permissible if the Fifth Amendment is held to be applica

ble.

Viewing the presidential election, including the intrastate election of presidential electors, as an integrated federal process, voters in one state may appeal to the Due Process Clause of the Fifth Amendment to prevent another state in its discharge of an essentially federal function, from operating capriciously so as to cause gross national inequities in voter effectiveness. A voter in any state may object, under the Fifth Amendment, to the use by any state of a balloting and counting system which in its general national effect operates (a) to translate narrow popular pluralities in a state into unanimous stateunit electoral votes, and to translate popular votes for losing candidates into zero in electoral votes, no matter how narrow the losing margin; (b) to separate unnecessarily partisans of both parties from their fellow partisans in other states; (c) to cause gross and unnecessary inequalities in voter status and voter effectiveness visa-vis the presidency. All obviously exceed due process limitations.

III

The State Unit System Operates to the Unfair Advantage of Large States and Their Citizens and Denies Citizens of Delaware and Other Small States Privileges of United States Citizenship in Violation of the Fourteenth Amendment.

Plaintiff's first argument covered unconstitutional intrastate effects of individual state unit laws. The second covered the interstate, or extra-territorial, denials of voting rights throughout the United States caused by the combined national effects of such laws. This proposition is based upon specific injuries to citizens of Delaware and other small states caused by the political advantages which the state unit system gives to large states.

The facts alleged in this regard in paragraphs 14 and 15 of the Complaint cry out for relief. It cannot be disputed that the attractiveness of large states' blocs of electoral votes cause voters and potential candidates therein to receive special attention. The facts as to the home states of those elected and nominated prove that the tendencies of the system have indeed reduced citizens of Delaware, the first state, to a second class citizenship in national politics. Although this is now a glaring reality, it has been apparent to the experts for many years. Writing in 1898, a leading scholar on the presidency summarized the purpose and effects of the state unit-vote system as follows:

"Originally, in most of the States where the popular
system prevailed, each voter cast his ballot for
three electors two for the State at large, and one
for the congressional district in which he resided.
But politicians soon discovered that the weight of
the State's influence was increased by a general
election of the whole number by the plan known in
France as the scrutin de liste. As soon as a few
of the states had adopted this method it was neces-
sary for the rest to do the same, for self-protection
. It is in this feature that the electoral plan of
1787 fails most conspicuously. The general ticket
greatly increases the power of the large states.
Since the first election of Jackson, when it became
the usual rule of election, no President has been
chosen in opposition to the vote of both New York
and Pennsylvania, and but four in opposition to the
vote of either of them." 2 Stanwood, A History of
the Presidency 15 (1898).

Under the present system, the electoral votes of the eleven largest states, plus that of any one other state, is sufficient for election. These eleven states are New York, California, Pennsylvania, Illinois, Ohio, Texas, Michigan, New Jersey, Florida, Massachusetts and Indiana. In 1964 there were approximately 70.3 million popular votes cast in the nation for the two major candidates, of which 42.6 million were cast in these eleven states. A bare plurality in these states, approximately 21.4 million votes,

could have determined which candidate received their 268 electoral votes. Less than 30% of the national electorate therefore could have controlled the election because of their power over the largest blocs of electoral votes.

The strategic advantages of voters and candidates in these states is obvious and it is generally conceded even by defenders of the state unit system. Extensive hearings were held on this subject and proposed constitutional reforms by the Senate Judiciary Subcommittee on Constitutional Amendments in 1961. A staff study of the evidence developed in the hearings on evils of the present system and effects of proposed reforms included the following pertinent conclusions and observations:

"A further charge against the unit-rule system is that it strongly tends to overemphasize the political importance of the large populous states. This has meant that presidential candidates have come almost exclusively from such States. Except for Mr. Landon of Kansas in 1936 and the incumbent President Truman of Missouri in 1948, both major parties have limited their presidential nominations in the last half century to men from the eight largest States. Able men from small States are given little chance to secure nominations from either major party, and are generally not even regarded as 'presidential timber.' Both major parties are accused of greater concern with the capacity of their candidate to carry certain pivotal States than to command the support of voters throughout the Nation as a whole.

"The pivotal State also tends to monopolize the attention of the candidates and their campaign efforts with the result that presidential campaigns are not carried to the Nation as a whole. States which are not regarded as doubtful, or which are considered of less importance, are relatively ignored. Citizens in the smaller States are less apt to see or hear the candidates in person and may be inclined to think that their interests are of less importance to the candidates. For the same reason, it is charged that issues, party platforms, and campaign promises are formulated with a view to these pivotal States.

"At this point, the argument becomes a pragmatic one addressed to the substantive programs of presidential candidates. These States for the most part have large metropolitan areas and heavy concentrations of urban voters who may be able to determine the winner of the State's electoral vote. President Truman, supporting a district system, stated:

'The electoral college was first devised to protect the small States from dominance by the larger States, as for example, Delaware and Rhode Island from being dominated by Virginia and New York.

'The problem we face today is that of the emergence of the big cities into political overbalance, with the threat of imposing their choices on the rest of the country.'

"Former President Hoover sounded a similar note in writing to Senator Kefauver concerning the subcommittee's hearings:

'Your subject is important. It confronts the same difficulties as were met by the Founding Fathers that is, to prevent domination by a

few large States.'

"In other words, despite the imbalance in the electoral college favoring small States, the large urban States have come into dominance because of the operation of the unit rule. Most defenders of the present system do not dispute this point. They concede that the present electoral system has an urban bias but justify it as compensating for other claimed inequities in our State and Federal Governments which are said to favor rural interests at the expense of urban areas. The following are representative of several statements to this effect submitted to the subcommittee by political scientists.

"Dean Stephen K. Bailey, Maxwell Graduate School of Citizenship and Public Affairs, Syracuse University:

'I am presently opposed to any change in the electoral college system. I believe the electoral college system presently overrepresents big urban States and minorities within those urban

nia:

States. I am prepared to admit the injustice of this. At such a time when the House of Representatives ceases to overrepresent egregiously, nonurban and rural areas, I would be willing to advocate some modification in the electoral college system.'

"Prof. H. D. Rosenbaum, Hofstra College:

'As I have come to understand the system of electing a President, its most important function in that regard has been to compensate for the rural domination of State and Federal legislatures by locating electoral decision in those States which, taken all together, comprise a majority of the electoral college vote. In this way the otherwise underrepresented majority of the urban-industrial States can at least provide a counterbalance in our political system.' "Prof. Clyde E. Jacobs, University of Califor

'While I favor direct popular election of the President, I am strongly opposed to any change in the present system if direct popular election is not provided. I am particularly against the old Lodge-Gossett and the Mundt-Coudert plans. These are calculated to undermine the influence of the large industrial States in selecting the President. In view of the fact that nonurban populations possess disproportionate influence in Congress and the State legislatures, it is little enough for our urban population to enjoy greater influence in the selections of the Chief Executive. We will really be headed for national disaster if the Presidency is made captive to the same forces which usually dominate our legislative bodies.'" Staff of the Subcommittee on Constitutional Amendments, Committee on the Judiciary, 87th Cong., 1st Sess., "The Electoral' College, Operation and Effect of Proposed Amendments to the Constitution of the United States", 31-32 (Comm. Print 1961).

Needless to say, the above-quoted arguments of those defending the present system now cut the other way. Decisions of this Court are causing state legislatures and delegations to the House of Representatives to be appor