bia, would have equal weight. The danger of electing a minority President would be ended. It would encourage parties to get the largest possible vote and end the archaic and outmoded electoral college system.

In essence, the direct election of President and Vice President under the system proposed by the amendment now before this committee would be a major step in the direction of achieving a fuller democracy for the people of our country.

It is for these reasons that I am pleased to be here to offer support for Senate Resolution 1. May I add another little bit to this because I know you have been through this up and down and I do not pretend to offer you any new special insights except this.

I believe I understand the liberal movement in the United States, and I know that there have been those before the committee and in the press and some of the liberal journals that have suggested that the direct election of the President, as proposed in this Senate Joint Resolution1, is not a good idea, because it would hurt the liberals. I do not believe that is true for the reasons I have briefly mentioned.

But in addition I would like to say that although I cannot offer you any guarantee in terms of a secret poll taken, if I understand the membership of my own organization, sometimes known as the Liberal Issue Nostalgic Organization, and if I know how people feel, after making I don't know how many speeches across the country and engaging in dialogue, I believe the liberal movement in the United States, these people overwhelmingly support the direct election of the President.

I think they are reflected in the Gallup and Harris polls that have been taken, and I think that those people who speak for the liberal movement have a right to speak for themselves, but I frankly do not think, though they may mean it in the best interests of the Nation, I frankly do not think they speak for the liberal movement in the country. I think there is no question where they stand in support of

this.

Senator BAYH. I appreciate very much your statement, as well as your following comment. One of the amazing things about this direct election proposal that we have seen develop is that it has not broken down on a strictly liberal versus conservative basis. We have had some strong conservative support.

Just to cite two examples: Governor, now Senator Bellmon, was a member of the ABA Study Commission, and I suppose Mr. Gossett, president of the ABA, who was at that time chief counsel of the Ford Motor Co. I suppose we would classify him on the conservative side of the spectrum, although it is sometimes not very meaningful to try to categorize. These gentlemen have been strong supporters of direct election.

The thing that concerns me, as I read some of the liberal criticism, and I might ask you to comment on it, is that it stresses the weaknesses and fails to compare the strengths and weaknesses of the popular vote system to the preesnt system.

You cannot consider a proposed reform in a vacuum. You have to compare it to the present system or to alternatives.

Mr. SHULL. I agree with that fully. Certainly the alternatives, the other alternatives offered, I think, are completely unacceptable. I

know that speaking for my own organization, and again if I can presume to, that is a big presumption, that I can speak for the entire liberal movement, but I really think this expresses their viewpoint, I do not think they would accept the proportional or the district system. I think that would be worse than what we have today.

I think those liberals that are really concerned that this is a way of protecting the strength of the urban centers are probably wrong about it. Again, frankly, we take the high ground here, and we think that the majority of the people in the country, and we think that is good liberal and good conservative tenet, I am delighted to see there are Senators on the list who consider themselves to be conservatives who have put their names on this bill. And so I think it is good conservative and good liberal doctrine in the United States that in this day and age we can elect our Presidents by a direct vote, and I think it would answer many of the problems that we all fear, and certainly faced, for example, in this past election.

Senator BAYH. I welcome your comments on party proliferation. I am one who shares your concern about the election of a minority or nonplurality President. This to me, in the light of everything we have happening today, is the No. 1 weakness of all the plans except popular election.

I would like you to give some additional thought to this business of national standards. As you know, this is a very delicate area as far as State ratification is concerned, and as far as the two-thirds vote in the Senate is concerned.

Do you believe that the specifics of Senate Joint Resolution 1, as far as standards are concerned, by tying them to the State legislative standards in each State, and providing for the possibility of uniformity in the areas of age and residency, is a proper approach? Do you have any suggestions as to how this can be improved?

Mr. SHULL. Yes, sir, Senator. I think that is the correct approach. I would not like to see the Federal Government get down into the minutia of how to run the election and the rest of that. I believe the resolution is on the right basis. I think we should set very minimum standards, and subject, of course, to the normal concern of the Federal Government, that Federal elections be honest and be run properly, that the States still should continue to run the elections.

Just speaking here for myself only in this instance, I would like to see the Federal Government set the minimum age level to vote, and perhaps do something about-I am not sure about this frankly-the absentee ballot voting. That is really I believe a technical matter. Somewhere along the line we ought to clear it up and not have the mess that I think we get into today, with the way absentee ballots are counted in so many States.

One other thing I would add to this. One powerful argument, it seems to me, in favor of the direct election, is the fact that we have the Voting Rights Act on the books, that made it possible theoretically certainly, and factually for large numbers of American citizens in the South to register who really had been prevented before.

I think the fact that that law is on the books, and that is the kind of a standard, frankly, that I think we need. In other words, I would like to see the Federal Government only move in those areas where there is a need to protect the rights of the people to vote, and to make sure that it is similar through the country.

I do not think it would make a terrible amount of difference if in one State 18-year-olds could vote, something that my organization and I personally am in favor of and in another State it might be 19, but I think it might cause problems in terms of how people would react. People would say well, there are more people voting in one State than in another, a larger percentage of the population could vote, so I would be inclined to believe that we ought to set the minimum age level, and I hope it would be at 18, as I said.

Senator BAYH. This would be a minimum level, not a mandatory level?

Mr. SHULL. A minimum level, yes, not a mandatory.

Senator BAYH. Leaving the final determination to the States?

Mr. SHULL. I would leave the final determination to the States, and this I assume could be done by law at some point, unless we really found it was being abused. In that case I suppose Congress should have the right to do whatever is necessary.

Senator BAYH. May I ask you to comment on just one other thing, and then I am going to have to run over to vote. Mr. Kirby and Mr. Gosnell, our next witnesses, have been very patient, and I ask their indulgence.

Do you have any specific thoughts about the runoff?

Mr. SHULL. Well, I think that it would certainly be helpful if, contrary to some other testimony I heard, if the President of the United States could at least have 40 percent of the vote as he takes office in one election or another, and I do believe that if a man, a candidate receives less than 40 percent, and no candidate receives 40 percent, the runoff is a good idea.

They do this in other countries. I think that this country is as technically efficient and proficient as say France is. It does not seem to me there is any reason why within certainly a month it would not be possible to have a runoff election.

I believe that we can and we should do that. I think the country would take that well. I do not think it would be upset. Now, I know one of the arguments, the question that is always raised in this is: Aren't you going to make it possible to have blocs dealing with each other, and one candidate is going to sell his votes in one way or another or deliver his votes in one way or another to a candidate for a price, and this would bring a new and ugly element into American politics? Well, I have had some experience in politics. I have been a professional politician just about all my life. I have been a campaign manager. I have been something, I would like to think, of a student of this game. One thing I do not think it is possible to do is deliver blocs. of votes.

I do not believe it is possible, really, for one man to deliver his votes in that sense.

I think it is entirely possible that one man running on a ticket, who is very strong, will strengthen others on the same ticket. That is a different issue entirely. But once a candidate has lost, and there is going to be another election, let us say the runoff, and the effort is made by him, to say he can deliver his votes, I just do not believe it. I really just don't literally believe it, and I have never seen it work. We have seen it tried in other ways, in other times, in other places.

It is tried all the time. Some political leader will come to another candidate or another leader and say, "Well, I have got this bloc of voters, that bloc of voters." I do not believe it works. I think what happens there is that he makes an estimate of where his voters are likely to go and tries to make the best deal, but he really does not deliver them and I do not think an intelligent and smart politician, of which we have plenty, will ever be taken in by that.

Senator BAYH. Thank you very much.

Mr. SHULL. Thank you for the opportunity to be here, Senator. Senator BAYH. You have been very kind to be with us.

(At this point in the hearing a short recess was taken.)

Senator BAYH. Our next witness will be Mr. James C. Kirby, professor of law at New York University. He is legislative director of the National Small Business Association, and is accompanied by Mr. John Gosnell, the general counsel.

Gentlemen, I not only appreciate your taking the time to let us have your thoughts on this important subject, but I am doubly grateful that you have been so patient with our interruptions this morning, so please proceed.

STATEMENT OF JAMES C. KIRBY, JR., PROFESSOR OF LAW AT NEW YORK UNIVERSITY; ACCOMPANIED BY JOHN A. GOSNELL, SECRETARY AND GENERAL COUNSEL, NATIONAL SMALL BUSINESS ASSOCIATION, WASHINGTON, D.C.

Mr. KIRBY. Thank you, Mr. Chairman. We appreciate, too, your patience and persistence in sitting for a long period of time and listening to a succession of not too often sufficiently varying presentations, I am afraid.

As you mentioned, Mr. Gosnell is general counsel with the National Small Business Association, and I have served a number of years as a special counsel on electoral college reform.

The association has long been in the vanguard of the movement for electoral college reform, and in fact made possible, by furnishing legal assistance in the 1966 Delaware suit which sought a declaration by the U.S. Supreme Court that the State unit-vote, winner-take all system was unconstitutional. As you are aware, the Supreme Court declined to hear the Delaware suit and in effect left the entire problem of electoral college reform with the Congress.

As one who has worked for abolition of the electoral college for some 8 years, I am also delighted that such groups as the American Bar Association, the AFL-CIO, the U.S. Chamber of Commerce, and the National Small Business Association are actively promoting the right of the American people to elect their President.

It is good to see that the voting rights in general and a particular voting reform can be a common goal of such diverse organizations. As the chairman knows, I came to believe in popular election from serving this subcommittee as its chief counsel from 1961 to 1963, while its chairman was the late Senator Estes Kefauver. I have since studied the subject as a member of the American Bar Association's special commission on electoral college reform, which reported in January 1967, and its current special committee on electoral college reform.

After the 1968 election, I am more strongly convinced than ever that constitutional reform is a matter of urgent necessity.

The historical reasons for the present system and its dangers and weaknesses have been stated many times before this subcommittee and I need not repeat them. Nonetheless, the system's evils must be mentioned briefly because they provide the measuring stick for proposed reforms. Which of the competing alternatives measure up to all dimensions of the problem? The only one is direct election by nationwide popular vote. This first became apparent to me in 1961 when I drafted for this subcommittee a Judiciary Committee print entitled "The Electoral College-Operation and Effect of Proposed Amendments to the Constitution of the United States." It first set forth the evils of the present system and then projected the effects of each major proposal upon them.

THE EVILS OF THE PRESENT SYSTEM

In addition to the constitutional dangers of free electors and contingent elections in the House, six practical evils were found to flow from the State unit-vote or winner-take-all feature of the present system.

They were, first, the disfranchisement of minority voters in each State-those who vote for the State loser and then see electoral votes attributable to them actually cast for a candidate to whom they are opposed.

Second, the risk of a minority President-one elected by the electoral college after being runnerup in the popular vote.

Third, the undue importance of pivotal States-the large populous States apt to go either way, and favored in campaign efforts and selection of candidates. Conversely, the fourth defect is the sure State which receives little or no attention from candidates. Fifth, the swing votes of minority voting blocs in the pivotal States. And sixth, the possible aggravated influence of fraud or accident in tipping any given State's electoral vote.

Direct popular election was then, and continues to be, the only proposal which eliminates all these evils. It deals with electors by abolishing them. It removes the contingent election from the Congress. And it deals with each of the six named practical evils by simply establishing the one-man one-vote principle for presidential elections. This

means

First, an end to minority disfranchisement at the State level. All votes cast within a State will be reflected in the national totals.

Second, by necessity there will no longer be a chance of a President elected with fewer votes than an opponent.

Third, there will cease to be any pivotal States as such because no State's votes are cast as a unit.

Fourth, the so-called sure State will disappear because candidates' efforts will be directed at people, regardless of location, and no Republican or Democratic minority in a State will be ignored merely because they are outnumbered there.

For similar reasons the fifth evil disappears. The so-called swing vote within a State loses its special attractiveness along with its power