The unit rule has been working in practice to the advantage of the big States, and the small States have been in favor of the electoral college with its unit rule because they believe that they have an advantage in the representational setup in Congress.

Now, as I see the gradual changing base and the practice of congressional representation, these small States then will lose their advantage insofar as big-State versus small-State confrontation is concerned.

It seems to me then that it is time for us simultaneously to abolish the electoral college system just precisely to prevent the kind of conflict that you are concerned about and, therefore, I do not see-you see the kinds of disasters and consequences-in fact, I see a salutary consequence if we have a direct popular vote.

Senator HRUSKA. I am so happy you are here as a witness because you made one of the best arguments for the district plan, of which I am a cosponsor. I am not in favor of continuing the unit vote rule. I am not for the continuing a system where the winner, even by one vote, takes all.

I favor a system where the State is broken down into the same. number of districts as it has congressional districts plus two votes. The majority in each district will prevail as to that one vote, and the statewide vote will determine the allocation of the two at large votes. Dr. SHAO. Then, Senator, you will be giving the small States all the political advantages.

Senator HRUSKA. No. They will have no more votes than they have now. They will have no more votes than they have now.

Dr. ASHMAN. Senator, why would you, a Republican-you were not here earlier when one of the previous witnesses, I think Mr. Sorensen, I think it was, perhaps Senator Bayh posed the question, would a Republican living in an overwhelmingly Democratic district, predominantly Democratic district, perhaps in the New York City area, have any reason, any impetus, any stimulation, for working on your plan when his vote was futile?

Senator HRUSKA. He would certainly vote.

Dr. ASHMAN. Why?

Senator HRUSKA. He would want to see his district come out right in the proper column, and the votes in his district would contribute to the two additional votes that go by a statewide vote.

Dr. ASHMAN. Are not the political realities such that there are many, many districts that are overwhelming with one party? Senator HRUSKA. I grant that there is some merit to that argument. Of what avail

Dr. ASHMAN. Thank you.

Senator HRUSKA. Of what avail is it for a Nebraska citizen to vote under a popular election system? We have less than a million and a half people in my State, and California has 16 million people. If California would, unhappily, become a one-party State, why would the voters in two or three dozen small States want to go to an election when all the sum total of their votes would be canceled by the overwhelming vote in one State?

Dr. ASHMAN. I am so glad you said that, Senator, because that is the most compelling argument for the abolition of the electoral college

and the direct vote, for the simple reason that since as a State they would not be participating in the election, every citizen voting in your State would have as much to say about the election for President as a person, whether he was in Los Angeles or in San Francisco or New York, or what-have-you.

Senator HRUSKA. You have missed one thing, and that is, that a large State is overwhelmingly of one party. Suppose that is so, and then what incentive would there be under the direct plan for a voter to come out and vote. There would be no percentage in it.

I say that if there would be a large State overwhelmingly of one party, that the small States would not have any interest in coming to elections because their votes, even if they were cast completely for the other party, it would not count.

Dr. ASHMAN. But would not the reality be if someone in your State was concerned about a vote balancing they would balance a vote for the other party, but it would not matter what State it was because the dignity of the voters in Nebraska would be the same as those in New York and California.

Senator HRUSKA. The difference is this: by continuing the electoral vote system the small State has a bigger share in the sum total of that vote. This is done because of the Federal principle, which recognizes that we must reconcile and make workable a Republic which has some very large States and also some very small States.

Senator BAYH. How is the Senator going to get the large States to go along with that kind of business?

Senator HRUSKA. Well, that is a problem for the large States to figure out.

Senator BAYH. Quite the contrary, it is our responsibility in this committee to come up with a plan which will be acceptable to both large and small.

Senator HRUSKA. On that, I agree.

My observation to you would be this: that with popular vote you are not going to have a plan acceptable to both large and small States. It is not acceptable because it will weaken the small States, and there are enough Members of the Senate from the small States who will tolerate no such prospect.

I join you in the hope that we can work out some recommendation from this subcommittee that will be acceptable to enough people, enough Members of the Senate, to be able to propose an amendment. But I do not believe that it wil be the direct popular election proposal. Senator BAYH. I think that our ability to reconcile differences between large and small States is the key to our success, and, as I sit here right now, I do not know whether we can do that.

Mr. Sorensen is a native of your State, this morningSenator HRUSKA. And on most occasions we are proud of it. Sometimes I must confess, we are tempted to disown him. [Laughter.] I say that in humor to a longtime personal friend. Senator BAYH. Let the record underline that. [Laughter.] But he compared, not the mathematical advantage the small States have under the present system, adding the two Senators in but the real disadvantage under which they operate because of the unit rule.

He cited some of his personal experiences in the 1960 election, and he also offered the hypothetical case of Omaha and Oakland, both cities of 380,000. Are there 380,000 in Omaha?

Senator HRUSKA. Approximately.

Senator BAYн. He used Omaha and Oakland, Calif.

Yet, in directing the campaign, a great deal more attention would be given to how you persuade the 380,000 people in Oakland than in Omaha, because in persuading the people of Oakland one might tip the scale and thus gain a large State's 40 electoral votes; whereas the Nebraska vote, is considerably less.

Senator HRUSKA. Would you yield there? Would that not be tempered a good deal by the district plan where if they campaign heavily in Oakland, the most they could get would be one vote for sure and a contribution from Oakland to the two-at-large votes.

This would temper the concentration a great deal, you see. But under the all or nothing, unit system, or under the direct popular election, they will spend their millions in Oakland, because the TV stations, the newspapers, and everything else, are keyed to a larger metropolitan population. It is not many miles outside of my city of Omaha that you get into country that is full of barbed wire and prairie grass and the radio and TV waves are not very effective out there to get votes.

Senator BAYH. Well, it was Mr. Sorensen's opinion-I must say I agree with him-that there is not going to be any revolutionary change in the way you are going to politic under either system. However, under direct election you would go to the 380,000 votes, whether they were in Oakland, Phoenix, or Omaha, or Indianapolis, wherever it might be. In the popular vote system a candidate would have to go wherever these votes are. Now, if there are 380,000 votes in Wyoming, there is little reason to go there because even if you win them you are only winning three electoral votes.

Senator HRUSKA. May I direct a question or two, and an observation to Mr. Warren. I do not want him to think he is here just to listen to some people banter back and forth.

There is one statement in your testimony, Mr. Warren, that is contained on page 5, and it reads:

After the frustration and apprehension over the possibility of another election crisis this past year, the only conclusion is that one can justifiably reach is that a system of direct popular election is the most desirable, equitable way.

What was the frustration and apprehension of the election of 1968, considering that the victorious candidate had a margin of over 500,000 votes, popular votes, over his nearest competitor? What is so alarming about that?

Mr. WARREN. I think we are confronted with a situation when we look back on the election, we can all feel quite confident that there was no real problem.

On the night of the election, I do not think that you or I or anyone else in this room could have been quite so confident. We did not know that Richard Nixon was going to win, and we did not know how many votes that George Wallace was going to get.

The frustration that I am talking about is the frustration that was voiced in magazines and newspapers throughout this country, the concern of the possibility of a third party creating a situation where the election would be thrown into the House of Representatives; that is the basic problem I am talking about.

Senator HRUSKA. Could that not be met by a simple provision, if that is the only apprehension that there is, that a 40-percent plurality of the number of electoral votes would elect a President. That would allow enough room so that, as a practical matter, you would not run up against this threat.

Mr. WARREN. Senator, I agree very throughly with your 40-percent plurality figure, but I go further than that in the statement saying that I think we should have full equity.

Let me give you an example.

Senator BAYH. Let me suggest, if I may interrupt, you are talking about 40 percent of the electoral vote?

Senator HRUSKA. Yes; 40 percent of the electoral vote. We had a popular plurality under the present system. There was a division an almost equal division, within a half million votes, and each of the principal candidates got a little more than 40 percent of the vote. This decision was acceptable to the people.

If that is true as to the popular vote, why would it not be true as to the electoral vote? Therefore a 40-percent provision would be a sensible way to getting away from, if you do not get a majority of the electoral vote, the problem that the House of Representatives decides the

issue.

Mr. WARREN. This is a possible meaning

Senator BAYH. The difference between 40 percent of the electoral vote and 40 percent of the popular vote is that in the right circumstances 40 percent of the electoral vote can be produced on the basis. of less then 40 percent of the popular vote.

In this system the thing that concerned me and, as my friend from Nebraska knows, I was not a champion of Richard Nixon, but he is my President now, the thing that frightened me more than anything else was at 7:30 in the morning when the computer said that Illinois was going to Mr. Nixon, the next figure flashed on the screen was the popu lar vote, showing Hubert Humphrey in the lead.

Senator HRUSKA. Maybe a little more deliberation by the news media instead of going on conjectures, speculations, and black boxes, would have been in order.

Senator BAYH. But to go one step further, if there had been a small switch in the popular votes in Illinois and Missouri, out of a nationwide plurality of over 400,000, then Mr. Nixon would not have won an electoral majority. That is the discrepancy.

Senator HRUSKA. If you change the system to avoid that type of apprehension and frustration. You will trade the frustrations and apprehensions we now have for a new set under the direct plan; whatever plan you suggest will have its apprehensions.

Dr. ASHMAN. The apprehension that you speak of in the event of a direct election, that which you describe as a breakdown of the rule of the States and the loss of federalism, what other apprehension would there be if the voter in Nebraska had the same dignity as the voter in California and New York?

Senator HRUSKA. Well, of course, you struggle with just more than vague apprehension, contemplation. You struggle also with concepts in a lot of people's minds, and the Senators from these small States are possessed of many of those concepts which are based on political reality. We cannot consider this in the ivory tower. We cannot go back into the philosopher's den and decide which would be the most perfect. Plato did a pretty good job for us, but nobody paid much attention to what Plato said because he was too theoretical, and the men and women in America are not quite that theoretical.

Dr. SHAO. But our argument for the abolition of the electoral college is not on pure normative theory. At least, my position and Mr. Sorensen's position and Senator Bayh's position, and those who know something about practical politics, is based on empirical studies of the counting of votes.

Here I have a book by Professor Polsby and Wildavsky with figures, using the figures for the election of 1960 and 1964, and recasting them in terms of different plans for reforms, you see, and I think that the general conclusion is that the abolition of the electoral college will result in protecting the interests of the smaller States much more than the bigger Sates.

This is the thrust of the argument, because the unit rule attached to the electoral college has in practice for the past two decades, at least, been for the benefit of the big States.

On the Senator's point of a one-party State with a smaller population, I would think that in a one-party State-I used to live in Florida where there was just one political party in power, and at every election the party workers seldom went out to get votes out because they knew, you see, that a particular nominee was a shoo-in.

But now, with the popular election of the President the number of votes that the party workers could gather and could bring out to the polls would mean a great deal.

This will further strengthen that particular political party and, hopefully, the opposing party will also develop and organize, thus giving that particular State a two-party system, which is much more healthy and a continuous development of one particular party having to rely on some kind of institutional setup to protect its interests.

Senator HRUSKA. Mr. Warren, on your statement, I wish to repeat that I believe there is much merit to your statement. But in order to achieve the result you ask, we would have to amend the Constitution to say the States are no longer going to be the ones who determine the qualifications of their own voters.

Mr. WARREN. Well, on that score, I think not because it can be left to the States and the qualifications for the voting can be done by them. Senator HRUSKA. Štate qualification allows for some flexibility. Mr. WARREN. The question I am asking is what we are basically confronted with here is a concern for the minority vote, whether the State, the small State, being the minority in relation to the large State-I mean, this is basically what we are trying to protect, a minority. Right. The statement that I made, and you will notice the last part of it was I said that it was the most equitable system, and my concern is not only to be equitable to a certain State but to be equitable to all the citizens of the United States.