politically doubtful states. By inflating the value of these individual popular votes, our presidential election machinery effectively denies to millions of Americans an equal opportunity to affect the outcome of presidential elections.

Under any system that retains either the "winner take all" formula or the electoral vote (allotting each state a number of electoral votes equal to its number of Representatives and Senators), we face the prospect of elevating to the Presidency a man who is not the popular choice of the American people. As a result of the mysterious arithmetic of the present system, for example, a candidate could win an electoral majority by capturing popular vote pluralities - no matter how small-in only eleven of the largest states and the District of Columbia. In short, the voters of thirty-nine states would have absolutely no voice in the choice of a President, even if they were unanimous in their opposition.

As Chief Justice Warren pointed out, "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." By eliminating the electoral vote and the unit rule, direct popular election would insure that a vote cast in one state would carry equal weight with a vote cast in any other state. Neither the present system, as we have seen, nor the district or proportional plans can offer this simple guarantee of voter equality in the election of the President.

2. Reynolds v. Sims, 377 U.S. 533, 555 (1964).

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COMMENT

THE HONORABLE KARL E. MUNDT†

N MARCH 26, 1962, the Supreme Court of the United States handed down its historic decision in Baker v. Carr.1 Subsequent decisions have further spelled out what has come to be known as the "one man, one vote" principle.

As a result of Baker v. Carr and Wesberry v. Sanders,2 great strides have been made over the last five years toward bringing state legislative districts and United States congressional districts into line with "one man, one vote" standards. In addition, these decisions focused attention on other units of government where obvious inequities existed.

The Electoral College, operating under the general ticket or unit rule ("winner take all") method, is, in my estimation, the most unfair, inaccurate, uncertain, and undemocratic institution of all. It was natural, therefore, that a suit challenging the constitutionality of such a system was filed in October of 1966 before the Supreme Court of the United States. This was an original action by the State of Delaware, as parens patriae for its citizens, against the State of New York, all other states, and the District of Columbia. It was brought under authority of article III, section 2 of the United States Constitution and section 1251 of the Judicial Code. The suit challenged the constitutionality of the respective state statutes employing the "general ticket” or “state unit-vote" system by which the total number of presidential electoral votes of a state is arbitrarily misappropriated for the candidate receiving a bare plurality of the total number of citizens' votes cast within the

state.

The Supreme Court refused to hear the case of Delaware v. New York. This was unfortunate, because an obvious inequity exists. No one will ever know why the Court declined to accept the case. There could be a recognition, however, that the Electoral College system of selecting our President does not lend itself to the same "one man, one vote" type of attack that prevailed in the legislative field. Other factors, the most important of which is the historical significance of the compromise between the large and small states that made the adoption of the Constitution possible, enter into the consideration.

+ United States Senator from South Dakota.

1. 369 U.S. 186 (1962).

2. 376 U.S. 1 (1964).

3. Delaware v. New York, No. 28 Original (filed July 20, 1966).
4. 28 U.S.C. § 1251 (1966).

5. 385 U.S. 895 (1966).

It is this same tendency to examine the supposed voting power of an individual in a mathematical vacuum, divorced from all other factors, that makes Mr. Banzhaf's article interesting but at the same time irrelevant. While his conclusions may be mathematically correct they are founded upon a mechanical computer and not the Constitution.

The supporters of the district plan for the election of the President do not deny that under such a system the voters of the smaller states would enjoy a somewhat greater voting power. Unless, however, we are to completely disregard the intent of the framers of the Constitution and rupture our federal system the cornerstone of our democratic government by the adoption of a direct election system, this must be so.

Under our present system, each state has a minimum of three electoral votes, regardless of its size. Any system which preserves this three-vote minimum and the federal principle involved will continue to grant a slightly greater voting power to some states. Indeed, this was the original purpose of the electoral vote bonus for smaller states, so that the greater populations of the larger states could not dictate the selection of the President. It was part of the compromise which made the Constitution possible.

On the other hand, the so-called "unit-vote" system is not part of our Constitution. It was unanticipated by the framers of that document and simply grew out of political expediency. Its use has resulted in disproportionate power for some states, and the voters in them, as Mr. Banzhaf's article points out, and should, in my estimation, be abolished in favor of the district plan.

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COMMENT

THE HONORABLE JOHN J. SPARKMAN†

THE ELECTORAL COLLEGE has digressed widely by custom and usage from what was perhaps the cardinal purpose of its genesis: the independent election of a President by electors. It is but an empty shell in the constitutional fabric of our government. Therefore, a fundamental desire for legal correctness, especially among members of the bar, might well compel us as a nation to make some obviously necessary changes.

This assumption, however, does not justify discounting as frivolous the fact that there are in existence definite opposing forces, e.g., the element of resistance to discarding what is in reality a tradition, albeit based to a certain extent on superficial reasoning, and a somewhat hypercritical view of constitutional values. Nor does the assumed need for a change justify ignoring other arguments. One such argument is that the present system, with all of its mere honorary formalities of certifying the votes of electors, at least affords a state unit or geographical system of voting that could well contribute more to a balanced government, in the long run, than the other extreme of direct election of President and Vice President irrespective of state or geographical considerations.

8

While not criticizing unduly the able and informative work that has been done in Mr. Banzhaf's article, One Man, 3.312 Votes: A

† United States Senator from Alabama. Chairman, Banking and Currency Committee, United States Senate.

1. Article II, section 1 of the Constitution of the United States, prior to being amended by the twelfth amendment, required electors to vote by ballot for two persons, and provided that "The Person having the greatest Number of Votes shall be President, if such Number be a Majority. ..." The selection of a President was intended to be removed from the complete control of the people by means of a double election. At one point in the Constitutional Convention, consideration was given to allowing Congress to select the President. See the remarks of Mr. Wilson at the Pennsylvania Convention, 2 J. ELLIOT, THE DEBATES IN THE SEVERAL CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 511 (1859). The Electoral College once agreed on, however, seems to have been accepted with complacency and was referred to at times as the mode of appointment of the chief magistrate of the United States. See, e.g., THE FEDERALIST No. 67 (Hamilton).

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2. The presidential electors have become a mere cog-wheel in the machine; a mere contrivance for giving effect to the decision of the people. Their personal qualifications are a matter of indifference. They have no discretion, but are chosen under a pledge a pledge of honour merely, but a pledge which has never (since 1796) been violated to vote for a particular candidate. In choosing them the people virtually choose the President, and thus the very thing which the men of 1787 sought to prevent has happened - the President is chosen by popular vote. 1 J. BRYCE, THE AMERICAN COMMONWEALTH 41 (1893).

3. In addition to the geographic protection afforded by the Electoral College, both article II, section 1 of the Constitution and the twelfth amendment contain the language that when the House of Representatives must select a President "the Votes shall be taken by States, the Representation from each State having one Vote... Protection of small states from the overwhelming power of larger states is a traditional norm of balance in our form of government.

Mathematical Analysis of the Electoral College, it might be observed that the term "relative voting power" computed mathematically or otherwise is indeed a relative term. Under the present system it may be relative to whether the state is to be carried successfully by the voter's party. Under direct elections, while each vote is equal, the percentage value of a vote could relate to light or heavy voting. This in turn may relate to concentrations in presidential campaigns which would normally favor large states and densely populated areas. It might also be observed that the true and balanced constitutional values to be sought may not lie in attempting to assure an exactly equal value to the last mathematical degree of each and every vote for President and Vice President. On the contrary, we should consider broad and long term values. I feel that we should discard the "winner take all" unit-voting system1 and abolish the positions of electors. At the same time, we should maintain voting balance in keeping with the spirit of other balances provided in the Constitution and intended by our founding fathers in the provision in article II, section 1 of the Constitution that each state shall be entitled to a number of electoral votes "equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." This principle of representative government was not changed by the twelfth amendment ratified in 1804, and as recently as 1961 it was affirmatively recognized and approved in the ratification of the twenty-third amendment, which gave the District of Columbia a voice, not to exceed that of the least populous state, in the election of the President and Vice President."

The general arguments for popular election of the President and Vice President could be met by providing that the electoral votes of a state, which are subject to change by the census, should not be cast as a unit, but on the basis of a direct percentage relation to the actual votes

4. All of the electoral votes of a state by custom or statute are cast for the candidate who carries the state irrespective of the margin of victory. The Supreme Court has refused to hear a petition challenging this practice. Delaware v. New York, 385 U.S. 895 (1966).

5. This proposal would repeal the second paragraph of article II, section 1 of the Constitution which reads "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. ..." It would repeal also all references to electors in the twelfth amendment.

6. However, the provision in article II, section 1, giving each state an electoral vote "equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress," would be retained.

7. The District of Columbia has been allowed 3 electoral votes, which as of 1964 was the same number as those of Alaska, Delaware, Nevada, Vermont, and Wyoming.

8. Article I, section 2 of the Constitution assures each state of at least one Representative in the House of Representatives and requires an enumeration of the House every ten years. Section 2 of the fourteenth amendment clarifies the apportionment-by-population language of article I. As the number of Representatives from a state changes, the number of electoral votes changes.