are handled. There would no longer be "sure states" or "pivotal states" or "swing voters" because votes would not be cast in accordance with a unit rule and because campaign efforts would be directed at people regardless of residence. Factors such as fraud and accident could not decide the disposition of all a state's votes. Direct election would bring to presidential elections the principle which is used and has worked well in elections for Senators, Representatives, governors, state legislators, mayors, and thousands of other officials at all levels of government. That principle, “one person, one vote," would make the votes cast by all Americans in presidential elections of equal weight. All votees would be reflected in the national tally. None would be magnified or contracted. All citizens would have the same chance to affect the outcome of the election. Finally, under a popular vote system, presidential elections would operate the way most people think they operate and expect them to operate.

The directness and justice of the ABA recommendations prompted an excep tionally uniform favorable reaction throughout the press of the nation, as editorialists and columnists for the most part endorsed the Commission's proposals. Gallup polls revealed that a substantial majority of the people favor direct popular election of the President.

Despite the prompt and affirmative response to the American Bar Association's proposals, objections to the proposed reforms have arisen. Any suggestion to change old ways of doing things, of course, always invites vigorous objections— a healthy enough tendency in matters calling for constitutional amendment.

Now I will address myself to the main arguments raised against direct election. They may be grouped under three headings: (1) Large or small state advantage, (2) threats to the two-party system, and (3) vote counting procedures.

1. Will Either Large or Small States Lose a Present Advantage? (a) The Small State Advantage Argument

In the past, too many have dismissed direct election proposals without reaching their merits, claiming that such an amendment could not possibly be ratified by three-fourths of the states.

After holding extensive hearings on the subject, the late Senator Estes Kefauver wrote in 1962:

"The most frequent argument made against direct national election in the Congress is that it would be futile for Congress to submit such an amendment to the states; that it would have no chance of ratification by three-quarters of the states because thirty-six of them have added weight in the election of the President by reason of the Electoral College system."

1 20

The Senator then questioned this reasoning, but it remains a widely held misconception that smaller states might cling to a supposed electoral advantage of the present system.

Behind this is a deceptively simple mathematical view of relative voter strength in Presidential elections. Based upon the 1960 census, Alaska has 1 elector for each 75,389 persons; at the other extreme, California has only 1 electoral vote for each 392,930 persons. The easy inference is that an Alaskan has 5 times the weight of a Californian. By the same method, each Nevadan (1 elector per 95,093 persons) has 4 times the weight of each New Yorker (1 elector per 390,286 persons). Thirty-five states and the District of Columbia have a more favorable ratio than the national average of 1 elector per 333,314 persons.

Direct election was recently opposed on the theory that it will deprive small states of a present advantage in a law journal article which was inserted in the Congressional Record." It was noted that Alabama casts 2% of the Nation's electoral votes, while casting less than .9% of the national popular vote; and the writer computed that New York had only 4 times the electoral power of Alabama even though it had 10 times as many voters. Similar figures were shown for the 25 least populated states, and it was concluded that the American Bar Association's proposal "will not sell" to the less populated states. Reserving for a moment the mathematical issue, let's examine the view that small states' citizens cannot be sold on the principle of voter equality in Presidential elections.

20 E. Kefauver, The Electoral College: Old Reforms Take On a New Look," 27 Law and Contemporary Problems 188, 195 (1962).

21 J. Thornton, "An Analysis of Electoral College Reform," The Alabama Lawyer (1968); reprinted at 115 Cong. Rec. $890-2 (Daily Ed., January 24, 1969).

First, this prophecy is not justified by the positions of their elected leaders. No public official has a higher duty to represent the interests of a state in national politics than does its United States Senator. It is noteworthy, therefore, that Senators from smaller states are increasingly prominent among those who are sponsoring direct election proposals. They include Senators Gravel of Alaska, Inouye of Hawaii, Magnuson and Jackson of Washington, Hatfield and Packwood of Oregon, Bible of Nevada, Church of Idaho, Mansfield and Metcalf of Montana, Burdick of North Dakota, McGovern of South Dakota, Pearson of Kansas, Bellmon of Oklahoma, Randolph and Byrd of West Virginia, Ribicoff of Connecticut, Pell of Rhode Island, Aiken of Vermont, McIntyre of New Hampshire, and Smith and Muskie of Maine.

But what of the legislatures of these small states? Here, too, we are not left to speculation. In 1966 Senator Burdick of North Dakota polled state legislators on their preferences among the various proposals for Electoral College reform." A surprisingly high return, 2,500 of 8,000 polled, showed 58.8% in favor of direct election. It was supported by 50% or more of the legislators replying from 44 states. Most significantly, there was little variation between large and small states. Among the most heavily populated states, California legislators voted 73.5% for direct election; New York legislators, 70.0%; Pennsylvania, 55.8%; Michigan, 52.4%; and Ohio, 57.1%. In the five smallest states-those with only 3 electoral votes-Vermont voted 60.9% for direct election; Nevada, 62.5%; Wyoming, 55.5%; Delaware, 53.8%; and Alaska, 50.0%.

The House of Delegates of the American Bar Association, a cross section of American lawyers, approved our Commission's report by a 3 to 1 margin. Direct election has also been endorsed by other organizations representing wide segments and sections of American life, including the AFL-CIO, the U.S. Chamber of Commerce, the United Auto Workers, and the National Federation of Independent Business. Public opinion polls show that 79 to 81% of people throughout the country favor our proposal. Thus, those who accept the principle of popular election of the President should not assume that citizens of small states do not also accept it.

The small state advantage argument is diametrically opposed by a plausible theory that it is large states who profit from the present system.

(b) The Large State Advantage Argument

In a curious cross fire, direct election is also opposed by some champions of large states' interests. They claim that the small state advantage in ratio of electors to population is more than offset by the advantages accruing to large states from the winner-take-all laws. One such observer recently wrote that the features of the present system

"have bred in modern times the decisive influence in Presidential elections of the large populous, heterogenous states, where bloc voting, as by ethnic or racial minorities or other interest groups, often determines the result. Much of the popular vote in the smaller, relatively homogenous states, is simply wasted. Politicians and political scientists have at any rate long assumed that the Presidency is won or lost in large states. . . we can now establish mathematically why modern Presidents have been particularly sensitive to urban and minority interests. And only men who can be so responsive are generally nominated

and elected.'
"123

The mathematical proof referred to is Mr. John Banzhaf's analysis of voter power" which calculated by computer the individual voter's chances of affecting the outcomes in both his state and the national totals. This is a functional view of voting power; it is defined simply as "the ability to affect decisions through the process of voting." Banzhaf found that an individual voter in states like New York and California has more than 21⁄2 times as much chance to affect the ultimate presidential outcome as a resident of a smaller state. This results from the fact that the large state voter influences a much larger unit of electoral votes. Each New Yorker now votes for 43 electors and thus participates in casting 14 times as many electoral votes as does a Nevadan.

This analysis confirmed what scholars and national politicians had sensed for many years. A leading scholar of the Presidency, writing in 1898, summarized the effects of the system to that points as follows:

22 Pierce, "The People's President," 265 (1968).

23 Bickel. "The New Age of Political Reform," 5-7 (1968).

24 J. F. Banzhaf, III, One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College," 13 Villanova Law Review 303 (1968).

“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 necessary 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." 25

The historical record was updated recently when Delaware, joined by twelve other states, unsuccessfully sought U.S. Supreme Court relief to invalidate the state general ticket laws. Delaware alleged :

"Sixteen of the two parties' 50 nominations for the Presidency from 1868 through 1964 have gone to New Yorkers. Of the total of 100 nominations for President and Vice-President, citizens of New York have been nominated in 24 instances. Six large states (New York, California, Illinois, Indiana, Massachusetts and Ohio) account for 68 of the total of 100 nominations, while the citizens of 26 states, including Plaintiff, have been totally excluded from the nominations. Plaintiff is one of eight of the original 13 states (Connecticut, Delaware, Georgia, Maryland, North Carolina, Rhode Island, South Carolina, and Vermont) which has never elected one of its citizens President in the 45 elections conducted in our 177-year history and these citizens have been totally excluded from nomination for either President or Vice-President during the past century. . . . Plaintiff was the first state to ratify the Constitution but the unforeseen state unit system in presidential elections has reduced it and its citizens to a second-class citizenship in national politics. Plaintiff and other small states as virtual bystanders do little more than watch while the large states serve as the fields of contest in national elections." "

The present system obviously cannot favor both large and small states vis-a-vis each other. One of the two opposing views must be unsound in its premises. But in the ascendancy of one man-one vote, it is impossible to justify any system on the ground of voter inequality. Both arguments are unsound in principle.

Without attempting to resolve the large versus small states issue, the ABA seeks to eliminate whatever unfair advantage either may have by virtue of the present system. Recent polls show that citizens of both types of state want no such advantage. As a matter of Constitutional structure, surely no citizen's influence upon his President should depend upon his geographical location within the United States. Only direct election will achieve this voter equality. 2. Effects Upon The Two-Party System

This question occupied much of the ABA Commission's attention, and it adopted its position with confidence that direct election carries no risk of producing a multi-party system. Nonetheless, such objections have been raised. They are dif ficult to answer to the opposition's satisfaction because none of us can prophesy future political events with absolute certainty—including those who predict dire consequences to the two-party system. However, we can project probabilities upon the basis of relevant experience and expert opinion. This we did in 1967; and recent reappraisals in light of the 1968 election only strengthen our position. Those who oppose direct election on third-party grounds labor a hard oar after the 1968 election. None has demonstrated more dramatically the potential for third-party leverage under our present system. I have mentioned three contingencies which in 1968 could have prevented any candidate from winning a majority of the electoral votes. The Wallace electors would have held a decisive balance of power when the Electoral College met on December 16th. We need not speculate further; the point was made 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 the Wallace candidacy sought to exploit. It would also remedy other faults which can magnify third-party efforts. Close analysis proves that direct election will actually

Stanwood, 2 "A History of the Presidency" 13 (1968).

23 Complaint at 12-13, State of Delaware v. The State of New York, et al., 385 U.S. 895 (1966).

strengthen the two-party system-not weaken it-by removing special incentitives to third parties and equalizing all voters throughout the Nation.

Analytically, there are three distinct types of third-party efforts-local, regional and national. The first two would undoubtedly be weakened by direct election. Local, or intra-state, parties, such as the Liberal and Conservative Parties in New York, now may sometimes have a pivotal power to tip a state's electoral bloc for or against one of the major candidates. An example is the Progressive Party vote for Henry Wallace in New York in 1948, whose main effect was to deny the state's electoral votes to Harry Truman. Under direct election the votes of such a splinter group would count only for what they are worth in numbers of persons; and votes for major candidates would always count nationally.

Regional or sectional parties include the States' Rights candidacy of Senator Thurmond in 1948 and, as it developed, the candidacy of Governor Wallace in 1968. Sectional feelings reflected by a plurality of popular votes in a few states can deliver large blocs of electoral votes and possibly produce a balance-of-power position in the Electoral College. The ruling of this Congress on the North Carolina elector who defected from Nixon to Wallace removes any doubt that the Wallace electors could have legally voted for a major candidate. Under direct election all votes will be counted as cast and a third candidate can receive no disproportionate leverage from being able to carry a few states.

The final type of third party, the national effort, is more difficult to analyze. Some argue that national third-party efforts would be encouraged by direct election merely because all state popular vote totals would be reflected in the national totals, whether or not any states were carried. This question was studied closely by our Commission. We found little evidence that elimination of the Electoral College would harm the two-party system and concluded that direct election is more likely to strengthen it.

Among the voluminous materials studied by the Commission was a collection entitled "Why Two Parties?" which was furnished us by the Commission's advisor, Mr. John Feerick. After personally exhausting the literature on the subject, Mr. Feerick selected for study by the entire Commission excerpts from the writings of ten political scientists" who have given special attention to the causes and functioning of political party systems. We learned that no single factor accounts for the two-party system and that there is considerable disagreement as to its major causes. As stated by V. O. Key:

"Explanations of the factors determinative of so complex a social structure as a party system must remain unsatisfactory. The safest explanation is that several factors conspired toward the development of the American dual party pattern. These included the accidents of history that produced dual divisions on great issues at critical points in our history, the consequences of our institutional forms, the clustering of popular opinions around a point of consensus rather than their bipolarization and perhaps others. The assignment of weights to each of these is an enterprise too uncertain to be hazarded.""

Among the causes listed by Key and others as accounting for our American commitment to the two-party system are: persistence of initial form; election of officials from single-member districts by plurality votes; the normal presence of a central consensus on national goals; cultural homogeneity; political maturity; and a general tendency towards dualism. Some of the experts list the Electoral College as a factor which may contribute," others ignore it," and some suggest that it is functionally opposed to two-partyism and that our party system may have survived despite the Electoral College rather than because of it."

The experts are virtually in agreement on one point, however. It is that election of legislators and executives by plurality votes from single-member districts is

27 W. Goodman, "The Two-Party System in the United States" (1956); J. Grumm, Theories of Electoral Systems, 2 Midwest J. of Pol. Sci. 357-376 (1958); A. Holcombe, "The Political Parties of Today" (1924); V. Key, "Politics, Parties, and Pressure Groups" (5th ed. 1964); H. Penniman, "Sait's American Parties and Elections" (5th ed. 1952); C. Rossiter. "Parties and Politics in America" (1962); E. Schattschneider, "Party Government" (1942); A. Sindler, "Political Parties in the United States" (1966); W. Sharp, "The Government of the French Republic" (1938). The work of Maurice Duverger, a French scholar of comparative party systems should also be regarded as having been studied because the American writers rely heavily upon his views.

28 Key, supra note 27, at 210.

Rossiter, supra note 27 at 7. Key also lists the Presidential election system but its popular election feature and the nationalization of election efforts are emphasized, not the formal legal structures. Key, supra note 27, at 209.

30 Schattschneider, supra note 27, at 65-84.

* Goodman, supra note 27, at 34. Sindler, supra note 27, at 56.

can be adopted to assure an effective system of direct popular election of the President.

CONCLUSION

The trend of our political system is toward direct democratic participation of the people at every level. That trend has been reflected in the Fifteenth, Seventeenth, and Nineteenth Amendments to the Constitution. It should now be reflected in an amendment providing for popular election of the President, the last major office in the country on which the people do not have a direct voice. Thank you.

STATEMENT OF ABRAHAM HORNSTEIN, BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, OF THE SENATE JUDICIARY COMMITTEE

The approach to Electoral College reform heretofore taken in testimony before this subcommittee, in views expressed by executive and legislative leaders, and in numberless magazine and newspaper articles and editorials, has fallen substantially into two categories—(1) insistence that the need for meaningful change is so great that no one can persist in opposing it, and (2) recognition that there will be opposition on the part of those whose interests would be adversely affected.

The response has veered between (1) crusade to achieve the apparently unobtainable to "dream the impossible dream", and (2) resignation to apparently inevitable defeat and consequent willingness to settle for surface reform.

Aside from the idealists who simply denounce all who stand in their path, it is generally recognized that the problem resides in the fact that the affirmative vote of 38 States is required for the adoption of any constitutional amendment and that there are more than 12 States whose interests would be substantially adversely affected by any far-reaching reform, such as popular election of the President and the Vice-President.

The 15 least populous States [Alaska, Nevada, Wyoming, Vermont, Delaware, New Hampshire, North Dakota, Hawaii, Idaho, Montana, South Dakota, Rhode Island, Utah, New Mexico and Maine] had, as of the last decennial census, an aggregate population comprising only 50% of the national population [9,242,698 out of 178,559,219 (excluding the population of the District of Columbia which, although it possesses electoral votes, cannot affect the adoption of a constitutional amendment)]. Those 15 States control 102% of the votes in the Electoral College [55 out of 535 (again excluding the District)].

The inhabitants of those 15 States, therefore, possess twice as much power to determine the election of a President and a Vice-President in the Electoral College as they would in a popular election. To expect them voluntarily to surrender that advantage without some consideration therefor is unrealistic.

The picture, however, is not fully presented even by the contrast just drawn. In the event that no candidate for President or Vice-President secures a majority of the Electoral College vote, election of the President is thrown into the House of Representatives and of the Vice-President into the Senate. In the House, where voting for President is by states, the 15 least populous states command 30% of the votes [15 out of 50]. In the Senate, similarly, the 15 least populous states command 30% of the votes cast [30 out of 100].

Irrational as it is to expect states comprising 50% of the population to surrender, without consideration, their control of 10%% of the votes in a normal election, it is even more irrational to expect them to surrender their commanding lead of 30% of the votes in an election so closely contested that it is thrown into the House and the Senate. It is futile to declaim against this situation. It is obvious that the least populous states must be compensated for surrendering their present advantageous position.

You will observe that I have not sought to evade use of the word “compensate". To some, it may appear that the concept of "compensation" is degrading. It did not so appear to our Founding Fathers. When confronted with an analo gous situation, where the more populous states of the projected union were reluctant to accord equal representation to the less populous states, and the latter were unwilling to submerge the interests of their inhabitants, a compromise was effected by the adoption of our present bicameral legislative system. The time has come to enter into a second great compromise to give our least populous states a reasonable measure of compensation for surrendering the