of sixty-three to twenty-eight. In 1956 the Senate 
again rejected a direct election plan, which was coupled with nomi- 
nating primaries. The vote was sixty-nine to thirteen. Direct election 
by itself then was introduced by Senator Herbert Lehman of New 
York. The vote against it was sixty-six to seventeen. 

Congressional hearings 

In 1961, 1963, and again in 1966, the Senate Subcommittee on 
Constitutional Amendments held extensive hearings on the subject 
of electoral reform. There was near unanimous agreement among 
the witnesses that the present system is in need of reform. Further 
hearings are scheduled for this year. 

The Delaware lawsuit 

On July 20, 1966, the State of Delaware, the first state to ratify 
the Constitution, moved in the United States Supreme Court for 
leave to file a complaint against the other forty-nine states and the 
District of Columbia. In its complaint Delaware asked the Supreme 
Court to "issue an injunction against continued use of the general 
ticket or state unit system as such." Arguing that the present system 
of electing a President is unconstitutional, Delaware urged, among 
other things, that the state unit rule reduces many states and citizens 
to a second-class citizenship level in national politics. 

Delaware suggested that the Court first decide the constitution- 
ality of the present system and then "conduct separate and further 



35 



107 



hearings on the appropriate remedy." In its brief Delaware suggested 
that the district and proportional plans were two principal modes of 
reform that could be effected under the present system through state 
legislative action, a decree of the Supreme Court, or legislation by 
Congress. Delaware acknowledged that these alternatives were less 
than ideal in achieving one man, one vote for the Presidency, 
stating: "Ultimate correction of the conditions complained of may 
best be achieved by Constitutional Amendment. But unless this Court 
sees fit to 'open the door,' and point the way through equitable in- 
terim relief, as it did in the field of legislative apportionment, no 
Constitutional Amendment aimed at fair and just reform of the Elec- 
toral College is likely to come from entrenched political interests 
which are satisfied with a voting device that suits their purposes." 
Delaware suggested that "the ultimate result might be the submission 
of a proposed Constitutional Amendment for direct national election." 
Following the bringing of this suit, twelve other states moved 
to be joined as plaintiffs along with Delaware— Arkansas, Florida, 
Iowa, Kansas, Kentucky, North Dakota, Oklahoma, Pennsylvania, 
South Dakota, Utah, West Virginia, and Wyoming. The state of New 
York opposed the motion, and on October 17, 1966, the Court, 
without any opinion, declined to hear the complaint.*^ 



43 N.Y. Times, Oct. 18, 1966, p. 30, col. 4. On November 21, 1966, the Court 
denied a request for reconsideration. N.Y. Times, Nov. 22, 1966, p. 28, col. 3. 



36 



108 



VIII 

Conclusion 



We think the foregoing history demonstrates the need and recurring 
desire for electoral reform. We feel our recommendations would 
remedy the defects in the present system and make the election of 
President and Vice-President a truly democratic process. It seems 
most appropriate that the election of the nation's only two national 
officers be by national referendum. 



37 



109 



Appendices 



A Popular and electoral vote for President 40 



B Major candidates' votes, 1856-1964 42 



C Victorious party in each state, 1856-1964 44 



D Percentages of votes, winning candidates 46 



E Popular vote of minority Presidents 47 



F Ratio of electoral votes to population, 

1964 and 1968 48 



G Home states of major candidates, 1868-1964 49 



H Number of Presidents from each state 50 



I Present distribution of electoral votes 51 



25-147 O— 74 8 



no 



Appendix A 

Popular and electoral vote for President 

Major Parlies' Popular and Electoral Vote for President, The World Almanac 1965, p. 46. 



F Federalist dr Democrat Republican 

D Democrat nr National Republican 

R Republican w Whig 

* See notes on page 41 for various years. 



p People's 
PR Progressive 
SR States' Rights 









Elec- 






Elec- 






Popular 


toral 




Popular 


toral 


Year 


President elected 


vote 


vote 


Losing candidate 


vote 


vole 


1789 


George Washington f 


Unknown 


69 


No opposition 






1792 


George Washington F 


Unknown 


132 


No opposition 






1796 


John Adams f 


Unknown 


71 


Thomas Jefferson dr 


Unknown 


68 


1800 


Thomas Jefferson dr 

Elected by House of Repre- 
sentatives (due to tie vote) 


Unknown 


73 


Aaron Burr dr 


Unknown 


73 


1804 


Thomas Jefferson dr 


Unknown 


162 


Charles Pinckney f 


Unknown 


14 


1808 


James Madison or 


Unknown 


122 


Charles Pinckney F 


Unknown 


47 


1812 


James Madison dr 


Unknown 


128 


DeWitt Clinton F 


Unknown 


89 


1816 


James Monroe dr 


Unknown 


183 


Rufus King F 


Unknown 


34 


1820 


James Monroe dr 


Unknown 


231 


John Quincy Adams dr 


Unknown 


1 


1824 


John Quincy Adams nr 


105,321 


84 


Andrew Jackson d 


155,872 


99 




Elected by House of Rep- 






Henry Clay dr 


46,587 


37 




resentatives (no candidate 






WiUiam H. Crawford dr 


44,282 


41 




having polled a majority) 












1828 


Andrew Jackson d 


647,231 


178 


John Quincy Adams nr 


509,097 


83 


1832 


Andrew Jackson d 

First national convention 
for Presidential candidates 


687,502 


219 


Henry Clay dr 


530,189 


49 


1836 


Martin Van Buren d 


762,678 


170 


William H. Harrison w 


548,007 


73 


1840* 


William H. Harrison w 
Died April 4, 1841 


1,275,017 


234 


Martin Van Buren D 


1,128,702 


60 


1844 


James K. Polk d 


1,337,243 


170 


Henry Clay w 


1,299,068 


105 


1848* 


Zachary Taylor w 
Died July 9, 1850 


1,360,101 


163 


Lewis Cass D 


1,220,544 


127 


1852 


Franklin Pierce d 


1,601,474 


254 


Winfield Scott w 


1,386,578 


42 


1856 


James C. Buchanan d 


1,927,995 


174 


John C. Fremont R 


1,391,555 


114 


1860 


Abraham Lincoln R 


1,866,352 


180 


Stephen A. Douglas D 


1,375,157 


12 



1864* Abraham Lincoln R 

Died April 15, 1865 



2,216,067 212 



1868 


Ulysses S. Grant r 


3,015,071 


214 


1872 


Ulysses S. Grant r 


3,597,070 


286 


1876* 


Rutherford B. Hayes r 


4,033,950 


185 


1880* 


James A. Garfield r 
Died Sept. 19, 1881 


4,449,058 


214 


1884 


Grover Cleveland d 


4,911,017 


219 


1888* 


Benjamin Harrison R 


5,444,337 


233 


1892 


Grover Cleveland d 


5,554,414 


277 



John C. Breckinridge d 845,763 72 

John Bell (CONST. UNION) 589,581 39 

George McClellan D 1,808,725 21 

Horatio Seymour 2,709,615 80 

Horace Greeley d-l 2,834,079 

Died Nov. 29, 1872 

Samuel J. Tilden D 4,284,757 184 

Winfield S. Hancock D 4,442,030 155 

James G. Blaine r 4,848,334 182 

Grover Cleveland D 5,540,050 168 

Benjamin Harrison r 5,190,802 145 

James Weaver p 1,027,329 22 



40 



Ill 









Elec- 






Elec- 






Popular 


toral 




Popular 


toral 


Year 


President elected 


vote 


vote 


Losing candidate 


vote 


vote 


1896 


William McKinlcy r 


7,035.638 


271 


William J. Bryan D-p 


6,467,946 


176 


1900* 


William McKinlcy R 
Died Sept. 14, 1901 


7,219,530 


292 


William J. Bryan D 


6,358,071 


!55 


1904 


Theodore Roosevelt R 


7,628,834 


336 


Alton B. Parker D 


5,084,491 


140 


1908 


William H. Taft R 


7.679,006 


321 


William J. Bryan d 


6,409,106 


162 


1912 


Woodrow Wilson d 


6,286,214 


435 


Theodore Roosevelt PR 
William H. Taft R 


4,216,020 
3,483,922 


88 
8 


1916 


Woodrow Wilson d 


9,129,606 


277 


Charles E. Hughes r 


8,538,221 


254 


1920* 


Warren G. Harding R 
Died Aug. 2, 1923 


16,152,200 


404 


James M. Cox d 


9,147,353 


127 


1924 


Calvin Coolidge r 


15,725,016 


382 


John W. Davis D 
Robert M. LaFollette PR 


8,385,586 
4,822,856 


136 
13 


1928 


Herbert Hoover r 


21,392,190 


444 


Alfred E. Smith D 


15,016,443 


87 


1932 


Franklin D. Roosevelt d 


28,821,857 


472 


Herbert Hoover r 


15,761,841 


59 


1936 


Franklin D. Roosevelt d 


27,751,597 


523 


Alfred Landon r 


16,679,583 


8 


1940 


Franklin D. Roosevelt d 


27,243,466 


449 


Wendell Willkie r 


22,304,755 


82 


1944* 


Franklin D. Roosevelt d 
Died April 12, 1945 


25,602,505 


432 


Thomas E. Dewey R 


22,006,278 


99 


1948 


Harry S Truman d 


24,105,812 


303 


Thomas E. Dewey r 
J. Strom Thurmond sr 
Henry A. Wallace PR 


21,970,065 
1,169,021 
1,157,172 


189 
39 


1952 


Dwight D. Eisenhower r 


33,936,252 


442 


Adiai E. Stevenson D 


27,314,992 


89 


1956* 


Dwight D. Eisenhower r 


35,585,316 


457 


Adiai E. Stevenson d 


26,031,322 


73 


1960* 


John F. Kennedy d 
Died Nov. 22, 1963 


34,227,096 


303 


Richard M. Nixon R 


34,108,546 


219 


1964 


Lyndon B. Johnson d 


43,126,506 


486 


Barry M. Goldwater r 


27,176,799 


52 



1840 President Harrison died on April 4, 1841, and 1880 
Vice President Tyler became President. 

1848 President Taylor died in office on July 9, 1850, 
was succeeded by Vice President Fillmore. 

1864 President Lincoln was shot April 14, 1865 at 1888 
Ford's Theatre, Washington, by actor J. Wilkes 
Booth, and died April 15, whereupon Vice 
President Andrew Johnson became President. 

1876 Florida, Louisiana, Oregon and South Caro- 1900 
lina election returns were disputed. A board 
of Commissioners, referred to as The Electoral 
Commission, was created by act of Congress 
(approved Jan. 29, 1877) for the purpose of 
deciding disputed cases in the 1876 presiden- 
tial election. It was in session from Feb. 1 to 1920 
March 2, 1877 and its decisions resulted in the 
seating of Hayes, the Republican candidate 
who received the disputed 22 electoral votes. 1944 
The members of the commission voted on 
party lines — 8 Republicans and 7 Democrats. 
Congress, in joint session (March 2, 1877) 1956 
declared Hayes and Wheeler elected President 
and Vice President by an electoral vote of 185 
for Hayes and 184 for Tilden. The Senate was 1960 
Republican. The House, which was Demo- 
cratic, resolved and declared as a separate 
body (March 3) that Tilden and Hendricks 
were elected on the face of the returns. 



President Garfield was shot July 2, 1881, at 
Washington, D.C., by Charles J. Guiteau of 
New York and died Sept. 19, whereupon Vice 
President Chester A. Arthur became President. 
On the result of the popular vote Cleveland 
had more votes than Harrison but the 233 
electoral votes cast for Harrison against the 
168 for Cleveland elected Harrison president. 
President McKinley was shot Sept. 6, 1901, 
at the Pan American Exposition, Buffalo, 
N.Y. He died on Sept. 14, and Vice President 
Theodore Roosevelt became President. The 
assassin, Leon Czolgosz, was executed Oct. 29, 
1901. 

President Harding died at San Francisco, 
Calif., Aug. 2, 1923, and was succeeded by 
Vice President Calvin Coolidge. 
President Roosevelt died at Warm Springs, 
Ga., on April 12, 1945, whereupon Vice Presi- 
dent Harry S Truman became President. 
Democrats elected 74 electors but one from 
Alabama refused to vote for Stevenson, voted 
for Walter B. Jones. 

Sen. Harry F. Byrd (D.-Va.) received 15 elec- 
toral votes; 6 from unpledged Alabama Demo- 
crats, 8 from unpledged Mississippi Demo- 
crats, and 1 from a defecting Oklahoma 
Republican elector. 



41 



112 

Appendix B 

Major candidates' votes, 1856-1964 

A Century of Presidential Elections, Congress and the Nation Congressional 
Quarterly Service (1965). 





No. 

of 

states 


Candidates 




Electoral vote 


Popular vote 


Year 


Democrat 


Republican 


D 


R 


D 


R 


1856(a) 


31 


James Buchanan 
John C. Breckinridge 


John C. Fremont 
William L. Dayton 


174 

(59%) 


114 

(39%) 


1,838,169 

(45.3%) 


1,341,264 

(33.1%) 


1860(b) 


33 


Stephen A. Douglas 
Herschel V. Johnson 


Abraham Lincoln 
Hannibal Hamlin 


12 

(4%) 


180 

(59%) 


1,375,157 
(29.5%) 


1,866,452 

(39.8%) 


1864(c) 


36 


George B. McClellan 
George H. Pendelton 


Abraham Lincoln 
Andrew Johnson 


21 

(9%) 


212 
(91%) 


1,805,237 

(45.0%) 


2,213,665 

(55.0%) 


1868(d) 


37 


Horatio Seymour 
Francis P. Blair Jr. 


Ulysses S. Grant 
Schuyler Colfax 


80 

(27%) 


214 

(73%) 


2,703,249 

(47.3%) 


3,012,833 

(52.7%) 


1872(e) 


37 


Horace Greeley 
Benjamin Gratz Brown 


Ulysses S. Grant 
Henry Wilson 


(e) 


286 

(82%) 


2,834,125 
(44.0%) 


3,597,132 

(55.6%) 


1876 


38 


Samuel J. Tilden 
Thomas A. Hendricks 


Rutherford B. Hayes 
William A. Wheeler 


184 

(507o) 


185 

(50%) 


4,300,590 

(51.0%) 


4,036,298 

(48.0%) 


1880 


38 


Winfield S. Hancock 
William H. English 


James A. Garfield 
Chester A. Arthur 


155 

(42%) 


214 

(58%) 


4,444,952 

(48.1%) 


4,454,416 

(48.5%) 


1884 


38 


Grover Cleveland 
Thomas A. Hendricks 


James G. Blaine 
John A. Logan 


219 

(55%) 


182 

(45%) 


4,874,986 

(48.5%) 


4,851,981 

(48.2%) 


1888 


38 


Grover Cleveland 
Allen G. Thurman 


Benjamin Harrison 
Levi P. Morton 


168 

(42%) 


233 

(58%) 


5,540,309 

(48.7%) 


5,439,853 

(47.9%) 


1892(f) 


44 


Grover Cleveland 
Adlai E. Stevenson 


Benjamin Harrison 
Whitelaw Reid 


277 
(62%) 


145 

(33%) 


5.556,918 
(46.1%) 


5,176,108 

(43.0%) 


1896 


45 


William J. Bryan 
Arthur Sewall 


William McKinley 
Garret A. Hobart 


176 

(39%) 


271 
(61%) 


6,502,925 

(46.7%) 


7,104,779 

(51.1%) 


1900 


45 


William J. Bryan 
Adlai E. Stevenson 


William McKinley 
Theodore Roosevelt 


155 

(35%) 


292 

(65%) 


6,358,133 

(45.5%) 


7,207,923 

(51.7%) 


1904 


45 


Alton B. Parker 
Henry G. Davis 


Theodore Roosevelt 
Charles W. Fairbanks 


140 

(29%) 


336 

(71%) 


5,077,911 

(37.6%) 


7,623,486 

(56.4%) 


1908 


46 


William J. Bryan 
John W. Kern 


William H. Taft 
James S. Sherman 


162 

(34%) 


321 

(66%) 


6,409,104 

(43.1%) 


7,678,908 

(51.6%) 


1912(g) 


48 


Woodrow Wilson 
Thomas R. Marshall 


William H. Taft 
James S. Sherman 


435 

(82%) 


8 

(1%) 


6,293,454 

(41.9%) 


3,484,980 

(23.2%) 


1916 


48 


Woodrow Wilson 
Thomas R. Marshall 


Charles E. Hughes 
Charles W. Fairbanks 


277 
(52%) 


254 

(48%) 


9,129,606 

(49.4%) 


8,538,221 

(46.2%) 


1920 


48 


James M. Cox 
Franklin D. Roosevelt 


Warren G. Harding 
Calvin Coolidge 


127 

(24%) 


404 

(76%) 


9,147,353 

(34.2%) 


16,152,200 

(60.4%) 



42 



113 





No. 

of 
states 


Candidates 




Electoral vote 


Popular vote 


Year 


Democrat 


Republican 


D 


R 


D 


R 


1924(h) 


48 


John W. Davis 
Charles W. Bryan 


Calvin Coolidge 
Charles G. Dawes 


136 

(26%) 


382 

(7170) 


8,386,503 

(28.8yj 


15,725,016 

(54.0%) 


1928 


48 


Alfred E. Smith 
Joseph T. Robinson 


Herbert C. Hoover 
Charles Curtis 


87 
(16%) 


444 

(84yj 


15,016,443 

(40.9%) 


21,391,381 
(58.2%) 


1932 


48 


Franklin D. Roosevelt 
John N. Garner 


Herbert C. Hoover 
Charles Curtis 


All 
(89%) 


59 

(WVo) 


22,821,857 
(57.4%) 


15,761,841 

(39.7%) 


1936 


48 


Franklin D. Roosevelt 
John N. Garner 


Alfred M. Landon 
Frank Knox 


523 

(98%) 


8 


27,751,597 
(60.8%) 


16,679,583 

(36.5%) 


1940 


48 


Franklin D. Roosevelt 
Henry A. Wallace 


Wendell L. Willkie 
Charles L. McNary 


449 

(85%) 


82 
(15%,) 


27,244,160 

(54.8%) 


22,305,198 

(44.8%) 


1944 


48 


Franklin D. Roosevelt 
Harry S Truman 


Thomas E. Dewey 
John W. Bricker 


432 

(81 7o) 


99 

(19%J 


25,602,504 

(53.5%) 


22,006,285 

(46.0%) 


1948(i) 


48 


Harry S Truman 
Alben W. Barkley 


Thomas E. Dewey 
Earl Warren 


303 

(577J 


189 

(36%J 


24,104,030 

(49.5%) 


21,971,004 

(45.1%) 


1952 


48 


Adlai E. Stevenson 
John J. Sparkman 


Dwight D. Eisenhower 
Richard M. Ni.xon 


89 

(i6yj 


442 

(83 yj 


27,314,992 

(44.4%) 


33,778,963 

(55.1%) 


1956 


48 


Adlai E. Stevenson 
Estes Kefauver 


Dwight D. Eisenhower 
Richard M. Nixon 


74 

(NVo) 


457 
(86%) 


26,027,983 

(42.0%) 


35,579.190 

(57.4%) 


1960(j) 


50 


John F. Kennedy 
Lyndon B. Johnson 


Richard M. Nixon 
Henry Cabot Lodge 


303 

(62%) 


219 

(36%) 


34,221,349 

(50.08%)* 


34,108,546 

(49.92%)* 


1964 


50 


Lyndon B. Johnson 
Hubert H. Humphrey 


Barry Goldwater 
William E. Miller 


486 

(90%J 


52 
(10%) 


43,128,958 

(6i.oyj* 


(38.5%)* 



(a) 1856: Millard Fillmore, American Party, polled 

8 electoral votes. 

(b) 1860: John C. Breckinridge, southern Demo- 

cratic nominee, polled 72 electoral votes. 
John Bell, Constitutional Union, polled 39 
electoral votes. 

(c) 1864: 81 electoral votes were not cast. 

(d) 1868: 23 electoral votes were not cast. 

(e) 1872: Horace Greeley died after election; 63 

Democratic electoral votes were scattered. 
17 were not voted. 



(f) 1892: James B. Weaver. People's Party, polled 

22 electoral votes. 

(g) 1912: Theodore Roosevelt, Progressive, polled 

88 electoral votes, 
(h) 1924: Robert M. LaFollette. Progressive, polled 

13 electoral votes, 
(i) 1948: J. Strom Thurmond. States' Rights, polled 

39 electoral votes, 
(j) 1960: 15 electoral votes cast for Sen. Harry 

Flood Byrd (D Va.). 

* Percentage of major party vote only. 



43 



114 



Appendix C 

Victorious party in each state, 1856-1964 

State-by-State Presidential Election Returns, 1856-1964, Congress and the Nation 
Congressional Quarterly Service (1965). 

Victorious party in presidential election in each state, 1856 to 1964 





^ 


o 


Tj- 


00 


r^ 


^o 


o 


■* 


OO 


rl 


VD 


o 


"4- 


00 


f^i 




w-i 


S 


■o 


■sD 


r^ 


t-~ 


oo 


00 


OO 


Ov 


O 


o 


o 


o 


— 


State 


oo 


oo 


oo 


OO 


oo 


oo 


00 


00 


OO 


oo 


OO 


2 


CTv 


Ov 


0\ 


Alabama 


D 


SD 


2 


R 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Alaska 
































Arizona 






























D 


Arkansas 


D 


SD 


2 


R 


4 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


California 


D 


R 


R 


R 


R 


R 


D« 


R 


R 


D> 


R12 


R 


R 


R 


PR 


Colorado 












R 


R 


R 


R 


PP 


D 


D 


R 


D 


D 


Connecticut 


R 


R 


R 


R 


R 


D 


R 


D 


D 


D 


R 


R 


R 


R 


D 


Delaware 


D 


SD 


D 


D 


R 


D 


D 


D 


D 


D 


R 


R 


R 


R 


D 


Florida 


D 


SD 


1 


R 


R 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Georgia 


D 


SD 


2 


D 


D^ 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Hawaii 
































Idaho 




















PP 


D 


D 


R 


R 


D 


Illinois 


D 


R 


R 


R 


R 


R 


R 


R 


R 


D 


R 


R 


R 


R 


D 


Indiana 


D 


R 


R 


R 


R 


D 


R 


D 


R 


D 


R 


R 


R 


R 


D 


Iowa 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


Kansas 






R 


R 


R 


R 


R 


R 


R 


PP 


D 


R 


R 


R 


D 


Kentucky 


D 


CU 


D 


D 


D 


D 


D 


D 


D 


D 


RI3 


D 


D 


D 


D 


Louisiana 


D 


SD 


2 


D 


4 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Maine 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


Maryland 


A 


SD 


R 


D 


D 


D 


D 


D 


D 


D 


R 


R 


DM 


D15 


D 


Massachusetts 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


Michigan 


R 


R 


R 


R 


R 


R 


R 


R 


R 


Rs 


R 


R 


R 


R 


PR 


Minnesota 




R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


PR 


Mississippi 


D 


SD 


2 


3 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Missouri 


D 


D 


R 


R 


D 


D 


D 


D 


D 


D 


D 


D 


R 


R 


D 


Montana 




















R 


D 


D 


R 


R 


D 


Nebraska 








R 


R 


R 


R 


R 


R 


R 


D 


R 


R 


D 


D 


Nevada 






R 


R 


R 


R 


D 


R 


R 


PP 


D 


D 


R 


D 


D 


New Hampshire 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


New Jersey 


D 


Ri 


D 


D 


R 


D 


D 


D 


D 


D 


R 


R 


R 


R 


D 


New Mexico 






























D 


New York 


R 


R 


R 


D 


R 


D 


R 


D 


R 


D 


R 


R 


R 


R 


D 


North Carolina 


D 


SD 


2 


R 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


North Dakota 




















9 


R 


R 


R 


R 


D 


Ohio 


R 


R 


R 


R 


R 


R 


R 


R 


R 


RIO 


R 


R 


R 


R 


D 


Oklahoma 




























D 


D 


Oregon 




R 


R 


D 


R 


R 


R 


R 


R 


R" 


R 


R 


R 


R 


D 


Pennsylvania 


D 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


PR 


Rhode Island 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


South Carolina 


D 


SD 


2 


R 


R 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


South Dakota 




















R 


D 


R 


R 


R 


PR 


Tennessee 


D 


CU 


2 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Texas 


D 


SD 


2 


3 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Utah 






















D 


R 


R 


R 


R 


Vermont 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


Virginia 


D 


CU 


2 


3 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


Washington 




















R 


D 


R 


R 


R 


PR 


West Virginia 






R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


R 


R 


D 


Wisconsin 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


R 


R 


R 


R 


D 


Wyoming 




















R 


D 


R 


R 


R 


D 


Winning Party 


D 


R 


R 


R 


R 


R 


R 


D 


R 


D 


R 


R 


R 


R 


D 



1. 4 electors voted Republican; 3 voted Demo- 
cratic. 

2. Confederated States, did not vote in 1864. 

3. Did not vote in 1868. 

4. Votes were not counted. 

5. 3 votes for Greeley not counted. 

6. I elector voted Republican; 5 voted Demo- 
cratic. 



7. I elector voted Republican: 8 voted Demo- 
cratic. 

8. 9 electors voted Republican; 5 voted Demo- 
cratic. 

9. 1 vote each for Democratic, Republican and 
People's Party. 

10. 22 electors voted Republican and 1 voted Demo- 
cratic. 

11.3 electors voted Republican and I voted/'eople's 
Party. 



115 



A 


American Party 






PR 


Progressive 


(Bulh 


noose 


) Pan 


:y 










CU 


Constii 


tutional Union Party 


R 


Repul 


blican 


Party 
















D 


Democratic Party 






SD 


South 


ern Democratic Party 












PP People 


's Party 






SR 


States 


; Rights Party 






No. 


of times 






























parties won 




0\ 


o 

0\ 


OS 


00 
<N 

2 


o> 


0\ 


o 

0\ 


■* 
2 


oo 

0\ 


to 


u-l 


o 

ON 


On 


B 

V 

Q 


d 

a: 


5 


State 


D 


D 


D 


D 


D 


D 


D 


D 


SR 


D 


D'" 


D'9 

R 


R 
D 


22 
1 


3 

1 


2 



Alabama 
Alaska 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


R 


R 


7 


7 





Arizona 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


24 


1 


1 


Arkansas 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


R 


D 


10 


17 


1 


California 


D 


R 


R 


R 


D 


D 


R 


R 


D 


R 


R 


R 


D 


9 


13 


1 


Colorado 


R 


R 


R 


R 


R 


D 


D 


D 


R 


R 


R 


D 


D 


10 


18 





Connecticut 


R 


R 


R 


R 


R 


D 


D 


D 


R 


R 


R 


D 


D 


14 


13 


1 


Delaware 


D 


D 


D 


R 


D 


D 


D 


D 


D 


R 


R 


R 


D 


19 


7 


1 


Florida 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 


D 
D 


R 
D 


25 
2 


1 



1 




Georgia 
Hawaii 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


R 


D 


10 


8 


1 


Idaho 


R 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


D 


D 


10 


18 





Illinois 


R 


R 


R 


R 


D 


D 


R 


R 


R 


R 


R 


R 


D 


8 


20 





Indiana 


R 


R 


R 


R 


D 


D 


R 


R 


D 


R 


R 


R 


D 


5 


23 





Iowa 


D 


R 


R 


R 


D 


D 


R 


R 


R 


R 


R 


R 


D 


6 


19 


1 


Kansas 


D 


D 


R 


R 


D 


D 


D 


D 


D 


D 


R 


R 


D 


22 


5 


1 


Kentucky 


D 


D 


D 


D 


D 


D 


D 


D 


SR 


D 


R 


D 


R 


21 


3 


2 


Louisiana 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


2 


26 





Maine 


D 


R 


R 


R 


D 


D 


D 


D 


R 


R 


R 


D 


D 


18 


9 


1 


Maryland 


R 


R 


R 


D 


D 


D 


D 


D 


D 


R 


R 


D 


D 


9 


19 





Massachusetts 


R 


R 


R 


R 


D 


D 


R 


D 


R 


R 


R 


D 


D 


5 


22 


1 


Michigan 


R 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


D 


D 


7 


19 


1 


Minnesota 


D 


D 


D 


D 


D 


D 


D 


D 


SR 


D 


D 


20 


R 


21 


2 


2 


Mississippi 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


D 


D 


D 


20 


8 





Missouri 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


R 


D 


10 


9 





Montana 


D 


R 


R 


R 


D 


D 


R 


R 


R 


R 


R 


R 


D 


7 


18 





Nebraska 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


D 


D 


13 


12 


1 


Nevada 


D 


R 


R 


R 


R 


D 


D 


D 


D 


R 


R 


R 


D 


6 


22 





New Hampshire 


R 


R 


R 


R 


D 


D 


D 


D 


R 


R 


R 


D 


D 


15 


13 





New Jersey 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


D 


D 


9 


5 





New Mexico 


R 


R 


R 


R 


D 


D 


D 


D 


R 


R 


R 


D 


D 


11 


17 





New York 


D 


D 


D 


R 


D 


D 


D 


D 


D 


D 


D 


D 


D 


23 


3 


1 


North Carolina 


D 


R 


R 


R 


D 


D 


R 


R 


R 


R 


R 


R 


D 


5 


13 


1 


North Dakota 


D 


R 


R 


R 


D 


D 


D 


R 


D 


R 


R 


R 


D 


7 


21 





Ohio 


D 


R 


D 


R 


D 


D 


D 


D 


D 


R 


R 


R21 


D 


10 


5 





Oklahoma 


R 


R 


R 


R 


D 


D 


D 


D 


R 


R 


R 


R 


D 


7 


20 





Oregon 


R 


R 


R 


R 


R 


D 


D 


D 


R 


R 


R 


D 


D 


6 


21 


1 


Pennsylvania 


R 


R 


R 


D 


D 


D 


D 


D 


D 


R 


R 


D 


D 


9 


19 





Rhode Island 


D 


D 


D 


D 


D 


D 


D 


D 


SR 


D 


D 


D 


R 


21 


4 


2 


South Carolina 


R 


R 


R 


R 


D 


D 


R 


R 


R 


R 


R 


R 


D 


4 


14 


1 


South Dakota 


D 


R 


D 


R 


D 


D 


D 


D 


D'' 


R 


R 


R 


D 


20 


6 


1 


Tennessee 


D 


D 


D 


R 


D 


D 


D 


D 


D 


R 


R 


D 


D 


22 


3 


1 


Texas 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


R 


D 


8 


10 





Utah 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


R 


D 


1 


27 





Vermont 


D 


D 


D 


R 


D 


D 


D 


D 


D 


R 


R 


R 


D 


20 


5 


1 


Virginia 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


R 


D 


8 


10 


1 


Washington 


R>« R 


R 


R 


D 


D 


D 


D 


D 


D 


R 


D 


D 


14 


12 





West Virginia 


R 


R 


PR 


R 


D 


D 


D 


R 


D 


R 


R 


R 


D 


7 


20 


I 


Wisconsin 


D 


R 


R 


R 


D 


D 


D 


R 


D 


R 


R 


R 


D 


8 


11 





Wyoming 


D 


R 


R 


R 


D 


D 


D 


D 


D 


R 


R 


D 


D 


12 


16 





Winning Party 



12. 8 electors voted Republican and 1 voted Demo- 
cratic. 

13. 12 electors voted Republican; 1 voted Demo- 
cratic. 

14. 7 electors voted Democratic; I Republican. 

15. 2 electors voted Republican; 6 Democratic. 

16. 7 electors voted Republican; 1 Democratic. 

17. 11 electors voted Democratic; 1 voted States' 
Rights. 



18. 1 elector voted for Walter Jones. 

19. 6 of II electors not pledged to support na- 
tional ticket and voted for Sen. Harry F. Byrd 
(D Va.). 

20. 8 independent electors voted for Byrd. 

21. 1 vote cast for Byrd. 

Blanks indicate states not yet admitted to the Union. 



116 



Appendix D 

Percentages of votes, winning candidates 

" IVinning candidates percentages of popular and electoral votes," 1868-1964, Congress and 
the Nation 1945-1964, Congressional Quarterly Service (1965), p. 67. 



Year 



Winning candidate 



Percent of 


Percent of 


popular 


electoral 


vote 


vote 


53 


73 


56 


82 


48 


50 


49 


58 


49 


55 


48 


58 


46 


62 


51 


61 


52 


65 


56 


71 


52 


66 


42 


82 


49 


52 


60 


76 


54 


71 


58 


84 


57 


89 


61 


98 


55 


85 


54 


81 


50 


57 


55 


83 


57 


86 


50.08* 


62 


61* 


90 



1868 Ulysses S. Grant 

1872 Ulysses S. Grant 

1876 Rutherford B. Hayes 

1880 James A. Garfield 

1884 Grover Cleveland 

1888 Benjamin Harrison 

1892 Grover Cleveland 

1896 William McKinley 

1900 William McKinley 

1904 Theodore Roosevelt 

1908 William H. Taft 

1912 Woodrow Wilson 

1916 Woodrow Wilson 

1920 Warren G. Harding 

1924 Calvin Coolidge 

1928 Herbert C. Hoover 

1932 Franklin D. Roosevelt 

1936 Franklin D. Roosevelt 

1940 Franklin D. Roosevelt 

1944 Franklin D. Roosevelt 

1948 Harry S Truman 

1952 Dwight D. Eisenhower 

1956 Dwight D. Eisenhower 

1960 John F. Kennedy 

1964 Lyndon B. Johnson 



♦Percentage of major party vote only. 



117 

Appendix E 

Popular vote of minority Presidents 

Library of Congress, Historical Sia'isiics of the U.S., and Congressional 
Quarterly Records. 



Under the Electoral College system, 14 Presidents have been elected, either by the Electoral 
College itself or by the House of Representatives, vk'ho did not receive a majority of the 
popular votes cast in the election. Three of them — John Quincy Adams, Rutherford B. 
Hayes and Benjamin Harrison — actually trailed their opponents in the popular vote. 
The following table shows the percentage of the popular vote received by candidates in the 
14 elections in which a "minority" President was elected: 



Year 


Elected 


Opponents 






1824 


Adams 
30.54 


Jackson 
43.13 


Clay 
13.24 


Crawford 
13.09 


1844 


Polk 
49.56 


Clay 
48.13 


Birney 
2.30 




1848 


Taylor 
47.35 


Cass 
42.52 


Van Buren 
10.13 




1856 


Buchanan 
45.63 


Fremont 
33.27 


Fillmore 
21.08 


Smith 
.01 


1860 


Lincoln 
39.79 


Douglas 
29.40 


Breckenridge 
18.20 


Bell 
12.60 


1876 


Hayes 
48.04 


Tilden 
50.99 


Cooper 
.97 




1880 


Garfield 
48.32 


Hancock 
48.21 


Weaver 
3.35 


Others 
.12 


1884 


Cleveland 
48.53 


Blaine 
48.24 


Butler 
1.74 


St. John 
1.49 


1888 


Harrison 
47,86 


Cleveland 
48.66 


Fisk 
2.19 


Streeter 
1.29 


1892 


Cleveland 
46.04 


Harrison 
43.01 


Weaver 
8.53 


Others 
2.42 


1912 


Wilson 
41.85 


T. Roosevelt 
27.42 


Taft 

23.15 


Others 

7.58 


1916 


Wilson 
49.26 


Hughes 
46.12 


Benson 
3.16 


Others 
1.46 


1948 


Truman 
49.51 


Dewey 
45.13 


Thurmond 
2.40 


Wallace 
2.38 


1960* 


Kennedy 
49.71 


Nixon 
49.55 


Unpledged 
.92 


Others 
.27 



*1960 percentages total more than 100 because of double-counted Alabama voles (both 
under Kennedy and Unpledged columns). 



47 



118 

Appendix F 

Ratio of electoral votes to population, 
1964 and 1968 

Ratio of electoral votes to population in each state for 1964 and 1968 presidential elections 
{based on 1960 census). Hearings Before Subcommittee on Constitutional Amendments 
(1961), p. 670. 



Rank and state 


Ratio 


1 Alaska 


75,380 


2 Nevada 


95,093 


3 Wyoming 


110,022 


4 Vermont 


129,960 


5 Delaware 


148,764 


6 New Hampshire 


151,730 


7 Nortli Dakota 


158,112 


8 Hawaii 


158,193 


9 Idaiio 


166,798 


10 Montana 


168,692 


11 South Dakota 


170,129 


12 Rhode Island 


214,872 


13 Utah 


222,657 


14 New Mexico 


237,756 


15 Maine 


242,316 


16 District of Columbia 


254.652 


17 Arizona 


260,452 


18 West Virginia 


265,774 


19 Nebraska 


282,266 


20 Oklahoma 


291,036 


21 Colorado 


292,325 


22 Oregon 


294,781 


23 Arkansas 


297,712 


24 South Carolina 


297,824 


25 Iowa 


306,369 


26 Maryland 


310,069 


27 Mississippi 


311,163 


28 Kansas 


311,230 


29 Connecticut 


316,904 


30 Washington 


317,024 


31 Tennessee 


324,281 


32 Louisiana 


325,702 


33 Alabama 


326,674 


34 Georgia 


328,593 


35 Wisconsin 


329,315 


36 Virginia 


330,579 


National average 


333,314 


31 Kentucky 


337,573 


38 Minnesota 


341,386 


39 North Carolina 


350,473 


40 Florida 


353,682 


41 New Jersey 


356,870 


42 Indiana 


358,654 


43 Missouri 


359,984 


44 Massachusetts 


359,984 


45 Michigan 


372,533 


46 Ohio 


373,325 


47 Texas 


383,187 


48 Illinois 


387,736 


49 New York 


390,286 


50 Pennsylvania 


390,323 


51 California 


392,930 



48 



119 



Appendix G 

Home states of major candidates, 1868-1964 



1868 R Ulysses S. Grant, Illinois 
Schuyler Colfax, Indiana 
D Horatio Seymour, Indiana 
Francis Blair, Jr., Ohio 

1872 R Ulysses S. Grant, Illinois 

Henry IVilson, Massachusetts 
D Horace Greeley, New York 
Benjamin G. Brown, Missouri 

1876 R Rutherford B. Hayes, Ohio 

William A. Wheeler, New York 
D Samuel J. Tilden, New York 
Thomas Hendricks, Indiana 

1880 R James A. Garfield, Ohio 

Chester A. Arthur, New York 
D Winfield S. Hancock, Pennsylvania 
William H. English, Indiana 
1884 D Grover Cleveland. New York 
Thomas A. Hendricks, Indiana 
R James G. Blaine, Maine 
John A. Logan, Illinois 

1888 R Benjamin Harrison, Indiana 
Levi P. Morton, New York 
D Grover Cleveland, New York 
Allen G. Thurman, Ohio 

1892 D Grover Cleveland, New York 
Adlai E. Stevenson, Illinois 
R Benjamin Harrison, Indiana 
Whitelaw Reid, New York 

1896 R William McKinley, Ohio 

Garret A. Hobart, New Jersey 
D William Jennings Bryan, Nebraska 
Arthur Sewall, Maine 

1900 R William McKinley, Ohio 

Theodore Roosevelt, New York 
D William Jennings Bryan, Nebraska 
Adlai E. Stevenson, Illinois 

1904 R Theodore Roosevelt, New York 
Charles W. Fairbanks, Indiana 
D Alton B. Parker, New York 
Adlai E. Stevenson, Illinois 

1908 R William H. Taft, Ohio 

James S. Sherman, New York 
D William Jennings Bryan, Nebraska 
John W. Kern, Indiana 
1912 D Woodrow Wilson, New Jersey 
Thomas R. Marshall, Indiana 
R William H. Taft, Ohio 

James S. Sherman, New York 

1916 D Woodrow Wilson, New Jersey 
Thomas R. Marshall, Indiana 
R Charles Evans Hughes, New York 
Charles W. Fairbanks, Indiana 



1920 R Warren G. Harding, Ohio 

Calvin Coolidge, Massachusetts 
D James M. Cox, Ohio 

Franklin D. Roosevelt, New York 

1924 R Calvin Coolidge, Massachusetts 
Charles G. Dawes, Illinois 
D John W, Davis, West Virginia 
Charles W. Bryan, Nebraska 

1928 R Herbert Hoover, California 
Charles Curtis, Kansas 
D Alfred E. Smith, New York 
Joseph T. Robinson, Arkansas 

1932 D Franklin D. Roosevelt, New York 
John Nance Garner, Texas 
R Herbert Hoover, California 
Charles Curtis, Kansas 

1936 D Franklin D. Roosevelt, New York 
John Nance Garner, Texas 
R Alfred Landon, Kansas 
Frank Knox, Illinois 

1940 D Franklin D. Roosevelt, New York 
Henry A. Wallace, Iowa 
R Wendell Willkie, Indiana 
Charles L. McNary, Oregon 

1944 D Franklin D. Roosevelt, New York 
Harry S Truman, Missouri 
R Thomas E. Dewey, New York 
John W. Bricker, Ohio 

1948 D Harry S Truman, Missouri 
Alben W. Barkley, Kentucky 
R Thomas E. Dewey, New York 
Earl Warren, California 
1952 R Dwight D. Eisenhower, New York 
Richard M. Nixon, California 
D Adlai E. Stevenson, Illinois 
John J. Sparknian, Alabama 
1956 R Dwight D. Eisenhower, New York 
Richard M. Nixon, California 
D Adlai E. Stevenson, Illinois 
Esles Kefauver, Tennessee 
1960 D John F. Kennedy, Massachusetts 
Lyndon B. Johnson, Texas 
R Richard M. Nixon, California 

Henry Cabot Lodge, Massachusetts 

1964 D Lyndon B. Johnson, Texas 

Hubert H. Humphrey, Minnesota 
R Barry M. Goldwater, Arizona 
William E. Miller, New York 



49 



120 

Appendix H 

Number of Presidents from each state 

Numbers of elected Presidents bv states. Biographical Directory of the American Congress 
HDOC 442 Government Printing Office ii^ll 

Presidents 

State Elected Terms 

Alabama 

Alaska 

Arizona 

Arkansas 

California 1 1 

Colorado 

Connecticut 

Delaware 

Florida 

Georgia 

Hawaii 

Idaho 

Illinois 2 4 

Indiana 1 1 

Iowa 

Kansas 

Kentucky 

Louisiana 1 1 

Maine 

Maryland 

Massachusetts 4 4 

Michigan 

Minnesota 

Mississippi 

Missouri 1 1 

Montana 

Nebraska 

Nevada 

New Hampshire 1 1 

New Jersey I 2 

New Mexico 

New York* 7 11 

North Carolina 

North Dakota 

Ohio 6 7 

Oklahoma 

Oregon 

Pennsylvania 1 1 

Rhode Island 

South Carolina 

South Dakota 

Tennessee** 3 3 

Texas 1 i 

Utah 

Vermont 

Virginia 5 8 

Washington 

West Virginia 

Wisconsin 

Wyoming 



*A seventh citizen of New York, Millard Fillmore, succeeded to the office from the 
Vice-Presidency but was never elected President. 

**A third Tennessean, Andrew Johnson, succeeded from the Vice-Presidency but was 
never elected to the office of President. 



50 



121 



Appendix 1 

Present distribution of electoral votes 



Alabama 10 

Alaska 3 

Arizona 5 

Arkansas 6 

California 40 

Colorado 6 

Connecticut 8 

Delaware 3 

District of Columbia 3 

Florida 14 

Georgia 12 

Hawaii 4 

Idaho 4 

Illinois 26 

Indiana 13 

Iowa 9 

Kansas 7 

Kentucky 9 

Louisiana 10 

Maine 4 

Maryland 10 

Massachusetts 14 

Michigan 21 

Minnesota 10 

Mississippi 7 

Missouri 12 

Montana 4 

Nebraska 5 

Nevada 3 

New Hampshire 4 

New Jersey 17 

New Mexico 4 

New York 43 

North Carolina 13 

North Dakota 4 

Ohio 26 

Oklahoma 8 

Oregon 6 

Pennsylvania 29 

Rhode Island 4 

South Carolina 8 

South Dakota 4 

Tennessee 11 

Texas 25 

Utah 4 

Vermont 3 

Virginia 12 

Washington 9 

West Virginia 7 

Wisconsin 12 

Wyoming 3 
Total 538 



51 



122 

Mr. FEtmicK. I would also like to refer this subcommittee to the 
statements of Mr. William Gossett and Dean Robert G. Storey, who 
appeared on behalf of the association before the Judiciary Committee 
and this subcommittee back in 1970 and 1967. 

Perhaps, Mr. Chairman, it would be useful for me to briefly describe 
the work of the American Bar Association in this area. 

Wliile I appear here today as a representative of the American Bar 
Association, my profession is the practice of the law. I reside and 
practice law in New York, and I have studied these subjects and have 
had a great ojjportunity to reflect my views in the work of the American 
Bar Association. 

Back in 1966, Mr. Chairman, the American Bar Association, for the 
first time in its history, established a commission, consisting; of both 
lawyers and nonlawyers. nonlawyei-s from outside the American bar. 
The commission that was set up in 1966 consisted of (jovernors of both 
parties, judges, lawyers, constitutional law authorities, political sci- 
entists, and representatives of labor and management. 

We gave great study to the subject of electoral college reform. We 
spent practically a year studying the subject. And at the conclusion of 
that year, the commission was unanimous in its view that the present 
system required major reform. The commission was overwhelming 
in its view that the preferable method for electing the President and 
Vice President was direct popular election. 

I think it is very edifying to appear here today and to note that 
the views of the American Bar Association are in substantial con- 
formity with the views of the IT AW, the Chamber of Commerce, the 
League of Women Voters, and the Department of Justice. 

Mr. Chairman, I would like to comment on a few matters that have 
been discussed here earlier today. Assistant Deputy Attorney General 
Robert Dixon came down hard in his statement and in his testimony on 
the use of a ioint session of Congress in the contingent election for- 
mula. He siaid that such a method for handling a contingency would do 
violence to our structure of separation of powers. 

I disagree. I would point out to this subcommittee that the Consti- 
tution now contains a number of provisions for Congress to resolve 
contingencies. I would point out, Mr. Chairman, that in article II, 
section 6 of the Constitution it is provided that, if there should be no 
President or Vice President by virtue of the death, resignation, ina- 
bility, or impeachment of those officials, the Congress has the power to 
establish a line of succession. 

Under the 12th amendment, it is provided that if no candidate 
receives a majority of electoral votes for President, the election would 
devolve on the House of Representatives. And if no candidate had a 
majority for Vice President, the Senate would decide the election. 

Under the 20th amendment, if neither the President-elect nor Vice- 
President-elect qualified by inauguration day. Congress is empowered j 
to decide who acts as President and Vice President. I 

The 20th amendment also provides that, in a case where the election \ 
comes before Congress, if there should be a death of one of the candi- 
dates to be considered, Congress has the power to provide for substi 
tutes in that situation. 

ITnder the 25th amendment, it is provided that, should there be 
vacancy in the Vice Presidency, Congress has the power to confiri 



123 

any nomination made by the President. And I would also point out that 
under the jiath amendment, if there should be a disagi-eement between 
the Vice President and the Cabinet and the President in an inability 
context, it is Congress that has the power to resolve that dispute. 

All of these wor-ds are simply to support the proposition that if the 
Congi'ess should decide to accept the joint session as the contin<>;ent elec- 
tion formula, it would not do violence to oui- system of separation of 
powers. 

Senator Bayh. Might I interrupt just long enough to ask how the 
contingency in a joint session of Congi-ess does moi'e damage to sepai'a- 
tion of jK)wers than the j)resent contingency provision which is con- 
tained within the Constitution as it is now wi'itten ? 

Mr. Feerick. That is precisely my point, Mr. Chairman. 

Certainly, if we are talking about an election by the House of Repre- 
sentatives whei'e each State has one vote, and contrasting that with a 
system where a joint session should elect the President and Vice Presi- 
dent because no one has received the necessary number of votes, cer- 
tainly that is more equitable, more democi-atic, than the existing contin- 
gent election formula. 

Senator Bayh. May I just interrupt to make sure that we differen- 
tiate between the two contingency plans which exist in the event the 
President and the Vice President do not receive a majority of the elec- 
toral college vote ? 

All the emphasis has been placed so far on the fact that you go to the 
House to choose the President, and one State, one vote, so that tends to 
preserve the federalism and perhaps not do as much damage to the 
separation of powers. But the contingency for choosing the Vice Presi- 
dent is directly on the Senate, one vote basis. 

Mr. Feerick. That is correct. 

Mr. Chairman, I do not mean to confu<-e my remarks and obscure the 
position of the American Bar Association in the process. I merely am 
trying to deal with the Assistant Attorney General's point that a con- 
tingent election in the Congiess would do violence to the separation of 
powers. I do not think that can pass the test. 

The American Bar xVssociation, Mr. Chairman, recommended in 
1967 that the President and Vice President be elected by direct 
popular election and that the required vote for those positions be 40 
percent, and that if no candidate received 40 percent, that the elec- 
tion then be decided between the top two in a popular vote runoff. The 
position of the American Bar Association in favor of a runoff perhaps 
was somewhat influential when this committee decided to opt for the 
runoff in its subsequent legislation. 

I would like, Mr. Chairman, to tell you a little bit about the work 
of our commission with reference to the runoff. As you know, I had the 
privilege of serving as adviser to the American Bar Association Com- 
mission on Electoral College Reform. I attended all the meetings and 
I participated in the deliberations and discussions of that group. 

And it certainly was the overriding concern of our commission that 
the present system be changed in favor of direct election. We spent a 
great deal of time looking at the proportional system and looking at 
the district system. We did have before us, Mr. Chairman, evidence that 
seemed to suggest that in a number of our past elections, if we had had 
a proportional system or a district system, many of those elections 



124 

would not have been resolved in the initial round, but it would have 
been essential to go to the contingent election formula. 

I would call the committee's attention to the outstanding work of 
Neil Pierce. In his book, "The People's President," he goes back to, 
I believe, 1880, and he takes the district plan and the proportional 
plan, and he assumes that the results as they were achieved in those 
elections were the same under a district plan and a proportional plan, 
and he seeks to show what the final consequence would be had those 
plans been in effect. What his outstanding study shows is that several 
of those elections would have had to go into the House of Representa- 
tives for an ultimate decision, and several would not have eventuated 
in a situation where the popular vote loser was the ultimate winner. 

Getting back, Mr. Chairman, to the work of the American Bar Asso- 
ciation, we certainly felt very strongly about direct popular election. 
When we got around to the contingent election area, there was a great 
deal of discussion on that subject. A number of members of our com- 
mission, Mr. Chairman, felt that perhaps the contingency should be 
referred to a joint session of Congress. Other members of the commis- 
sion felt that it would be desirable to have a popular vote runoff be- 
cause it was the most democratic way of electing a President. We 
settled on a runoff, and that certainly continues to be the official posi- 
tion of the American Bar Association today. 

But, Mr. Chairman, I would point out to you that, if the fate of direct 
election depended on a different method, a different contingent election 
formula than the runoff, I have every confidence that the American 
Bar Association would support the judgment of this committee and 
of the Congress in favor of such different method. 

Mr. Chairman, I would like to offer some thoughts that have not 
be^n expressed before this committee with reference to the contingent 
election formula. 

You will recall that during the days of the 25th amendment, we 
had a great division among us as to the best body for handling an 
inability situation. Some felt the Cabinet should be the body. Some felt 
that other groups consisting of representatives of all branches of 
Government should have the power to declare a President disabled. 

We finally settled on the Cabinet and the Vice President ; but because 
we could not foresee all of the future possibilities, we included in the 
25th amendment a provision that said the Congress has the power to 
change the body. 

The thought I would like to offer the committee this morning is this. 
There seems to be a great deal of concern about the runoff. There 
seems to be some concern about a doublebarreled approach ; there seems 
to be some concern about a joint session of Congress deciding a con- 
tingency. Perhaps it might be worth considering a solution that in- 
volved a judgment by the committee as to the best method to go with, 
and include in the amendment a provision that would give power to 
Congress to change the method, the contingency election, if in the 
future, as a result of the functioning of the method, that there should 
be some change. 

As we are now proceeding, Mr. Chairman, if this committee should 
decide on the contingent election formula of the present resolution or 
another formula, in order to change it in the future, we would have 
to go through another constitutional amendment. Perhaps there is 



125 

merit in settling on a contingent election formula that seems to have 
a lot of sujiport, whether it be the runoff or the one that is before this 
committee, and then give Congress the power to change that method if 
the future dictated that change should take place. 

Senator Bayh. May I play the devil's advocate to that ? 

Mr. Feerick. Yes. 

Senator Bayh. I hearken back to some of the concerns that wei-e 
expressed by the inclusion of this provision in the 25th amendment, and 
I supported it for reasons that were contained in debate at the moment. 

If we are talking about the election of the President, and if we have 
a situation where the politics of the Congress are making the determi- 
nation of what contingency might realize is different than the Presi- 
dent who might be elected under the existing contingency, are we 
not running a danger of some political foul play here? 

Mr. Feerick. I certainly think your observation is a very perceptive 
one. If there is any merit in the resolution I offered, that perhaps could 
be dealt with by a qualification on the power. 

Senator Bayh. Excuse me for interiiipting, but the immediate re- 
sponse is that same contingency possibility of political foul play would 
be existent in the 25th amendment. 

But as I recall our thinking, and you bring me up to date on that, 
what we were concerned about was a situation where the Cabinet, for 
various reasons, would just arbiti-arily refuse to act, and it would be 
obvious to the country generally. Thus, we were giving to the Congress 
the opportunity to establish some other body which could give us an 
acting President, and could perform the powers and duties of the 
office to circumvent an arbitrary Cabinet. 

Mr. Feerick. Well, the thought — again, this is a thought of mine 
which I have not discussed with any representatives of the American 
Bar Association. I really offer it as a private citizen. 

I would think if there was anv merit to the idea, there could be a 
further qualification that the power could not be exercised in a par- 
ticular election, that^ 

Senator Bayh. A subsequent election. 

Mr. Feerick. That is right. But it gives a little flexibility — because 
there are a lot of future imponderables here, and if we are wrong in 
the contingent election formula, then another amendment is necessary 
to change it. 

But in terms of the broader question, Mr. Chairman, it certainly was 
the feeling of the American Bar Association commission that resort 
to the contingent election formula would be very rare, perhaps, in- 
deed, never occur. We noted that in every Presidential election, with 
the exception of the election of 1860 — -and that, in a sense, was an 
unusual situation — at least one major candidate had received 40 per- 
cent of the popular vote. 

It seemed to us that in the future it perhaps would be most unusual, 
very rare, that no candidate, no major candidate, received 40 percent 
of the popular vote. So that we had the confidence, Mr. Chairman, that 
the contingent election formula, be it a runoff, be it another method, 
would not come into play except, perhaps, in a very extraordinary and 
unusual situation. 

While it is true that we came out in favor of the runoff and we con- 
tinue to support the runoff. I think I would be unfair to the members 



25-147 0—74- 



126 

of the ABA commission, not to say to you, Mr. Chairman, that our 
OA^erridino; concern was that we go to a system of direct election and 
that we not let the present system continue because of some differences 
on the subject of tlie contingrent election formula. What I am saying is 
that I believe the American bar is prepared to suT:»port the judcrment 
of the Cono-ress with reference to a contino;ent election system other 
than the popular vote runoff, althouffh we continue to support the use 
of a popular vote runoff as the most democratic way of electing a 
President and Vice President, given that contingency. 

Senator Bayh. Thank you, Mr. Feerick. 

I have interrupted to ask some questions as we have gone along here. 
I appreciate your giving us your expertise. 

Although you cannot speak for the American Bar Association as f ai- 
as the change in the resolution which was adopted by them in their 
delegate convention in the democratic process, it is very beneficial to 
the committee to have your expert testimony, not only as an individual, 
but also as one who is familiar with the workings of the bar and their 
process. 

I appreciate your making a special effort to come down from New 
York to be here. 

Mr. Feerick. Thank you very much, Mr. Chairman. 

It is a great honor. 

Senator Bayh. I note for the record that Mr. Donald Channel, who 
also has been very helpful to the committee, is present. He is a chief 
assistant in the bar. 

We appreciate both of you gentlemen taking the time to be with us, 
and I hope we can call on your expertise in the future as we go along, 
as well as your significant influence in the communities where we may 
need some help out in the trenches. 

Mr. Feerick. We are prepared to do all we can. 

Mr. Chairman, this is not a lawyer's issue. This is an issue that con- 
cerns every citizen of the country. The American bar has no vested 
interest in electoral college reform because it is an issue peculiar to 
lawyers. It is an area that we feel is very important because it involves 
a fundamental aspect of our political system, the election of our Presi- 
dent and Vice President. We will jjive all the help we can to this com- 
mittee and to the Congress in its efforts to improve our present system. 

Thank you. 

Senator Bayh. Thank you, Mr. Feerick. 

Our next witness this morning — or the last witness, I guess I should 
say, this afternoon — is Mr. Daniel A. Mazmanian, a research associate 
at the Brookings Institution. 

Mr. Mazmanian, we appreciate your being here and your patience. 
I apologize for the inconvenience to which you have been subjected to 
by my late arrival and the votes. But we are very anxious to have your 
thoughts. 

STATEMENT OF DANIEL A. MAZMANIAN, RESEARCH ASSOCIATE, 
THE BROOKINGS INSTITUTION, WASHINGTON, B.C. 

Mr. Mazmanian. Thank you. 

Mr. Chairman, after sitting through the hearings yesterday and 
this morning, it is clear that the central concern of the committee is the 



127 

contingency plans under consideration this session. So if I may, I 
would submit my prepared statement for the record and move on to 
the discussion which I have included on the new contingency plan 

Senator Bayh. All right. That will be fine. 

We will include the testimony in the record, and then have the wit- 
ness emphasize those parts which he thinks are particularly relevant 

I The prepared statement of Daniel A. Mazmanian follows :] 

StatemexNt of Daniel A. Mazmanian. on the Impact of the Direct Election 

OF THE President on Third 1'ahies 

Mr. Chairman, it is a pleasure to appear before your eominittee today. Mv 
name ls Daniel A. Mazmanian. I am a Research Associate at the Brookings 
Institution. However, the views I shall express this morning are not necessarily 
those of the institution. I believe I have been asked to appear because of my 
research over the past three years on the role of third parties in presidential 
selections. My remarks will be aimed primarily, therefore, at the different incen- 
tives provided third parties under the electoral college and the proposal for the 
direct popular election of the President. 

I first became interested in the direct vote plan when investigating possible 
way of encouraging active and more nearly pennanent minor parties : a modifica- 
tion of the present system that I believe would be quite healthy. Upon close 
scrutiny I quickly became dissuaded of the notion that any of the leading 
proposals calling for the direct election were a means to this end. Indeed, con- 
trary to those who argue that the direct vote would enhance the strategic im- 
portance of third parties, I have come to the opposite conclusion ; the greatest 
incentive to third parties is under the electoral c<jllege. 

Two important incentives for third imrties under the electoral college are 
unequaled under the direct vote. First, a third party can play a strategic role 
in determining the outcome of the electoral college. The party can become a 
"power broker," providing the winning electoral votes to one of the major 
parties in an instance where neither has a majority. In a close election, this 
could be accomplished with relatively few electoral votes. Should such a situation 
arise, the third party could conceivably wield power far in excess of its actual 
popular support. Second, in the translation of popular votes into electoral 
votes the strength of a third i>arty can be exaggerated. For instance, by focusing 
its effort in a few states the States' Rights party of Strom Thurmond, in 1948. 
was able to turn a popular vote of 2.4 iiercent into almost three times that 
amount — 7.0 percent of the votes in the electoral college. By contrast, the 2.4 
percent of votes received by the Progressive in the same election were distributed 
in such a fashion that the party won no state pluralities, and thus, no electoral 
vote. 

In sum, the third party that wishes to play a strategic role in determining the 
outcome of a presidential contest has an incentive to concentrate its campaign in 
a limited number of states in hopes of controlling a block of electoral votes. Not 
only might a relatively small but geographically concentrated third party play a 
strategic role, but the party's strength may be extremely exaggerated in certain 
situations. 

The iK)pular vote of third parties are seldom distributed, however, so that the 
parties receive a disproportionate electoral vote. Although they have attempted 
to do so, third parties have never been able to form a coalition with one of the 
major parties in the electoral college. But the possibility of a coalition is quite 
real, as demonstrated by the events of 1968. 

In turning to the direct vote plan. I shall distinguish between the incentives 
in the plan recommended by this committee in its report to the 91st Congress, 
then turn to the modification of that plan under consideration this session, and 
finally, consider a third direct election alternative. The direct vote plan reiwrted 
by this committee to the 91st Congress allowed for neither an exaggeration of a 
third party's popular strength nor a power broker role for the party. The Presi- 
dent would be determined solely according to popular vote. In the event that no 
candidate received at least 40 percent of the popular vote there would be a run- 
off between the leading two. The plan does provide an incentive for a third party 
to amass enough votes to force a rimoff, hoping for concessions from the major 
parties who would have to solicit its constituency to win. Also, the party would 
not need to restrict its effort to a small number of states. 



128 

The key feature of the plan is the plurality rule, runoff procedure. For third 
parties to play a strategic role, they would have to win at least 20 percent of the 
popular vote, and do so at the same time that neither major party amassed a 
minimum of 40 percent. For example, if the American Independent party had in- 
creased its 13.5 percent of the vote to 20 percent in 1968. a feat that would have 
required an additional 5 million popular vote, it still could not have been assured 
that it forced a runoff ; that would depend on the distribution of the remaining 
votes between the leading contenders. Only once, in the election of Abraham Lin- 
coln in 1860. with 39.8 percent of the popular vote, have the conditions requiring 
a runoff been met. 

Compared to the electoral college, the direct vote, with a runoff provisions, 
would reduce the strategic importance of third parties. A regional third party 
could no longer hope to gain disproportionate influence when popular votes are 
translated into electoral votes. And third party leaders could no longer hope to 
be power brokers, casting the deciding ballots in the electoral college. It is un- 
reasonable to assume that third parties would be in.spired by knowing that they 
must amass, at a minimum, 20 percent of the popular vote before they could 
begin to play a strategic role in the selection of the President. Even if such a 
situation arose, the importance of the third party's leadership is diminished by 
the fact that the general electorate, not third party electors, cast the deciding 
votes. 

The direct vote plan introduced this session by Senator Bayh again calls for 
the direct election of the President under a plurality voting rule, with a minimum 
of 40 percent of the popular vote needed to win. In the event that no candidate 
receives 40 percent, however, there would be an automatic electoral college count 
for the plurality winner. If the plurality winner receives a majority of elec- 
toral votes he is declared President, regardless of his actual popular vote. If this 
procedure fails to produce a victor, the election would be thrust upon the newly 
elected Congress, with members of both houses meeting in special session to elect 
the President from among the leading two contenders in the popular vote. 

The implication of this newest plan is clear. Even if third parties could 
deprive both major parties of a 40 percent plurality, the plurality winner might 
still win an electoral count. And if this faile<l. the major parties, who presumably 
would continue to dominate Congress, would make the final decision. Under this 
scheme third parties are effectively precluded from playing any direct strategic 
role. 

At first glance this plan may appear to be the ideal solution for avoiding 
runoffs and deterring third parties. But is the accomplishment of these goals 
worth the price that must be paid? The provision for an automatic electoral 
vote is only a thinly veiled method for circumventing the primary criteria for 
victory under the plan, winning ■^O percent of the popular vote. Taking 1968 
as an example, it would have been possible for a candidate who received only 
25 percent of the popular vote, distributed in such a manner that it prodiiced 
pluralities in the 11 most populous states, to carry the electoral college. If the 
automatic electoral count vote failed to produce a winner, what could be ex- 
pected under the congressional vote provision? Surely serious problems would 
arise if a majority of the new^ly elected Congress were from a party different 
than that of the plurality victor in the general election. There would be enormous 
pressures in this situation for congressmen to vote along party lines. Yet if they 
did so, this would surely result in an outcry across the nation over the "stealing" 
of the election. In the name of expediency, and through a backhanded method, 
this plan in effect negates much of the proported attributes of the direct vote 
concept. 

Is it possible to avoid the shortcomings of each of the election schemes thus 
far considered? Can there be direct elections without destroying two-party 
competition? Are runoffs inevitable? Must we resort to an arbitrary ^0 percent 
rule? Need the fear of a runoff lead us back full circle to an electoral vote count? 
And is the eventuality of the new Congress electing the President really much of 
an improvement over the existing provisions of the 12th Amendment? 

A direct vote plurality election would avoid all these problems. The knowledge 
that only one election would be held, with neither runoffs nor contingency 
mechanisms, would compel factions to bargain and coalesce within the major 
parties before the popular vote. Furthermore, third parties would have less in- 
centive to go their ow^i way than under the existing electoral college or the 
direct vote plan with a runoff provision. Eliminating the bargaining period 
between the general election and an electoral vote or the general election and 



129 

a runoff denies third parties their potential as power brokers. Under a plurality 
rule with no contingencies, one might envision a multiplicity of parties entering 
the election with the winner chosen by a minute portion of the electorate. This 
is the usual criticpie of a straight plurality rule provision. Rut the potential of 
this occurring runs counter to the extensive experience with the plurality or 
lirst-past-the-post system in the United States and abroad. The overriding "fact 
that all is decided in only one vote, plus the intensive competition over the re- 
wards to be gained through winning the highest office in the laud, would suffice 
to bring diverse groups together before the election, in the pragmatic pursuit of 
victory. Coalition building, not multiparties would be the norm. If adopted, the 
plan would elevate the plurality principle from its present application in the 
states, where it regularly produces two-party Cf)mpetition in the contest for 
presidential electors, governors. United States .senators, and other statewide 
contests, to the national level. These features of the system, then, will go a long 
way toward sustaining the fundamental two-party nature of the American 
political system. 

In closing, I should be explicit that the direct vote plurality election system 
I advocate, although providing no incentives to third parties, would not foreclose 
the possibility of strong third party movements. Just as under the electoral col- 
lege, or other direct vote plans, when minorities, intensely aroused over contro- 
versial public issues, find themselves estranged from both major parties, third 
parties will prosper. 

Mr. Mazmaxian. I should preface a discussion of the coiiting-encies 
with my primary general observation, that the electoral college pro- 
vides greater incentives than any of the direct vote plans proposed 
for third parties attempting to piny a strategic role in the election of 
a President. 

Senator Bayh. In your statement — excuse me — do you discuss the 
conclusions that you just reached, that the electoral college system 
gives more cause for concern as far as third parties are concerned? 

Mr. Mazmanian. Yes. This comes in the early part of the statement. 

I shall now turn to the direct vote plan introduced this session, 
which calls for direct election of the President and Vice President 
under a plurality voting rule with a minimum of 40 percent of the 
popular vote needed to win. In the event that no candidate receives 
40 percent, however, there would be an automatic electoral college 
coinit for the plurality winner. 

If the plurality winner receives the majority of electoral votes, he 
is declared President regardless of his actual popidar vote. If this 
procedure fails to produce a victor, the election would be thrust uDon 
the newly elected Congress, with Members of both Houses meeting 
in special session to elect the President from among the leading two 
contenders in the popular vote. 

The implication of this newest plan is clear. Even if third parties 
could deprive both major pai'ties of 40 percent of the vote, the 
plurality winner might still win an electoral count. And if this failed, 
the major parties, who presumably would continue to dominate Con- 
gress, would make the final decision. Under this scheme, third parties 
are effectively precluded from playing any direct strategic role. 

At first glance, this scheme may appear to be the ideal solution for 
avoiding runoffs and deterring third parties. But is the accomplish- 
ment of these goals worth the price that must be paid ? 

The provision for an automatic electoral vote may serve only to 
circumvent the primary criteria for victory under the plan, winning 
40 percent of the popular vote. Taking 1968 as an example, it would 
have been possible for a candidate who received only 25 percent of 
the popular vote, distributed in such a manner that it produced 



130 

pluralities in the 11 most populous States, to cai-ry the electoral 
college. 

If the automatic electoi'al vote fails to produce a winner, what 
could he expected under the congressional vote provision^ 

Surely serious problems would arise if the majority of the newly 
elected Con<rress were from a party dift'erent from that of the plu- 
rality victor in the general election. There would be enormous pre^^sures 
in this situation foi' Congressmen to vote along party lines. Yet, if 
they did so, this would most likely result in an outcry across the Xation 
over stealing the election. In the name of expediency, and through this 
somewhat backhanded method, this new plan, then, in effect, negates 
nuich of the purported attributes of the direct vote concept. 

Senator Bayh. May I suggest some of the thinking behind this al- 
ternative which goes to the point which you i-aised, which I think is a 
very good point to raise. 

r am inclined to concur in your assessment — in 1968, you could 
have carried the electoral college with 25 pei'cent of the popular vote 
as long as you had it in the right places, it did not make any difference 
what happened to you elsewhere. 

Except, I think the wording of this contingency says that you have 
to have a majority of the electoral college vote which you could get 
from carrying only, I think, 10 of the large States plus the District 
of Columbia. But it also says you have to have a plurality. 

Mr. Mazmanian. Correct. Yet it is, nevertheless, possible that imder 
tills scheme the plurality winner might only receive 25 percent of the 

popular vote. The way the proposed amendment is worded now 

Senator Bayh. Yes, but it would still have to have plurality plus 
a majority in the electoral college. I just wanted to make sure you 
got that. 

Mr. Mazmanian. But the plurality can be as little as 25 percent, 
according to the 1968 figures. 

Senator Bayh. Let's think out loud. That is absolutely right. 
Mr. Mazmanian. In this sense, the 40-percent rule can be violated 
through the contingency plan. 
Senator Bayh. Right. Right. 

Mr. Mazmanian. The importance of this point relates to the earlier 
reasoning by the committee that, for the sake of legitimacy, a candi- 
date must receive at least 40 percent of the popular vote. 
Senator Bayh. Credibility. 

Mr. Mazmanian. Credibility. And now, we are saying through a 
contingency, we are going to remove that very important criterion. 

Senator Bayh. Let us assume that we have removed the contin- 
gency of the electoral college, as contained in Senate Joint Resolu- 
tion 1 and let me get your thinking on the role that would be played by 
a joint session of Congress. 

Here again, this is based on a premise — and frankly, I think a pop- 
ular elected i-unofi' would be the best wav to go. l^ut you pick out and 
picture the also-rans, and then you give each voter a chance to say, 
okay, that is my man ; at least I have a crack at him. 

But I cannot emphasize too much the feeling that existed in the 
Senate and still exists. I just do not have support for that. Add to 
that the little likelihood that you would ever have to resort to that 
contingency, would cause me to be a bit pragmatic, and perhaps I 
should be a little more ideological about this. 



131 

But our thoughts were that, given the possibility, remote as it niiglit 
be, that you had to resort to that contingency, that the Congress could 
provide a forum for consensus and that, altliougli you talk al)out vot- 
ing along party lines, given a situation where, say, you have got four 
or five candidates that are equal, and thus you lose the 40 percent, that 
the Congress is as good a vehicle as any to assess the feelings of the 
constituency that they represent, which, to bo sure, is not the same as 
the national constituency which is supposed to be represented by 
people. But still it is a lot closer to a national constituency than tlia^ 
which is provided by the contingency now in the electoral college sys- 
tem, which admittedly, perhaps, is the lesser of two evil alternatives. 

Mr. Mazmaxian. I am inclined to agree with your last comment, 
the lesser of two evils. And I also have the luxury of not having to 
make the pragmatic political decision as to which proposal to try to 
pass through this Congress. 

Senator Bayii. Nevertlieless, I should not have interrupted. AVe want 
your expert testimony. 

Mr. Mazmaniax. 1 will turn now, then, to what I consider to be the 
best solution to these problems. 

Is it possible to avoid the shortcomings of each of the election 
schemes thus far considered? Can there be direct elections without 
destroying two-party competition? Are iiuiolfs inevitable? Must we 
resort to an ai-biti-aiy 40-percent rule? Need the fear of a runotl' load 
us back full circle to an electoral vote count? And is the eventuality 
of the new Congress electing the President reallv much of an improve- 
ment over the existing provisions of the 12th amendment? 

A direct vote plurality election would avoid all these problems. The 
knowledge that only one election would be held, with neither runoffs 
nor contingency mechanisms, would compel factions to bargain and 
coalesce within the major parties before the popular vote. Further- 
more, third parties would have less incentive to go their own way than 
under the existing electoral college or the direct vote plan with a run- 
provision. Eliminating the bargaining period between the general 
election and an electoral vote or the general election and a run- 
off denies third parties their potential as power brokers. 

Under a plui'ality rule with no contingencies, one might envision 
a multiplicity of parties entering the election Avith the winner chosen 
by a minute portion of the electorate. This is the usual critique of a 
straight plurality rule provision. But the potential of this occurring 
I'uns counter to the extensive experience with the plurality or first- 
past-the-post system in the Ignited States and abroad. The overriding 
fact that all is decided in only one vote, plus the intensive competition 
over the rewards to be gained through winning the higliest office in 
the land, would suffice to bring diverse groups together before the 
election, in the pragmatic pursuit of victory. Coalition building, not 
multipai-ties, would be the norm. 

If adopted, the plan would elevate the plurality principle from its 
present application in the States, where it regularly pi'oduces two- 
party competition in the contest for Presidential electors. Governors, 
tJ.S. Senators, and other statewide contests — and I might also add, 
as it operates in the congressional district level — to the national 
level. These features of the system, then, will go a long way toward 
sustaining the fundamental two-party nature of the American polit- 
ical system. 



132 

In closin*!;, I should be explicit that the direct vote plurality election 
system I advocate, although pi'ovidin^ no incentives to third parties, 
would not foreclose the possibility of strono; third party movements. 
Just as under the electoral college, or other dii-ect vote plans, when 
minorities, intensely ai'oused over controversial public issues, find 
themselves esti-anged from both major parties, third ])arties will 
l)iosper. 

So, Senator, I i>uess what 1 am saying is that T think there is a 
better solution than the conting^ency plan, which is simply a direct 
plurality vote. Althouofh I recognize from reading the testimony of 
past liearinos and discussing tliis issue with other concerned citizens, 
scholars, and lawyers that most people simply do not trust a plurality 
system, I think this is an irrational fear. 
' Senator Bayh. Most people do not trust a i)lui-ality i 

Mr. Mazmanian. Simply relying on a plurality with no contin- 
gencies. They ai'e afi'aid for some reason that a President will be 
elected with very few votes, that no one will form coalitions, that it 
will create a nmltiparty system. I do not think thei-e is any evidence 
to iustify that. 

Senator Rayii. There has been argument presented, as you know, 
that the very existence of a contingency system encourages third 
]:)arties, but that this would be less so if "we had a movement to the 
Congress as a contingency. That is one of the reasons why I was 
willing to accept it, frankly. But there was a rather strong argument 
made that the existence of a contingency such as a runoff would tend 
to get more splinter parties involved. 

Mr. Mazmanian. That is a relative statement. I think the runoff 
'vould tend to generate more splinter parties in comparison to a direct 
election with a plurality rule, but in comparison to what we have, I 
think a third party, as I mentioned earlier, has fai- greater incentives 
to attempt to play a strategic role under the electoral college system. 

Senator Bayh. I agree with you. 

Mr. Mazmanian. In short, the incentives to third parties are great- 
est under the electoral college ; somewhat less under a direct vote with 
a runoff: and even less under either the direct vote with an automatic 
electoral count and congressional vote oi' the scheme I have suggested 
to the committee this morning — a single popular election, decided by 
a plurality rule. 

Senator Bayh. Have you given any thought to the proposition 
i-aised by Professor Freund yesterday relative to the increased poten- 
tial for" mischief contained in the propoi-tional and district plan : 
namely, increased potential for going to the contingency? 

Mr.MAZMANiAN. I think the logic is there. A third paity's strategic 
position would increase under the proportional or district system if 
either was combined with the electoral college. This happens because, 
first, it is easier for third parties to win pluralities in districts than 
in States; and second, the electoral college requires a majoi'ity vote. 
If you combine these two factors, obviously, the third party is going 
to have more sti-ategic importance tecause it is going to be more highly 
I'epresented in the electoral college. 

Senator Bayh. I do not want to impose on you further, but if you 
could put youi' expei'tise to work there and give us some specific ex- 
amples of how that might be the case. It makes good sense, but we can 



I 



133 

take past experience and put numbers together and show how that 
would liappen. oi- with a slight change it could have happened, under 
those otliei' two plans, you know. 

]\rr. ^NIazmaniax. I ha\e not researched in detail the other two plans, 
because I did not believe they were beino- given serious consideration 
today and also because I think that neither is much of a substitute 
for the electoral college. 

Senator Bayh. I concur. And you know, 1 do not know why. I must 
confess that this has been a shortcoming on my part, because I have 
been opposing those other two plans on two of the grounds that I men- 
tioned eai'lier. 

But there are some of our colleagues who are \ery much concerned 
with the present system, but they feel, for reasons that they feel are 
sufficient — I cannot quarrel with another man's reasoning. All I can 
do is try to change the basis on which he reasons. They feel that one 
of those other plans is preferable. 

Now, those same people are very concerned about the third-party 
thi'eat because they are pai'tisan. And if we can build a good case to 
show that the alternative they propose may have even more dire con- 
sequences than the electoral college system, then I think we may en- 
hance our chances, from a standpoint of picking up votes. 

Mr. ]\Iazmaxian. It should not be too difficult to quantify the effects 
of the district and the proportional plans on third parties. 

Senator Bayh. I do not want you to have to spend a lot of sleepless 
nights on this, but if you could Hud a way to give us some of this 
e\'idence, it would be helpful. 

Mr. Mazmaniax. Given this qualitication, 1 will look into the matter 
further. 

Senator Bayh. All right. 
Thank you very much. 

That bell did say we were voting on the floor (^f the Senate. 
And I will say to you again, we appreciate your bringing your ex- 
pertise to bear on this problem, and I am hoping we can call on you as 
we oo along- in our continued studies. 
Mr. Mazmaxiax. Surely. 
Seiuitor Bayh. Thank you very much. 

"We will terminate our hearings now, pending the call of the chair, 
or the decision of the chair, after making an assessment of the situation, 
that no further hearings are necessary since the matter has been dis- 
cussed at very great length in previous sessions. And to hold hearings 
just to hold hearings without having some legitimate goal in uund 
seems to me to lack ])rudence. 

We have tried to emphasizp in these licai'ings the somewhat ditrerent 
nature of the amendment which is before us, from the amendment 
that was before us as the primarv vehicle for studv in previous hear- 
ings. Aiul I would like to take advantage of a little time to see if we 
have filled up all those gaps in our studies so that we will have a credible 
document from these two days of hearings with the othei's. these '2 days 
having been supplemental. And T think tlie witnesses ha\-e been very 
helpful in i)ointing out the ditl'ei'ences between the j:)resent Senate 
Joint Kesolution 1 and the ])receding version. 
AVe will adjourn our heai'ings now. 

[Whereupon, at 12 uA o'clock \).u\.. the subcommittee was adjourned, 
subject to the call of the Chair.] 

25-147 O— 74 10 



APPENDIX 



Statement by the American Federation of Labor and Congress of 

Industrial Organizations 

It is the purpose of this statement to present to the Senate Subcommittee on 
Constitutional Amendments tlie views of the AFJv-CIO on proposals now before 
the Congress for reform of tlie electoral college system. These hearings continue 
to be of great interest to the members of our attiliated unions. It is high time, we 
believe, that action be taken to replace the present electorial college system with 
election procedures that will assure that only those candidates with a popular 
vote majority will be elected President and Vice President of the United States. 
We believe Chairman Birch Bayli is to be congratulated for keeping this 
issue in the forefront of public discus.sion. When elections are not close, as in 
1972, interest in the question tends to die down. The question is no less important 
now, however, and the potential damage that could result from the electoral 
college system no less serious because the most recent presidential election 
resulted in a landslide vote for the winner. So we feel, Mr. Chairman, that it 
is an important project you have undertaken and we wholeheartedly support your 
efforts along this line. 

We have consistently held and supported this point of view since the merger of 
the American Federation of Labor and the Congress of Industrial Organizations 
was first achieved. In 1955 our merger convention adopted a resolution urging 
that : 

"The President and Vice I'resident of the United States should be elected 
by direct popular vote. The electoral college system has outlived its use- 
fulness, and should be abolished." 
In 1971, the AFIv-CIO Executive Council reaffirmed that policy. So our position 
is very clear. We want to see the electoral college system of electing the President 
and Vice President abolished and a system of direct nationwide popular election 
of these officials substituted in its place. 

We are not, of course, alone in taking this position. In November 1968 the 
New York Times reported the results of a survey conducted by the Gallup Poll 
showing that 81 percent of adults who had been interviewed earlier favored 
amendment of the Constitution to "'do away with the Electoral College and l)ase 
the election of a President on the total vote cast throuhgout the nation." A later 
Harris Poll showed similar results: 78 percent of the people polled favored a 
constitutional amendment providing for direct election of the President and Vice 
President instead of the present electoral college system. 

Many organizations have also indicated their support of such a .system of 
direct popular election of the President and Vice President. Among the.se orga- 
nizations are the American Bar Association, the Federal Bar Association, the 
Ignited States Chamber of Commerce, the National Federation of Independent 
Business — none of which are particulraly noted for their radical views. The 
League of Women Voters, too. has given their strong support to the direct 
election .system. 

The reasons for the strong support by many organizations for fundamental, 
rather than patchwork, reform of the present electoral college system to which 
we have referred need only be brieflv summarized. First, of course, the present 
system permits one candidate for President to be elected with fewer popular 
votes than his principal opponent, and this has happened three times in our 
history. Presidents ,Tohn Ouincy Adams in 1824, Rutherford B. Hayes in 1876. and 
Benjamin Harrison in 1888 all actually trailed their opponents in the popular 
vote. 

Perhaps the most important objection to the present electoral college system 
arises from the provisions which call for election by the House when none of the 
candidates for President has an electoral vote majority. While it is true that this 
has actually happened only three times in our historv. the imssibility has been 
an ever present threat to stable transfers of power from one administration to 
another. It was an ever-present possibilitv, too, in the election campaigns of 1960. 
when President .Tohn F. Kennedy led his oitponent. Richard M. Nixon, by 49.71 
percent to 49.55 percent of the vote, and in 1968 when President Richard Nixon 

(135) 



136 

received 43.16 percent of the vote while his opponent, Hubert H. Humplirey, 
received 42.73 percent of tlie vote. 

In this connection, it should not be forgotten that it was the settlement ot the 
Hayes-Tilden contest, when the victory of President Hayes was achieved by 
a margin of one electoral vote, despite a popular vote majority for Tilden, through 
a compromise designed to avoid having the choice go to the House of Repre- 
sentatives, that paved the way for the deprivation and postponement of ecpial 
voting and civil rights for Negroes and other minorities for a period of nearly 
90 years. Indeed, the spectre of that dark history was ever-present even in (»ur 
latest Presidential electi(m in 1968, when George Wallace of Alabama dreamed 
of the possibilities of another deal like that of 1876. 

But it i.s not only the political consequences that tlow from the provision 
calling for decision "by the House of Represetnatives when neither party has an 
electoral vote majority that is the most oi)jectional)le feature of this procedure. 
When this happens, the members of the House of Representatives do not vote as 
individual Congressman. Each State has a single vote and that vote is determined 
by the votes of Congressmen who make up the delegation from that state. If the 
Congressmen from a particular state, be it New York or New Mexico, divide their 
votes evenly among the candidates, that state gets no vote at all in the seleetion 
of the I'resident. Yet a majority of all the states, or 26 votes, is necessary for 
election. It is hard to imagine how a more archaic or totally unrepresentative 
.system could have been devised. We do not believe anything good can be said 

about it. 

There is another objection to the present electoral college system of electing" 
the President and Vice President which need only be brietly summarized — the 
fact that there is no legal way to force an elector to vote for the candidate to 
whom he pledged himself. It is significant that when Congress endeavored to deal 
with such an elector — Dr. Lloyd W. Bailey of North Carolina — in the 19(>8 
Presidential election it found itself ccmipletely unable to retpiire the elector to 
cast his vote in the manner contemplated in his party pledge. It is also worth 
noting that another ease of a "faithless elector" occurred again in the aftermath 
of the 1972 electicm as Mr. Roger L. MacBride, a Republican elector from 
Virginia, cast his vote for the Libertarian Party, rather than for the Republican 
Party candidate. 

There are arguments, of course, in support of the present electoral college 
system, not the least of which is that it has survived virtually unchanged since 
the Constitution was written in 1787. By and large, however, the arguments in 
support of this system are negative in character, and the fact remains that the 
hazards which it presents C(mtinue to hang like a cloud over every I'residential 
election. This is intolerable under present-day conditions when smooth transfers 
from the administration of one President to another are essential. 

In February 1969 the Executive Council of the AFL-CIO gave very thorough 
and in-depth consideration to the problems raised by the present electoral college 
system of electing the President and Vice President of the United States and to 
various other proposals to remedy these problems. 

At the conclusion of its deliberation, the AFL-CIO Executive Council adopted 
a statement on "Election of the President". In this statement, the Council urged 
that the provision for individual electors should be abolished since they serve no 
useful purpose and, in fact, perpetuate an "anachronism whereby occasional 
faithless individual electors are legally free to betray their trust." 

In reference to President Nixon's 1969 proposals which called for (1) allocat- 
ing the electoral vote of each state on a proportional, instead rif the present unit 
vote basis: (2) making a 40 percent electoral vote plurality sufficient to choose 
a President: and (3) providing for a runoff election by popular vote if no can- 
didate receives 40 percent of the electoral vote, the Council observed : 

"Except for the third step, this plan would not imi)rove but would worsen 
the present mechanism. Proportionate allocaticm of electoral votes could 
have the same unfortunate consecpiences as the existing system — it could 
elect a President receiving a smaller popular vote than his opi>onent. Thus 
the particular proportional allocation plan which President Nixon has some- 
times supported would have elected him instead of President Kennedy, in 
1960. Moreover, proportional allocation unlike the pre.sent system, would 
favor the development of splinter parties and undercut the two-party .system. 
In sum. the Pre.sidenfs proposal is worse, not better than, the present 
system." 
President Nixon's continued espousal of the plan for proportional allocation 
of electoral votes makes us question seriously his announced "personal prefer- 



I 



137 

eiice", stated in Octoher and November. llKis. 'that the candidate wlio wins tlie 
niost'ixhpnlar votes should become I'resident." We feel that if direct popular 
election is feasible in a runoff, as President Nixon has proposed, it is feasible in 
the tirst place. 

Basically we do not agree with tin- doubts tliat have often been expressed 
as to whether a direct election amendment can be adopted. Certainly, the Presi- 
dent coidd have s<»ne far to resolve such doubts had he announced his unecpiivocal 
support, instead of merely a ••])ersonal preference" for direct popular election of 
the President and Vice President. As I have already pointed out, this proixjsa,! 
has already received far wider support in Congress than any other proposed 
amendment and is, according to the ih)11s, favored by the vast majority of the 
American people. It is our belief, that if the propo.sal for direct popular election 
cannot be adopted, there is little reason to believe that any other plan can. 

We should like to turn now to a di.scussion of other .specific proposals that are 
pre.sently before Congress t(j remedy or to rei)lace the present electoral college 
system. 

Among these proposals is one which has been described as the "unit vote 
proiK)sal. This proposal would write into the Constitution the present practice of 
awarding all of a state's electoral votes to the candidate winning the greatest num- 
ber of popular votes in the state. This proposal would prevent the .so-called "faith- 
less elector" situation which arose in 196S and again in 1972. It would also correct 
one other deticiency of the present .system when an election is thrown into the 
Hou.se. Under the unit vote proposal the members of the Senate and House 
sitting in joint session and voting as individual members of one body would 
choose the President by ballot from among the three candidates having the 
highest number of electoral votes. The vote of each Senator and Congressman 
would be publicly announced and recorded, and the person receiving the greatest 
nuud)er of votes would be chosen. A (juorum for the purpose of such a joint Sen- 
ate-House session would consist of three-fourths of all the Senators and 
Congressmen. 

Provisions such as these would substantiiilly improve the present elec-toral 
college system, especially in situations where no candidate receives a nnijority 
of the electorial votes. They would not, however, eliminate our basic objection 
to this .system. This is that it permits the election of candidates who may not 
have received the greatest nundter of poijular votes, such as lias happened in 
three of our presidential elections. Nor would it prevent such compromises 
ccmtrary to the pul»lic interest as have characterized at least one effort to 
avoid .submission of the choice to Congress, as happene<l in the Hayes-Tilden 
contest in ISTti. 

Proposals along this line would still permit the popular will as manifested 
by the votes of the people to be disregarded. At the present time, and under 
present-day political, econ(miic and social conditions, we do not believe this is 
any longer tolerable. 

Another ijropo.sal would divide each state into electoral districts comparable to 
Congressional districts. In some versions existing Congressional districts would 
in fact be used. Under this "district vote" pn^posal. the winner of the popidar 
vote within a district would receive the district's electoral vote. Most versions 
of this i)ropo.sal would also allocate two additional electoral votes to the winner 
of the popidar vote in the state. Although there sometimes are variations between 
propn.sals along this line in respect to use of Congressional districts or specifically 
created electoral districts, all of them would continue to provide that electoral 
votes similar to those currently jirovided for would be cast for President and 
Vice President in the first instance. 

This proiw)sal. like the proportional proposal, would leave unresolved the 
problem that ari.ses if none of the candidates receives a majority of the electoral 
votes. When this happens under this jiroposal the ((uestion of the choice of the 
President is thrown into Congress, and it is that body, not the people, that 
decides who the President is to l)e. Had this pro)»osal been in effect in 10(!(), 
Mr. Nixon would bnve been elected over IM-esident Kennedy by an ele<-toral vote 
of 27S to 24."). despite the fact that his populiir vote total was lower. 

Finally, tliere is the proposal which is now embodied in S.J. Res. 1. introduced 
l)y Senator Ravh for himself and a number of other Senators. 

We believe that any amendment which is !ido)ited by Congress should iirovide. 
as S..T. Res. 1 does provide, for election of the President and Vice President by 
direct nationwide popular vote. A^'e also ai)prove of the provision of the iiroposed 
amendment which would require the President and Vice President to be voted 



138 

for jointly. It is desirable, we think, to provide, as S.J. Res. 1 does provide, that 
a candidate must obtain at least 10 percent of the popular vote in order to be 
elected. In the event no candidate receives at least 40 percent of the popular 
vote, however, we believe there should be a national i>opular runoff vote between 
the two top candidates. 

We also think the constitutional amendment should provide for universal 
>uffrase in presidential elections, and that the places and manner of holding 
presidential elections and the inclusion of names of the candidates on ballots shall 
lie prescribed by the Confiress. 

One argument that has been raised against the direct poi ular vote system 
of electing the President and Vice President is that it would represent a basic 
departure from the federal principles upon which the (iovernment of the I'nited 
States is based. We have given long and careful consideration to this contention 
and have concluded that it is not well-founded. 

The present electoral college system was from the outset a compromise. 
After only three Presidential elections it proved to be wholly unworkable and 
became the sub.iect of the second amendment to the Constitution (Amendment 
Xo. XII) to be adopted after the ten articles of the Bill of Rights. Conceivably, 
the electoral college system seemed to the drafters of the Constitution to make 
sense when the country was young. Because of difficulties of transiortation and 
communication it was hardly possible then for i>eople in one part of the country 
to be acquainted with public figures in other parts of the country so as tf) enable 
them to make an informed judgment as to their (pialitications for electh)n to the 
Presidency or Vice Presidency. 

The Presidency now, however, i.s a national office, and the question of who fills 
it is a matter of first importance and interest to people all over the I'nited States. 
Candidates for the office of President and Vice President today must be and gen- 
erally are well-known public figures who have the means and the ability through 
modern systems of transi)Ortation and communication to make their (pialifica- 
tions known to the people in all parts of the country. In practical fact, the federal 
principle today finds its strongest institutions, not in the electoral college, but 
in the state governments, the Senate of the T'nited States, and, above all, the 
substantive provisions of the Constitution itself. 

We are convinced that the direct popular vote system of electing the President 
and Vice President will do no violence to the federal principle. On the contrary, 
it will strengthen and make far more workable our constitutional system of gov- 
ernment. We urge early adoption of a constitutional amendment that will put this 
system before the people for ratification in time for it to go into effect in the 
next Pre-sidential election in 1976. 

Statement of Hon. Charles E. Bennett 

Mr. Chairman, it is a privilege and a pleasure to testify before the Senate 
.Judiciary's Subcommittee on Constitutional Amendments considerimg electoral 
reform. I have been a proi)onent of abolishing the p]lectoral College and in- 
stituting a nation-wide preference primary for over two decades. In the early 
]050's I introduced a constitutional amendment calling for abolition of the Elec- 
toral College system and also joined former Senator Paul Douglas in the soon- 
sorship of the Presidential Primary Act, which would have allowed federal 
cooperation to states holding Presidential ))rimaries. The constitutional amend- 
ment I have introduced, H..T. Res. 13, is- designed to abolish the Electoral College 
and give Congress the authority to create nation-wide Presidential primaries. 
With the trend over the past .several decades toward a more national and open 
political system I feel that these are reforms "whose time is come." 

With regard to the nominating procedure for the President and Vice President 
of our nation, my measure places the responsiliility on the Congress to create 
a nation-wide Presidential primary. My provision does not dictate the details, 
which allows for flexibility by the Congress in this area. I firmly believe that the 
procedure for nominating the President and the Vice President of the T'nited 
States is ju.st as important as the election process itself. I also strongly believe 
that the national nominating primary for these candidates would allow for more 
participation in "open" selection of these nominees for our highest ])ub1ic offices. 
The first step in obtaining a more democratic procedure for nominatinos in this 
regard is to give Congress the authority and responsibilitv to carrv out this ob- 
iective. Once this is done, extensive hearings .should be held so that the very best 
plan for a nation-wide Presidential primary can be determined. 



139 

The constitutional amendment I have introdncetl calls for tlie abolition of the 
Electoral College system. This part of the amendment was initially proposeil by 
the American Bar Association which in its 1957 report stated that the Electoral 
College ". . . is archaic, undemocratic, complex, ambiguous, indirect, and dan- 
gerous." My amendment would recpiire a joint vote for the elwtion of the Presi- 
dent and the Vice President, who would have to receive a plurality of 40 per cent 
of the votes cast in an election. 

In the event that no one received 40 per cent of the votes east, a further election 
would be held between the two highest vote getters for President and Vice I'resi- 
dent. This provision of my proposetl amendment is identical to tlie provision which 
passed the House in the Ninety-tirst Congress by an overwhelming margin. 

In tJie rei>ort of the Judiciary Committee which heard tewtimony on this legisla- 
tion the following conclusion was noted : 

The only electoral i-eform proposal which would eliminate all of the prin- 
ciple defects in the present system and guarantee them the popular winner is 
electetl President is provided by the direct election of the President and the 
Vice President, Adoption of this proposal would eliminate the possibility of 
electors repudiating the will of the people. It will remove an artiticial. inter- 
mediate step in determining the peoples' choice of a national leader. It will 
eliminate existing disproportion in the weight given to voters because of 
their geographic lix-ation. It will insure that the electoral decision is most 
truly democratic and most consonant with the principle of "one man, one 
vote." It will also conform the process of electing the President to the method 
proven by experience throughout the country in elections of Senatoi-s, Rei>re- 
sentatives in Congress as well as state and local officials. For all of the fore- 
going reasons, the committee is of the opinion that the article of the amend- 
ment reported herein most completely meets the needs for electoral reform. '" 
A prime consideration I have of the Electoral College is that a candidate not 
preferretl by a large part of the population could be elected President. This sys- 
tem is open for manipulation by special interests. In our history we have had 
three "minority" Presidents ... a candidate who was elected President with fewer 
votes than his closest opponent. We have elected twelve other Presidents who 
failed to get a nuxjority of the popular vote including the thirtynseventh President. 
The last I'residential election brought on great consternation among political sci- 
entists, law-makers and others who expressed the po.ssil)ility of a constitutional 
crisis under our outmoded electoral system. 

The direct election plan certainly is the best method of achieving one man, one 
vote participation in government and since each vote would count eciually it would 
encourage more people to vote. This reform, moreover, is not without popular 
.support. Over the last thirty years the Gallup Poll has conducted fifteen polls on 
this matter and each time the people of the I'nited States have indicated over- 
whelming suppoi-t for Electoral College reform. Most recently, the Gallup Poll 
showed 81 per cent of the people favoring direct election while the Harris Poll 
showe<l 79 per cent for direct election. It is indeed time to overhaul the anti(iuiited 
and rusty Presidential election machinery so that the i)eople of the United States 
can nominate and elect the President and the Vice I'resident. A modern law in this 
tield will certainly bring about a representative government in our land. The 
(lualitied American voter needs no middle man in his selection of President. He 
needs no agent to cast his vote. 

I very much appreciate having this opportunity to testify before this c(»m- 
mittee and I hope that the committee will take prompt action on these measures. 



140 



93d CONGEESS 

1st Session 



H. J. RES. 1 3 



m THE HOUSE OF REPRESENTATIVES 

January 3,1973 

Mr. Bennett introduced the following joint resolution; which was referred 
to the Committee on the Judiciary 



JOINT RESOLUTION 

Proposing an amendment to the Constitution to provide for the 
direct election of the President and the Vice President and 
to authorize Congress to establish procedures relating to the 
nomination of presidential and vice-presidential candidates. 

1 Resolved by the Senate and House of Representatives of 

2 the United States of America in Congress assembled {two- 

3 thirds of each House concurring therein) , That the following 

4 article is proposed as an amendment to the Constitution of 

5 the United States, to be valid only if ratified by the legisla- 

6 tures of three-fourths of the several States within seven years 

"t after the date of final passage of this joint resolution : 
I-O 



141 

2 

1 "Article — 

2 "Section 1. The President and Vice President of the 

3 United States shall be chosen in an election by the people of 

4 the several States and the District constituting the seat of 
^ Government of the United States. In such an election, a 



^ vote may be cast only as a joint vote for the election of tw o 
^ persofiT"! referred to in this article as a 'presidential candi- 
^ dacy') one of whom has consented that his name appear as 



^ candidate for President on the ballot with the name of the 
^^ other as candidate for Vice President, and the other of whom 

has consented that his name appear as candidate for Vice 

12 

President on the ballot with the name of the said candidate 

13 
14 



15 
IG 
17 
18 
19 
20 
21 
22 
23 
24 
25 



for President. 

"Sec. 2. If a presidential candidacy receives a plu- 
rality of at least 40 per centum of the votes cast, the persons 



comprising such candid acy shall becom e the President and^ 
the Vice-President-elect. An election held pursuant to this 
article shall be held on a day which is uniform throughout 
the United States. No such election shall be held later than 
the first Tuesday after the first Monday in November, and 
the results thereof shall be declared no later than the third 
Tuesday after the first Monday in November of the year in 
which the election occurs.". 

"Sec. 3. If, after any such electi on, none of the perso ns 
joined as candidates for President and Vice President can be 



142 

3 

1 declared to be elected pursuant to the preceding paragraph, 

2 the Congress shall assemble in special session, in such manner 

3 as the Co ngress shall prescribe by law, on the first Mon day 

4 of December of the year in which the election occurred. 

5 The Congress so assembled in special session shall be com- 

6 posed of those persons who are qualified to serve as Members 
'^ of the Senate and the House of Representatives for the reg- 
^ ular session beginning in the year next following the year 
^ in which the election occurred. In that special session the 

•^^ Senate and the House of Representatives so constituted 

^^ sitting in joint session shall choose imme diately, from the 

^^ two pairs of persons joined as candidates for President and 

•'•^ Vice President who received the highest numbers of votes 



cast in the election, one such pair by ballot. For that purpose 
a quorum shall consist of three-fourths of the whole number 
of Senators and Representatives. The vote of each Member 
of each House shall be publicly announced and recorded. The 
pair of persons joined as candidates for President and Vice 
President receiving the greatest number of votes shall be 

on 

declared elected President and Vice President. Immediately 

21 

after such declaration, the special session shall be adjourned 

sme die. 

23 . 

"No business other than the choosing of a President and 

a Vice President shall be transacted in any special session 

25 . . 

in which the Congress is assembled under this section. A 



143 

4 

1 regular session of the Congress shall be adjourned during the 

2 period of any such special session, but may be continued 

3 after the adjournment of such special session until the be- 

4 ginning of the next regular session of the Congress. The 

5 assembly of the Congress in special session under this section 

6 shall not affect the term of office for which a Member of the 
'^ Congress theretofore has been elected or appointed, and this 
^ section shall not impair the powers of any Member of the 
^ Congress with respect to any matter othfer than proceed- 

1^ ings conducted in special session under this section." 

11 "Sec. 4. The law of each State shall govern within such 

12 State as to any matter with respect to which the Congress 

13 is granted legislative power under this section, but only to 
the extent that such State law is not inconsistent with any 
Act of Congress in effect pursuant to this section. In the 

^^ case of any election under this article, the Congress shall 
have power to provide by law for the manner in which 
the candidacies to appear on the ballot shall be deter- 
mined, for the places at which and the manner in which the 
election shall be held, and the manner in which its outcome 

91 

shall be determined. 

"Sec. 5. The qualifications for voters m any State in 

oo 

any election under this article shall be the same as apply in 

24 

the case of voters in such State in elections of Senators, 

25 

except that the Congress may by law prescribe uniform 



144 

5 

1 qualifications as to age and residence, and whenever no 

2 qualification so prescribed by Congress as to residence is in 

3 effect, any State may prescribe a residence qualification less 

4 restrictive than that which applies in such State with re- 

5 spect to voters in elections of Senators. 

6 "Sec. 6. The Congress shall by law provide procedures 

7 to be followed in consequence of the death or withdrawal 

8 of a candidate on or before the date of an election under 

9 this article. 

10 "Sec. 7. This article shall not apply to any election for 

11 a term of oflBce beginning earlier than two years after the 

12 date on which the ratification of this article by a sufficient 

13 number of States is completed. 

14 "Sec. 8. The Congress shall have power to estabhsh, 

15 by appropriate legislation, procedures relating to the nomina- 

16 tion of presidential and vice-presidential candidates by pri- 
1''' mary elections or otherwise." 



145 



Democracy or Anarchy? 

A Study of Proportional Representation 



F. A. Hermens 

. Direktor des Forschtmgsinstitides filr politiscke 
Wissetischaft und Europdische Frag en der Universitdt zu Koln 



with a new Supplement by the Author 



Johnson Reprint Corporation 

New York London 

1972 



146 



PROPORTIONAL REPRESENTATION 
IN THE POST-WAR WORLD : 
A SUPPLEMENTARY NOTE 

ECMDNOMICS AND POLITICS 

This book first appeared in 1941 ; it records the experience 
vith Proportional Representation (P.R.) between the tvvo 
lorld wars, and this experience is filled with failures. Pro- 
X)rtional Representation has, however, been used extensively 
iiDce 1945 and, at first glance, it might seem that its overall 
effects have been more positive. In Europe, at least, no new 
iictatorsliips have arisen, although the absorption of the Baltic 
States by Russia and the transformation of Poland, Czecho- 
ilovakia, and the Balkan States into "Peoples' Democracies" 
urrowed the area of democratic aspirations and experimenta- 
:;on.* 

Any specific historical event results from a multiplicity of 
Dterdependent factors. As mentioned previously,^ our task is 
'0 determine, as nearly as possible, the weight of whichever 
ictor we have reason to single out as the independent variable ; 
•Jiis we can, and at times must, do for more than one of the 
factors involved. The reason why so much attention lias been 
;aid to voting systems is simply that in the act of election all of 
4e forces active in a country's social and political life come 
ato play; the system of voting establishes the ground rules 
Kcording to which the struggle for power is decided. Under 
sajority voting, success is tied to a substantial measure of 
ategration ; under a consistent system of P.R., no such effort 
* needed — ^vrhatever is separated and divided can be "repre- 
«nted" as it is. If the seeds of disruption — never absent from 
oy soci^y — are strong, the disintegrating factors may gain 
«ch an advance over all others that it is later all but impossible 
^ catch up with them; in such cases sincere patriots have had, 

*The detrimental effects of P.R. on pre-1939 Poland, Czechoslovakia, and 
^ Baltic States were dealt with in my article, "P.R. and Democracy," The 
^riew of Politics, October 1942; reprinted in the brochure, "P.R., Dem- 
'•*acy and Good Government" (Notre Dame, 1943). 

'Seepp. 198ff. 



147 



time and again — they are at it right now in Italy — to sui • 
every nerve in order to halt the march toward disruption. 

This does not mean that whatever a factor such as {' '■ 
does to encourage centrifugal tendencies may not be o-.v». 
compensated by others. An example for the nature of :.V. 
process involved is supplied by the law of gravitation. To jj.w 
an illustration: A brick falls from a roof and reaches :>< 
gi'ound rapidly and in a straight line. A leaf falls off a tr-»- 
it takes more time to fall and its path is not as direct. A featr>- 
from a bird is wafted here and there by the air before it cor.^n 
to earth. Does it follow that, in the second case, the law . f 
gravitation is impaired, and in the third refuted? Fro.Ti * .r 
high school classes in physics we know that this is not the e.v^. 
in a vacuum all bodies fall with the same speed. Therefore, :.• .- 
tendency following from the "law" of gravitation is m^r? 
suspended; its effects can be modified and, at times, ovrr. 
compensated by other factors. Still, the basic tendency b\\\^: t 
exists; any weakening of the interfering factors again brir.p 
it into view. 

Of all the outside factors which have a bearing on the op« ra- 
tion of political institutions the economic ones are the n:'V. 
powerful. Thus, during the interwar period a time of ra;:! 
inflation w^as also a time of political disruption; the tend'.ru;'-* 
associated with the effects of P.E. could then be observed in f-': 
force. Post-1919 Italy and Germany showed the political n..si:!'.» 
most clearly. Parliamentary government in Italy succuml^-!. 
the Weimar Republic barely managed to sui-vive this first jrr« -jt 
shock. The German currency reform of 1923 was followt^l I'* 
several years of relative prosperity; there was an ovt-rai- 
decline of political radicalism even though the splintering' • * 
the German parties in the elections of 1928, and the consei;u' r ' 
difficulties of the Hermann Mueller government, cannot '< 
overlooked.^ The tendencies toward political stabilization v.. r- 
however, dissipated rather abmptly under the impact of -' • 
depression f the result was a rapid increase in the numb* r •■-* 

'See pp. 246 fF. On p. 255 behnv, the opinion is expressed that »*•'■* 
Chancellor Herman Miiller resigned President Hindenburg wou!l '-* * 
liked to reappoint him. Evidence which has become available since l.K.» ^ •* • 
was expressed shows that Hindenburg wanted a cabinet anchor*-'! t 
Uight and welcomed Miiller's resignation. For some of the «Jcta:i» •■ 
Heinrich Briining, Memoiren 1918-193U (Stuttgart, 1970), in par:.<-- »' 
pp. 150 if. and 156 ff. 



148 



Xazi and Communist votes. Werner Kaltefleiter^ has shown in 
detail that this development is closely related to the unemploy- 
ment in urban areas and to the extent of indebtedness in rural 
areas. Perhaps even more striking is the fact that when, in 
November 1932, new elections took place in Germany after the 
trough of the depression had been reached, the extremist vote 
vent down ; in some local elections held immediately afterward 
Xazi stren^fth declined drastically. 

Even with P.R.,. then, periods of prosperity favor political 
consolidation. This writer, whose earlier work was in the field 
of economics, has never failed to refer to this correlation. ^ 
Defective political institutions may, however, also intensify 
economic difficulties. Thus, the 1929 depression started with a 
severe, but otherwise normal economic downturn ; it began soon 
to release certain healing forces.^ Then there came the shock 
to international confidence caused by the German elections of 
Septonber 1930: the increase in Nazi and Communist political 
strength, made possible by P.R., led to that disruption of inter- 
national credit which set the stage for banking crises in one 
country after the other. 

_ Since theend of4he Second World War, periodsof prosperity" 
have been much more marked than before, and comparatively 
mild "recessions" have replaced what in the past were severe 
depressions. In some eases the political effects of this develop- 
ment were positive ; this applies, in particular, to the Federal 
Republic of Germany. • 

France : the Fourth and Fifth Republics 

There is, however, afeo the case of France. Its economic re- 
covery began several years before Germany's, and its overall 
wonomic record was good. In 1962, when the spokesmen for the 
Fifth Republic continued to belabor the record of the Fourth, 
Senator Marcel Pellenc, in a report submitted on behalf of the 
finance Committee of the French Senate, emphasized that from 
1953 to 1957 the French Gross National Product had increased 



* Wirtschaft void Politik in Deutschland. Konjunktur als Bestimmungs- 
trund des Parteiensystems, 2nd ed. (Koln-Opladen, 1968), 

* For an attempt at an overall presentation of this problem see my bro- 
'hure, Wirtscha/aiche und staailiche Stabilitdt (Koln-Opladen, 1964). 

•F. A. Hermens, Der Stoat und die Weltwirtsehaftskrise, (Vienna, 
lS36),pp.59ff. 



149 



by 24.9 percent^ which is substantial by any standard and bctUr 
than what the Fifth Republic (which, however, took the task o' 
inflation control more seriously than the Fourth) was able u. 
accomplish. 

In addition to being favored by economic developments, thv 
Fourth Republic tried to control the effects of P.R. by watering 
it down. As mentioned repeatedly, the effects of P.R. can diiTt r 
substantially according to the consistency with which it m 
applied. If the proportionality between votes and seats securt-i-i 
is carried to its logical conclusion, the splintering effect may br 
enormous. By a number of devices, however, the degree of pr.-v 
portionality can be reduced. The political history of the Founh 
Republic demonstrates, nevertheless, that the results may stiii 
not be as expected ; some of the benefits of such restrictions may 
accrue to extremist gi'oups and handicap moderate parties. 

Proportional Representation was introduced in France in 
1945 by a decree of the provisional government headed by 
General de Gaulie. At that time the French Left all but unani- 
mously demanded an "integi'al," meaning a fully proportiona!. 
system of P.R.; the Christian Democratic Popular Republican 
Movement (MRP) took a similar line. General de Gaulle felt 
that he must at least reduce the splintering effects of such a 
system. Therefore, the size of the constituencies was limitcti 
to the "departements,"* and the larger ones were divided ; aj 
a result, there were 102 constituencies electing on an avera?»!> 
five deputies. The distribution of the seats took place according 
to the d'Hondt^ system which, in comparatively small constitu- 
encies, does eliminate typical splinter parties. 

The centrist "Radical" party, the Republican party of the 
Third Republic, was, however, all but eliminated. When, in 
October 1945, P.R. was first applied, the Radicals saw 56.6 
percent of their votes go to waste ;'° they later reduced this by 

» "Un Bilan de M. Pellenc. Le niveau de vie des Frangais a augrn^T.u 
trois fois moins vite sous la Cinquieme Republique que durant la fin de u 
Quatrieme," in Le Monde, October 25, 1962. 

* For some details see my The Representative Republic (Notre Da.r.'. 
1958),pp. 297 ff. ^^ 

* The system developed by the Belgian mathematician Victor d'Hon'.t •• 
explained in W. J. M. MacKenzie, Free Elections (London and New Yor*. 
1958), pp. 78-79. 

" For all details, and the references, see my Europe between Democrcry 
and Anarchy (Notre Dame, 1951), pp. 133-134 and The RepresentaU'* 
Republic (Notre Dame, 1958), pp. 297 ff. 



25-147 O— 74 11 



150 



concentrating on areas where this new law gave them a chance. 
Still, they never became a major power again. The great bene- 
ficiaries of the new system were the Communists. When, during 
the summer and fall of 1945, municipal and provincial elections 
{electioTis cantoiiales) were held under the old French type of 
Biajority voting, the Communists obtained about as many votes 
as the Socialists but only a fraction of the latter's seats. Under 
P.R., the Communists, freed of the incubus of constituencies 
in which they stood no chance, immediately secured more votes 
than the Socialists and correspondingly more seats, whereas for 
the Socialists even the percentage of the votes obtained fell 
considerably. 

De GauDe soon came to realize what P.R. meant for France's 
political fife. There was no longer a clear-cut decision by the 
votei*s themselves on the nature of a new government. A typical 
system of unrelated and mutually hostile parties had developed. 
The French columnist, Pertinax," wrote within little more than 
two months of the fii'st P.R. elections: 

De Gaa&e . . . decided to go because he had reached the_con- 
clusion tiat the wrangles between political parties and factions 
in France had made it impossible for him to perform his govern- 
mental fraction in an efficient manner. ... 
_ The three^political parties which, in the wake of-theOctober" 
elections, agreed to be associated in the cabinet, although they 
pay lip service to national union, are really at loggerheads. 
They do Bot fulfill their ministerial trust with any single 
purpose 

A spectator at several cabinet meetings which took place on 
De GauUiftt return from his recent short holiday in the south 
told me &Lt clashes and counter-clashes between communists, 
Socialists and Popular Republican ministers ended in abject 
confusion. 

While the leader had been away those men, confronted by the 
crisis in tke supplies service, had not been able to agree on 
anything- 

The strudnre of the government was simplified somewhat 
*^hen, in Aiail 1947, the Communists were forced out of the . 
JovernraenL Confusion continued, however, and it was aggra- 
vated whea de Gaulle founded his "Ralliement du Peuple 
frangais" (EPF). At that time Leon Blum spoke bravely of 
* "Third Fotte" which was to stand between the extremists of 

" The Chicmgo Sun, Jasoary 25, 1946. 



151 



the Right and of the Left. Governments of this type did ex r 
for the balance of the Fourth Republic. None of them enjov,.* 
the advantage of direct popular sanction; all of them sutTv^■.' 
from a substantial measure of heterogeneity — parties \v,r» 
hitched to the same ministerial cart whose nature constar/.I-j 
pulled them in different directions. 

As the elections of 1951 were approaching it was obvio-^i 
that, under the existing law, Gaullists and Communists corr,. 
bined were likely to win a majority of the seats in the Xaticra.* 
Assembly; no moderate coalition could then command 4 
majority, no matter how fragile. After much wrangling a hs 
was passed under which any party, or coalition of parties (ar. 
apparcntement) , which secured more than half of the vot^-^ 
cast in a particular constituency obtained all the seats; if ;: 
constituted a coalition, the seats were distributed among ii« 
members according to P.R. 

This law did not confront the voter himself with a clear-ct;* 
question as to whether he wanted to entrust the governmt:.! 
to one group or the other; the parties themselves, after i:.*- 
election, would make their own deals according to the cusi* r:i 
allowed wherever there is P.R. There were other drawback.* 
but also, for the time being at least, one advantage: whercn.*.. 
according to Peter CampbelP^^ the old law would, with the <i;v 
tribution of votes as it actually occurred, have placed the part:r« 
of the "Third Force" into a minorit}-, the apparentemenf s'tl.t 
give them a majority of the se;its. When, in 1952, the Gaulli*i» 
split, there was a further advartage ; the Fourth Republic ecu! i, 
for a while, enjoy a bit of the luxury which is the rule for partsr« 
under majority voting: comparatively homogeneous gov.-r;- 
ments, based either on the moderates right of center or on th*'*^ 
left of center, became possible. Antoine Pinay and Pirrrr 
Mendes-France headed such governments, 'even if these w«r« 
not capable of functioning for long. 

This limited freedom of movement was lost in the electi«'r.« 
of 1956, the last elections of the Fourth Republic-Guy Moli^-. 
the Socialist leader, and Pierre llendes-France, then leader*' 
the Radicals, had formed a "Republican ^-ont" which, at finr 
seemed to offer a chance to revitalized rench politics, Dur;.'/ 
the elections, however, the play of the apparentements di<! '■ *■ 

>- "Remarques sur la loi electorale frangaise du 9 Mai IOjI," V.'** 
Fran^aise de Science Politique, October-December 1951, pp. 489— !'•''•'• 



152 



trork as it had done in 1951 ; arrangements could not be worked 
.^atany more between the Catholic MRP and tlie SociaHsts, and 
:r.e success of the Foujadists was another factor in preventing 
.oalitions of modei-ate parties from securing majorities. Thus, 
:rte limited possibility of choosing between comparatively 
r.omogeneous alternative governments existed no longer, Guy 
jiollet and his successors formed cabinets of the Left which 
:jtd to rely to such, an extent on support from the Right that a 
^'QDsistent policy was out of the question. This applied to finan- 

•ai management — inflation was getting out of control — and 
rven more so to colonial, in particular Algerian, policy. The 
:iniely concessions to the Algerian rebels which could have 
_rought the conflict to an early and constructive end could not 
_>e made. Two other governments, one weaker than the other, 
laiiowed the one of Mollet ; finally Pierre Pflimlin became Prime 
minister more in name than in fact as the Algerian rebellion 
i-ermitted General de Gaulle to return to power. About the 
zoTernment of Felix'Gaillard, the last one that could conceivably 
lave taken effective measures to defend the Fourth Republic, 
. vrus L. Sulzberger" said that it was corrupted not by power, 

jt by the absence of po\ver. . — — ~> 

When de Gaulle took over he did spare the country a bloody 
-jnfrontation, and he ultimately managed to terminate the 
-vi^erian conflict. France had,, however, to pay a price for these 
rrvices. Had a real reform of the Republic come about under 
^•iendes-France or Edgar Faure (both of them tried), the 
.mphasis would have been on institutional aspects; majority 
oting: would have been introduced, and further changes 
.xacilitating, for example, the right of parliamentary dissolu- 
. jn) would have strengthened any government once it was in 
ower. De Gaulle, however, having called for institutional re- 
arms ever since 1946, wanted something more; he strove for 
:iat the French call "pouvoir personnel" — personal power 
-dependent of a given institutional framework. The latter was 
--a.de subsei'vient to his purposes, in particular in the field of 
-•reign affairs. As a result, the Atlantic Alliance came close to 
-^"Tuption and the promising development of a "multilateral 
-piomacy" suffered from relapses into the old game of 
Utmalistic rivalries. 

- The New York Times, March 15, 1958. 



153 



The Fifth Republic did, nonetheless, bring about institutior x 
reforms which could, in the post-Gaullist era, serve as a boi ^ 
for a truly constitutional (meaning institutional) typt- r/ 
government. There is, in particular, what is known in Frar.f* 
as "le fait major itaire," the fact that ever since 1958 the votrn 
have rendered clear-cut decisions in favor of a definite ma jonti 
Majority voting had been readopted with some modificatior.t 
by comparison to the practice of the Third Republic ; in a sccor.-i 
ballot only those can participate who took part in the first ar.ri 
who (this has applied since 1967) have obtained at least * 
number of votes equal to 10 percent of the registered voters. 

A further result of the majority system has been l.h< 
elimination of right-wing extremism. Its muddled versicr., 
Poujadism, never had a chance. Neither did that more vigon^-ii 
version of rightist extremism which a combination of Organii*- 
tion d'Action Secrete (OAS) remnants and refugees frcrs 
North Africa appeared ready to produce. History and journaJ- 
ism do not record crises which are avoided; under P.R. the 
elements mentioned might have formed the nucleus of a very 
serious "fascist" group. 



-Italy 



Italy is burdened with the existence of a Communist party 
similar in significance to that of France during the Four.h 
Ilepublic. Matters were different when the first postwar tU-c* 
tions were impending. The Communists had, as in Frano% 
benefited from their role during the Resistance. Still, the elir- 
tions to the Constituent Assembly of June 2, 1946,'* which 
took place under a very liberal system of P.R., gave the C<'m- 
munists not more than 19.0 percent of the votes as comparfi 
to 20.7 percent to the Socialists. Under majority elections :r> 
single-member constituencies the number of Communist vote » 
would probably have been lower; in most constituencies a vu'./- 
cast for them would have been "thro\\Ti away." 

Much depended, of course, on whether, and to what extent. 

»* For details on Italy, including references to sources, see my. ' ** 
Representative Republic (Notre Dame, 1958), pp. 398 ff; for more rr^-«' 
.events see Verfasauyigslehre, 2nd ed. (Kbln-Opladen, 1968), pp. ■*■*-* 
La Democrazia Rappresentativa (Florence, 19G8), pp. 602 ff.; Scrpw^'" 
tino,"Froporz und Staatskrise in Italien," in Verfassung und W*"'**^ 
sungsvrirklichkeit ( Jahrbuch, 1969) , pp. 82 ff. 



154 



the Socialists were willing to support Communist candidates. 
The Socialists were divided ; Pietro Nenni favored active co- 
operation with the Communists whereas, in particular after 
1947, Giuseppe Saragat vigorously opposed it. The internal bal- 
ance of power within the Socialist party depended in part on 
the system of voting. National congresses always tend to be 
dominated by the "militants" who will be clearly to the left of 
their partj^'s center, but what ultimately happens depends on 
what the voters in the local constituencies are likely to accept. 
In 1922 a majority of the delegates to the French Socialist party, 
meeting in Tours, decided in favor of the Communist line ; the 
entire party organization (and the entire party property) went 
that way. Leon Blum had to start the party afresh, rebuilding 
the organization all over the country. Elections were, however, 
effectivelj'- still held under the majority system,'' at any rate 
outside the large cities and, beginning in 1928, the single- 
member constituency applied once again. As a result, the float- 
ing voter had more to say about their outcome than all the 
militants at parly congresses. The parliamentai-y group of the 
French Socialist party was always moderate. The French 
Communists evidently received from the outset fewer votes 

"than they could have" expecte^d undler P.R., and they took a 
beating in terms of seats, of which they received about a fifth 
of what P.R. would have given them." Such prospects do have 
their Influence upon the "internal power structure of a party; 
if, in Italy in 1946 and 1947, Saragat could have pointed out 
to Nenni that an alliance with the Communists jeopardized the 
party's chances in scores of constituencies, Nenni or at least 
many of his friends might have become more critical of the 
Communists, who then followed the Stalin line without question. 
In subsequent elections, as in the France of the Fourth Re- 
public, the Communists, always in opposition, could manage to 
absorb an increasingly large slice of the protest vote; their 
percentage increased to 26.9 in 1968;" at that time the two 

-reunited Socialist parties had 14.5 percent, with 4.5 percent 
going to a new version of left-wing socialism. The P.R. elections, 
then, permitted the Communists to outscore the Socialists in 
terms of votes, as they did in France. 

»»Seepp.l26fF. 
"Sec pp. 127 if. 

" For the election results since 1946 see Ortino, op. cit.^ in footnote 14, 
pp. 110-115. 



155 



The Communists knew what they owed to P.R. Their Ica^lvr 
Pahniro Togliatti, wrote in the I\Ioscow Pravda of March 7 
1956, in an article entitled "On the Possibility of Using i:-.^ 
Parliamentary Path for the Transition to Socialism" : 

However, the achievement of universal suffrage in manv 
countries has not yet given the opportunity to the popular mas^rt 
to have in parliament the number of representatives which wo-jld 
correspond to the real number of the electorate voting for them. 
In order that this might occur it was necessary to achieve the 
establishment of a system of proportional representation. Fi.r. 
if a majority electoral system operates, the minority cannot t-? 
represented in accordance with its actual strength; its repre- 
sentatives splinter into small groups in Parliament and some- 
times disappear altogether. 

The proportional system, on the other hand, makes Parliameni 
a kind of political "mirror" of the country, because each Pany 
receives the number of seats in strict conformity to its actual 
strength. When in France and Italy, where communist and 
socialist parties enjoy great influence amongst the masses, 
parliamentary elections were conducted on the basis of the pnv 
portional system, then the political groups, which were orientated 
towards socialism, had in Parliament from one-third to one-half 
of the seats. 

Togliatti was exaggerating; there are areas in Italy where 
the Communists would be hard to beat even in single-mcmlvr 
constituencies. Still, the overall strength of the Communists in 
the Chamber of Deputies as well as in the Senate would have 
declined substantially. In addition, eveiy seat would have h.id 
to be won by an individual candidate and his local supportpr5. 
Centralized party discipline does not thrive under such condt- 
tions, and the tendency of sections of the party to shift q\o-^t 
toward the center is fostered — another reason why the Italian 
Communists, like those of all other countries, have ahvay* 
preferred P.R. 

The effects of the majority system would, of course, hnvr 
been much harder on some of the smaller parties than on X't*- 
Communists. The neo- Fascists who, at times, have been a rath»r 
serious problem and vrho, after^some setbacks, made new ga:n* 
in the regional elections of 1970 woujit, Jiiider majority votirvr. 
be no problem; they have no reliabte local stronghold.s. Tf*- 
Monarchists, now divided into two factions, were at first b»'iv ' 
off, being rather strong in Naples and certain other areas. Th«> 
could not, however, have gained more than a few isolated st-at* ; 



156 



in most of these an understanding with other groups, in par- 
ticular the Christian Democrats, would have been necessary. 
In 1968 Monarchist strength had fallen to 1.3 percent of the 
votes; the Italian election law was liberal enough to give them 
six seats. 

The one factor which kept the Italian political system from 
disintegi-ating: at an early age was the strength of the Christian 
Deinocratic party. It started its electoral career with 35.2 per- 
cent of the votes in 1946 and reached a peak of 48.5 percent in 
1953. Thus, the Democrazia Cristiana (DC) was always strong 
enough to provide a nucleus around which some kind of a 
majority could be formed. The strength of the DC rests largely 
on two nonpolitical pillars : the women and the Vatican. Italy's 
vomen^* have always supported the Christian Democrats in 
large numbers; in the elections of 1953 they did so, according 
to public opinion polls, with more than half of their number 
(.54 percent) offsetting the fact that a majority of the men 
voted for the radical opposition of the Right (including the 
Monarchists) or of the Left (including Nenni's Socialists). 
Church affiUiation had, and has, of course, something to do with 
.the. .political -preferences- of- Italian-women; The Vatican^sup-" 



ported the Christian Democrats for a long time wholeheartedly ; 
the leftward orientation of certain monsignori is a rather recent 

developmesQt. _. — '- 

The streng-di of the Christian Democratic party, then, effec- 
tively counteracts the disruptive effects of P.R. At certain elec- 
tions the DC is supported by a substantial number of voters 
^ho, while they do not regard themselves strictly as Christian 
Democrats, suppoii; them for the simple reason that the alterna- 
Uve seems to be anarchy. Anarchy did threaten, for example, 
during the uncertain period from 1946 to 1948, when Anne 
O'Hare McCormick, comparing the Italian political situation 
Mfavorably to the French, said: "Anything may happen at 
anytime and holding it [the Italian political structure] together 
^a job for a contortionist or a conjurer."*^ At that time there 
*lso developed what looked like a serious Communist threat. 
Asa result, moderate votei-s deserted their own parties in large 
cambers and gave the Christian Democrats that 48.5 percent 

'*They had no vote in 1919 and 1921; otherwise, Mussolini might not 
'*'p come to power. 
•*See Mrs. McCormick's column in The New York Times of April 7, 



157 



of the total vote which enabled them to secure 53.5 percent '' 
the chamber seats. For a while, this one-party majority sc-f ...< 
to have ended the threat of political instability; the coun**-, 
enjoj'ed a brief period of self-confidence which was unknovj- 
to it before and was to be lost again within a few years. 

During this period of stabilitj^ (1948-1953) the foundati-n 
were also laid for the miracolo economico, the Italian U';.*;, 
schajtswunder. Luigi Einaudi had, as Minister of Finar.o 
brought about a decision against centralized economic plann.r^ 
and in favor of an economy guided as much as possible by t; « 
conditions of the market. De Gasperi had difficulties makinjr ••V< 
Left of his own party, one of whose spokesmen was Aminttre 
Fanfani (then one of the small band of professorini, the !i::.< 
professors) , accept this policy ; to his critics Italy simply sei-rr.«-«^ 
too poor to take the risks involved. Thanks to his major.'.? 
de Gasperi was, however, able to stick by his guns; with::; i 
few years there began an economic upturn which compares wr^ 
with w^hat happened in other countries, as the figures in th* 
table below show. 



Development-of <iN±'-in ?e!ected-Gou?>trieg^- 
(Prices of 1963 = 100) 



Year Germany France- Italy 



1950 


39.1 


52.3 






1955 


61.1 


64.9 


62.8 




1960 


88.1 


84.0 


82.4 




1965 


112.7 


111.6 


106.6 




1968 


123.6 


128.6 


127.1 





While this prosperity lasted, it counteracted the disinte- 
grating effects of P.R. as much as did the strength of the I>< 
By 1969, however, the political system was creaking to .sue* 
an extent that the economic situation began to suffer ;=' soc.x: 
unrest could no longer be contained ; uncertain prospects caux'' 
a flight of capital; and production began to decline. The i-^'* 
prise is not that this happened but that it happened so U'./ . 

«« Taken from OECD (ed.) , National Account of OECD-Countrut Iff- 
1*55 (Paris, 1951-1969); 

»»"A Close-up Look at the Itah'an Economy," The Washington f"' 
July 19, 1970. 



158 



during the intervening years the stabilizing effect of the eco- 
nomic upturn was unmistakable. 

Since 1953 Italian governments have only managed to carry 
on to the best of a very limited ability ; necessary reforms could 
never be adopted. This was supposed to change when, during 
the middle and late 1960's, governments based upon the "open- 
ing to the Left" took over, which included Nenni's Socialists 
and excluded the Liberals. Soon it was evident that these govern- 
ments floundered even more than their predecessors ; there was 
greater disunity within the DC than before and the reestab- 
lished union of Saragat's Social Democrats and Nenni's 
Socialists proved impossible to maintain.-- 

A major reason why in Italy even numerical majorities can- 
not govern lies in a fact which also, and according to de Gasperi 
decisively, influenced the counting of the votes in 1953: Italy 
nas a double dose of P.R. First, there is proportionality among 
±e competing parties; in this respect, the law contains no 
sfective provision against splinter parties comparable to the 
!^rman "five percent clause." In addition, there exists pro- 
portionality between the different groups, called "currents" 
jsprrenti) within a party, since the distribution- of "the seats'" 
Ton by a party among those appearing on its list is exclusively 
eovemed by the voters' individual preferences. The voter is 
permitted to mark a ballot in favor of three or four candidates 
appearing on a party's list. This seems most democratic, as the 
t^ignation of the winners is not left to the party committee 
sat to the wishes of the individual voters. These "preference 
votes" are, however, not just cast for individual candidates; 
-ney are accorded to representatives of certain groups, the ■ 
"trrenti. The overall effect is not merely disintegration between 
;arties but also disintegration within parties. The correnti 

ipport their own men, and do so to such an extent that a 
-indidate and his supporters may, in the course of the cam- 
-iign, say nothing about the party but-a- great deal about the- 

Jtrents which they represent. The result is to escalate the 
--fferences existing within a party. Whatever separates the 

-^nrenti is played up and whatever is supposed to unite the 
-irty is played down. Little wonder, then, that an Italian party 

• any size becomes a loose federation of feuding factions ; there 

~ For details see Sergio Ortino, op. cit., in footnote 14. 



159 



are at present nine within the DC and five were counted amo- 
the Socialists while they were reunited. 

On the larger parties, the DC in particular, the prc-<>u** 
of the correnti is enormous. As a result of these developmc,'-/* 
people speak of the replacement of the democrazia by a r. f. 
rentocrazia. How disruptive the process is becomes visjb!..' -.^ 
the composition of the Rumor cabinet which resigned in Ju'-. 
1970. It contained 27 regular ministers and 57 undersecretan^n 
of state; the latter were the primary instrument for baiancirj 
the correnti. It takes an unusual amount of time and ent-m 
to bring such a combination into existence, and, of course-. :*. 
is all but unworkable. 

Under such conditions much depends on public awaren<-u 
of the fact that there does exist a democratic alternatr.r 
Eventually, this would involve an overhaul of the administri. 
tion, of the parliamentary rules, and the constitution as a \vh'. '^. 
as well as the implementation of social refoiTns. No adc-qu^!' 
force to carry through such changes can, however, be mobi!::'.: 
without a reform of the election law; othenvise, there is jui: 
no clear political will. The need for such a reform is scvn Ix 
many. Some, in fact, remember that befpre^P.R. was readopt^'*. 



Luigi Einaudi,-^ later to become President of the Rt-puh.x. 
warned in no uncertain terms that P.R. would lead to prt-ci.vc'.i 
the kind of situation with which the country is now confror.tr*! 
In such a case, however, insight may be all but powerless. P « 
vested interests, such as th«j Communists and the snu;>^ 
parties, are unanimously against a change, and so are all v^* 
elements within the major parties which feel that they m.j^t 
lose power under majority voting. The objection to this a.T-* 
ment is that majority voting would promote polarizat.-' 
Christian Democrats would oppose Communists. In the i':n* 
place, however, the Communists expect to do much le5i.s ■»*- 
under majority voting than under P.R., and they have na.'- * • 
for this assumption. In the second place, while Comm'j:.-»*» 
constitute one of the opposing^ forces resulting from'a 'ix»^»' •* 
polarization, the Christian Democrats would not. They co.".»:'- 
tute, in some ways, a cross section-af !■?*« country, and tl-.i* '^•■*' 
diversity of their membership forces them into a mcxur*'' 
pattern of political action. ~ 

" See the reprint: "Contro la Proporzionale," Discorso Pronunrv'- " * 
Consulta Nazionale NellaSeduta dell' 11 Febbraio, 1H6 (Rome, l'-****' 



160 



Lastly, the Christian Democrats' own strength is, at present, 
not much over one-third of the total. If they wanted to win they 
•would, in many constituencies, have to accept help from other 
moderate- pai-ties; this help would not be available without con- 
cessions. These concessions could, in fact, be facilitated by the 
pi-oper institutions. Majority voting does not necessarily mean 
single-member constituencies. England had two-member consti- 
tuencies for long periods. At the beginning of the century these 
jn2.de possible combinations of Liberals and Labour in the sense 
that a Liberal was nominated for one of the seats and a Labour 
candidate for the other. In Italy, there is the possibility of 
ihree-member constituencies, which would permit the moderate 
parties to cooperate even more easily. In this connection, it 
most not be forgotten that if, at present, the so-called "lay 
parties" (Liberals, Republicans, and Social Democrats) are 
nomerically small, they can compensate for this to some extent 
uy the outstanding ability of some of the men whom they would 
present as candidates." _ - - 

Much of the current discussion of Italy's political situation 
ji the Western press blames that country's troubles on a 
>iethora_of_socialills._ These Uls exist^but they are so numerous 
"and so depressing only because for close to two decades now 
.iiere has -been no government capable of dealing with them. 
^.xceptions to such deterministic, fatalistic, and ultimately 
.atile comments are so rare that it may be useful to quote one 
jii them. Robert C. Doty, of the Ne^v York Times Neivs Service, 
'»rote in a dispatch dated February 16, 1970 -J^ 

Most analysts feel that lack of leadership stems not from any 
lack of capacity or patriotism among Italian politicians but from 
tbe built-in weaknesses of the multiple-party system and the 
proliferation of personal and factional rivalries it fosters. The 
root of the system is election by proportional representation. 
This permits the survival, as separate political entities, of tiny 
minority parties tixat would be quickly submerged in a system 
uf majority vote. — 

This has three effects. The individual deputy is elected as a 
IHuty symbol rather than a person and, since he has no inde- 

it is interesting- to note that when the author's La Democrazia Rap- 
■•^mtativa (Florence, 1968) appeared, which contains this proposal, the 
raJ newspaper. La Xazione was willing to accept it. See Ottavio Mat- 
-^ "Democrazia rappresentativa," La Nazione, February 11, 1968, 

Here quoted from the International Herald Tribune (Paris) , February 
. 1970. 



161 



pendent electoral base, his career prospects aepena on party 
regularity. Second, the system inhibits the emergence of any 
strong democratic leader capable of assembling a consensus 
behind a program. 

Finally, it splits the Italian parliament into eight separate 
parties, none with strength enough to govern alone or even with 
only one ally. 

If such comments were more frequent, they might have a 
measure of influence in an Italy where people look desperately 
for a way out of a situation which they find hard to control. 



The Federal Republic of Germany 

Germany is interesting to students of P.R. for three reasons: 
First, Allied actions during the early years after the war were, 
on balance, as negative in their effects upon the reconstruction 
of an effective government as they were in Italy. Second, some 
of the results of this fact were overcompensated through the 
limitations placed (in this case with the active support of the 
Western Allies) upon the prouortionality of P.R. Third, the 
'Wirtschaftsivunder\f2iS> even more ettective-than-in-ItaU- Iil. 
providing props for political stability. 

Allied actions in Germany during the 1945-1949 period were 
guided' by the same basic attitude which could be observed in 
Italy. The enemy had been a dictatorship with a gross excess 
of power; therefore, it seemed that hardly enough could bo 
done to promote freedom and to minimize power. Reeducation, 
inevitably limited in some of its effects and counterproductive 
in others, was the great hope; what the proper type of political 
institutions could have done to guide political action into the 
proper channels was all but ignored. 

In regard to these electoral systems there was, at first, a 
definite policy only in the Russian and French zones of occupa- 
tion. For the Communists in Eastern Germany the readoptfon 
of P.R. was a foregone conclusion ; the Weimar type oi rigi'l 
lists proved an ideal tool in their hands. The French were for 
P.R. because in 1945 and 1946 its supporters held sway in 
France too. 

All depended, then, on Britain and the United States. V>o\^- 
of these countries had an ideal chance to preach a little of wha* 
they have always practiced by using plurality voting. Th*Tr 



162 



XC2&, however, no definite policy either in London or in Wash- 
ington. When, after a few months, the very capable British 
officials in Germany asked the Foreign Office for guidance, 
they did not receive it. They requested the aid of someone versed 
in electoral systems but their superiors in London did not know 
what to do until someone suggested that, after all, the "Pro- 
portional Representation Society" did concern itself with such 
matters. Its secretary, Mr. John Fitzgerald, was promptly sent 
to Germany, where he gave a substantial number of lectures 
in favor of P.R. until the British officials in Duesseldorf had a 
chance to have him stopped. By then, however, the ball was 
rolling in the wrong direction. Theoretically, as in the American 
zone of occupation, German committees made their own pro- 
posals. They had, however, been made up of a membership 
deemed proportionate to the strength of the parties which had 
been reconstructed on the Weimar model. Thus, the minor 
parties turned the scales — naturally in favor of P.R. 

Apart from making this mistake, the British officials did 
what they could to make the Germans see what electoral systems 
meant; it is due to their insistence that jsome of the extremes -- 



characteristic of the Weimar system of P.R. were avoided. 
First, three-fourths of the deputies were elected in single- 

._ memheiL-ConstituencieSr-and-the- overall effects- of- RRr^^ere" 
introduced with the help of a "reserve list" containing one- 
fourth of the total number of seats. The existence of the single- 

_ member ^constituencies means the nomination of a better and' 
more popular type of candidate. Also, the significance of 
electoral systems is now much more transparent than it used 
to be. Anyone who takes the trouble to do so (very many, of 
course, do not) can compare the results in the single-member 
constituencies with the overall results and get a good approxi- 
mation of what the effects of majority voting would have been. 
Lastly, there is the "Sperrklausel." Unless a party secures 
some direct seats (which splinter parties, as a rule, cannot do) 
it can get seats from the resei've list only if it polls 5 percent 
of the total votes. This provision knocked out most minor parties 

~m (Germany. 

In the Laender of the American zone of occupation the old 
Weimar system was, at first, restored everywhere without any 
enlightened feature. The same rigid lists appeared and also • 
the Verankerung (anchoring) of P.R. in the constitution. 
When, a few years later, this writer passed through Munich 



163 



and asked Dr. von Prittwitz und Gaff ron (a former Ambassa'!. • 
to Washington) , who during the crucial period headed the cor-, 
mittee of the Bavarian Diet which had to handle such matttr.^ 
why P.R. had been adopted, he quipped: "Sie [Die Verhc'.i. 
nisivahl] ist iins anhefohlen worden." — "We were just ordvr-i 
to use P.R." For this political leader, then, as for others \\\\r. 
whom the author talked, the use of German advisory cur.. 
mittees was, at least in the American zone, just a smoke scrot-r: 
Their composition was bound to lead to P.R., and certain Am.r- 
ican officials left no doubt as to their preference. The m^'^'. 
feasible democratic alternative would have been a spocal 
referendum preceded by a free flow of information. A part c! 
this information was, at that time, provided privately by thi.'-- 
membei^s of the American military government (some of tlum 
distinguished political scientists) who had an open mind en 
the matter; they could, of course, do nothing openly. Genf-ra! 
Clay's senior adviser, however, the late Professor James K\rr 
Pollock of the University of Michigan, favored P.R. and u.sol 
every means to influence German politicians in this sense. Sorr.-- 
of those who, like Dr. Johannes Schauff^^ and the prosiT.'. 
writer, who had made an extensive collection of materials 1 • 
present to the German electorate, vere, at that time. not£!!c-.v. ! 
to enter Germany; they could not even write letters to tht-ir 
friends." 

. The Allies did, however, play a constructive part whcii i).t 
elections to the first Bundestag of the Federal Republic werr 
held. They opposed any weakening of the 5 percent clause an.f 
exercised their power of licc-nsing German political partio 
in such a way that several minor groups were blocked. Evt-n i 
limited success by one of them might have meant an altojieth.-r 
different start for the Bonn Republic. There were, in th«- 
Bundestag elected in 1949, ten political parties; when ih'- 
Chancellor had to be elected Adenauer managed to squ'-:' 
through with not even one single vote to spare. The tendeno 



26 One of the youngest members of the Reichstag elected in 1930, »^J 
known, in particular, by {lis book Das Neue Wahlrecht (Berlin, l".'-"-* 
He tried to coordinate attempts at electoral reform on the part »•• ''•■• 
three Republican parties.' 

" On the underlying policy see my letter to the editor of The S'ftc 1 •'* 
Times, published under the title, "Vote in Hesse Questioned," in the it.n' 
of February 1, 1946. 



164 



toward a two-party system, so strong in 1946, had been weak- 
ened considerably by this time.^^ 

Political splintering continued for a while. The neo-Nazi 
Socialistische Reichsjmrtei (SRP) arose. In the Diet elections 
of 1951, in particular in Hesse, Lower Saxony and Bremen it 
scored a marked success. In these Laender the Christlich Demo- 
kratische Union (CDU) seemed on the point of collapse; it 
must be borne in mind that it was the CDU which pioneered 
the movement which led away from the — potentially destructive 
— ideological parties of the Weimar period to the more prag- 
matic t)rpe which alone corresponds to the requirements of a 
democratic system. When the government requested the Consti- 
tutional Court to declare the SRP unconstitutional, this was 
done, although with the delay inevitable in such a judicial 
procedure. Meanwhile, however, other factors had been at work 
to correct the situation, in particular the Wirtschaftsivunder. 

Germany's economic upturn had begun immediately after the 
currency reform of June 20, 1948. There was, however, a 
marked time-lag between the economic change and its psycho- 
logical effects. Until 1952 the majority of those questioned in 

— public opinion polls felt that their economic Condition was not 
improving. At last, however, perception followed reality. 
Werner Kaltefieiter has shown"-' tbat this perception was fol- 
lowed 43y- a massive changeover of the voters to those held 
responsible for their improved condition. The beneficiary was 
the CDU/CSU (Christlich Soziale Union) which, in the Wahl- 
wunder of 1953, received with 45.2 percent of the votes, one 
seat more than the absolute majority in the Bundestag. The 
effects were electrifying; self-confidence began, at last, to 
develop in the Federal Republic. Also, the "social market 
policy," adopted by Erhard as early as the fall of 1948, when, 
as Economic Director of the combined American and British 
zones, he rescinded allied restrictions on economic activities, 

_J?LiSjpjtiej)X.the-issues in these elections. The voters accepted it, 
as well as Adenauer's leadership in general and his European 



^For details see my book, Europe between Democracy and Anarchy 
<Xotre Dame. 1951), pp. 192 ff., as well as The Representative Republic 
CXotre Dame, 1958), pp. 571 ff. and Verfaasungslehre (Koln-Opladen, 
1968), p. 439. The 1969 elections were treated by Werner Kaltefieiter et al., 
"Im Wechselspid der Koalitionen. Eine Analyse der Bundestagswahlen 
1969," in Yerfassung und VerfassungsvArklichkeit (Koln, 1970), Part I. 

» Wirtsehaft muf Folitik in Deutschland, op. eit., in footnote 4, pp. Illff. 



165 



and Atlantic policies in particular. The Social Democrats had. 
under Kurt Schumacher, opposed the CDU in these matters, 
but when Herbert Wehner and Willy Brandt became the party's 
new leaders they adopted, with the Godesberg program of lO'/j, 
a definite policy of moderation and modernization which was to 
make the Sozialdemokratische Partei Deutschlands (SPD) zs 
much of a pragmatic, functional type of party as the CDU had 
been from the start. 

It might be mentioned in passing that the continuing pressure 
for adopting the majority system had led to a significant change 
in the election law before the 1953 elections. Henceforth a 
party which did not secure at least one direct seat in the single- 
member constituencies had to obtain 5 percent of the votes in 
the entire Federal Republic, not only in the Land where it 
claimed seats from the list. Later on it was provided that tkrer 
direct seats had to be won if a party had not obtained 5 percent 
of the votes in the entire country. These changes markedly 
reduced the chances of the minor parties ; had they been in force 
in 1949, most of the ten parties then in the Bundestag would 
have failed to be elected. 

Subsequent events were to show in Germany,' as it had been 
showTi in France, that the effects of such provisions are a help 
only on one condition : an undesirable type of party must be the 
victim, either extremists or typical splinter parties. The French 
and Italian Communist parties wt-re, from the outset, so stronjr 
that no such provision would hav3 affected them. 

In Germany the Socialist Reichs Party (SRP) and the 
National Democratic Party (NPD) demonstrate that a jump 
across the hurdle of the 5 pen.'ent clause is possible from 
Rightist as well as from Leftist parties. Fame, fortune— and 
ultimate failure — of the NPD were, once again, the results of 
variations in economic activity. The German recession of 
1966-67 was all but insignificant in its overall economic effect^. 
as the Gross National Product fell by about 1 percent.- The 
world is now, however, under the influence of a "revolution of 
rising expectations," and a lack of improvement is considcroH 
a sign of failure. The NPD had gameml but 2 percent of Ih- 
votes in the Bundestag elections of 1965; it secured no seat5. 
It would have done so under the Weimar election law. Th:^ 
would, at the same time, have made its chances appear so mucr. 
better that it would have exceeded the 2.6 percent with which 
the Nazis obtained their 12 seats in 1928. At any rate, as so^r. 



25-147 0—74 12 



166 



as the recession set in, the chances of the NPD soared ;'" it 
jumped the hm-dle of the Sperrklausel in all Diet elections in 
•which it took part and reached its peak with 9.8 percent in 
Baden-Wueiitanberg. It did not, however, have any real strong- 
holds; its maximum strength in the 70 single-member con- 
stituencies of Baden-Wuerteemberg was 14.3 percent. Under 
majority voting there would be no chance at all for such a party 
to get seats ; the anticipation of this fact usually means loss of 
potential votes. Under P.R., however, the NPD could score one 
more success: 1ji Bavaria it won 7.4 percent of the votes for 
the Land as a whole and 12.2 percent in the Regierungsbezirk 
Mittelfranken, This latter fact was vital because in Bavaria a 
party must, in order to get seats from the list, have received 
more than 10 pcaxent of the votes in a Regierungsbezirk. This 
the Freie Demc^ratische Partei (FDP) did not manage to do 
although it had 5.1 percent for the entire Land; thus, the 
Sperrklttiisel, loss praised as ideal in its effects by spokesmen 
for the FDP, eliminated that party and favored the NPD. 

Recent German events, then, have demonstrated once again 
that extremist strength is largely a function_of the.business 
-cycler As- Goetz^Briefs'and''Gerhard Schroeder have said, Ger- 
many is a SchoeMwetterdemokratie — a fair-weather democracy. 
If the weather Is fine, everything is all right; if it is not, there 
IS trouble- 

This means, at the same time, that no real trust can be 

placed in those provisions of the constitution which are intended 

JO strengthen the executive when there is no parliamentary 

najority. The best known of them is the "positive vote of 

caeasure" ; accordiog to Article 67 of the Basic Law the Federal 

Jhancellor can be overthrown only when an absolute majority 

ftke Bundestag members agrees on a successor. The purpose 

:* this provision is to keep a heterogeneous combination of 

^rcnips from ovothi-owing a cabinet without being able to 

-place it. Obstacles in- the way of iieterogeneous combinations 

i* fine, hot in Germany (as in the France of the Fourth Re- 

-abUc) it was ovexlooked that under a parliamentaiy system 



' For the relation beturcen NPD votes and the recession, see Kaltefleiter, 
fi»eliaft md Polttik in Deutscliland, 2nd ed., op. cit., in footnote 4, 

169 ff. and Vera C^emmecke und Werner Kaltefleiter, "Die NPD und 
-- Ursachea ihrer Erfoige," Verfassung und Verfassungswirklichkeit 

*J7).PartL 



167 



governments do not usually fail because of a vote of censure. 
They simply break apart — when support of one or two parties 
is withdrawn, the government can no longer govern. 

In Germany, in 1966, Chancellor Erhard tried to cany on 
although the withdrawal of the FDP from his cabinet had left 
him without a majority, just as Premier Laniel tried to hang 
on in France in 1954 because a hostile vote was not cast by an 
absolute majority of the Assemblee Nationale. In the German 
case the Bundestag, unable to agree on a successor, passed a 
resolution requesting Erhard to ask for a vote of confidence 
according to Article 68. Had such a vote been defeated, the 
Federal President could have dissolved the Bundestag. Erhard 
was in no position to take such risks ; hence, after some hesita- 
tion, he resigned and, in the end, the government of the Grossc 
Koalition was formed with Kurt Georg Kiesinger in the 
Chancellor's chair.^^ 

The various provisions of the Grundgesetz aiming at securing 
government stability even at timcA'^vhen there is no majority 
will, therefore, break down just when they are needed. Under 
a parliamentary system there is no way around the fact that 
stability depends upon the existence of majorities. This, in 
Germany, the majority system would provide in practically 
every case; it is logical that the Kiesinger government 
attempted to take this step. It failed on-account of the usual 
combination of vested interests and intellectual confusion. To 
mention but one factor, both within the CDU/CSU and the 
SPD there were strong regional groups which expected to lose 
power under majority voting even if their party won; this 
applied to all party organizations in areas where the other party 
was stronger. There are vei-sions of the majority system which 
avoid this feature; however, when Professor Unkelbach and 
the present writer addressed themselves to the task of elimi- 
nating this and other objections to majority voting^= they nvciv 
labeled Jiopelesa "technocrats..'.! 



»» For an evaluation of these events and their significance from the poirt 
of view of Germany's "living constitution" see my article "Verfas-urx- 
politischer Neubeginn?" in Verfassimg und Verfassuttgswirklichk.it 

(1967),!. . 

«In an article entitled "Die Wissenschaft und das Wahlrecht, in 
Politische Vierteljahresschrift (1967), Nr. 1. 



168 



As to intellectual confusion it existed in many varieties.^^ 
The most effective claim made was the contention that majority 
voting would ensconce the CDU/CSU in power for a generation. 
The basis for this claim was determinism (a favored version 
of what Gei-maiis call "Die Politik der Unpolitische7i" — "The 
politics of the nonpolitical") . This provides intellectual blinders 
\i-hich keep people from seeing political reality. At that time 
the SPD had already become a contender for power equal to the 
CDU/CSU. This was evident in the North Rhine-Westphalia 
Diet elections of 1966 ; at that time the SPD secured a strong 
majority of the seats in the single-member constituencies. The 
"statistical faii-y tales" spread out by the "Institute for Applied 
Social Sciences," headed by a group of left-wing Social Demo- 
crats won, however, such wide publicity (thanks to German TV 
and the weekly magazine Der Spiegel) that the negative vote 
of the SPD Congress in Nuremberg, which had to pass on the 
matter, is ascribed by many to this factor. The detailed refuta- 
tion of the INF AS "evidence" presented a few months later^* 
was hardly noticed. 

The Bundestag elections of 1969 took place under the old 
system and led ^to^ result in- which the FDP, the great lo^'r 
of the contest (its share of the votes declined from 9.5 percent 
to 5.8 percent), was still strong enough to determine the issue; 
Ae Brandt-Scheel Cabinet was formed. Its constitution led to 
a crisis in the FDP, which fell below 5 percent of the vote in 
the elections to the Diets of Lower Saxony and the Saarland, 
idd on June 14, 1970. The result was a weakening of the Brandt 
forernment which caused Guenter Gaus to speak of an "equilib- 
rium of the impotent."^^ The Brandt government had lost a 
«ood part of its prestige but the opposition had failed to gain 



-*I have discussed the more significant of the objections to electoral 
■sform in: "Zur WaMrechtsdiskussion in der Bundesrepublik," Verfassung 
^'d Verfassungswirldichkeit (1968) , I. This article was, with minor 
•^iiications,- reprinted under the title ^^WaWrechtsreform — Staats- 
"Otischc Notwendiglceit oder parteipolitische Taktik?" in Manfred Haet- 
-^K Ferdinand A- Hermens, Theodor Maunz, and Wolfgang Mischnick, 
••hlrecht und Wahlgerechtigkext (Karlsruhe, 1970). 

*Se€, in particular, the contribution by Werner Kaltefleiter on "Zur 
■i*ncengleichheit der Parteien in der Bundesrepublik," in the special 

-le of Verfassung luid Verfassungswirklichkeit (1968), II, devoted to 

=*e problems. 
•His article, "Das Gleichgewicht der Ohnmaechtigen," appeared in 

•- Spiegel, June 22, 1970. See also my article, "Die Lektion des 14. 
^" in Die Welt amSimntag, June 21, 1970. 



169 



accordingly — thanks to P.R., the German voters come close to 
playing a "minus sum game." 

There are other effects of P.R. Thus, Chancellor Kiesinger 
rejected fin upward valuation of the German mark in the fall of 
1968 because he felt that this measure, the reasons for which 
he saw very well, would drive enough voters into the arms of 
the NPD to cause that party to clear the 5 percent hurdle and 
enter the Bundestag. That fear also caused a general tendency 
within the CDU/CSU to the Right but, when the author com- 
plained of this to a scholar who is an active member of the 
SPD, he answered that without this switch the NPD would, 
indeed, have entered the Bundestag. Similarly, the SPD leader- 
ship is more vulnerable to elements to its Left than it would bo 
under majority voting. This fear had its part in the refusal 
by Chancellor Brandt to support strong — and long overdue — 
measures to curb the German inflation during the first half 
of 1970. 

German democracy under P.R. remains, therefore, not only 
a "fair weather democracy" in the sense that any serious reces- 
sion is likely to lead to a new wave of extremism ; it is also a 
limping democracy, as those who are entrusted with the re- 
-sponsibility for the goverflmenthavj: to look constantly nvor 
their shoulders for fear that extremists to their Right and Left 
might deprive them of their political basis. This is hardly a 
comfortable position in which to be. 

Smaller European Countries 

Much could be said about those smaller European nations 
for which it is so often claimed that they demonstrate the 
compatibility between P.R. and political stability. So far &s 
the details are concerned they are being taken up in separate 
studies^^ prepared by the "Research Institute for Political 
Science and European Questions" of the University of Colo^»* 



*« These are either monographs appearing as a rule in one of the l*-* 
series "Demokratie und Frieden" (published 1965-69 by WestdeutJ^H*? 
Verlag, Cologne-Opladen, and beginning in 1970 by the Carl He\-Tnar^ 
Verlag in Cologne), and "Koelner Schriften zur Politischen Wissenscr.a.* 
(published 1964-66 by Athenaeum Verlag, Frankfurt, and since that t:?-^ 
by Duncker & Humblot in Berlin), or essays appearing in the semiar.r— » 
yearbook Verfassung und Verfassiingswirklichkeit (1966—1969 W"* 
deatscher Verlag; since 1970 Carl Heymanns Verlag, Cologne). 



170 



•vnth which the author has been connected since its foundation 
in 1960. The first book-length study to be published was one 
on The Netherlands.^' It demonstrated that the negative effects 
of P.R. are very visible, indeed, even if they are not as dramatic 
as they were under the impact of the world economic crisis in 
the 1930's (p. 339 above). Criticism of P.R. is now more active 
in The Netherlands than it has been since the introduction of 
that system, even if those in active politics, bowing to the 
strength of the vested interests, concentrate on modifications of 
the system employed.^* 

Austria was, for some time, presented as an alternative to 
a parliamentary sj'stem with parties alternating in power. The 
coalition of the tivo dominating parties, the Christian Demo- 
cratic "Austrian People's Party" and the "Socialist Party of 
Austria/' ruled the countiy jointly between 1945 and 1967. This 
appeared to som^ in particular to Professor Otto Kirchheimer, 
as a viable new type of goverament. The counterposition has 
Deen taken effectively by Karlheinz Nassmacher,^' who pointed 
out that the coalition was able to work properly only as long 
^ the temporary conditions existed which gave it birth. That 
^rras the-case until, in 1955, the Austrian peace treaty was con- 



duded and the entire country became free of occupation troops, 
tiding the need for a government of "national unity" which 
^eluded only the small Communist party and the Liberal Party 
Di Austria. The latter has not yet been able to shed its reputa- 
:ion as a harborer of nationalists and ex-Nazis. When, in 1966, 
ihe People's Party secured, with 48.35 percent of the votes a 
mall majority (51^2 percent) of the seats, it formed a govern- 
ment of its own. The Social Democrats did the same in 1970 
hen they won a plurality, but not a majority of the seats ; they 
■ on a bare majority (93 out of 183 seats) in 1971. 



— ^Georg Geismaniiy Politische Sirnktur und Regierungssystem in den 

^derlanden (Frankfort, 1964). 

* L. G. A. Schlichting, "Mehrheitssuche in den Niederlanden," in Ver- 

iung und Verfasmatgswirklichkeit (1968), I; and Axel Ridder, "Zwei 

- uerlaendische KomniBsionsberichte : Wahlpflicht und Wahlrecht," ibid. 

■ Karlheinz Nassmacher, Das oesterreichische Regierungssystem Grosse 

ilition odtT alternierende Regierung? (Kijln-Opladen, 1968). For the 

■^t developments see Heinrich Neisser and Anton Pelinka (eds.), FUr 

inehreitsfordenidex Wahlrecht in Oesterreich (Vienna, 1971), and 

"♦>n Pelinka and Manfred Wela.n,Dem.okratie und Verfassung in Oester- 

ft (Vienna. 1971). 



171 



If the two large parties could unite on the introduction of 
majority voting, they would free themselves of a cumbersome 
dependence on each other or on the "Liberals" and provide the 
country with a system of stable majority governments formed 
by one of them. There evidently exists now in the Austrian 
electorate the same fluidity of the vote as in the German. The 
"Lagermentalitaet" of old — political behavior based on class 
and class consciousness, which seemed to confine voting to sup- 
porting the candidates of one^s social group — has, if it ever 
really existed, now definitely disappeared. 

The situation is more complex (and much more complicated 
by P.R.) in Belgium.-"' Since the end of the First World War 
the conflicts between Dutch-speaking Flemings and French- 
speaking Walloons have been escalated by small groups on both 
sides; their extremist demands bedevil the Belgian political 
scene. Under majority voting there would be no chance for any 
of them; the conflict between the linguistic groups might have 
been solved long since. Active efforts to find an equitable solu- 
tion have continued for two decades ; at the time of this writinif 
it seems that prolonged and painstaking negotiations by Prim..* 
Minister Eyskens may be a little more successful than those of 
his predecessors. .. . 

Even Switzerland, long considered the model of democratic 
satisfaction and stability, finds herself in the throes of a search 
for new solutions. A "total revision" of her institutions is 
demanded by many. Most of those in or close to active politic.^ 
shy away from the two steps which logic would require if the 
demand for a really substantial change were to be implementt-^l. 
namely, adoption of the parliamentary system and abolition of 
P.R." 

Developing Countries 

The first thing to be said about developing countries is that 
the traditional forms of stable government, be they nativv 

*oKarl Franzen (i.e., F. A. Hemnens), "Belgian und das Problem ;*•» 
Nationalen Heterogenitaet," in Verfasaung ui*d VrrfoJisungswirklir' s.^ 
(1966) ; Jan de Meyer, ^'Elections et Partis en Belgique," Ver/a.ssM«y •*»- 
Verf assung stvirklichkeit (19S9). - ^ r rr* 

« Klaus Schumann, "Die Revision der Schweizer Bundesverfavvar^ ^ 
in Verfassung und Verf assung swirklichkeit (1967), I; Klaus SchufW- 
Daa Regierungssystem der Schweiz (Cologne, 1971). 



172 



monarchies or colonial governments, either have disappeared 
or ai-e about to disappear/- Their social foundations — their 
"intermediate powers" in the sense of Montesquieu — have been 
vanishing for some time." Second, there are no stable solutions 
between democracy and dictatorship; even Mexico has a dic- 
tatorship which, while more flexible and more enlightened than 
any of its rivals, still partakes in the essential instability of 
the type. Third, while stable democracies are for some time 
to come hardly to be expected, it is yet worthwhile to ask 
whether the prospects cannot be enhanced by adopting political 
institutions calculated to place a premium on integrating 
factors. 

India is a country in which the institutional framework was 
chosen as wisely as conditions permitted. When, in 1947, par- 
tition led to the death of hundreds of thousands, few dared 
hope for any substantial period of a government based upon 
the active consent of the governed. Yet in that respect, matters 
have for more than two decades been better than anyone had 
a right to expect. This was possible primarily because the 
Indian leaders — supported by a very able debate in the Indian 
press and by the careful advice of such statesmen as Eamon 
de Valera — rejected the opinion pressed upon them by so many 
m England: that, on account of the numberless elements of 
division -within~th'e~ country only'the'^fair representation" of 
all groups by P.R. could work. Nehru and his colleague?, in 
particular the then Minister of Law Dr. Ambedkar, himself a 
leader of the untouchables, insisted that precisely because the 
Bation was so much divided, it needed every possible encourage- 
«Knt to unite; the plurality system of voting was chosen to that 
eod. Only on this basis was it possible for the Congress party 
to give the country two decades of comparatively stable consti- 

«*The place of a monarchy with substantial power of its own could, of 
OQrse, be taken by a parliamentary monarchy of the English or Scandi- 
UTtan type. Theoretically there is much to be said for such a solution. 
Malaysia, electing one of its Sultans as King for a five-year period, is, 
however, the only country in which such a solution has been tried; in all 
others the monarchy has been abolished when its policies encountered- 
«distantial opposition, the latest case being Libya. 

«» The Representative Republic (Notre Dame, 1958), pp. 86 ff. and 465 ff. 
See also my article: "Politische Form und Entwicklungslaender," in 
Mr6ucA des Landesamtes fuer Forschung des Landes Nordrkein-West- 
^«, vol. 1967; reprinted in Ztvischen Politik und VemunftiBerWn, 1969), 
r^368 ff. This article contains a more detailed discussion of the problems 
takoi ap in the pages that follow. 



173 

tutional government; it never commanded a majoriti' of the 
popular vote and its share fell to 40.73 percent in 1967."^ The 
split in its ranks which occurred in 1969 might well have meant 
the end of constitutional stability. The combination of the right 
of dissoiution and of the plurality system placed, however, 
weapons of leadership into the hands of the Prime ^Minister,' 
Mrs. Gandhi, which she has used ably. The 1971 elections gave 
her wing of the Congress party about 44 percent of the votes ; 
thanks to the split in the ranks of her opponents she secured 
a two-thirds majority of the seats. This meant a revitalization 
of constitutional government in India; there was, all of a 
sudden, confidence ^vilere uncertainty and insecurity had pre- 
vailed. Tlie lack of an opposition capable of forming an alterna- 
tive govemnKnt is, and remains, of course, a serious drawback 
in the long ran.*' 

In coontries such as India economic policy is as important 
as is the political structure. The Congress party opted, from 
tiie outset,** for a substantial measure of centralized economic 
planning- Critics pointed out again and again that this meant 
overtaxing the country's economic, moral, and intellectual 
resource; emphasis on a more rapid development of farming 
and of Kght industries (to be left largely to private initiative 
supplemented by government action providing for the proper 
"infrastnictare" and carrying out such social reforms as were 
-. imperative) might have led to better results, including a much 
larger measure of political stability. 

We only have to turn to Indonesia, however, in order to see 
what happens when the wrong type of political institution 
coincides with the wrong type of economic policy. The only 
general elections held in that country to date took place in 1955 ; 
the Dutch PJl. system was copied and led to a multiplication 
of parties which outdid the corresponding performance of the 

*♦ On India see Horst Hartmann: "Die Struktur des indischen Partcicn- 
systems,"" PhJ>. dissertation, Cologne, 1963; "Heterogene Gesellschafts- 
strukturund poBtische Integration in Indien," in Verfassung und Verfas- 
nmgsiffirkliekheil (1966) ; *'Die Bedeutung der vierten allgemeinen Wahlen 
fuer die Stabifita«t der parlamentarischen Demokratie in Indien," in Ver- 
faasimg uMd Vrrfassungswirklichkeit (1968) I. 

** Antt-Congxess coalitions in the states and other recent developments 
ave dealt with in: Horst Hartmann, Political Parties in India (Meenit. 

** P. T. Bxaa^United SUites and Indian Economic Development ( Wasft- 
ington, 1959) , pfL 75 ff. 



174 



"mother country."^* As Professor Bone described this system's 
effects on the voters : 

How'ever praiseworthy the intent, the result has been to com- 
pound confusion. In addition to numerous independent candidates 
and those of some twenty-odd political parties, the voter is now 
also C€Hifronted with weighing the merits of those sponsored by 
such varied groups as the Humanist Society, the Indonesian 
Younger Generation Associations, the Organization of Prosper- 
ous Peasants, the Union in Defense of Indonesian Independence, 
The Executive Council for Minangkabau Customary Law (Adat), 
the Retired Pensioners' Association, and many others. The result 
is that in virtually every election there are between 40 and 50 
political parties, private individuals, and other organizations 
which Lave qualified for a place on the ballot.-'^ 

The elections brought 17 parties into the parliament and, in 
addition, 26 "Independents," eacli of whom more or less repre- 
sented a splinter group. The most important result was the 
continuation and intensification of the split between the two 
Hoslem parties; under majority voting they would have had 
to cooperate in electing candidates in a substantial number of 
eonstitueJacies. This means, as a rule, mutual adjustment, fol- 
lowed by a measure of preserved or restorjed consensus which 
is adequate for a common government. The two parties would, 
m all Ifkelihood, have commanded a good parliamentaiy 
laajority. Instead no real parliamentary government of any 
kind couM bcfoiTned. Thereafter, President Sukarno embarked 
apon his experiment of "guided democracy," which might have 
slid into a totalitarian dictatorship had that not been prevented 
bjr the action of the military. 

Indonesia is one of the countries in which old mistakes may 
be repeated. There does now exist a substantial measure of 
intellectual criticism of P.R., some of it reflecting the critical 
attitude now current in The Netherlands. The remnants of most 
of the old paities are, however, active. Several of them would 
not sui'vive the introduction of majority voting and insist on 
PJK. General Suharto felt he had to make this concession. He 
aad his fellow officers were, however, reluctant to entrust their 
eoonti-y to a parliament thus elected. They founded a group 

— f-V, 

*For detadls see Axel Ridder, "Wahlen und ausserparlamentarische 
MacJitbildun^ in Indonesien/* in Verfassung und Verfassungstvirklichkeit 
<1SC),II. 

•*Eobert C Bone, Jr. "Organization of the Indonesian Elections," 
Amtrican Potkicai Science Review, December 1955, pp. 1076-1077. 



175 



based on professional organizations, "Sekler Golkar," and. 
according to newspaper reports, massive pressure helped it to 
win. This can hardlj' be a permanent solution. 

If space permitted, a few words would have to be said about 
those recentl}^ liberated countries which have managed to live 
peacefully and effectivel}^ under a system of alternating parties. 
Jamaica is the best example; the only reason why it has been 
given so little attention is that its political and economic life 
has been free from sensation. Until recently there was hope that 
Ceylon might overcome her initial difficulties; there, too, a 
peaceful change of the party in power had taken place before 
and the Senanayake government tried to steer a course which 
offered a good possibility for overcoming its country's economic 
ills. In this respect Senanayake showed, perhaps, as he explained 
recently, a little too much courage. The reduction in the ration 
of highly subsidized rice cost his moderate government its 
majority. At the time of this writing it is difficult to see how 
his successor, Mrs. Bandaranaike, once again in power, can 
overcome the obstacles standing in the way of a normal func- 
~tioning of constitutional processes and of economic sanity. Ma- 
jority voting, however, did give her a significant assist. Her 
own, comparatively moderate pai-ty has an overall majority. 
and can, if it wants to, govern without its Trotskyist.and other 
radical allies. 

About Latin America in general, her "Liberator," Simon 
Bolivar, wrote a century and a half ago that those who intendtnl 
to place her on a stable course were "plowing furrows in the 
sea." Still, the semicontinent has solid assets; the words 
"Beggars on Golden Stools"^' were coined by Latin American -i 
and testify to the availability of substantial but improperly 
utilized resources. There is no lack of both economists and en- 
lightened businessmen in Latin America who see all this. Also. 
so far as those social reforms are concerned which promise t<> 
combine a maximum of human improvement with a minimum 
economic cost, their nature is well enough known. What is lack- 
ing is the type of government which peiTnits a nation to mak- 
use of its human and material potential.' 



50 



** The Swiss A\Titer Peter Schmid wrote a book under this title. 

** A volume attempting a systematic analysis of the major facts invo.v'^- 
is in preparation under the title: "Latin America between Democracy a--^ 
Dictatorship." The German edition is scheduled to appear in 1012 a» * 
special issue of Verfassung toid Verfasstingswirklichkeit. 



176 



As far as details are concerned,^*' most Latin American 
governments possess an independent executive branch, using as 
a model the Constitution of the United States ; experiments with 
the pai-liamentary system are considered to have been a failure. 
It w-as assumed that since the popular election of the president 
filled the executive office, parliaments could safely reflect 
diversity and be elected under P.R. The result has been a 
political fragmentation which is reflected in presidential as 
well as in parliamentary elections. The two latest Venezuelan 
presidents, for example, were elected with 32.8 percent (Leone 
in 1963) and 29.13 percent (Caldera in 1968) .'- Such presidents 
do not have a parliamentary majority which might carry 
through their program. In such a case there are several pos- 
sibilities. Grau San Martin is supposed to have said, when 
elected in 194G: "Wiat, I got no majority? I'll buy myself one." 
His critics say that he acted accordingly. Other presidents do 
their best to form viable coalitions. This is, however, often as 
difficult for them as it is for Europeans operating under the 
parliamentary system. Others again use the emergency powers 
(which Latin American constitutions usually bestow upon them 
in generous Quantities) to the utmost. When this policy also 
'failsr"either the president himself introduces a dictatorship 
(the latest case is Ecuador) , or the military relieve him of 
this task, as happened in Peru. 

- Naturally, in none of these cases would the establishment of 
a political system characterized by a little logic be sufficient in 
itself. A viable government would have to adopt a rational 
economic policy too. and even then could not succeed unless 



" On same of them see my essay "Constitutionalism, Freedom and Re- 
form ia Latin Anaerica" in Fred Pike (ed.). Freedom and Reform in 
l-tUiii AMtriea (Notre Dame, 1959). 

"Manfred Rabeneick, "Machtwechsel in Venezuela," Verfassung tend 
VeTfassKMgsiuirklichIceit,19€9, pp. 219 ff. 



177 



given a few years' grace. It is, however, difficult to see how 
sustained progress could be obtained in any other \vaj\" 

In conclusion let it be repeated that the prospects for consti- 
tutional government in developing countries are not all bad; 
there is progress in some, and the cases of Indonesia and Ghana 
demonstrate that when there is a dictatorship it may not last. 
In that case, something at least depends upon whether a new 
" attempt at constitutional government is made along rational 
lines. 

Lastly, while the above analysis had, given the nature of this 
book, to concentrate on the effects of P.R., other mistakes may 
be made in the constitutional field. Thus, Wolfgang Kaden,^' 
in his careful analysis of the Nigerian experiment, reaches the 
conclusion that it was a major mistake to construct a federal 
country with one region dominating the rest. Such and similar 
factors should be borne in mind wherever the task of constitu- 
tional reconstruction has to be faced. While even the best 
institutional set-up is never a guarantee for success it may,- 
in a growing number of cases, forestall failure. 



. .;^, . Again: P.R. for the United States? 

Any discussion of the P.R. proposals made in the United 
States must begin by emphasizing that while proponents of P.R, 
say they want it only for local government, their leaders, such 
as George H. Hallett, Jr., definitely advocate it for state and 
national governments^ as well ; local government is, in the main, 
a convenient entering wedge. Certainly, in the field of municipal 
government all are agreed on the need for effective citizen 

" Until a few years ago some felt that the Uruguayan system of a col- 
lective executive, based (with important modifications) on the Swiss mo<it'I. 
provided a solution for all of Latin America as well as for Ui"uguay. Ai 
present the depth of the crisis within which Uruguay finds herself i« 
generally recognized. The Uruguayan system of voting is comparable to 
the Italian; there is P.R. not only between parties but also for grouj.* 
within parties. The voter supports not only a lema but also a sul'lemn. 
As a result there is little effective coordination no matter what type «^f 
executive is ased. For details see Ernst Kerbusch, "Uruguay in d'' 
Verfassungskrise," in Verfassung und Verfassungsunrklichkeit (lOt-'J). 
and the same author's book. Das uruguayische Regiermigssrjstem (Colovrr*". 
1971). 

'* Das nigerianiache Experiment. Demokratie tind nationale Integrnti-y'- 
in einem Entukklungsland (Hanover, 1968). (This is one of the stud.r* 
prepared in the Cologne Research Institute for Political Science.) 

»Pp.359ff. 



178 



participation- The interest of the average voter in his govern- 
ment has to be aroused and kept aroused ; channels have to be 
created which pennit the easy articulation of a clear-cut will to 
good government. In most cases, the mayor-council plan, in 
paiiicular w^hen the position of the mayor is weak, and when 
elections take place in wards, does not fill the bill. The city- 
manager plan provides for straight channels of government; 
conJblned with the right mode of election (elections at large, or 
at kast election of a decisive number of councilmen at large^^) 
it frees the political process from getting mired in a morass of 
ward and precinct politics or of feuds between maj^or and 
coimd}. 

Bni why combine precisely the manager plan \vith the Hare 
system of P.R.? That system can thoroughly confuse the voter 
and k can mean an indecisive council.^' In New York City the 
refOTmist "Fusion" movement of Independent Democrats, Re- 
publicans, and Liberals never came to control the council, 
although, under the plurality system, it elected the mayor for 
twehe yeai*s. 

Naturally, in the smaller cities the combination of a strong 
refoim movement, the city-manager plan and P.R. did, on 
occasH>n, produce a fresh wind for city politics. A reform move- _ 
"ment combined with the city-manager plan and majority elec- 
tions for the cits'- council could have done at least as well. What 
P.R. may mean for the cohesion of reform forces was demon- 
strated in the 1947 case of Cambridge, Massachusetts, when 



**ElKtions at large may lead to the monopoly of the council by one 
party; they have frequently done so in England where, however, the 
opposition to such a. result is remarkably small. In the United States the 
city of Indianapolis, Indiana, has, for a good half century now, used a 
rather ingenious system which should be given more attention than has 
been tfae case to date. The city is divided into six districts in which the 
major parties nominate one candidate each. The final election of the nine 
coundbaen takes pia^e at large; each voter has nine votes and can, there- 
fore, if fee wishes (he usually does not) vote not only for the six candidates 
of his mm party bat up to three of the other. The usual council line-up 
is 6:3. 

For a city of the size of New York the author can only repeat the 
propos^made on p. 362 above, for a 15:10 council with election of two 
candidates, usually a Republican and a Democrat, from one of ten districts 
and five at large. 

'^0»the confusion caused by P.R. in New York see pp. 395 ff. and my 
article "P.R. and Municipal Reform," The Review of Politics, January 
1943; itprinted in PM^ Democracy and Good Government (Notre Dame, 
1943). 



179 



more than 1000 ballots had to be taken by the P.R. council to 
elect a mayor. Such a case is extreme, and it happened at a time 
when a manager was in office and could carry on. Still the Hare 
sj'-stem of P.R. tends to blur the lines of political action— the 
formation of factions within a reform group may be encouraged 
along the lines of the correnti in Italian politics. If, under such 
circumstances, the cause of reform is promoted it is done in 
spite of P.R., not because of it. 

The P.R. movement in this country received a mortal blow 
when, in 1947, the voters of New York City decided to abolish 
it. The New York Times, which in 1936, before P.R. was intro- 
duced, had given it a qualified approval, had opposed it since 
1941. This time it analyzed "The Record on P.R." in no less 
than four editorials^^'^ and found it wanting; it underlined the 
reasons for its rejection in two subsequent editorials.^' 

The arguments advanced in these articles are classic examples 
for a realistic discussion of what the Hare system of P.R. may 
come to mean in a large American city. 
- This does not mean that New York's return to single-member 
constituencies which occurred at that time v/as fortunate. Of 
the twenty-five council seats the Republicans never won moi-e 
than two. Within the heavy Democratic majority there was 
much emphasis on precinct politics. Later a system of electing 
two council members from each borough at large was intro- 
duced; as the voter could support only one there were five 
additional Republicans on the council. This arrangement also 
fell short of being ideal. Its constitutionality is also being con- 
tested. Something like the plan mentioned above''" would have 
avoided these sources of dissatisfaction from the outset. It 
would have resulted in a reasonable combination of district 
representation with a decision at large. 

Among other cities in which P.R. was abolished Cincinnati 
is the most prominent. Questions have been raised in connection 
with this step which cannot be discussed here.^' One factor. 

s« Issues of October 27, 28, 29, 30, 1947. 

59 "P.R. is Repealed," November 5, 1947, and "The Results of PR." 
November 6. 

«o Page 362. 

•1 Ralph A. Straetz, PR Politics in Cincinnati (New York, 19.'.8). Ki» 
laid the result to a white backlash. If this existed, it cannot have atTc^*'^ 
more than a part of the voters; in repeated visits to Cincinnati the a'-t.^-'f 
could find abundant evidence of an opposition to P.R. untainted by *i"-> 
racial motives. 



180 



however, ought to guide the discussion. Before P.R. was 
abolished, it was said that there would be conditions such as 
those that existed in Kansas City under Boss Pendergast. Ac- 
cording to a frequently told "tale of two cities" both touTis 
had the city-manager plan, and that in Kansas City this proved 
an ideal instroment in the hands of a political machine was 
supposedly due to the absence of the controls provided in 
Cincinnati by P.R. Therefore, if Cincinnati abolished P.R. it 
would suffer the fate of Kansas City. 

The Pendergast machine has long since been defeated ; sub- 
sequently the people of Kansas City demonstrated that they 
knew how to make good use of the manager plan although they 
retained majority voting. Then P.R. was defeated in Cincinnati. 
When, some y^irs later, the author revisited the "Queen City" 
there was, first of all, agreement to the effect that reform had 
been maintained. The leaders of the City Charter party 
attributed this to the fact that they had kept up their pressure. 
That, of course, any civic minded group will and must do at 
any time and under any system ; the point is that the reintro- 
duction of majority voting made jt perfectly.possible for that 
pressure to be successful. It does not follow that either for 
Cincinnati or for any other large city the election of nine 
councilmen at large is the last word of civic wisdom ; systems 
with more emphasis on the chances of the opposition, and on 
the representaticai of different groups in reasonably large 
districts may make a good deal of sense. They have, of course, 
nothing to do with P.R. 

P-R. AND THE Racial Crisis 

At the moment P.R. finds favor with some who see in it a 
means for lessening racial tensions. Thus, the report of the 
Kemer Commissioaa*^ states : _ 

The Commission recommends that local governments: . . . 
Expand opportunities for ghetto residents to participate in the 
formulation of paUic policy and the implementation of programs 
affecting them through improved representation. . . . 

When the authcH- consulted with members of the Conrunission, 



*^ Report of the National Advisory Commi.taion on Civil IHaorders, with 
special introduction hjr Tom Wicker of The New York Times (New York, 
>«).p.l6. 



181 

he was told that this was, indeed, a reference to P.R. The Com- 
mission did not intend to endorse it but wanted attention to 
be drawn to it. Evidently, the experience of Cincinnati, 
interpreted by witnesses from that city,^^ played a part in this 
recommendation, since in Cincinnati there were, immediately 
before the abolition of P.R., two Negro councilmen and after 
its abolition only one. When the latter received the largest 
number of votes he was, contrary to custom, not elected maj'or. 
In this regard, of course, the atmosphere changed after the 
Kerner Report was drafted. In Dayton, for example, Cincin- 
nati's neighbor, with a longer and, some say, better manager- 
plan record than Cincinnati, the five-member city commission 
did elect a Negro to the office of mayor in 1970." If council 
elections at large present difficulties, so far as Negro representa- 
tion is concerned, the answer is a combination of the district 
system with elections at large. In this case the districts will 
be large enough to keep the influence of precinct politics under 
control and, at the same time, the councilmen elected at large 
will, as a rule, set the pattern for the moral and political 

-standards of city government. 

While such a system gives all minority groups their due— 
and soon the whites will be a minority in several major cities 
— it stays away from the typical defects of P.R. These Senator 
Robert A. Taft once explained to this writer by emphasizing 
that P.R. would not provide what is commonly understood by 
just minority and majority representation. Proportional Rep- 
resentation would place a premium upon the election of militant, 
if not extremist, representatives of each group, a game which, 
of course, the whites could play as well as the blacks. Any 
significant number of Negro extremists in an elected body would 
probably soon be duplicated by a more numerous group of white 
extremists. Thus, the kind of real polarization which so many 
have feared for so long would set^in with a vengeance. 

At present, existing tendencies in that direction are curbed by 
the logic of our institutions. Thus, when George Wallace was 
a candidate in the presidential election of 1968 the support 
accorded to him by public opinion polls was, at fii-st, well over 
20 percent. When the actual votes were counted this had dropp^^l 

" It is also reflected in the discussion of the Cincinnati riots: see Note f>2. 
PP-47ff. , , ,- 

" "First Black Mayor of Dayton, Ohio," The New York Times, July i'^ 

1970. 



25-147 0—74 13 



182 



to 13.5 percent — not enough voters were willing to "throw 
their votes away" by casting their ballots for him. Actually, 
the moderating effects of majority voting were not without 
influence upon the Wallace campaign; the former governor of 
Alabama did not dare run on an openly racist platform. In 
regard to eveiything except questions of race he tried to give 
the impression of being a responsible statesman.^^ 

Meanwhile, the premium on integration which the majority 
sj'stem provides permeates widening areas of American politics. 
For two generations after the Civil War the Negro hardly 
counted as a voter. In the Northern states he became a factor 
of growing importance following the migration into urban 
areas which began with the First World War. The real break- 
through came with the Congressional elections of 1934 when, 
for the first time, there was a deliberate, and largely successful, 
attempt of the Democrats to enlist Negro support. Republican 
counteraction set in almost immediately. That new generation 
of Republican leaders which emerged in the Congressional (and 
various state) elections of 1938 had substantial Negro support. 

Certainly, Eisenhower was the only one of later Republican_ 



-national candidates to atti-act Negroesin substantial numbers, 
although Nixon did not do too badly in 1960. The Gold water 
candidacy, of course, repelled most Negroes, and the "Southern 
strategjr" of the campaign of 1968 was not calculated to regain 
the allegiance of many. Still, when the attitude of the Nixon 
administration in regard to school integi-ation led to a break 
with Senator Thurmond in the summer of 1970, this at least 
gave the remaining hard core of Negro Republicans a chance 
to persist. Meanwhile, matters took quite a different turn in 
parts of the country; Governor Linwood Holton in Virginia 
and Governor Winthrop Rockefeller in Arkansas^® could not 
complain about a lack of Negro support. 

Tendencies toward political integration were of even greater 
significance in the South and in the large cities. The growing 
enfranchisement of Negroes meant the election of more and 



♦* In the Alabama ^bematorial primary of 1970 which Wallace won 
by a thin margin in the run-off he did use open racist arguments. Gould 
Ijncoln in a column entitled "Race Issue Will Cut Wallace Down" {The 
Evening Star, Washington, June 6, 1970) , argues that this will cost Wallace 
''otes outside the Deep South when he runs again for the Presidency. 

«« "Arkansas Blacks Shifting to G.O.P.," The New York Times, June 
21,1970. 



183 



more of them to local and state office; the total number of 
elected black officials stood around the 1500 mark after the 
1970 elections. As state legislators and city councilmen, they 
might owe their success more or less exclusively to their fellow- 
Negroes, but it was interesting to note how smoothly the ma- 
jority of them began to cooperate with their white colleagues. 
The Democratic National Convention of 1968 saw the extension 
of this process to the national level; the 300 black delegates 
worked as efficiently within the convention as any other ethnic 
bloc in the United States has ever done. 

So far as the Southern states are concerned, their political 
atmosphere is now changing. In more than one of them black 
votes are a potentially decisive factor in statewide contests, 
including decisions on electoral votes in presidential elections. 
The "New South," offering opportunity to all of its sons and 
daughters, regardless of color, for which Governor Holton of 
Virginia called in May, 1970, may not yet be around the corner, 
but the hard political facts of the region are preparing the 
ground for it. 

— The situation may become similar ii; ihe major Northern and 
Western cities, most of which will soon have black majorities. 
At first, this prospect sent shivers dowTi many a white man's 
spine. The situation began to change, however, as soon as blacks 
took over a few cities. The first significant case was that of 
Watts in the Los Angeles area. When the author asked one of 
the members of the research team which was studying the 
effects of the black takeover about its results he was told that 
the black councilmen and their mayor never thought of any 
steps to be taken against the whites ; their main concern was 
to keep the whites in the city so they would continue providing 
employment and paying taxes. This' tends to be the general 
experience. In a similar case a headline in The New York 
Times^'- read : "Negro Will Head Tuskegee Schools. Says a First 
Concern Is to Keep Whites in District." 

In the Northern cities the 1970 election of a Negro mayor of 
Newark, New Jersey, was more significant than the earlier 
elections of Negro mayors of Gary, Indiana and Cleveland. 
Ohio. Newark had been the scene of a particularly severe race 
riot and the situation remained tense. The contest for the 
mayor's office was fierce and the struggle's racial undertones 

*» Issue of June 10, 1970, p. 21. 



184 



were unmistakable. Yet, once again a decision by majority vote 
turned out to be a "Kampf mit Integrationstendenz" — a strug- 
gle with a tendency toward integration. Walter H. Waggoner 
was able to report on the change in The New York Time"^* under 
the heading-r "Newark Winner, Loser Seek Orderly Shift as 
Bitterness Fades." A Times editorial^^ commented: 

The voters of Newark have given an encouraging demonstra- 
tion of the health of the American political system. In recent 
years no citS' has reflected more alarmingly the acuteness of 
urban decay, corruption and racial animosity. Yet, in Newark's 
mayoral election, significant numbers of white voters, ignoring 
strident appeals to their fears and their prejudices, joined blacks 
in naming as head of their municipal government the best- 
qualified candidate, Kenneth A. Gibson. 

The younff Negro engineer lost no time in making it clear 
that his purpose will be to unify the city in which 26 persons 
died in riots three years ago. 

It is, indeed, a testimony to "the health of the American 
political system" that such an election can give rise to such 
hopes. This is true, however, only as long as majority elections 
are retained. Tfee mayor of Newark did need the help of white 
j;oters in order tojwin, and the Negroes did need a moderate 
and competent candidate like him in order even to have a chance 
to win. Under PJR. more than one genuine rabble-rouser, black 
or white, would have a chance to secure a seat in the council 
of a city such as Newark. Their success would, however, set 
the stage for pc^rization and escalation rather than for inte- 
gration. Proportional Repi*esentation is a proper plank for 
segregationists. Mack and white, rather than for those who want 
that progress toward racial understanding which, on the basis 
of the very substantial gains made by Negroes during the 
1960's, is a reality.'** 



*» Issue of June 21, 1970. 

*»Ibid. 

^ Daniel P. MoynBian has made this point repeatedly. See, in particular, 
an address he delivered at Hendrix College on April 6, 1970, under the 
title, "The Concept ©f Public Policy in the 1970's," here cited from the 
manuscript provided by Mr. Robert H. Finch on July 9, 1970. Some of 
Mr. Moynihan's data have been contested but, in all essentials, he is borne 
out by a Gallup poll which The Washington Post (July 26, 1970) reports 
nnder the heading, "Extremist Groups Have Little Appeal." On the diffi- 
culties which confront the Negro leaders who are victorious in American 
dtics, see '^he Black Mayors," Newsweek, August 3, 1970, pp. 16 ff. 



185 



Summary 

A look at the experience of the past thirty years tends to 
confinn, then, what was stated in the first edition of this book: 
On the one hand, majority voting has a dampening effect on fac- 
tors of division. It provides, indeed, as Madison put it in No. 10 
of The Federalist, a chance to "break and control the violence 
of faction"; there is then the further chance to "refine and 
enlarge the public views" by providing orderly channels for 
the articulation of the political will. That way there are real 
possibilities for a successful policy of peaceful conflict resolu- 
tion. All then depends upon how the chances for constructive 
action are utilized; but at least the chances exist. 

On the other hand, the political history of Italy, has, through- 
out the 1960's, demonstrated how immensely the task of policy- 
makers can be aggravated when the channels for proper 
political action are blocked. The experience of Italy also shows 
that responsible political leaders will, in spite of all these diffi- 
culties, try to hold the country together and get at least part 
of the necessary work done. Their task is, however, rendered 
needlessly difficult, and no one can tell how long they will 
succeed. 

The political fate of P.R. countries has, in the postwar world, 
largely depended upon economic developments ; sustained boora* 
have been the rule. Their effects have been particularly evident 
in Germany where extremism has had a chance only wht-n 
there were economic difficulties. To believe that this is enough 
means, however, even in the German case, giving hostages t« 
fortune. In Italy the political crisis did, in the end, affect th< 
economy also. In 1969 and in 1970 the threat of social d:v 
solution repeatedly seemed to hang over the country. 

We can only conclude that if freedom is to be preser\'ed (ar.4 
its sway extended over countries in which a dictatorship ccl- 



186 



lapses)^* there is reason to shun what Alexander Hamilton 
-iermed "improper channels of government." That goes for 
developing countries as much as for those fully industrialized. 
-The right kind o^ political institution will not always guarantee 
a good policy but in some cases the wrong type of institution 
can render the task of those in places of responsibility so hard 
that its successful discharge is all but impossible. 



^^ In sa^ cases it is ^ood to bear in mind that according to Trotsky the 
Bolshevists won in Russia only because they knew what they wanted to do 
**the day after." For democratic groups it is, even now, the rule that when 
the collapse of a dictatorship provides them with a new chance they 
improvise and flounder. There might well be a concerted effort to clarify 
thinking^ in regard to the alternatives which might offer themselves to the 
proponents in such cases. For attempts in this direction (which are, as yet, 
of a very preliminar>' nature) see Peter Herrmann, "Die verfassungs- 
politischen Vorstellungen der russischen Emigration" (Cologne Disserta- 
tion, 1967) and Hans-Joachim Kiihnen "Das Regierungssystem Oliveira 
Salazars" (Cologne Dissertation, 1967). 



187 

The ("hanging Biases ok the Electoral College' 

(By Liiwrenfp 1). Lonsley. Lawrence University and John 11. Ynnker, T^niversity 

of Minnesota, Copyright 197o) 

Tlie purpose of this paper is to utilize the voting power approach of evaluat- 
ing the electoral college to derive new data measuring the hiases of the electonil 
college, as well as other major reform plans, for both the electoral vote api)or- 
tionmeuts of the llXiO's and tlie ll)7()"s. 

It has been found that tlie electoral college has countervailing biases, whicli 
result in a net large state advantage and a disadvantage to states with 4 to 14 
electoral votes. The electoral college also favors inhabitants of the Far West and 
East, as well as central city and urban citizen-voters. In contrast, it discriminates 
against inhabitants of the Midwest, South, and Mountain states, as well as blacks 
and rural residents. 

The proportional plan has a larger and unidirectional bias sharply favoring 
inhabitants of the smallest states. It also greatly advantages inhabitants of the 
Mountain states and rural citizen-voters. Iniiabitants of the South, Midwest. East, 
and Far West, as well as urban, lilack. and central city citizen-voters are dis- 
criminated against by the proportional plan. 

The district plan has a similar yet somewhat lesser bias. It slrarply advan- 
tages inhabitants of the smallest states, the Mountain and Southern states, and 
rural citizen-voters. Iidiabitants of the states of the Midwest, East, and Far West, 
and black, urban, and central city citizen-voters are disadvantaged l»y the dis- 
trict plan. 

In terms of percent deviations from average voting power for tlie lOTO's, the 
following groups are most ad^•a.ntaged l»y the electoral college: residents of the 
Far West, East, urban areas, and central cities. The Mountain states are most 
favored by the proportional plan, whereas the South is most advantaged under 
the district plan. Rui-al citizen-voters are equally well off under the projiortional 
and district plans. Finally, the direct vote plan with its equal treatment of all 
votes is the best Presidential selection method for Midwest residents and blacks. 

I. INTRODUCTION 

This paper is a substantive extension of research initially presented at the 
1971 A.P.S.A. Annual Meeting, subseciuently utilized in a 1972 Yale University 
Press book, and modified in a 1978 Brookings Institution study." For reasons of 
economy and necessity, dictated by the large number of data sets contained in 
this paper, the methodological assumptions and procedures of the voting power 
approach to the analysis of the electoral college will not be restated here except 
in the rather terse summary which follows. Further elalioration of the method- 
ology can be most usefully found in Banzhaf ' and in the three works mentioned 
above.* 



^ Tlie preparation of this paper was made possible by two Summer Grants of Lawrence 
T'niversity Resenrch Fiinfls. Approfiation for this assistance is cratefnlly expressed to 
Lawrence' T'niversitv and Thomas Headrick, Vice President of Academic Affairs. 

-The 1071 A.P.S'..\. paper (Lawrence D. Longley and .Tohn H. Yiinker. "Who Is Really 
Advantajred hv the Electoral Collece — And Who .Tust Thinks He Is?") offers an examina- 
tion of the biases of the electoral college based on the pioneering research of .Tohn F. 
Banzhaf and develops measures of snch biases for diverse residence, ethnic, occupational, 
and regional groups. Similar data are also developed for the proportional and district 
plans. The pajier concludes with a discussion of the limitation of this type of evaluation 
and with an analysis based on actual elections. 

The Brookings Institution studv (Yunker and Longley. "The Biases of the Electoral 
Oollege : Who Is Reallv Advantaged?" in Donald R. Matthews (ed.). Persperfirefi on Prexi- 
ileiitinl l^elertion, Washington. D.C. : The Brookings Institution, 1073) modifies the 
A.P.S.A. paper in several crucial respects, most notably in its last section. "Improving the 
Estimates." where additional causes of voting iiower inequalities, such as state turnout, 
swing ten(iencies. and nivotal probabilities are examinerl. 

The 1072 Yale University Press book (Longley and Alan G. Braun. The Politirx of 
Elertoral Collct/e Reform, New Haven : Yale University Press. 1072). utilizes much of the 
1071 paper in the course of its examination of the electoral college's contemporary opera- 
tion. The book concentrates on the development of the electoral college, suggested reform 
alternatives, and the reform efforts of lOHO jind 1070. 

ropies of the 1071 paper are available from the American Political Science .\ssi)f>iatioti. 
l.")27 New Hampshire Avenue. N.W.. Washington. D.C 200.'^r) for a modest fee : if their 
supply sliould become exhausted, copies are also available for the Xeroxing cost of iS2 ."lO 
from : Professor Lawrence D. Longley, Department of Government, Lawrence University, 
Appleton. Wisconsin .")4011. 

^.Tohn F. Banzhaf III. "One Man. ?,.?A2 Votes: A Mathematical Analysis of the Electoral 
College." Vilhinorn Lair Rerieir. XITI (Winter. 1008). pp. HOH-?Aa. The Banzhaf article 
was later renrinted in T'.S. House of Re))resentatives. Hearings on Electoral College Reform, 
1000. pp. ?,0U~?,r,2. and US. Senate. Hearings on Electinfi the Prexiilent. 1000. np. S2.S-800, 

^ See Longlev and Yunker. pp. 7-17: Yunker and Longley. pp. 174-178: Longley and 
Braun. pp. 10.3-10.5. 



188 

The voting power uypioafh to the evaluation of tlie electoral college involves 
three distinct steps. First, a determination is made of the chance that each state 
has in a "ni-person" game (actually 50 states plus the District of Columbia) of 
easting the pivotal vote in the electoral college." Next, the proportion of voting 
combinations to the number of all possible voting combinations, in which a given 
citizen-voter can, by changing his vote, alter the way in which his states elet^ 
toral votes will be cast, is evaluatetl. Finally, the results of the tirst step are 
c(mibined with the results of the second, to determine "the chance that any 
voter has of affecting the election of the President through the medium of his 
states electoral votes." " These calculations are normalized with the power index 
of the state whose citizens have the least voting power set at one and all other 
states having voting powers greater than one ; the result is an index of rela- 
tive voting power of each citizen, vis-a-vis voters residing in other states. 

The purpose of thi.^ pai>er is to utilize the voting power approach to derive 
new data measuring the l)iases of the electoral college, as well as other major 
reform plans, for the electoral vote apportionments of both the 1970's (for the 
Presidential elections of 1972, 197(5, and 19,S()) and the 1960's (for the Presidential 
elections of V,H'A and 11)68). Scmiewhat different data for the 1960's are re- 
ported by Banzhaf (and utilized in Longley and Yunker, Yunker and Longley, 
and Longley and Hraun), yet extensive efforts to duplicate the reported proce- 
dures of Banzhaf have consistently resulted in different voting power data for 
the electoral college. Numerous and repeated rfHjuests by letter and phone over 
tifteen months for the original computer program and specifics on techniques 
have resulted in information being promised but not made available. Therefore, 
new voting power data for the 1960's, superseding those reported by Banzhaf, 
were calculated and are presented for the first time In this paper (see the 
Api>endix for a detailed explanation of the calculation of voting power indices). 
New data, measuring the biases of the electoral college and other major reform 
plans in the 1970s were also derived and are first reportwl here. 

This paper also devlops .several different methods of determining voting 
power, including ai)proaches utilizing vote turnout data instead of state popu- 
lation data and approaches ha.sed on alterative definitions of pivotal voting 
power, A technical appendix consider.^ a number of special problems, including 
that posed by Maine's use of the district plan starting with the 1972 election 
(the analy.sis in the text asumes Maine operates under the electoral college sys- 
tem in the 1970s, as well as in the 1960's) and the mathematical complexities 
introduced by a three-candidate election (the following analysis assumes a two- 
candidate election ) . 



" See : Irwin Mann and L. S. Sliapley, "Values of Lar^e Games VI : EvaluatlnK the 
Electoral College Exactly," Memorandum RM-S158-PR (Santa Monica : The RAND Corpo- 
ration. lft(>2), Irwin Mann and L. S. Shapley, "The A Priori Voting Strength of the Elec- 
toral College," In Martin Shuhik. ed.. Game Theorif and Related Apvroaches to Social 
f^efiQvior (New York: .John Wiley and Sons, Inc., 1964), and William H. Riker and Lloyd 
S. Shaplpy, "Weighted Voting ; A Mathematical Analysis for Instrumental .Tudgments." 
Memorandum P-.!.i]s (Santa Monica: The R.WP Corporation, 19fif!». 

« Banzhaf, p. 313. Banzhaf generalizes the effects of the present electoral college by 
saying : 

[Itl can be shown that the voting power of any member of a reasonable sized voting 
group will he proportional to the voting power of the group (which is roughly jiro- 
portional to the numl>er of votes cast) and inversely proportional to the square root 
of its population (p. .310). 
Banzhaf's analysis provides mathematical proof of Riker and Shipley's, as well as 
Mann and Shapley's, hypotheses concerning the results of such a multimilli'on-person. dele- 
gate model game. Banzhaf's conclusion Indicates that in such a game, there is a strong bias 
in favor of the large states. The crucial differences between his analysis and the previous 
analyses are : first, that Banzhaf uses citizen-voters within a state, instead of states them- 
selves, as players in his mrtdel and, second, that he assumes the voting power of an indi- 
vidual voter in an w-person constituency is inversely proportional to the square root of n, 
not merely inversely proportional to n, as had been assumed In Mann and Shapley's 
analysis. If an individual's voting power was inversely proportional to his constituency's 
population, the big-state advantage would be outweighed by the small-state advantages 
from the "constant two"— as was earlier concluded concerning Nevada and New York in 
the Mann and Shapley analysis. 



189 

II. STATES biases: 19tj0's AND IHTO's' 

.1. The electoral college 

In this section, we present two prineiiJal types of data based on alternative 
definitions of pivotal power. Under the electoral college in a two candidate 
election, three outcomes are possible : Candidate A receives an electoral vote 
majority (at least 270 votes). Candidate B receives a majority, or both Candi- 
dates A and B reecive 269 votes, resulting in an exact tie and an electoral college 
deadlock.* If we define "voting power" as the ability of detenu ining the pivotal 
vote in the electoral college, the question arises whether such a vote is one 
which shifts an electoral college majority from Candidate A to Candidate B 
I which would exclude possible ties), or is one which changes the outcome in 
the electoral college (including exact ties). 

In this paper, we evaluate two definitions of pivotal voting power where : 

Pivotal Definition One includes all changes in outcomes (including elec- 
toral college ties), and 

Pivotal Definition Two includes only changes in outcomes which result in 
the electoral college's election of the candidate which originally lost (i.e.. 
ties not included ). 

For either case, if a tie outcimie is the original outcome, each state is con- 
sidered pivotal since each, by casting their electoral votes differently, would 
enable one of the two candidates to win an electoral vote majority. The defini- 
tional distinction made above concerns whether a state voting for a candidate 
wiuTiing an electoral vote majority can. by changing the candidate for which it 
ca.sts its votes, change the outcome of the election to a majority for the other 
candidate (Definition T^vo), or to either a tie vote or a majority for the other 
candidate (Definition One). Obviously, a state which originally casts its votes 
for the loser of the elec-tion cannot change the outcome of the election in any 
sense. Such a state could only increase the size of the winner's electoral vote 
majority.' 

The first set of tables and tigures are ba.sed on Pivotal Definition One. Table 
1 reports relative voting power figures under the electoral cc^llege for the 1960's 
for citizens in each of the 50 states and the District of Columbia. The voting 
power tigures are normalized on the power index of the "sifate" with the least 
voting power (in this case, the District of Columbia). Citizens of the three most 
populous states have at least twice the relative voting power of the inhabitants 
of the lea.st advantaged state: Pennsylvania with 2.011. California with 2.421, 
and Xew York with 2.47S.'° Column 4 of this table reixvrts the i>ercentages by 
which the relative voting power (Column 3) of citizens in each .state deviates 
from the average relative voting power per citizeii'Voter." Forty-three of the .ll 
states have less than the average relative voting power (in this case. 1.(j73) ; 
eight (seven of which are the seven most populous states) have greater than 
average relative voting power.'" The advantage which citizens in the very large 
states enjoy solely because of their place of residence is as great as 48.1%. 



" "1960's" refers to the electoral college apiiortlonments based on the 1960 census and 
In effect for the Presidential elections of l!tt)4 and 19(5S. 1970's refers to the electoral 
college apportionments based on the 1970 census and In effect for the Presidential elections 
of 1972 197t), and 19S0. (It is a curious feature of the electoral college that any population 
shifts or increases after 1970 will not aflfect the electoral college until 19S4). 

'- For a discussion of electoral college deadlocks and their consequences, see Longle.v and 

» Banzhaf, unfortunately, does not distinguish between "ties Included" and "ties omit- 
ted" pivotal definitions, and simply assumes that a "pivotal" state is one which can change 
the "outcome" (however defined ) of an election. 

"'These data would suggest the correct title of .John F. F.any.haf's landmark article, 
which made reference to New York's relative voting power, should not have been "One 
Man. 3.312 Votes,' but rather : "One Man. 2.47R Votes." 

" Earlier research has discussed in detail the difference between percent deviation data 
lier stnte, and percent deviation data per ritizen-roter. Ban/haf reports only the former 
data : Longley and Yunker, Longley and Hraun, and Yunker and Longley report both : here 
we report onlv the latter. 

'2 The far greater numbers of citizens in these few large states, of course, is what leads 
to few states being above the average per citizen-voter. 



190 



TABLE 1.— VOTING POWER UNDER THE ELECTORAL COLLEGE IN THE 1960's, BASED ON STATE POPULATIONS, 

ARRANGED BY SIZE OF STATE (PIVOTAL DEFINITION 1) 



State name ' 


Electoral 

vote: 

1964, 1968 


Population: 

1960 

census 


Relative 

voting 

power 2 


Percent 
deviation 
from per 
citizen- 
voter average 
voting 
power 3 




(1) 


(2) 


(3) 


(4) 


Alaska 

Nevada 

Wyoming... _ 

Vermont 

Delaware.- 

New Hampshire 

North Dakota 


3 

3 

3 

3 

3 

4 

4 


226, 167 

285, 278 

330, 066 

389, 881 

446, 292 

606, 921 

632, 446 

632, 772 

667, 191 

674, 767 

680, 514 

763, 956 

859, 488 

890, 627 

951,023 

969, 265 

1, 302, 161 

1,411,330 

1, 753, 947 

1, 768, 687 

1. 786, 272 

1, 860, 421 
2. 178. 141 
2,178,611 

2, 328, 284 
2, 382, 594 
2, 535, 234 
2, 757, 537 

2, 853, 214 
3, 038, 156 
3, 100, 689 
3,257,022 
3, 266, 740 
3,413,864 

3, 567, 089 
3,943,116 
3,951,777 
3, 966, 949 
4,319,813 

4, 556, 155 
4, 662, 498 
4, 951, 560 
5, 148, 578 
6, 066, 782 
7,823,194 
9, 579, 677 
9, 706, 397 

10,081,158 
11,319,366 
15, 717. 204 
16, 782, 304 


1.838 

1.636 

1.521 

1.400 

1.308 

1.384 

1.356 

1.356 

1.320 

1.313 

1.307 

1.0 

1.163 

1.143 

1.106 

1.096 

1.069 

1.026 

1.120 

1.115 

1.110 

1.224 

1.131 

1.131 

1.213 

1.199 

1.163 

1.292 

1.270 

1.230 

1.327 

1.295 

1.293 

1.265 

1.382 

1.352 

1.351 

1.348 

1.292 

1.392 

1.376 

1.506 

1.476 

1.628 

1.679 

1.844 

1.916 

1.880 

2.011 

2.421 

2.478 


9.9 
-2.2 
-9.1 
-16.3 
-21.8 
-17.2 
-18.9 


Hawaii.-. 

Idaho 

Montana 

South Dakota. . . 


4 

4 

4 

4 


-18.9 
-21.1 
-21.5 
-21.8 


District of Columbia 

Rhode Island 

Utah 

New Mexico 


3 

. . 4 

4 

4 


-40.2 
-30.5 
-31.7 
-33.9 


Maine 


4 


-34.5 


Arizona 

Nebraska 

Colorado 

Oregon 

Arkansas 

West Virginia... . 


5 

5 

. 6 

6 

6 

7 


-36.1 
-38.6 
-33.1 
-33.3 
-33.7 
-26.8 


Mississippi 

Kansas 

Oklahoma 

South Carolina 

Connecticut 


7 

7 

8 

8 

8 


-32.4 
-32.4 
-27.5 
-28.3 
-30.5 


Iowa 

Washington 


9 

9 


-22.8 
-24.1 


Kentucky 

Maryland.. 

Louisiana . 


9 

. 10 

10 


-26.5 
-20.7 
-22.6 


Alabama 

Minnesota 


10 

.... 10 


-22.7 
-24.4 


Tennessee . . ... 


11 


-17.4 


Georgia 

Wisconsin 

Virginia 

Missouri 

North Carolina 

Indiana . ... 


12 

12 

12 

. 12 

13 

. . 13 


-19.2 
-19.3 
-19.4 
-22.8 
-16.8 
-17.7 


Florida 

Massachusetts 

New Jersey _ 

Michigan 

Texas . 


14 

14 

_-.. 17 

21 

25 


-10.0 
-11.8 

-2.7 
.4 

10.3 


Ohio.... 

Illinois ... 


26 

. . 26 


14.5 
12.4 


Pennsylvania 

California 

New York 


29 

40 

43 


20.2 
44.7 
48. 1 









1 Includes the District of Columbia. 

2 Ratio of voting power of citizens of State compared with voters of the most deprived State. 

3 Percent by which voting power deviated from the average per citizen-voter of the figures in col. 3. Minus signs indicate 
less than average voting power. Average voting power per citizen-voter equals 1.673. 

Figure 1 presents the data from Table 1, Columns 2 and 4 in graphic form. The 
popula*^ions of the various states are measured along the horizontal axis, and 
the percentage deviations from average voting power (from Column 4 in Table 1) 
of citizens residing in each state is represented on the vertical axis. A free-hand 
line illustrates the general trend of the points in Figure 1. With the exception 
of the seventeen smallest states at the extreme left-hand side of the graph, the 
plotting of states is almost linear, with the relatively voting power of citizens in- 
creasing steadily with the size of the state population. The linearly increasing 
advantage of citizen-voters in the thirty-four most populous states is a result of 
the unit rule feature of the contemporary Electoral College. The relative voting 
power of citizens in specific states departs from an exact linear relationship be- 
cause electoral votes only approximate state populations. The citizens of the small 
states at the extreme left-hand side of the graph also have a relative voting 
power which is disproportionately large in comparison with the popiilation of 
those states. The increased relative voting power of the residents of these small 



191 




192 

states stems from the two electoral votes which are not hased on population. How- 
ever, the relative voting power of the citizens of the District of Columbia is dis- 
proportionately low, since the District has a population large enough to entitle 
it to four electoral votes, hut is limited to three electoral votes hy the provisions of 
the TAventy-third Amendment." The citizens of Texas, the nation's sixth largest 
state, have a relative voting power approximately equal to that of the residents 
of Alaska, the smallest state. Therefore, the citizens of the 44 states with a p()i)ula- 
tion size between that of Alaska and Texas, are at a disadvantage in comparison 
with the citizens of these two states, and the five largest states. The citizens of the 
five largest states have a disproportionately large relative voting power, whicli 
increases in a direct relationship with the population. 

TABLE 2. -VOTING POWER UNDER THE ELECTORAL COLLEGE IN THE 1970'S, BASED ON STATE POPULATIONS 
ARRANGED BY SIZE OF STATE (PIVOTAL DEFINITION 1) 



State name i 









Percen 
deviation 


Electoral 
vote: 1972, 
1976, 1980 


Population: 
1970 census 


Relative 

voting 

pov^er 2 


from per 

citizen-voter 

average 

voting power ^ 



(1) 



(2) 



(3) 



(4) 



Alaska 

Wyoming 

Vermont 

Nevada 

Delaware 

North Dakota 

South Dakota 

Montana 

Idaho 

New Hampshire 

District of Columbia. 

Hawaii 

Rhode Island 

Maine 

New Mexico. 

Utah 

Nebraska 

West Virginia _ 

Arizona.. 

Arkansas 

Oregon. 

Colorado 

Mississippi 

Kansas 

Oklahoma 

South Carolina 

Iowa 

Connecticut 

Kentucky 

Washington 

Alabama 

Louisiana 

Minnesota 

Maryland 

Tennessee 

Wisconsin 

Georgia 

Virginia 

Missouri 

North Carolina 

Indiana 

Massachusetts. 

Florida 

New Jersey... 

Michigan 

Ohio.. 

Illinois 

Texas 

Pennsylvania. 

New York 

California 



> Includes the District of Columbia. 

2 Ratio of voting power of citizens of State compared with voters of the most deprived State. ^ , 

3 Percent by which voting power deviated from the average per citizen-voter of the figures in col. 3. Minus signs indicate 
less than average voting power. Average voting power per citizen-voter equals 1.658. 



3 


300, 382 


1.587 


-4.3 


3 


332,416 


1.509 


-9.0 


3 


444, 330 


1.305 


-21.3 


3 


488, 738 


1.244 


-25.0 


3 


548, 104 


1.175 


-29.1 


3 


617,761 


1.107 


-33.3 


4 


665, 507 


1.366 


-17.6 


4 


694, 409 


1.337 


-19.3 


4 


712,567 


1.320 


-20.4 


4 


737, 681 


1.297 


-21.7 


3 


756,510 


1.000 


-39.7 


4 


768, 561 


1.271 


-23.3 


4 


946, 725 


1.145 


-30.9 


4 


992, 048 


1.119 


-32.5 


4 


1,016,000 


1.106 


-33.3 


4 


1,059,273 


1.083 


-34.7 


5 


1,483,493 


1.035 


-37.6 


6 


1,744,237 


1.131 


-31.8 


6 


1,770,900 


1.123 


-32.3 


6 


1,923,295 


1.077 


-35.0 


6 


2,091,385 


1.033 


-37.7 


7 


2,207,259 


1.137 


-31.4 


7 


2,216,912 


1.134 


-31.6 


7 


2, 246, 578 


1.126 


-32.0 


8 


2, 559, 229 


1.219 


-26.5 


8 


2, 590, 516 


1.212 


-26.9 


8 


2, 824, 376 


1.160 


-30.0 


8 


3, 031, 709 


1.120 


-32.4 


9 


3,618,706 


1.244 


-25.0 


9 


3, 409. 169 


1.209 


-27.1 


9 


3, 444, 165 


1.203 


-27.5 


ID 


3,641,306 


1.281 


-22.7 


10 


3,804,971 


1.253 


-24.4 


10 


3, 962, 399 


1.234 


-25.6 


10 


3, 923, 687 


1.234 


-25.6 


11 


4,417,731 


1.291 


-22.2 


12 


4, 589, 575 


1.324 


-20.1 


12 


4, 648, 494 


1.316 


-20.6 


12 


4, 676, 501 


1.312 


-20.8 


13 


5,082,059 


1.462 


-11.8 


13 


5, 193, 669 


1.446 


-12.8 


14 


5,689,170 


1.459 


-12.0 


17 


6, 789, 443 


1.611 


-2.8 


17 


7, 168, 164 


1.568 


-5.4 


21 


8, 875, 083 


1.648 


-.6 


25 


10,652,017 


1.815 


9.5 


26 


11,113,976 


1.888 


13.9 


26 


15,196,730 


1.881 


13.5 


27 


11,793,909 


1.913 


15.4 


41 


18, 236, 967 


2.360 


42.4 


45 


19,953,134 


2.546 


53.6 



13 The Twenty-third Amendment grants the District of Columbia the "number of electors 
of President and Vice President equal to the wliole number of Senators and Representatives 
in Congress to which the District would be entitled if it were a State, but in no event more 
than the least populous State. . . ." 



193 

Table 2 presents similarly cak'ulatefl state bias data for the UHO's. Altlioufjli 
only two states have relative voting power ratios exceeding li.O. the total range of 
inetpiities is greater than for the T.XiO's, with one-iuan's vote in California in the 
l!>7()'s worth '1~A(\ times that in the District of Columbia. Percent deviations from 
average voting power also are somewhat greater in the l!)7()'s than in the llKiO's, 
now ranging from — :!!>.7'7r (D.('.) to r)3.(5%> (California). Forty-tive states have 
less than average voting power, and only (> states have more — the (> most popu- 
lous ! Figure 2 presents the percent deviation data for the l!)7()'s in graphic form. 
Again, the familiar "check mark" curve of the biases of the electoral college can 
be observed. The major change in the pattern of the liiases of the Electoral College 
over ten years is that the range of inecpialities has slightly increased. 

The next set of tables and figures present voting power data for the llXWs 
and l!>7()'s with one difference, lianzhaf. as well as our earlier research, measures 
the relative voting power of "citizen-voters." This term is meant to indicate that 
these calculations are. of necessity, based on census figures, rather than on the 
luimber of actual voters. Banzhaf notes, however, that this method is very reason- 
able in light of the fact that electoral votes are also apportioned according to cen- 
sus figures. As such, neither Hanzhaf's calculations nor the distribution of elec- 
toral votes takes into account such factors as the nunUter of registered voters in a 
state, the inunber of voters who actually participate in a given election, or popula- 
tion changes between censuses. In an effort to evaluate the significance of this 
oiierational definition, we have also calculated voting power data on a turnout 
basis. Turnout was defined as follows : '' 

1960's: State turnout equal (State turnout in 19()4 election jjlus State turnout 
in 1968)/2 

1970's: Expected State turnout equal (Average Turnout Percentage') multiijly 
(1970 voting age population), where average turnout percentage equal (1960 
turnout i)lus 1964 turnout plus 1968 turn()ut)/3 

Table 3. reporting tlie electoral college biases for the 196()'s l>ased on turnout, 
shows oidy two states to be over the arbitrary dividing line of relative voting 
power two times that of a citizen-voter in tlie least advantaged state (Nebraska) 
and a slightly smaller range of ineipialities. as shown both in Colunui 3 and 4 
and in Figure 3. Using turnout data rather than population data does not, then, 
wipe out the observed big state advantage under the electoral college or even 
significantly lessen it. Table 4, in fact, shows the range of relative voting power 
inefpialities in the 1970's to l»e greater when evaluated in terms of turnout, with 
a Californian's vote W(M-th 2. 021 times a citizen's vote in neighboring Oregon. 
Figure 4 illustrates the percent deviation data for the 1970's on a turnout basis ; 
again, the familiar curve appears, although with a slightly lower trough (Oregon) 
than in Figures 1-3. In sununary. turnout and population basis data are in gen- 
eral agreement on the pattern of the electoral college's biases. 

The third set of tables and figures against present voting power data for tlie 
electoral college but instead utilize a different pivotal definition. Tables 5 and 6, 
and Figures 5 and 0, report population basis data for the electoral college in the 
1960's and 1970's, using Pivotal Definition Two. Comparing these results with 
Tables 1 and 2, it can be seen that excluding ties (as in Tables 5 and 6) results 
in a greater range of biases than including ties (as in Tables 1 and 2, under 
Pivotal Definition One). In the 1900's a New Yorker's vote is woi'th 3.507 times 
that of a citizen in the District of Columbia ; in the 1970's, a vote in California 
is worth 3.127 times one in D.C. Figures 5 and 6 show the percent deviation under 
I'ivotal Definition Two. 



i* VotinR age population data for each state were olitained from Congressional Qiiarterh/ 
Guide to the 1972 Elections, ( Washintiton. D.C: Congressional Quarterl.v, 1972), p. 60'; 
turnout figures and percentages for tlie 1960, 1!»64, and 19G-8 Presidential elections were 
obtained from The 1968 Elections (Washington, D.C. : Tlie Republican National Committee. 
1969), p. m. 



194 







195 



TABLE 3.-V0TING POWER UNDER THE ELECTORAL COLLEGE IN THE 1960'S, BASED ON STATE TURNOUTS, 
ARRANGED BY SIZE OF STATE (PIVOTAL DEFINITION 1) 



State name ' 









Percent 








deviation 








from per 








citizen- 


Electoral 


Population: 


Relative 


voter average 


vote: 


1960 


voting 


voting 


1964, 1968 


census 


power 2 


power 3 



0) 



(2) 



(3) 



(4) 



Alaska 3 226,167 1.957 20.3 

Nevada.. 3 285,278 1.410 -13.4 

Wyoming 3 330,066 1.460 -10.3 

Vermont 3 389,881 1.332 -18.2 

Delaware 3 446,292 1.177 -27 7 

New Hampshire 4 606,921 1.224 -24 8 

North Dakota. 4 632,446 1.316 -19.1 

Hawaii.... 4 632,772 1.406 -13.6 

Idaho 4 667,191 1.226 -24.7 

Montana 4 674,767 1.259 -22.6 

South Dakota 4 680,514 1.235 -24 1 

District of Columbia 3 763,956 1.249 -23.3 

Rhode Island 4 859,488 1.064 -34.6 

Utah 4 890,627 1.031 -36.6 

New Mexico 4 951,023 1.156 -29.0 

Maine 4 969,265 1.064 -34.6 

Arizona... 5 1,302,161 1.076 -33.9 

Nebraska 5 1,411,330 1.000 -38.6 

Colorado 6 1,753,947 1.022 -37.2 

Oregon 6 1,768,687 1.016 -37.6 

Arkansas 6 1,786,272 1.185 -27.2 

West Virginia 7 1,860,421 1.166 —28.4 

Mississippi 7 2,178,141 1.406 —13.6 

Kansas 7 2,178,611 1.102 —32.3 

Oklahoma 8 2,328.284 1.173 —27.9 

South Carolina 8 2,382,594 1.472 —9.5 

Connecticut 8 2,535,234 1.022 —37.2 

Iowa 9 2,757,537 1.214 —25.4 

Washington 9 2,853,214 1.163 —28.5 

Kentucky 9 3,038,156 1.284 —21.1 

Maryland 10 3,100,689 1.323 —18.7 

Louisiana 10 3,257,022 1.437 —11.7 

Alabama 10 3,266,740 1.538 —5.5 

Minnesota 10 3,413,864 1.144 —29.7 

Tennessee 11 3,567,089 1.464 —10.0 

Georgia 12 3,943,116 1.508 —7.4 

Wisconsin 12 3,951,777 1.268 —22.1 

Virginia 12 3,966,949 1.504 —7.6 

Missouri.. 12 4,319,813 1.224 —24.8 

North Carolina . 13 4,556,155 1.486 —8.7 

Indiana 13 4,662,498 1.257 —22.8 

Florida.. 14 4,951,560 1.446 —11.1 

Massachusetts . 14 5,148,578 1.345 —17.4 

NewJersey 17 6,066,782 1.455 —10.6 

Michigan... 21 7,823,194 1.598 —1.8 

Texas 25 9,579,677 2.075 27.5 

Ohio 26 9,706,397 1.840 13.0 

Illinois.. 26 10,081,158 1.697 4.3 

Pennsylvania.... 29 15,319,366 1.899 16.7 

California 40 15,717,204 2.203 35.4 

New York 43 16,782,304 2.360 45.0 



> Includes the District of Columbia. 

2 Ratio of voting power of citizens of State compared with voters of the most deprived State. 

3 Percent by which voting power deviated from the average percitizen-voter of the figures in col. 3. Minus signs indicate 
less than average voting power. Average voting power per citizen-voter equals 1.628. 



196 

TABLE 4— VOTING POWER UNDER THE ELECTORAL COLLEGE IN THE 1970'S, BASED ON STATE EXPECTED 
TURNOUTS, ARRANGED BY SIZE OF STATE (PIVOTAL DEFINITION 1) 



State name ' 



Electoral 
vote: 1972, 
1976, 1980 

(1) 



Population: 
1970 census 

(2) 



Percent 

deviation 

from per 

Relative citizen-voter 

voting average 

power 2 voting power ^ 



(3) 



(4) 



Alaska 

Wyoming 

Vermont 

Nevada 

Delaware 

North Dakota 

South Dakota 

Montana 

Idaho 

New Hampshire 

District of Columbia. 

Hawaii 

Rhode Island 

Maine 

New Mexico 

Utah 

Nebraska 

West Virginia 

Arizona 

Arkansas 

Oregon 

Colorado 

Mississippi 

Kansas 

Oklahoma 

South Carolina 

Iowa 

Connecticut 

Kentucky 

Washington 

Alabama 

Louisiana 

Minnesota 

Maryland 

Tennessee 

Wisconsin 

Georgia - 

Virginia 

Missouri 

North Carolina 

Indiana 

Massachusetts 

Florida 

New Jersey 

Michigan 

Ohio 

Illinois 

Texas 

Pennsylvania 

New York 

California 



3 

3 

3 

3 

3 

3 

4 

4 

4 

4 

3 

4 

4 

4 

4 

4 

5 

6 

6 

6 

6 

7 

7 

7 

8 

8 

8 

8 

9 

9 

9 

10 

10 

10 

10 

11 

12 

12 

12 

13 

13 

14 

17 

17 

21 

25 

26 

26 

27 

41 

45 



300, 382 

332,416 

444, 330 

488, 738 

548, 104 

617,761 

665, 507 

694, 409 

712, 567 

737,681 

756, 510 

768, 561 

946, 725 

992, 048 

1,016,000 

1,059,273 

1, 483, 593 

1, 744, 237 

1, 770, 900 
1,923,295 
2,091,385 

2, 207, 259 
2,216,912 
2, 246, 578 
2, 559, 229 
2, 590, 516 

2, 824, 376 

3, 031, 709 
3, 218, 706 
3, 409, 169 
3, 444, 165 
3, 641, 306 
3, 804, 971 

3, 922, 399 
3, 923, 687 
4,417,731 

4, 589, 575 
4, 648, 494 

4, 676, 501 

5, 082, 059 
5, 193, 669 

5, 689, 170 

6, 789, 443 
7, 168, 164 
8, 875, 083 

10,652,017 
11,113,976 
11,196,730 
11,793,909 

18, 236, 967 

19, 953, 134 



1.895 
1.505 
1.295 
1.351 
1.161 
1.107 
1.358 
1.357 
1.365 
1.231 
1.387 
1.441 
1.109 
1.138 
1.225 
1.502 
1.054 
1.094 
1.279 
1.302 
1.000 
1.124 
1,630 
1.143 
1.261 
1.664 
1.133 
1.083 
1.399 
1.176 
1.622 
1.574 
1.200 
1.360 
1.423 
1.289 
1.769 
1.692 
1.306 
1.671 
1.402 
1.416 
1.762 
1.557 
1.666 
1.852 
1.838 
2.328 
1.913 
2.441 
2.621 



8.5 
-13.8 
-25.9 
-22.6 
-33.5 
-36.6 
-22.2 
-22.3 
-21.8 
-29.5 
-20.6 
-17.4 
-36.5 
-34.8 
-29.9 
-39.7 
-39.6 
-37.4 
-26.8 
-15.4 
-42.7 
-35.6 

-6.7 
-34.5 
-27.8 

-4.7 
-35.1 
-38.0 
-19.9 
-32.6 

-7.1 

-9.9 
-31.3 
-22.1 
-18.5 
-26.2 
1.3 

-3.1 
-25.2 

-4.3 

-19.7 

-18.9 

.9 

-10.9 

-4.6 
6.1 
5.2 

33.3 
9.6 

39.8 

50.1 



1 Includes the District of Columbia. 

2 Ratio of voting power of citizens of State compared with voters of the most deprived State. 

3 Percent by which voting power deviated from the average per citizen-voter of the figures in column 3. Minus signs 
indicate less than average voting power. Average voting power per citizen-voter equals 1.746. 



197 



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198 

TABLE 5— VOTING POWER UNDER THE ELECTORAL COLLEGE IN THE 1960'S, BASED ON STATE POPULATIONS, 

ARRANGED BY SIZE OF STATE (PIVOTAL DEFINITION 2) 



State name' 









Percen t 








trom per 








citizen- 


Electoral 


Population: 


Relative 


voter average 


vote: 


1960 


voting 


voting 


1964, 1968 


census 


power 2 


power s 



(1) 



(2) 



(3) 



(4) 



Alaska 

Nevada 

Wyoming 

Vermont 

Delaware 

New Hampshire 

North Dakota 

Hawaii 

Idaho 

Montana 

South Dakota 

District of Columbia. 

Rhode Island 

Utah 

New Mexico 

Maine..- 

Arizona 

Nebraska 

Colorado 

Oregon 

Arkansas 

West Virginia 

Mississippi 

Kansas 

Oklahoma 

South Carolina 

Connecticut 

Iowa 

Washington 

Kentucky 

Maryland.. 

Louisiana 

Alabama 

Minnesota 

Tennessee 

Georgia 

Wisconsin 

Virginia 

Missouri 

North Carolina 

Indiana. 

Florida 

Massachusetts 

New Jersey 

Michigan 

Texas .. 

Ohio 

Illinois 

Pennsylvania 

California.. 

New York 



3 


226, 167 


1.838 


-17.6 


3 


285, 278 


1.636 


-26.6 


3 


330, 066 


1.521 


-31.8 


3 


389, 881 


1.400 


-39.2 


3 


446, 292 


1.308 


-41.3 


4 


606, 921 


1.571 


-29.5 


4 


632, 446 


1.539 


-31.0 


4 


632, 772 


1.539 


-31.0 


4 


667, 191 


1.499 


-32.8 


4 


674, 767 


1.490 


-33.2 


4 


680, 514 


1.484 


-33.4 


3 


763, 956 


1.000 


-55.1 


4 


859, 488 


1.321 


-40.8 


4 


890, 627 


1.297 


-41.8 


4 


951,023 


1.255 


-43.7 


4 


969, 265 


1.244 


-44.2 


5 


1,302,161 


1.329 


-40.4 


5 


1,411,330 


1.276 


-42.8 


6 


1,753,947 


1.303 


-41.6 


6 


1, 768, 687 


1.298 


-41.8 


6 


1, 786, 272 


1.291 


-42.1 


7 


1, 860, 421 


1.482 


-33.5 


7 


2, 178, 141 


1.370 


-38.6 


7 


2,178,611 


1.369 


-38.6 


8 


2, 328, 284 


1.516 


-32.0 


8 


2, 382, 594 


1.499 


-36.8 


8 


2, 535, 234 


1.453 


-34.8 


9 


2, 757, 537 


1.655 


-25.8 


9 


2,853,214 


1.627 


-27.0 


9 


3,038.156 


1.577 


-29.3 


10 


3, 100, 689 


1.643 


-26.3 


10 


3,257,022 


1.603 


-28.1 


10 


3, 266, 740 


1.601 


-28.2 


10 


3,413,864 


1.566 


-29.8 


11 


3, 567, 089 


1.752 


-21.4 


12 


3,943,116 


1.737 


-22.1 


12 


3,951,777 


1.735 


-22.2 


12 


3, 966, 949 


1.732 


-22.3 


12 


4,319,813 


1.660 


-25.6 


13 


4, 556, 155 


1.800 


-19.3 


13 


4, 662, 498 


1.780 


-20.2 


14 


4,951,560 


1.913 


-14.2 


14 


5, 148, 578 


1.876 


-15.9 


17 


6, 066, 782 


2.161 


-3.1 


21 


7, 823, 194 


2.275 


2.0 


25 


9, 579, 677 


2.555 


14.6 


26 


9, 706, 397 


2.683 


20.3 


26 


10,081,158 


2.632 


18.1 


29 


11,319,366 


2.786 


25.0 


40 


15,717,204 


3.380 


51.6 


43 


16, 782, 304 


3.507 


57.3 



1 Includes the District of Columbia. 

'' Ratio of voting power of citizens of State compared with voters of the most deprived State. 

'■< Percent by which voting power deviated from the average per citizen-voter of the figures in column 3. Minus signs 
i ndicate less than average voting power. Average voting power per citizen-voter equals 2.230. 



199 



TABLE 6— VOTING POWER UNDER THE ELECTORAL COLLEGE IN THE 1970'S, BASED ON STATE POPULATIONS 
ARRANGED BY SIZE OF STATE (PIVOTAL DEFINITION 2) 



State name' 



Electoral 
vote: 1972, 
1976, 1980 

(1) 



Alaska. 3 

Wyoming 3 

Vermont 3 

Nevada. _. .._ ] 3 

Delaviiare . _ 3 

North Dakota \ . . -\IV.\\\[\[]\[\[[\\ 3 

South Dakota .. . 4 

Montana ].]''' 4 

Idaho '____ 4 

New Hampshire 4 

District of Columbia 3 

Hawaii 4 

Rhode Island 4 

Mame 4 

New Mexico... .... 4 

Utah ■"'" 4 

Nebraska . 5 

West Virginia _ ___'__ 6 

Arizona 6 

Arkansas 6 

Oregon ] ].^. ].".!!'" 6 

Colo rado 7 

Mississippi 7 

Kansas . , 7 

Oklahoma '] 8 

South Carolina . . 8 

Iowa 8 

Co n necticut 8 

Kentucky 9 

Washington 9 

Alabama 9 

Louisiana. 10 

Minnesota 10 

Maryland 10 

Tennessee 10 

Wisconsin 11 

Georgia 12 

Virginia 12 

Missouri 12 

North Carolina 13 

Indiana 13 

Massachusetts . 14 

Florida... 17 

New Jersey 17 

Michigan . 21 

Ohio 25 

Illinois 26 

Texas 26 

Pennsylvania 27 

New York 41 

Califo rnia 45 



Population: 
1970 census 

(2) 



300. 382 
332.416 
444. 330 
488.738 
548. 104 
617,761 
665, 507 
694, 409 
712,567 
737,681 
756,510 
768, 561 
946, 725 
992, 048 
1,016,000 
1,059,273 

1, 483, 394 
1,744,237 
1,770,900 
1,923,295 
2,091,385 
2,207,259 
2,216,912 

2, 246, 578 

2, 559, 229 
2,590,516 
2,824,376 
3,031,709 
3,218,706 

3, 409, 169 
3,444, 165 
3,641,306 
3,804,971 

3, 922, 399 
3,923,687 
4,417,731 

4, 589, 575 
4, 648, 494 

4, 676, 501 

5, 082, 059 
5, 193, 669 

5, 689, 170 

6, 789, 443 
7, 168, 164 
8,875,083 

10,652,017 
11,113,976 
11,196,730 
11,793,909 
18,263,967 
19,953,134 



Relative 

voting 

power 2 

(3) 



Percent 

deviation 

from per 

citizen-voter 

average 

voting power ^ 

(4) 



1.587 

1.509 

1.305 

1.244 

1.175 

1.107 

1.437 

1.407 

1.389 

1.365 

1.000 

1.337 

1.205 

1.177 

1.163 

1.139 

1,122 

1,264 

1.255 

1.204 

1.155 

1,273 

1.270 

1,261 

1.357 

1.349 

1.292 

1.247 

1.335 

1.297 

1.290 

1.500 

1.468 

1.445 

1.445 

1.507 

1.551 

1.542 

1.537 

1.725 

1.706 

1.765 

1.899 

1.848 

1.987 

2.223 

2.260 

2.251 

2,382 

2.902 

3.127 



-19.4 
-23.4 
-33.7 
-36.8 
-40.3 
-43.8 
-27.0 
-28.5 
-29.5 
-30.7 
-49.2 
-32.1 
-38.8 
-40.2 
-40.9 
-42.1 
-43.0 
-35.8 
-36.3 
-38.9 
-41.4 
-35.4 
-35.5 
-35.9 
-31.1 
-31.5 
-34.4 
-36.7 
-32.2 
-34.1 
-34.5 
-23.8 
-25.5 
-26.6 
-26.6 
-23.4 
-21.2 
-21.7 
-21.9 
-12.4 
-13.3 
-10.4 
-3.1 
-6.1 
.9 
12.9 
14.8 
14.3 
21.0 
47.4 
58.8 



' Includes the District of Columbia. 

- Ratio of voting power of citizens of State compared with voters of the most deprived State. 

3 Percent by which voting power deviated from the average per citizen-voter of the figures in column 3. Minus signs In- 
dicate less than average voting power. Average voting power per citizen-voter equals 1.969. 



200 



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201 

B. Proportional plan 

Tills section of the paper presents voting power data for tlie proix>rtioual plan 
proposed by several electoral college reformers. In its simplest form, the propor- 
tional plan would assign the electoral votes allotted to each state (including 
the two electoral votes not based on ixvpulation) according to the division of 
the popular votes for candidates in that state, rounded to the nearest one- 
thousandth of an electoral vote. The sum of fractional electoral votes received 
by all candidates in a given state would equal the figure assigned by apportion- 
ment.^^ 

Table 7 reports the biases of the proportional plan on both a population and 
turnout basis for the 1960's ; ^^ Table 8 reports similar data for the 1970s. The 
l»attern of inetiuities is different and far greater under the proportional plan than 
for the electoral college. While the electoral college advantages inhabitants of 
the large states, the proportional plan (because of the absence of a unit rule 
feature) transforms a voting system with two partially countervailing features 
( the "constant two" electoral votes for every state, and the "unit rule" for 
voting) into a system with a undirectional bias.^' In the 1960's, a citizen in the 
.smallest state, Alaska, had a relative voting power 5.212 times that of a citizen 
in California (population basis) or 7.157 times one in Illinois (turnout basis). 
In the 1970's, these inequities favoring the smallest states are as much as 4.442 
(population basis) and 6.426 (turnout basis). Figures 7 and 8 illustrate the 
enormity of these voting distortions. The proportional plan is not a "compromise" 
reform plan ; it is rather the most inequitable of all seriously discussed reform 
plans. 

IS For a definition and analysis of this reform plan, see Longley and Braun, Chapters 
3 and 4. 

1* Pivotal Definitions One and Two are significantly different only for the electoral college, 
and are therefore not considered for the proportional or district plans (see Appendix). 

'" For an elaboration of this argument, see Longley and Braun, Chapter 4. 



202 

TABLE 7.— VOTING POWER UNDER THE PROPORTIONAL PLAN IN THE 1960'S, BASED ON STATE POPULATIONS 
AND STATE TURNOUTS. ARRANGED BY SIZE OF STATE 



State name! 



Populatio 


n basis 


Turnou 


It basis 




Percent 




Percent 




deviation 




deviation 




from per 




from per 


Relative 


citizen-voter 


Relative 


citizen-voter 


voting 


average vot- 


voting 


average vot- 


powers 


ing powers 


power 2 


ing power < 



(1) 



(2) 



(3) 



(4) 



Alaska 

Nevada 

Wyoming 

Vermont 

Delaware 

New Hampshire 

North Dakota 

Hawaii __. 

Idaho 

Montana 

South Dakota 

District of Columbia- 
Rhode Island 

Utah,. 

New Mexico. -_ 

Maine 

Arizona 

Nebraska 

Colorado 

Oregon. 

Arkansas 

West Virginia 

Mississippi 

Kansas ._ 

Oklahoma 

South Carolina 

Connecticut 

Iowa 

Washington 

Kentucky 

Maryland 

Louisiana... 

Alabama 

Minnesota 

Tennessee 

Georgia 

Wisconsin. 

Virginia... 

Missouri... 

North Carolina 

Indiana 

Florida 

Massachusetts 

New Jersey.. 

Michigan 

Texas 

Ohio--.. 

Illinois 

Pennsylvania 

California 

New York 



5.212 


342.1 


7.157 


433.7 


4.132 


250.5 


3.714 


176.9 


3.571 


203.0 


3.985 


197.2 


3.023 


156.5 


3.315 


147.2 


2.641 


124.1 


2.588 


93.0 


2.590 


119.7 


2.450 


82.7 


2.485 


110.8 


2.833 


111.3 


2.484 


110.7 


3.234 


141.2 


2.356 


99.8 


2.457 


83.3 


2.329 


97.6 


2.593 


93.4 


2.310 


95.9 


2.497 


86.2 


1.543 


30.9 


2.914 


117.3 


1.829 


55.1 


1.850 


38.0 


1.765 


49.7 


1.741 


29.8 


1.653 


40.2 


2.186 


63.0 


1.622 


37.6 


1.853 


38.2 


1.509 


28.0 


1.853 


38.2 


1.392 


18.1 


1.599 


19.3 


1.344 


14.0 


1.355 


1.0 


1.333 


13.1 


1.340 


-.1 


1.320 


12.0 


1.823 


35.9 


1.478 


25.4 


1.623 


21.1 


1.263 


7.1 


2.360 


76.0 


1.263 


7.5 


1,450 


8.2 


1.350 


14.5 


1.529 


14. 1 


1.319 


11.9 


2.407 


79.5 


1.240 


5.2 


1.159 


-13.6 


1.282 


8.8 


1.372 


2.3 


1.239 


5.1 


1.259 


—6.1 


1.164 


-1.3 


1.535 


14.5 


1.267 


7.5 


1.525 


13.7 


1.206 


2.3 


1.798 


34.1 


1.203 


2.0 


2.061 


53.7 


1.151 


—2.4 


1.141 


-14.9 


1.212 


2.8 


1.648 


22.9 


1.196 


1.4 


1.801 


34.3 


1.193 


1.2 


1.272 


-5.2 


1.189 


.8 


1.790 


33.5 


1.092 


—7.4 


1.186 


—11.5 


1.121 


-4.9 


1.547 


15.4 


1.096 


-7.1 


1.106 


-17.5 


1.111 


-5.8 


1.242 


-7.4 


1.068 


-9.4 


1.073 


-20.0 


1.101 


-6.6 


1.065 


-20.6 


1.055 


-10.5 


1.157 


—13.7 


1.025 


—13.0 


1.571 


17.2 


1.053 


-10.7 


1.176 


-12.3 


1.013 


-14.0 


1.000 


-25.4 


1.007 


-14.6 


1.086 


-19.0 


1.000 


-15.2 


1.002 


-25.3 


1.007 


-14.6 


1.105 


-17.6 



' Includes the District of Columbia. 

2 Ratio of voting power of citizens of State compared with voters of the most deprived State. 

'•' Percent by which voting power deviated from the average per citizen-voter of the figures in column 1. Minus signs 
indicate less than average voting power. Average voting power per citizen-voter, population basis, equals 1.179. 

* Percent by which voting power deviated from the average per citizen-voter of the figures in column 3. Minus signs 
indicate less than average voting power. Average voting power per citizen-voter, turnout basis, equals 1.341. 



203 

TABLE 8. VOTING POWER UNDER THE PROPORTIONAL PLAN IN THE 1970'S, BASED ON STATE POPULATIONS 
AND STATE TURNOUTS, ARRANGED BY SIZE OF STATE 



State name I 



Populatio 


n basis 


Turnoi 


jt basis 




Percent 




Percent 




deviation 




deviation 




from per 




from per 


Relative 


citizen-voter 


Relative 


citizen-voter 


voting 


average vot- 


voting 


average vot- 


power -' 


ing powers 


power -' 


ing power* 



(1) 



(2) 



(3) 



(4) 



Alaska 

Wyoming 

Vermont. 

Nevada 

Delaware 

Nortti Dakota 

South Dakota 

Montana 

Idaho 

New Hampshire 

District of Columbia. 

Hawaii 

Rhode Island 

Maine _. 

New Mexico 

Utah 

Nebraska 

West Virginia 

Arizona 

Arkansas 

Oregon 

Colorado 

Mississippi 

Kansas 

Oklahoma 

South Carolina 

Iowa 

Connecticut 

Kentucky 

Washington 

Alabama 

Louisiana 

Minnesota 

Maryland 

Tennessee 

Wisconsin, __ _ 

Georgia 

Virginia 

Missouri 

North Carolina 

Indiana 

Massachusetts 

Florida 

New Jersey 

Michigan 

Ohio 

Illinois 

Texas 

Pennsylvania. 

New York 

California 



4.442 


277.2 


6.426 


385.3 


4.014 


240.9 


4.056 


206.3 


3.003 


155.0 


3.000 


126.6 


2.730 


131.9 


3.266 


146.7 


2.435 


106.7 


2.441 


82.1 


2.160 


83.4 


2.192 


65.5 


2.673 


127.0 


2.681 


102.5 


2.562 


117.6 


2.679 


102.4 


2.497 


112.0 


2.710 


104.7 


2.412 


104.8 


2.203 


66,4 


1.764 


49.8 


3.444 


160.2 


2.315 


96.6 


3.021 


128.1 


1.879 


59.6 


1.787 


35.0 


1.793 


52.3 


1.883 


42.2 


1.751 


48.7 


2.181 


64.7 


1.680 


42.6 


1,609 


21.6 


1.499 


27.3 


1.578 


19.2 


1.530 


29.9 


1.451 


9.6 


1.507 


28.0 


1.983 


49.8 


1.388 


17.8 


2.057 


55.4 


1.276 


8.4 


1.213 


-8.4 


1.411 


19.8 


1.401 


5.8 


1.404 


19.3 


2.943 


122.3 


1.386 


17.7 


1.448 


9.4 


1.390 


18.1 


1.509 


14.0 


1.374 


16.6 


2.627 


98.4 


1.260 


7.0 


1.217 


-8.1 


1.174 


-.3 


1. 114 


-15.9 


1.244 


5.6 


1.597 


20.6 


1. 174 


-.3 


1.129 


-14.7 


1.162 


-1.3 


2.144 


61.9 


).222 


3.7 


1.869 


41.2 


1.169 


-.7 


1.087 


-17.9 


1.134 


-3.7 


1.397 


5.5 


1.134 


-3.7 


1.530 


15.5 


1.108 


-5.9 


1.119 


-15.4 


1.163 


-1.2 


2.105 


59.0 


1.148 


-2.5 


1.926 


45.4 


1.141 


-3.1 


1.147 


-13.4 


1.138 


-3.4 


1.508 


13.9 


1.113 


-5.5 


1.062 


-19.8 


1.095 


-7.1 


1.045 


-21.0 


1.114 


-5.4 


1.351 


2.0 


1.055 


-10.4 


1.055 


-20.3 


1.052 


-10.6 


1.091 


-17.6 


1.044 


-11.4 


1.104 


-16.6 


1.041 


-11.6 


1.000 


-24.5 


1.033 


-12.3 


1.605 


21.2 


1.018 


-13.5 


1.034 


-21.9 


1.000 


-15.1 


1.085 


-18.1 


1.003 


-14.8 


1.079 


-18.5 



1 Includes the District of Columbia. 

' Ratio of voting power of citizens of State compared with voters of the most deprived State. 

3 Percent by which voting power deviated from the average per citizen-voter of the figures In col, 1, Minus signs indicate 
less than average voting power. Average voting power per citizen-voter, population basis = 1,178, 

« Percent by which voting power deviated from the average per citizen-voter of the figures in col, 3, Minus signs indicate 
less than average voting power. Average voting power per citizen-voter, turnout basis = 1,364. 



204 



»» 

I 



lil 



FIGUEE 7 
PEBCENT DEVIATION FROM AVERAGE VOTING POWER OF STATES 



-yti 









S. 



'-^0* 



r-^B 




nOUHE 8 

PEBCEIIT DEVIATION n)OH AVHiAGE VOTIMG POWER OF STATES 

UNDER THE PROPOETIOSAL PLAM , POPUUVIION BASIS 

WTO-a 
. I ■ i ■ : I r -^-T- 




C. The district plan 

The district plan contains a set of biases somewliat similar yet less extreme 
than those of the proportional plan. This plan would retain the statewide de- 
termination of two electoral votes by each state and decide the others on the 
basis of a district-by-district vote. This plan would create a series of miniature 
winner-take-all elections involving a total of 480 different district and state elec- 
toral units." 

Tables 9 and 10 contain voting power data on both a population and turnout 
basis for the district plan in the 1960's and 1970's respectively. In the 1960's. a 
citizen in the smallest state (Alaska) had 3.075 the voting power of a citizen in 



18 The figure 480 Is the total number of congressional districts smaller In population than 
the state to which they belong In the 19T0's together with the fifty states and the District 
of Columbia. For a further definition and analysis of the district plan, see Longley and 
Braun, Chapters 3 and 4. 



205 

New York (population basLs) or 3.585 times one in California (turnout l)asi.s). 
comparable data for the 1970's show voting biases as great as 2.H~u (i>opnlatioii 
basis) and 3.314 (turnout ba.sis). Figures 9 and 10 illustrate these biases and 
show a curve sharply favoring the .smallest states. Both the proportional and 
district plans would replace the electoral college with an electoral system strongly 
favoring some citizens, and discriminating against others, solely on the basis of 
where they reside. 

D. The direct vote plan 

Under this reform plan, each citizen's voting power is. by definition, equal. 
If tables similar to tho.se presented above were included for tiie direct vote plan, 
the relative voting power would be one in each state, and percent deviations 
from the citizen-voter average would be zero in each state. 

TABLE 9.— VOTING POWER UNDER THE DISTRICT PLAN IN THE 1960'S, BASED ON STATE POPULATIONS 
AND STATE TURNOUTS, ARRANGED BY SIZE OF STATE 



State namei 



Alaska 

Nevada... 

Wyoming 

Vermont., _. 

Delaware 

New Hampshire 

North Dakota 

Hawaii 

Idaho 

Montana 

South Dakota. 

District of Columbia. 

Rhode Island 

Utah 

New Mexico 

Maine 

Arizona 

Nebraska 

Colorado 

Oregon 

Arkansas 

West Virginia 

Mississippi 

Kansas 

Oklahoma.. 

South Carolina 

Connecticut.. 

Iowa.. 

Washington 

Kentucky 

Maryland 

Louisiana 

Alabama 

Minnesota. 

Tennessee 

Georgia 

Wisconsin 

Virginia 

Missouri 

North Carolina 

Indiana. 

Florida 

Massachusetts 

New Jersey 

Michigan 

Texas 

Ohio 

Illinois 

Pennsylvania 

California 

New York 



Populatio 


n basis 


Turnout basis 




Percent 




Percent 




deviation 




deviation 




from per 




from per 


Relative 


citizen- voter 


Relative 


citizen-voter 


voting 


average vot- 


voting 


average vot- 


power 2 


ing powers 


powers 


ing power< 


(1) 


(2) 


(3) 


(4) 


3.075 


151.9 


3.585 


178.3 


2.738 


124.3 


2.583 


100.5 


2.546 


108.5 


2.675 


107.7 


2.342 


91.9 


2.440 


89.4 


2.189 


79.3 


2.156 


67.4 


2.137 


75.0 


2.068 


60.5 


2.093 


71.4 


2.223 


72.6 


2.092 


71.4 


2.375 


84.4 


2.038 


66.9 


2.071 


60.7 


2.026 


66.0 


2.127 


65.1 


2.018 


65.3 


2.087 


62.0 


1.673 


37.1 


2.288 


77.6 


1.795 


47.1 


1.797 


39.5 


1.764 


44.5 


1.743 


35.3 


1.707 


39.8 


1.953 


51.6 


1.691 


38.5 


1.798 


39.6 


1.594 


30.6 


1.758 


36.5 


1.532 


25.4 


1.633 


26.8 


1.472 


20.6 


1.471 


14.2 


1.466 


20.1 


1.462 


13.5 


1.459 


19.5 


1.706 


32.4 


1.514 


24.0 


1.578 


22.5 


1.399 


14.6 


1.903 


47.7 


1.399 


14.6 


1.492 


15.8 


1.422 


16.4 


1.505 


16.9 


1.405 


15.1 


1.888 


46.6 


1.362 


11.6 


1.310 


1.7 


1.3S4 


11.7 


1.403 


8.9 


1.341 


9.8 


1.345 


4.4 


1.299 


6.4 


1.485 


15.3 


1.337 


9.5 


1.459 


13.3 


1.304 


6.8 


1.584 


23.0 


1.302 


6.7 


1.696 


31.7 


1.274 


4.4 


1.262 


-2.0 


1.291 


5.7 


1.498 


16.3 


1.267 


3.8 


1.547 


20.1 


1.266 


3.7 


1.300 


.9 


1.264 


3.5 


1.543 


19.8 


1.211 


-.8 


1.256 


-2.5 


1.214 


-.5 


1.419 


10.2 


1.200 


-1.7 


1.200 


-6.9 


1.197 


-1.9 


1.259 


-2.2 


1.174 


-3.8 


1.171 


-9.1 


1.162 


-4.8 


1.137 


-11.7 


1.108 


-9.2 


1.155 


-10.4 


1.070 


-12.3 


1.318 


2.3 


1.080 


-11.6 


1.135 


-11.9 


1.059 


-13.2 


1.047 


-18.7 


1.043 


-14.6 


1.078 


-16.3 


1.004 


-17.8 


1.000 


-22.4 


1.000 


-18.1 


1.042 


-19.1 



1 Includes the District of Columbia. 

2 Ratio of voting power of citizens of State compared with voters of the most deprived State. 

' Percent by which voting power deviated from the average per citizen-voter of the figures in col. 1. Minus signs indicate 
less than average voting power. Average voting power per citizen-voter, population basis=1.221. 

< Percent by which voting power deviated from the average per citizen-voter of the figures in col. 3. Minus siins indicate 
less than average voting power. Average voting power per citizen-voter, turnout basis= 1.288. 



206 

TABLE 10.— VOTING POWER UNDER THE DISTRICT PLAN IN THE 1970'S, BASED ON STATE POPULATION AND 
STATE EXPECTED TURNOUTS, ARRANGED BY SIZE OF STATE 



State name' 



Alaska 

Wyoming 

Vermont 

Nevada 

Delaware 

North Dakota 

South Dakota.- 

Montana 

Idaho 

New Hampshire 

District of Columbia. 

Hawaii 

Rhode Island 

Maine 

New Mexico 

Utah 

Nebraska 

West Virginia 

Arizona 

Arkansas 

Oregon.. 

Colorado 

Mississippi 

Kansas 

Oklahoma 

South Carolina 

Iowa., 

Connecticut 

Kentucky... 

Washington 

Alabama 

Louisiana 

Minnesota 

Maryland 

Tennessee 

Wisconsin 

Georgia 

Virginia... 

Missouri 

North Carolina 

Indiana 

Massachusetts 

Florida 

New Jersey 

Michigan 

Ohio 

Illinois _. 

Texas. 

Pennsylvania 

New York.. 

California 



Populatio 


n basis 


Turnout basis 




Percent 




Percent 




deviation 




deviation 




from per 




from per 


Relative 


citizen-voter 


Relative 


citizen-voter 


voting 


average vot- 


voting 


average vot- 


power 2 


ing powers 


powers 


ing power' 


(1) 


(2) 


(3) 


(4) 


2.857 


332.8 


3.314 


165.8 


2.716 


121.3 


2.633 


111.2 


2.349 


91.4 


2.264 


81.6 


2.240 


82.5 


2.363 


89.5 


2.115 


72.4 


2.030 


62.8 


2.992 


62.4 


1.935 


55.2 


2.185 


78.0 


2.110 


69.2 


2.139 


74.3 


2.109 


69.2 


2.111 


72.1 


2.121 


70.1 


2.075 


69.1 


1.913 


53.4 


1.800 


46.7 


2.426 


94.6 


2.033 


65.7 


2.239 


79.6 


1.832 


49.3 


1.723 


38.2 


1.789 


45.8 


1.768 


41.8 


1.768 


44.1 


1.903 


52.6 


1.732 


41.1 


1.635 


33.1 


1.599 


30.3 


1.583 


26.9 


1.581 


28.8 


1.485 


19.1 


1.569 


27.9 


1.736 


39.2 


1.506 


22.7 


1.768 


41.8 


1.444 


17.7 


1.358 


8.9 


1.488 


21.3 


1.430 


14.7 


1.485 


21.0 


2.073 


66.3 


1.475 


20.2 


1.454 


16.6 


1,452 


18.3 


1.459 


17.0 


1.443 


17.6 


1.925 


54.4 


1.382 


12.6 


1.310 


5.1 


1.334 


8.7 


1.253 


.5 


1.352 


10.2 


1.477 


18.5 


1.313 


7.0 


1.242 


-.4 


1.307 


6.5 


1.712 


37.3 


1.321 


7.6 


1.576 


26.4 


1.292 


5.3 


1.202 


-3.6 


1.273 


3.7 


1.362 


9.2 


1.272 


3.7 


1.425 


14.3 


1.242 


1.2 


1.204 


-3.4 


1.258 


2.5 


1.632 


30.9 


1.250 


1.9 


1.561 


25.2 


1.246 


1.5 


1.205 


-3.4 


1.231 


.3 


1.367 


9.6 


1.218 


-.8 


1.147 


-8.0 


1.196 


-2.6 


1.217 


-9.6 


1.177 


-4.1 


1.249 


.2 


1.145 


-6.7 


1.104 


-11.4 


1.114 


-9.2 


1.094 


-12.3 


1.087 


-11.4 


1.078 


-13.5 


1.080 


-12.0 


1.021 


-18.1 


1.076 


-12.3 


1.294 


3.8 


1.064 


-13.3 


1.034 


-17.1 


1.008 


-17.8 


1.012 


-18.8 


1.000 


-18.5 


1.000 


-19.8 



1 Includes the District of Columbia. 

' Ratio of voting power of citizens of State compared with voters of the most deprived State. 

3 Percent by which voting power deviated from the average per citizen-voter of the figures in col. 1. Minus signs indicate 
less than average voting power. Average voting power per citizen-voter, population basis = 1.227. 

* Percent by which voting power deviated from the average per citizen-voter of the figures in col. 3. Minus signs indicate 
less than average voting power. Average voting power per citizen-voter, turnout basis = 1.247. 



207 



FIGURE 9 
PERCENT DEVIATION FROM AVERAGE VOTING POWER OF STATES 
UNDER THE DISTRICT PLAN, POPULATION BASIS 
1960't 





III. REGIONAL AND GROUP BIASES: 1960'S AND 1970'S 

A. The electoral college 

This section of the paper supplements the preceeding voting power analysis of 
state biases. Here, we derive data showing the percent deviations from national 
average voting power of citizen-voters residing in five regional groupings of states 
and of citizen-voters comprising four demographic groups often cited in conven- 
tional wisdom as advantaged or disadvantaged by the electoral college and other 
reform plans." 



>» For a review of this conventional wisdom, see Longley and Yunker, pp. 3-7, and 
Longley and Braun, pp. 96-103. 



208 

Table 11 contains regional "" and group biases for the electoral college (popula- 
tion basis, Pivotal Definition One) in both the 19H0's and 1970's. From this table, 
it can be seen that the region most advantaged by the electoral college is the Far 
West, with its percent deviation from average increasing from 26.7 to 33.1 in the 
course of the decade. The East also has an advantage, but a decreasing one, from 
13.8 to 8.9. The Midwest, South, and Mountain states are relatively less advan- 
taged, with the Mountain states having a percent deviation disadvantage increas- 
ing from —28.8 to —29.0 over the decade. Table 12 presents comparable data 
derived with Pivotal Definition Two. Again, the states of the Far West and East 
are the most advantaged, while the Midwest. Southern, and Mountain states are 
disadvantaged. The advantage of the Far West reaches 35.4% and the disadvan- 
tage of the Mountain states —35.6% in the 1970's. 

Data concerning various demographic groups "^ under the electoral college are 
also reported in Tables 11 and 12. In both sets of data, central city and urban 
citizen-voters are the most advantaged (with the advantage slightly decreasing 
over the decade). Black citizen-voters are disadvantaged in both the 1960's and 
1970's under both definitions, yet their disadvantage is decreasing from — 5.2 to 
—2.4 under Pivotal Definition One (or —6.1 to —2.5 under Pivotal Definition 
Two). Rural voters maintain their position as the most disadvantaged demo- 
graphic group, with their disadvantage slightly increasing over the decade, from 
—8.8 to —9.5 under Pivotal Definition One (or —10.6 to —10.7 under Pivotal 
Definition Two). 

TABLE 11— REGIONAL AND GROUP BIASES UNDER THE ELECTORAL COLLEGE IN THE 1960'S AND 1970'S, BASED 

ON STATE POPULATIONS (PIVOTAL DEFINITION 1) 



Percent deviation 


from 






national average voting power 


1960 
Chan 


-70 net 








1960 


1970 




decade 


(1) 


(2) 




(3) 


13.8 


8.9 




-4.9 


-15.0 


-13.4 




1.6 


-5.6 


-6.2 




-.6 


-28.8 


-29.0 




-.2 


26.7 


33.1 




6.4 


-8.8 


-9.5 




-.7 


3.8 


3.4 




-.4 


6.3 


5.7 




-.6 


-5.2 


-2.4 




2.8 



Regions: 

Eastern States_ 

Southern States 

Midwestern States _. 

Mountain States 

Far Western States. 

Groups: 

Rural citizen voters 

Urban citizen voters 

Central city citizen voters. 
Black citizen voters 



TABLE 12.— REGIONAL AND GROUP BIASES UNDER THE ELECTORAL COLLEGE IN THE 1960'S AND 1970'S, BASED 

ON STATE POPULATIONS (PIVOTAL DEFINITION 1) 



Percent deviation from 
national average voting power 1960-70 net 

change over 



1960 1970 decade 

(1) (2) (3) 



Regions: 

Eastern States 

Southern States 

Midwestern States 

Mountain States 

Far Western States 

Groups: 

Rural citizen voters _ 

Urban citizen voters. 

Central city citizen voters. 
Black citizen voters 



15.8 


10.8 


-5.0 


-17.5 


-15.3 


2.2 


-5.0 


-6.2 


-1.2 


-38.9 


-35.6 


3.3 


30.0 


35.4 


4.5 


-10.6 


-10.7 


-. 1 


4.6 


3.8 


-.8 


7.7 


6.4 


-1.3 


-6.1 


-2.5 


3.6 



''" For definitions of these regions, see Longley and Yunker, Longley and Braun or 
Vuiiker and Longley. 

'''^ State by state figures for these demographic groups for the 1970's are from the 1970 
census. General Population Vharact eristics, Table 16 ; "Summary of General Characteris- 
tics : 1970", of each state volume, and Table 60 : "Race of the" Population for Regions. 
Divisions, and States: 1970" In the United States Summart/, pp. 1-293 (for the black 
populations). For sources of the 1960 demographic group figures, see appropriate citations 
In Longley and Yunker. Longley and Braun, or Yunker and Longley. 



209 

TABLE 13— REGIONAL AND GROUP BIASES UNDER THE PROPORTIONAL PLAN IN THE 1960'S AND 1970'S, BASE 

ON STATE POPULATIONS 

Percent deviation from national 

average voting power 1960 70 

net change 

1960 1970 over decade 

(1) (2) (3) 

Regions: 

Eastern States 

Southern States 

Midwestern States 

Mountain States - 

Far Western States - 

Groups: 

Rural citizen voters 

Urban citizen voters — - -- 

Central city citizen voters 

Black citizen voters ..- - 

TABLE 14— REGIONAL AND GROUP BIASES UNDER THE DISTRICT PLAN IN THE 1960'S AND 1970',S BASED ON STATE 

POPULATIONS 



-2.9 


-3.6 


-0.7 


-1.0 


-.6 


.4 


-3.8 


-3.2 


.6 


60.4 


59.6 


-.8 


-2.5 


-4.7 


-2.2 


5.2 


5.5 


.3 


-2.3 


-2.0 


.3 


-4.2 


-3.6 


.6 


-2.2 


-2.5 


-.3 



Regions: 

Eastern States 

Southern States 

Midwestern States 

Mountain States 

Far Western States 

Groups: 

Rural citizen voters., 

Urban citizen voters 

Central city citizen voters. 
Black citizen voters 



Percent deviation from r 


lational 




average voting power 


1960-70 






net change 
over decade 


1960 


1970 


(1) 


(2) 


(3) 


-4.3 


-4.2 


0.1 


2.6 


2.5 


-.1 


-2.0 


-1.6 


.4 


45.8 


44.5 


-1.3 


-6.4 


-8.2 


-1.8 


4.3 


5.5 


1.2 


-2.1 


-2.0 


.1 


-3.8 


-3.3 


.5 


-.1 


-1.0 


-.9 



H. The praixirtional plan 

Table 13 reports rejdonal and jiroiip biase.s for the proportional plan in the 
llHiO's and liHO's. One regional groui) .stands out in terms of its great advantage 
under this plan — the Mountain states. In terms of demographic groups, rural 
c-itizen-voters are the most advantaged and central city citizen-voters the most 
disadvantaged. 

('. The districi plan 

Table 14 contains data for the district plan's regional and group biases in the 
l!K>(>'s and 15>70's. As might be hypothesized from the tables presented earlier, 
the district plan has biases similar in direction but less extreme than those of 
the proportional plan. Again, the Mountain states are again by far the most ad- 
vantaged region; rural citizen-voters are most favored among the demographic 
groups. 

IV. CONCLUSIONS 

This paper has reported new data concerning the bia.ses of the electoral col- 
lege and other reform plans for the electoral vote apportionment-s of both the 
ItHiO's and IDTd's. It has been found that the electoral college has countei'vailing 
biases, which result in a net large state advantage and a disadvantage to states 
with 4 to 14 electoral votes. Tlie electoral college also favors inhabitants of the 
Far West and East, as well as central city and urban citizen-voters. In contrast, 
it discriminates against inhabitants of the Midwest, South, and Mountain states, 
as well as blacks and rural residents. 

The proportional plan has a larger and unidirectional bias shari)ly favoring 
iidiabitants of the smallest states. It also greatly advantages inhabitants of the 
.Mountain states and rural citizen-voters. Inhabitants of the South, Midwest. 
Kast, and Far West, as well as urban, black, and central city citizen-voters are 
discriminated against by the proportional plan. 



210 

The district plan has a similar yet somewhat lesser bias. It sharply advantages 
inhabitants of the smallest states, the Mountain and Southern states, and rural 
citizen-voters. Inhabitants of the states of the Midwest, East, and Far West, ynd 
black, urban, and central city citizen-voters are disadvantaged by the district 
plan. 

In terms of percent deviations from average voting power for the l^TO's, the 
following groups are most advantaged by the electoral college : residents of the 
Far West, East, urban areas, and central cities. The Mountain states are most 
favored by the proi>ortional plan, whereas the South is most advantaged under 
the district plan. Rural citizen-voters are equally well off under the proportional 
and district plans. Finally, the direct vote plan with its etiual treatment of all 
votes is the best Presidential selection method for Midwest residents and blacks. 

APPENDIX 

The voting power indices under the electoral college are a composite of inter- 
state and intrastate pivotal probabilities. Banzhaf approximates the latter 
probability using Stirling's Formula, linding that the probability that a voter is 
pivotal within his own state is inversely proportional to the .square root of 
the numer of state voters (approximated by the state's poiiulation). 

The interstate probabilities are derived using a computer simulation of 50.000 
elections for each of two pivotal detinitions. For both detinitions. an "averaging" 
method is employed. The interstate probabilities are adjusted -so that states 
with the same number of electoral votes have the .same interstate probability 
(equal to the average of the unadjusted probabilities for tho.se states with an 
equal number of electoral votes). It can be deduced that Banzhaf implicitly 
u.sed this method, since the differences he tinds between .states with the same 
number of electoral votes are entirely attributable to differences between the 
states' intrastate probabilities. 

For rea.sons of compatability, our analysis assumes that each state is operating 
under the electoral college sy.stem in both decades. Maine, however, has adopted 
a district plan starting with the 1972 election. To incorporate this change, a 
determination would have to be made of the chance that a voter has of changing 
the outcome in his Congressional district, of changing the outcome in his state, 
and of changing both outcomes. In addition, interstate probabilities — the chances 
that a switch of one, t\^to, or three elec-toral votes has of changing the outcome in 
the electoral college — would also have tft be calculated. Comhining these two sets 
of probabilities would then incorporate Maine's district plan into the present 
electoral college system. 

An additional (jualification in the text is the use of a two candidate model. 
Interstate probabilities for a three candidate model have been calculated and 
are pre.sented in Table 1.5. W^hen combined with the appropriate intrastate i»rob- 
abilities, voting power figures for a three candidate model could also be derived. 

Table 1,5 — Number of times different size States are pivotal in three eandidate 
eleetions under the electoral college in the 1910's {pivotal definition one) 

[Number of times pivotal In 100,000 simulated elections] 

Size of States in electoral votes : 

3 7, 577. 429 

4 7, 929. 222 

5 8. 586. 

6 8, 703. 5 

7 9. ISO. 

8 9, 567. 5 

9 9, 805. 333 

10 10. 212. 25 

11 10, 859. 

12 11. 107. 333 

13 11, 446. 5 

14 11. 946. 

17 12. 938. 5 

21 14, 238. 

25 16, 329. 

26 16. 354. 5 

27 16, 822. 

41 22, 284. 

45 23, 814. 



211 

RECENT EMPIRICAL RESEARCH OX THE ELECTORAL COLLEGE* 

Brums, Steven J. and Morton D. Davis [both N.Y.r.], "Resource Allocation Motiels 
in Presidential Campaigning: Implications for Democratic Representation", 
in Annals of the \eiv York Academy of Scicticc, Lee F. Papayanopovlos (ed. ), 
Proceedings of the Conference on Democratic Representation and Apportion- 
ment: Quantitiitive Methods, Measures and Criteria. Vol. 219. \e\v York: 
New York Academy of Science, forthcoming U»73. 

— "The 3/2's Rule in Presidential Campaigning", paper prepared for delivery at 
the 1972 Annual Meeting of the American Political Science Association, ^Vasll- 
ington, September 5-9, 1972; forthcoming. American Political Science Review, 
(March. 1974). 

Brams, Steven J. and Jose E. Garrige-Pico [both X.Y.U.], "Deadlocks and Baud- 
wagons in Coalition Formation : The Vi and % Rules", paper prepared for de- 
livery at the 1973 Annual Meeting of the American Political Science Association. 
New Orleans, Septeml)er 4—8, 1973. 

Brann : see Longley and Braun. 

Colantoni. Claude S.. Terrance J. Levesque, and Peter C. Ordeshook [all Carnegie- 
Melhm University]. "Campaign Res(mrce Allocations Under the Electoral Col- 
lege", unpublished paper. May, 1973. 

Davis: see Brams and Davis, (1973). 
.see Brams and Davis. (1974). 

Dickens: see Spilerman and Dickens. 

Garriga-Pico : see Brams and (iarriga-Pico. 

Goetz. Charles J. [V.P.L], "An Equilibrium — Displacement Measurement of Vot- 
ing Power in tiie Electoral College", paper prepared for delivery at the 1973 
Annual Meeting of the American Political Science Association, New Orleans. 
September 4-8, 1973. 

— "Further Thoughts on the Mea.surement <if Power in the P^lectoral College", 
paper presented at the Annual Meeting of the Public Choi^Le Society. May 4, 1972. 

Hinich, Melvin .J. and Peter C. Ordeshook [both Carnegie-Mellon University], 
"The Electoral College : A Spatial Analysis", pai)er prepared for delivery at 
the Annual Meeting of the Midwest Political Science Association, May. 1973. 

Levesque: see Colantoni, Levesque and Ordeshook. 

Longley, Lawrence D. [Lawrence University] and .John H. Yunker [I'niv. of 
Minn.], "Who Is Really Advantaged by the Electoral College — and Who Just 
Thinks He Is?". pai)er prepared for delivery at the Annual Meeting of the 
American Political Science Association. Chicago, Illinois. September 7-11. 1971. 

Longley .Lawrence D. [Lawrence University] and Alan G .Braun [Univ. of Wise], 
The Politics of Electoral College Reform, New Haven. Yale Universitv Press. 
1972. 

Longley : see also Yunker and Longley. 

Longley, Lawrence D. and John H. Y'unker. "The Changing Biases of the Electoral 
College", paper prepared for delivery at the 1973 Annual Meeting of the Ameri- 
can Political Science Association. New Orleans. September 4-8, 1973. 

Nelson, Michael C. [Johns Hopkins University], "Partisan Bias in the Electoral 
College", (manuscript). 

Ordeshook : see Colantoni, Levesque and Ordeshook. 

Power, Max S. [Puget Sound Governmental Conference], "A Theoretical Analysis 
of the Electoral College and Proposed Reforms", unpublished Doctoral Disserta- 
tion, Yale, 1971. (Political Science). 

— "The Logic and Illogic of the Case for Direct Popular Election of the Presi- 
dent", paper prepared for delivery at the Western Political Science Association 
Meeting. Albuquerque. New Mexico. April 8-10. 1971. 

— "Logic and Legitimacy : On Understanding the Electoral College Controversy" 
in Donald R. Matthews (ed.) Perspectives on Presidential Selection, Washing- 
ton. D.C., The Brookings Institution, 1973. 

Sayre, Wallace S. [late of Columbia Univ.] and Judith H. Paris [The Brookings 
Institution], Voting for President: The Electoral College and the American 
Political System, Washington, D.C., The Brookings Institution, 1970. 

Sindler, Allan [Univ. of California], "Basic Change Aborted: Tlie Failure to 
Secure Direct Popular Election of the President. 1969-70", in Allan Sindler 
(ed.) Policy and Politics in America, Boston, Little. Brown and Company. 1973. 



•If you have any corrections or additions to this bibliography, please contact Professor 
Lawrence D. Longley, Department of Government, Lawrence University, Appleton, Wis- 
consin 54911. 



212 

Spilernian, Seymour and David Dickfiis [both Univ. of Wise], "Who Will (iain 
and Who Will Lose Influence Under Different Electoral Rules'", unpublished 
discussion paper. Institute for Research on Poverty, University of Wisconsin- 
Madison, December, 1972; forthcoming, American Journal of Socioloyi/. 

Sterling, Carleton W. [Rutgers Univ.] "The Political Implications of Alternative 
Systems of Electing the President of the United States", unpublished Doctoral 
Dissertation, University of Chicago, 1070. (Political Science;. 

— "The Failure of Bloc Voting in the Electoral College to Benefit Urban Liberal 
and Ethnic Groups", paper prepared for delivery at the 1970 Annual Meeting 
of the American Political Science Association, Los Angeles. September. 1970. 

Sterling, Carleton W.. "The Electoral College : The Representation of Non- 
Voters", ( manuscript ) . 

— "Tlie Electoral College and Popular Vote Distribution", paper prepared for 
delivery at the 1973 Annual Meeting of the American Political Science Asso- 
ciation, New Orleans, September 4-8, 1973. 

Yunker, John H. [Univ. of Minn.] and Lawrence D. Longley [Lawrence Univer- 
sity], "The Biases of the Electoral College: Who Is Really Advantaged?" in 
Donald R. Matthews (ed.) Pcrxpcctircs on Presidential Selection. Washington, 
D.C.. The Brookings Institution, 1973. 

Yunker : see also Longley and Yunker ( 1971 ) . 
see also Longley and Yunker { 1973) . 

Zeidenstein, Harvey [111. State Univ.]. Direct Election of the President, Lexing- 
ton, Mas.sachu.setts, Heath-Lexington Books, 1973. 

Statement by Jim McClellan, National Campaign Coordinator for Dr. 
Benjamin Spock's 1972 Presidential Ca.mpaign 

The case against the Electoral College is well known. The College is cor- 
ruptable, unrepresentative, unaccountable, antidemocratic, and contrary to the 
principle of one person, one vote. That it has survived so long does not speak well 
for the .sincerity of this country's commitment to high ideals. 

Oddl.v enough, the debate seems to hinge not so much on the Electoral College 
itself, but on the effect its abolition might have (m the two party system. Pro- 
ponents of the College say its abolition will weaken the two major parties. Its 
opponents try to convince themselves and the defenders of the College that it will 
not. 

Actually, without the Electoral College, the two party system will be weaker. 
But there's no cause for alarm. 

Despite prevailing opinion, the Democratic and Republican Party domination 
of American politics is not the product of divine intervention in the nation's 
affairs. Neither is it an accident. 

Instead, the American tradition of two party — and in some areas, one party — 
dominance is founded primarily cm institutional arrangements .such as the pro- 
visions for winner-take-all elections. One erroneous assumption of the American 
.system of government is that half a million or more people who happen to reside 
within some artificially conceived geographic area can be adequately repre- 
sented by a single voice in Congress, a Senator elected at large, or a slate of like- 
minded pre.sidential electors. The implication behind this is that people's inter- 
ests are determined by where they live rather than who they are or what they 
perceive their particular economic, social, and political interests to be. For- 
tunately, the American people are more individualistic and independent-thinking 
than their institutions are willing to admit. 

We often perceive of Congress, to take an example, as a place where all vie\A> 
points can come together, be heard, and reach decisions based on the informed 
judgment of those assembled. Yet such a forum is not possible in a system 
where only the majority or dominant interests win the seat in Congress and the 
minority and unpopular viewpoints are screened out by the electoral process, 
before even reaching the deliberative arena. 

Politics in such a system is devoid of any real content. Winning is uppermost 
in the mind of those who seek office and to purposefully undertake a campaign 
designed to woo less than a majority of voters is derided as not 'practical' 
politics. For the goal in American politics is not to encourage the use of the 
electoral process as a means for the people of one viewpoint to conununicate 
their beliefs to other segments of the population, but simply to amass the 
largest possible vote. So, not only are unpopular views unrepresented in Con- 
gress, but an open airing of issues is discouraged during electoral campaigns 
as well. 



213 

Those who hold minority views are not the only ones wlio suffer from this 
system. In fact, w^e all suffer. In a system where those who seek office scramble 
after the largest possible consensus, wuteriujj down their pledges in order to 
offend the least number of people, politics does not shape public opinion. It 
follows a safe distance behind it. A political process which shuns controversy 
while the public mood is crystalizing does not serve the country well. 

This flaw in the system manifests itself in the behavior of the two major par- 
ties. The Democratic and Republican Parties have sought to attract and appease 
voters of all views and as a result have satisfied the needs of none. For while the 
candidates of a major party are always alile to support each other on electi<»n 
day, they are never able to support and carry out a common program once in 
office. The Democratic and Republican Parties perform an electoral, but not 
a legislative function. They mobilize people to win elections, not implement 
platforms. 

Thirty percent of the American people now consider them.selves neither Demo- 
crat nor Republican. Many of these independents do not even bother to vote. 
Those who do usually end up choosing between the candidates of the two major 
parties. They do this not simply because they are offered no other option than 
Democratic and Republican candidates, but because of a strange notion that their 
votes are wasted if not cast for a candidate who has a good chance to win. Actual- 
ly, they waste their votes by trying to determine which Democrat or Republican 
is,' from their vantage point, the lesser of two evils, rather than seeking out an 
independent they consider not evil at all. 

A system which rewards only majorities, shuts out those with minority views, 
avoids controversy, and fosters the impression among the electorate that the 
•jnly votes that count are those cast for winners, gives strong impetus to the de- 
velopment of large, directioidess parties. The result is that representative gov- 
ernment in this country is really not very representative at all. 

As if there weren't already enough natural support for the two party system, 
the Democratic and Republican Parties have taken advantage of their incum- 
bency to even further institutionalize themselves. They have enacted election 
lawis" which provide easy access to a column on the ballot for themselves while 
placing complex obstacles in the path of those who would attempt to offer com- 
petition. Third party and independent candidates who miraculously clear the 
hurdles for a spot on the ballot seldom fail to run into some partisan election 
official who knows the necessary loophole to snare them. 

People who do not feel the Democratic and Republican Parties speak for them 
should be encouraged to form their own parties, not restrained from doing so. 
Those with vested interests or whose careers are tied to the continued success 
of the Democratic and Republican Parties might fear the break-up of the two 
party system, but the country as a whole has nothing to fear from people who, to 
better express their interests, turn to other parties. xVnd certainly there's no place 
in the American political process for the special privileges and advantages the 
major parties have legislated for themselves. If the Democratic and Republican 
Parties cannot stand on their own w-ithout institutional props and corrupt devices 
such as the Electoral College, they don't deserve to stand at all. 

If politics is to have any meaning, a multi-party system is a necessity. Only 
through such a system can the multiplicity of ideas and outlooks which are to be 
found among the American people find political expression. After all. it is a bit 
insidting to suggest that two hundred million people are so intellectually stag- 
nant that they can only come up with two views about how their government 
should act. 

Some kind of proportional representation would be desirable. But short of that 
people can still put content into politics by coming to see winning in a different 
light. Voting is the only official means for citizens to make their feelings known. 
They should use it in a way that makes their opinions clear and that does not 
compromise their conscience. If people vote for candidates who share their 
views, they win — even if the candidates they vote for lose. 

As to Senate .loint Resolution 1, it should not be opposed because it threatens 
to weaken the two dominant parties — or stated conversely, because it reduces 
the pressures which drive people whose inclination is to vote elsewhere into the 
Democratic and Republican columns. But it should be opposed because it tries 
to salvage the unredeemable. 

S.J. Res. 1 provides some measure of direct presidential election. But it also 
establishes an automated version of the Electoral College and places ultimate 
responsibility in Congress in the event forty or more percent of the electorate do 
not agree on a single presidential ticket. These provisions are as archaic, in- 

25-147 O — 74 15 



214 

direct, and unrepresentative as tlie system they supposedly reform. Tliere is no 
need to create such burdensome mechanisms to speak for the people. The people 
are perfectly able to speak for themselves. 

[From the American Statistician. December 1972] 

Majorities anu Pluralities in Elections 

(By William C. Shelton*. U.S. Bureau of Labor Statistics) 

Most elections, public and private in the United States or abroad, provide that 
to be declared elected, a candidate must rei'eive either more than half of the 
valid votes cast in the contest (majority) or more votes than any other candidate 
(plurality). If there are only two candidates, the two rules are the same, but if 
there are more than two. the rules differ. Under the majority rule, if no candidate 
receives a majority, a run-off election or some other procedure is required to 
choose between the two candidates who lead on the first ballot. Since elections 
are time consuming and popular elections especially are expensive, investigation 
and comparison of alternatives seems worthwhile. The author has made a modest 
investigation, both deductive and inductive, having in mind particularly the pro- 
posed amendment to the U.S. Constitution providing for the popular election of 
the President. The rule put forward here and even more the method of analysis 
are applicable to a broader set of circumstances, however. 

The proposed Constitutional Amendment in the form in which it passed the 
House of Representatives in 1969 is interesting because it is a hybrid between 
the majority and plurality rules. It provides for election by plurality provided 
that the leading candidate receives more than 40% of the total vote. If no can- 
didate receives more than 40% of the vote, a run-off election is called for. This 
rule seems reasonable if the leader receives, say, -19% and the runner-up -41% with 
10% going to other candidates. It seems less reasonable if the leader receives 
41% and the runner-up -^0% with 19% to other candidates. An alternative which 
appeals on grounds of reasonableness and yet is simple i.s — 

"The candidate receiving the most votes shall be declared elected if he 
receives a majority or if the size of his plurality exceeds the amount by 
which he failed of receiving a majority." 

Under this rule, 47% would win against 42% (since 5% exceeds 3%) but would 
require a run-off against 46% (since 1% is less than 3%). 

The question is not frivolous. Of the 34 presidential elections from 1836 to 
1968, there was no popular majority in 13 cases, according to "Historical Statis- 
tics of the United States." In 12 of the 13 cases, the leader received more than 
40%, but in only 7 did the leader's plurality exceed the amount by which he 
missed a majority. The two hybrid rules mentioned above would have given 
different results in 7 cases (21% of the total), because the one leader who 
received less than 40% (Lincoln in 1860) did have a plurality greater than the 
amount by which he missed a majority (39.8% versus 29.5%).' 

The question of the majority versus the plurality rule or some hybrid between 
them is not just a matter of judgement about reasonable percentage ; it needs 
to be related to the principles of political science. The plurality rule is conducive 
to a two-candidate and therefore a two-party system, since if a party splits, it 
will not have a run-off election to get back together again.' A majority rule with 
a run-off tends to encourage additi*mal candidates (though much less so than 
proportional representation in multiple member districts). The i)urpose of the 
hybrid 40% rule adopted by the House of Representatives seems to have been 
to sustain the two-party .system, but to provide a safeguard in case of a major 
breakdown or fragmentation of the vote. The rule suggested in the present note 
would extend the safeguard to a broader class of cases, namely, those cases in 
which the popular will,' is in serious doubt. But before considering the rationale 
for this rule, it seems wise to review qualitatively some experience beyond that 
of U.S. presidential elections. 



*Spe('i;il Assistant to the Commissioner, U.S. Bureau of Labor Statistics, Washington, 
T)C. 1!02]2. 

1 T)ie difference Is so small, however, (10.3% versus 10.2%) that inaccuracies or votes 
for minor candidates not shown might reverse it. 

- See, for example. V. O. Kev. ,Tr.. Parties, Politics, and Pressure Groups, fifth edition 
(New Yorlx. Thomas Y. Crowell Co., 1904). pp. 208-9. 

3 By "popular will" Is meant the candidate really favored by the electorate, that is, the 
one who would win a run-off election. 



215 

t/.K. Ej'pcrience. — Final elections in the United States are nearly always hy the 
plurality rule. I'rinuiry (party noniinatiDns) elections by popular vote are typi- 
cally by plurality in Northern and Western States and typically by majority (with 
run-off if necessary) in Southern States. Experience with run-off elections in the 
South has been that the leader in tie first primary wins the run-off in a very 
high proportion of cases. A good hybrid rule would probably greatly reduce the 
number of run-off elections without affecting the choice of candidates except 
very occasionally. In primary elections using the plurality rule, most frequently 
the "organization" candidate wins <iuite easily but occasionally there is a close 
vote or even a three-way split. In the.se latter cases, a hybrid rule would help to 
see that the popular will is followed, and it would not re<iuire many run^oft" 
elections unless the institution of the rule caused an increase in the number 
of candidates, which seems unlikely. 

In final election.s, the most fre(iuent situation is two major party candidates, 
with one receiving a majority. There are, however, two types of troublesome 
cases. One is where the race is close and the minor parties prevent a majority 
The other is where there is a third major party in addition to Republicans and 
Democrats, as sometimes in the South in recent years (American party. States 
Rights Party, etc.) and in Wisconsin and Minnesota in the interwar period (Pro- 
gressives. Farmer-Labor Party). The -10% rule would decide all of the first type 
and some of the .second type as now, that is, without a run-oft". The rule suggested 
in this note would call for somewhat more run-oft"s. 

Foreign Experience. — Elections abroad show the dangers of the unrestricted 
plurality rule much more clearly than does F.S. experience. The recent election of 
AUende, a Marxist, as president of Chile with less than 40% of the vote, when he 
would almost certainly have been beaten in a run-off, is one case in point. (The 
fact that the plurality vote had to be validated by the Chilean Congress does not 
change this conclusion basically because most memliers of Congress, had an- 
nounced before the election that they would vote for whoever received a plural- 
ity). The experience of France in parliamentary elections under the Fourth 
Repulilic is a further example. The Communists repeatedly elected about one- 
third of the deputies because their op])onents were fragmented, and since, once 
elected, they consistently voted against every Government measure, they fre- 
(piently paralyzed the legislative i)roeess. It was for this reason that De Gaulle 
under the Fifth Republic insisted on run-off election (eleetinns a deux tours) both 
for deputies and for the president. A hybrid .system could have prevented the 
election of a minority president in Chile, and it could greatly reduce the number 
of run-off elections in France. 

Principle of Election. — It is basic to the idea of popular election that every- 
one's vote is equal regardless of how important or well informed each voter is or 
how strongly his views are held ("one man, one vote"). An additional axiom is 
that the winning candidate should be one who would win a run-off election 
against each one (►f his oppcments, (the paired comparison i)rinciple) or at least 
against the highest vote getter except him.self. Given the equal-vote and paired- 
comparison axiom.s. the majority rule rather than the plurality is the ai>i)ro- 
priate one. But a hybrid rule could still be justified on practical grounds, that is. 
in cases in which the cost and time required for a run-off election do not seem 
justified in comparison with what is at stake and the probability that the runner- 
up will defeat the 'eader.* 

Graphic'il Reprrsentntiou. — If this is the accepted rationale — and I do not 
claim to be a profound political scientist — then the problem can be approached 
statistically. A geometrical representation will help, and triangular coordinates 
are the most convenient. (See Chart). As explained in the note underneath the 
Chart, every possil)'e election result in jiercentage form among three candidates 
described as A and B (the leader and runner-up) and All Other can be shown 
l)y a point within this triangle. The percentage vote for each candidate is meas- 
ured by the vertical distance to the side of the triangle opposite the 100% point 
(corner) for this candidate. With the scales chosen as shown, the lower left one- 
quarter of the equilateral triangle represents the area for which Candidate A 
receives a majority, and the lower right one-quarter represents the area for which 
Candidate B receives a majority. 



* The results of a run-off election ma.v also differ from those of the first ballot because 
opportunlt.v is provided for candidates to change their tactics, for voters to change their 
minds, and for registrants who did not vote on the first ballot to vote on the run-off. 



216 



lEPIESlNTtTION OF 
ElECTION IHONt CtNDIOtTES ». I. «NI tU OTNEt IN IIIINCUIHII COOIDIDTES 



PI uri I 1 1 y It Can< i<it e t 
iiciits tmiani kf vhick 
■I jir it I «<s mi sti< 

( li([ I iinti I katck) 



(40,0.60 

Cinli <it I t It cci (ts \ 

4tS t( SOX (itrl Ici 
kitck) 



PUiil it y to CiKKiti I 
C1CII4S iiaiot kn «kick 

■ l|liit| aiS Kistl4 
(kiiiiiatil kitck) 



(0.40. GO) 



tflMllUt 




Cut 1 4it I I iici Ills 

40K ti S0% (<l(t ICII 
kitck) 



Ml lOr it > t I 
Cia<i<lti k 




(100.0.0) 



100 » 




(St.SO.O) 



"ciiTTTiTiTTT 



Note to those not familiar ivith triangular coordinates: An equi- 
lateral triangle has the property that for any point inside the 
triangle the sum of the perpendicular distances to the three sides 
is constant (equal to the altitude of the triangle). Making use of 
this property, let the candidates be A, B and All Other. Then, 
since the percentages of the vote received by the three total 
100%, the distribution of any vote into three parts can be repre- 
sented by a point within an equilateral triangle those altitude is 
100%. Following convention, the three sides in the diagram are 
labeled for the three candidates although these are not the actual 
scales (which are the three altitudes), but projections of them. 
In Cartesian coordinates, the three percentages could be shown 
inside a cube with the scale on each side of the cube running from 
to 100%. But since the three percentages total 100%, all possible 
points would lie on a plane (x + y + z = 100%). The intersection 
of this plane and the cube is a triangle; in fact it is the same tri- 
angle as that shown in the above diagram. 

As drawn, the triangle permits the percentage vote for B to 
exceed that for A, and this is convenient for studying elections 
under a two-party system. The algebraic formulation of the rule, 
which is discussed under "Final Comment", implies A > B, and 
the geometric representation of this rule would require only the 
left-hand half of the equilateral triangle shown here. 



The area of the triangle which is critical to the present discussion is the 
inverted triangular area between these two quarters and near the base line, with 
its apex at the point (50, 50, 0). This area represents elections in which neither 
Candidate A nor B receives a majority but both receive high percentages, while 
All Other Candidates receive a low percentage. 

The areas carved out by the two hybrid rules mentioned above are shown by 
hatching. The rule approved by the House of Representatives is depicted by verti- 
cal hatching, and the rule suggested in this note, by horizontal hatching. Two 
wedge-shaped areas are cross-hatched, and the leader would be declared elected 
under either rule. But in the center is a vertically hatched area shaped like an 
arrowhead where the vote of the runner-up is cisoe to that of the leader (the 
plurality is small). In these cases the 40% rule would declare a winner even. 



217 

conceivably, by a single vote, while the rule, "the plurality exceeds the amount by 
whic?h a majority was missed", would call for a run-off. It would be poss.ible, 
of course, to examine a large number of different types of election results and 
plot them as sets of points (perhaps as overlays) on this chart, and probably tJiis 
should be done before taking such a major step as amending the U.S. Constitution. 
The results might throw light on possible changes in the procedure for other 
elections also. 

Final Comment.— It the principle of election stated above is accepted, then 
when there is no majority, the crucial question is : "How would those who voted 
for candidates other than the leader and runner-up have voted if forced to choose 
between only the two?" The rule suggested in this note is equivalent to assum- 
ing that the supporters of other candidates would not have divided more than 
2 to 1 against the leading candidate, as is shown by simple algebra. Let the 
votes for the candidate (absolute or in percentage) be A, B, and C. Then 
the rule is that A is declared elected if A-B exceeds y2(A-|-B-f C) — A. Collect- 
ing terms in A on the left of the inequality and terms in B on the right, this 
inequality is equivalent to (%)A > (%)B+y2C. Multiplying by % gives 
A>B+(y3)C. Adding (1/3)0 to both sides gives A-f (y3)C>B+ (%)C, as was 
to be proved. 

This algebraic formulation raises the question: Why should % versus % of 
those who voted for other candidates be taken as the discriminant proportion? 
Should the proportion vary, depending, for example, on the cost of holding a 
run-off election? As far as popular elections are concerned, it seems wisest to 
take refuge in simplicity. The rule, "if the size of his plurality exceeds the 
amount by which he failed of receiving a majority", is simple enough to be 
understood and supported by the American electorate. 

The rule suggested is also equivalent to the rule that the vote for the leader 
shall exceed the arithmetic average of the vote for the runner-up and one-half 
of the total vote. 

It is possible that there are other simple and reasonable rules, but none has 
occurred to the author. 

The Electoral College : Historical Background, Development and the Move- 
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(By Paul E. Dwyer) 

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Kirby, James C. Limitations on the power of state legislation to buck Presiden- 
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Lechner, Alfred J. The direct election of the President : the final step in the 
constitutional evolution of the right to vote. Notre Dame Lawyer, v. 47, October, 
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Lewis, Anthony. The case against electoral reform. Reporter, v. 23, December 8, 
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Lugg, H. H. State legislatures' authority over the selection of Presidential elec- 
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Marden, Orison S. The President's page. American Bar Association Journal, v. 
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Meyer, Donald A. The demise of the independent elector. American Bar Asso- 
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Michener, James A. Presidential lottery. Reader's Digest, v. 94, May. 1969: 
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Misreading democracy. New Republic, v. 161, September 27, 1969: 9-10 . 

Moe, R. C. Let's keep the electoral college : bulwark of our two party system. 
The National Review, v. 22, April 7, 1970 : 356-359. 375. 



221 

Morely, Felix. Democracy and the electoral college. Modern Age, v. 5, Fall, 1961 : 
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— Electoral reform would make your vote more important Nation's Busi- 
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— States guard power to elect President. Nation's Business, v. 49, November 
1961 : 27-28. 

Mullen, J. M. Electoral college and presidential vacancies. Maryland Law Review, 
V. 9, Spring, 1948 : 28-54. 

Nelson, Frederick. Electing the President by congressional districts. Human 
Events, v. 28, June 8, 1968 : 14. 

Nicgorski, Walter. The new federalism and direct popular election. Review of 
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One person, one vote ; if Presidents are elected by popular vote : effect on states. 
U.S. News and World Report, v. 66, May 12, 1969 : 58. 

Peirce, Neal. The case against the electoral college. New Republic, v. 156, Feb- 
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— Electoral college goes to court. Report, v. 35, October 6, 1966: 34-37. 

— WTio will pick the Presidents? American Legion Magazine, v. 77, November 
1964 : 9-11, 53-55. 

Pico, Fernando A. The new left and the electoral college. America, March 1, 
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Political policy committee prepares recommendations on electoral reform. 
Americans for Democratic Action, World, April-May, 1969: 3, 12. 

Pomper, Gerald. The southern 'free-elector plan.' Southwestern Social Science 
Quarterly, v. 45, June. 1964 : 16-25. 

Proposals to change the method of electing the President : a pro and con dis- 
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Proposed abolition of the electoral college: a pro and con discussion. Congres- 
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Questions of changing the U.S. electoral system: a pro and con discussion. 
Congressional Digest, v. 49, January, 1970: 1-32. 

Reflections on the electoral college. Villanova Law Review, v. 13, Winter, 1968 : 
303-354. 

Robinson, Donald L. George Wallace and the electoral college. Christianity and 
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— Rooting for the electoral college. The New Leader, v. 51. October 21, 1968 : 
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— The Constitution, Congress, and the Presidential elections. Michigan Law 
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Senate faces early decision on electoral reform. Congressional Quarterly Weekly 
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Should the electoral college be abolished, retained, or reformed. Senior Scholas- 
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State legislators favor direct vote for President. Congressional Quarterly, v. 24, 
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State power to bind Presidential electors. Columbia Law Review, v. 65. April, 
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222 

Tobin, R. L. Direct vote and the electoral college. Saturday Review, v. 50, 

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Toward a new system for choosing a President. U.S. News and World Report, 

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proposed Amendment. American Bar Association Journal, v. 35, March, 1949 : 

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Wilkinson, Donald M. Jr. The electoral process and the power of the states. 

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V. 64, March, 1949 : 1-23. 

— Electoral reform: what to watch out for; three alternatives to the ptesent 
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Wroth, L. K. Election contests and the electoral vote. Dickinson Law Review, 
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Zimmerman, Joseph F. Electoral reform needed to end political alienation. Na- 
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NEWSPAPER ABTICLES AND EDITORIALS 

A sounder suffrage (ed.). New York Times, July 7, 1970: 38. 
Abolish the college. Christian Science Monitor, January 16, 1967 : 2. 
Alternatives to the electoral college. Wall Street Journal, June 5, 1967 : 169. 
An alternative to presidential runoffs (ed.). Washington Post, June 23, 1970 : A18. 
Baker, Hon. Howard H. Abolish the electoral college, and other reforms. The 

Commercial and Financial Chronicle, January 30, 1969 : 14. 
Bell, Jack. Johnson pressing revisions in electoral college system. Washington 

Star, November 1, 1965 : A6. 
Broder, David S. Direct election Amendment more important than Wallace. 

Washington Post, September 9, 1969 : A19. 

— Senate debate on direct vote should weigh no-runoff plan. Washington Post, 
April 28, 1970 : A15. 

— Electoral reform response seen as Presidential failure. Washington Post, 
March 4, 1969 : A19. 

Bullen, Dane. Kennedy on the electoral college. Washington Star, January 13, 
1967 : AlO. 

Canham, Brwin D. (ed.) A positive negative vote (threat of "no election"). 
Christian Science Monitor. March 22, 1971: 10. 

Case for direct elections. Christian Science MonitoT, January 24, 1967 : II-I. 

Case for direct election Amendment. Washington Post, March 3, 1969 : A22. 

Childs, Marquis. Wallace's victory exposes flaw of southern strategy. Washing- 
ton Post, June 5, 1970 : A23. 

Denniston, Lyle. Bayh eyes six substitutes for a run-off election. Washington 
Star, April 17, 1970: A4. ^ . o,^ . •, 

— Presidential election— Senate spars privately on method. Evening Star, Apni 
24, 1970 : A12. 

— Senate plays peril vote reform. Washington Star, May 1, 1970 : A14. 
Direct election of the President (ed.). Washington Post, April 15, 1970: A18. 
Direct elections (ed.). Washington Star, April 25. 1970: A5. 

Direct elections: the narrowed choice (ed.). Washington Post, April 25, 197U. 

A14. 

Drummond, Roscoe. Growing danger House will pick President. Washington 

Post, January 20, 1968 : All. . . oe -.o^ a 

— Let the voters decide. Christian Science Monitor, August 2b, 1969 . 4. 

— and Gteoffrey Drummond. State conventions seen best route to direct election 
of a President. Washington Post, May 10, 1969 : A15 

Dui^ha, Julius. Johnson to seek end to electoral college. Washington Post. 

ElSomrcoUeg^Niton's switch may tip the balance. New York Times, October 

Elit^al'teform: the misunderstood run-off (ed.). Washington Post, April 

HaniiS'^ohi A. The ox-cart way we pick a space-age President. New York 

Times Magazine. October 20, 1968 : 36-37. t oo loftein 

How to get quick electoral reform. Chicago Tribune, June 29, 1968 . 10. 



223 

Johnson message on constitutional reform. New York Times, January 21, 19(>6: 16. 
Kilpatriek, Carroll. Electoral reform plan cuts small state vote. Washington 

Post, January 30, 1956 : A6. 
Kilpatrick, James. District plan favored for electoral reform. Washington Post, 

September 9, 1969 : A17. 
Kirby, James C. Will the U. S. graduate from its electoral college? Christian 

Science Monitor. June 29-July 1, 1968 : 9. 
Kristol, Irving and I'aul Weaver. Direct election of the President, argue two 

social scientists, is a bad idea whose time has come. New York Times Magazine, 

November 23, 1969 : 43. 146-147. 
Large, Arlen J. Alternatives to the electoral college. Wall Street Journal, June 

."5, 1967 : 18. 

— Some electives to the electoral college. Wall Street Journal, April 11. 1969: 18. 
Let the people choose the President (ed.). Washington Post, April 21, 1970: A18. 
Lewis, Anthony. An Amendment to catch up with history. New York Times, 

September 21, 1969 : 14E. 
Lincoln, Gould. The new federalism at its wor.st. Washington Star. October 4. 

1969 : A4. 
Lyons. Richard L. Direct election of President. Washington Post. September 19, 

1969: Al. 
Mundt, Karl, Voting for electors. New York Times, May 22, 1968 : IV 3. 
Nightmare revisited (e<l. ). Evening Star, June 6, 1970: A4. 
One man, one vote for President. New York Times, May 9, 1967 : 46. 
Pusey, Merle J. Is the old wreck worth patching up? Washington Post, March 

2.5, 1969 : A20. 

— The quest for protecting the voter's choice. Washington Post, April 20, 1970 : 
A20. 

Rich, Spencer. Senate committee to vote this week on electoral reform plan. 
Washington Post. April 20. 1970 : A6. 

— Senate unit clears direct-election bill. Washington Post, April 24. 1970: A8. 
Rowan, Carl T. Electoral reform needs close scrutiny. Washington Star, April 

12. 1970 : B4. 
Strout, Richard L. Direct presidential vote : Wallace win revives reform move. 
Christian Science Monitor, June 10. 1970 : 1. 

— Election reform : Nixon favors direct popular election but accepts electoral 
college compromise bill. Christian Science Monitor, February 28, 1969 : I. 

— One-vote, no-vote. Christian Science Monitor, October 9. 1970 : 9. 

Stuart. Peter C. Electoral college at stake : Senate seems primed to act on vote- 
reform proposals. Christian Science Monitor. April 23. 1970 : 17. 

Vote by Congress proposed in case of election tie. Washington Post, June 19, 
1970: A28. 

Wallace and the electoral college (ed. ). Wa.shingt.on Post. June .5. 1970: A22. 

Wanniski, Judge. Changing fortunes. National Observer. September 29, 1969 : 

Weaver, Paul and Irving Kristol. Direct election of President : a bad idea whose 
time has come. New York Times Magazine. November 23. 1969 : 43, 146-157. 

Weaver, Warren. A survey finds 30 legislatures favor direct vote for President. 
New York Times, October 8. 1969 : 1, 30. 

— Another step toward direct elections. New York Times. April 26. 1970: E5. 

— Direct election faces opposition. New York Times. April 19. 1970 : 46. 

— Electoral college : an attempt to replace it with direct votes. New York Times. 
May 2, 1969 : 12. 

— Foes of direct popular vote for President begin a counterattack. New I'^ork 
Times. April 16. 1970 : 20. 

— Lines hardening on direct voting : Senate battle shaping up over electoral 
college. New York Times. July 12, 1970: F19. 

Weaver, Warren. Nixon comes out for direct vote for President. New York 
Times, October 1, 1969 : 1, 19. 

— Senate unit asks popular election of the President. New York Times, April 24, 
1970: 1. 

White warns of fraud and chaos in popular election of President. Washington 

Post, April 16, 1970 : A8. 
Wicker, Tom. Graduating from the electoral college. Part I. New York Times, 

January 10, 1967 : 38. 

— Graduating from the electoral college : Part II. New York Times, January 12, 
1967: 42. 

— In the nation : trouble for electoral reform. New York Times, April 19, 1970 : 
E17. 



224 

CONGRESSIONAL RBCORU 

(Emphasis on Action Since 1967) 

Baker, Howard H. President : advantages of direct election, v. 116, July 22, 1970 : 
253W-25385. 

Bayh. Birch. Direct election of President: effect on the States, v. 116. Septem- 
ber 10, 1970: 31144-31146. 

— Direct popular election, v 115, September 19, 1969: 26343-2U344. 

— Direct popular election of the President, v. 112, May 19. 1966: 10998-11000. 

— Electoral change supported by former Vice President Humphrey, v. lir>, 
May 5, 1969 : 11313. 

— How we elect the President : what the public should know, v. 113, May 9, 
1967: 12198-12200. 

— Impact of direct election, .selected States, v. 116, September 9, 1970: 30994. 
Poland, Edward P. Abolition of the electoral college and the establishment of 

direct popular elections, v. 115, May 7, 1969 : 11636. 
— ■ Electoral reform — statement in support of direct election, v. 115, September 

10, 1969: 24975-24978. 
Byrd, Harry F. Case for direct vote (article by Tom Wicker in New York Times, 

January 30, 1969), v. 115, February 4, 1969: 2660^2661. 
"Cannon, Howard P. Direct election of the President, v. 116, September 24, 1970: 

33554-^38556. 
Celler, Emanuel. Electoral reform — c-omments on H.J. 681 providing for direct 

election of the President and Vice President, v. 115, September 10, 1969: 

24962-24965. 

— Direct election of the President : failure of Senate to vote an Amendment, 
V. 116, October 6, 1970 : 35218. 

Church, Frank. The case for electoral reform, v. 115, March 10, 1969 : 609-610. 
Clay. William. A "No" vote on direct election, v. 116, May 11, 1970: 14998-14999. 

— Direct election will hurt minorities, v. 115, September 9, 1969: 25390^25391. 
Constitutional provisions and laws governing election of President and Vice 

President, v. 86, November 15, 1950 : 13619-13621. 
Counting of the electoral vote — proceedings in Senate relative to counting votes, 

v. 115, January 6, 1969 : 197-246. 
Curtis, Carl T. Election contests and the electoral college (article by L. Kinvin 

Wroth in the Dickinson Law Review, June, 1961), v. 116, September 8, 1970: 

30821. 

— Popular election of the President of the United States, v. 116, March 2, 1970: 
5i89-5492. 

— Presidential elections (1960 and 1968 ) —.selected data, v. 116, March 2, 1970: 
^90-5491. 

Direct popular election of the President and Vice President [Debate in the House 
of Representatives on H.J. Res. 681, proposing an Amendment to the Con- 
stitution providing for direct election], v. 115, September 10, 1969: 24962- 
24979; September 11, 1969: 25125-25166; September 15. 1969: 25372-25393; 
September 16, 1969 : 25618-25634 ; September 17, 1969 : 25815-25838 ; and Sep- 
tember 18, 1969 : 25966-26008. 

— [Debate in the Senate on S.J. Res. 1, proposing an Amendment to the 
Constitution providing for direct election], v. 116, September 8, 1970: 30809- 
30843 ; September 9, 1970 : 30981-31008 ; September 10, 1970 : 31137-31163 ; Sep- 
tember 11, 1970: 31359-31342; September 14. 1970, 31502-31503, 31580-31592. 
31595-31599; September 15, 1970: 31717-31727, 31733-31764; September 16, 
1970: 32059-32104, 32174-^2175; September 17. 1970: 32347-32356; September 
21, 1970 : 32868^32877 ; September 22, 1970 : 33065-33071 ; September 23, 1970 : 
33403-33405, 33410-33412; September 24, 1970: 33564-33588; September 25, 
1970: 33837-33850; September 29, 1970: 34026-34034; September 30, 1970: 
34392; October 1, 1970: 34559; October 2, 1970: 34729-34740. 34753-34758; 
October 5, 1970 : 34930-34937. 

Eagleton, Thomas F. Presidential election process reform, v. 116, March 5, 1970 : 
10020. 

Boland, Edward P. Twelve states needed to win Presidential elections, v. 115, 
September 17, 1969 : 25827-25828. 

Ervin, Sam J. Has a i)opiilar vote winner ever lost the Presidency? v. 116, Sei> 
tember 21, 1970 : 32870. - 

— Judiciary Committee testimony of Alexander Bickel in opposition to di- 
rect election, v. 116, April 15, 1970 : S5778-57780. 



225 

— Nicholas DeB. Katzenbach opposes direct election but favors reform, v. 

116, April 23, 1970 : S6137-S6138. 
— Senate Joint Resolution 191 — introduction of a joint resolution to reform 

the electoral college, v. 116, April 7, 1970 : S5176-S5189. 
Fannin, Paul J. Electoral reform — Do you want your state disenfranchised? v. 

115, August 6, 1969 : 22671-22672. 

Fisher, O. C. President Nixon endorses electoral reform which would accord 
electoral votes in proportion to popular vote received by each candidate, v. 115, 
February 7, 1969: 3341-3342. 

Fong, Hiram L. Minority views on S.J. Res. 1 (providing for direct election), v. 

116, September 16, 1970 : 32069-32086. 

Ford. William D. Objections to direct election, small state advantage argument, 
large state advantage argument, and threats to two-party sy.stem, v. 115, Sep- 
tember 18, 1969 : 26003-26004. 

Ford, Gerald R. Popular vote is popular, from Nation's Business, v. 115, Sep- 
tember 16. 1969 : 25619-25620. 

Goldwater, Barry. Direct election boondoggle, v. 116, September 24, 1970 : 33551- 
33554. 

— Opposition to popular vote for President, v. 115, June 29, 1969: 21127- 
21128. 

Griffin, Robert P. Direct election of the President, v. 116, June 18, 1970 : S9299- 
S9301. 

— Direct election: Griffin and Tydings, v. 116, June 18, 1970: 20426-20428. 

—Electoral reform, v. 116. September 11, 1970 : 31371-31373. 

Hruska, Roman L. Corrective treatment — not drastic surgery needed in Presi- 
dential elections : remarks on electoral reform prepared bv Senator Peter H. 
Dominick, v. 116, June 11, 1970 : S8851-S8855. 

Mundt, Karl. District plan favored for electoral reform, v. 115, September 10, 
1969 : 25045-25046. 

— District system electoral plan, v. 115, April 1, 1969 : 8309-8311. 

O'Hara, James G. Case for direct election Amendment, v. 115, March 3, 1969: 
5080-5081. 

Spong, William B. Direct elections: defects, v. 116, May 1, 1970: 13890-13891. 

Thurmond, Strom. Direct voting danger, v. 115, September 30, 1969: 27808-27809. 

Tydings, Joseph D. The runoff provisions of Senate Resolution 1 (direct-election 
proposal) need modification, v. 116, April 14. 1970: 11617-11619. 

rilman, Al. How much electoral reform? v. 115. March 4. 1969: 5314. 

Wi'Uams. J. Harvie. The electoral college in our constitutional structure [effect 
of uni<^-ru)e systeri in distribution of votes on the power of states], v. Ill, 
July 20, 1965 : 17418. 

Wym'in. Ivouis C One hundred twenty three reasons why Congressional district 
plan is best, hy II. L. Hunt, v. 115, January 31. 1969 : 2429-2432. 

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Kennedy. John F. The President's news conference of January 25. 1961 [electoral 
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Nixon. Richard M. Sijecial message to the Congress on electoral reform, Febru- 
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— Statement on congressional action on electoral reform. September 30, 1969. 
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BOSTON PUBLIC LIBRARY 




3 9999 05995 188 7 

— John W. Holcombe. Give the Constitution a chance : the electoral college, pre- 
rogatives and iK)ssibilities, a Presidential preference vote, the President's term. 
Washington: U.S. Government Printing OflSce, 1913. (62nd Congress, 3rd Ses- 
sion, Senate Document 62-1092) 18 p. JK 528 H6 

— Joseph Jackson. Survey of the electoral college in the political system of the 
United States. Washington: U.S. Government Printing Office, 1945. (79th Con- 
gress, 1st Session) 17 p. JK 529 J3 

— Secretary of the Senate. Nomination and election of the President and the Vice 
President including the manner of selecting delegates to national political con- 
ventions. Compiled under the direction of Secretary of the Senate, by Richard 
D. Hupman, Senate Library, and Robert L. Thornton, Congressional Research 
Service, Library of Congress. Washington : U.S. Government Printing Office, 
1972. (92d Congress, 2nd Session) 273 p. JK 2063. A5131/1968 

Note. — See also previous editions for 1948, 1952, 1960, 1964, and 1968. Presidential 
elections: JK 2063. A5/1948c; JK 2063. A512/1952 ; JK 2063. A512/1955 ; JK2063. 
A513/1960 ; JK 2063. A513/1964 ; JK 2063. A513/1968. 



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