contest, with every polling place in the country having to be recounted and reviewed and the problems of fraud and the like would plague us, and could keep the election in doubt for many, many weeks.

If you had something like happened this year in Illinois, and had it on a nationwide basis, you could have a situation where you would not know until the first of the year or even after what the final outcome

was.

I might comment that others have suggested a plan similar to mine, particularly the distinguished majority whip in the House, Mr. Boggs, have suggested a plan similar to mine, except that he would have the runoff only if no candidate obtained 40 percent of the electoral vote. Now here while I do not think it is a matter of tremendous consequence, I think when you are talking about electoral vote under the present system, it is proper to talk about a majority of the electoral vote, and have that cutoff point, because as you know, generally it is much easier to get the majority in the electoral, an absolute majority in the electoral college than it is in the popular vote, so that I think in the case of our proposal, and as I understand it you would call for a runoff in the event no candidate obtained 40 percent of the popular vote, I think that is a good cutoff point and I have no quarrel with that. But I think if you are talking in terms of electoral vote, the cutoff point for a runoff should be the majority.

Otherwise you could have a candidate who would win, let us say, 40 percent of the electoral vote with as little as 25 or 30 percent of the popular vote, and I do not think that should assure him the election. That is the only difference between my plan and Mr. Boggs' plan.

Senator BAYH. I introduced at one time a measure which would have taken care of the individual elector, and have had varying runoff plans to take this possible contingency of one State, one vote out of the picture. I have been advised by several of my colleagues that this is pretty well like giving an aspirin to an elephant to relieve a stomach ache as far as the inequality of the overall system.

I am sort of torn, in looking at this between the possibilities for passage and the whole feeling that this would be the best improvement to the system. On one end of the spectrum, I ask, does it go far enough to really deal with the basic inequality of the present system. Two, if indeed it does not, then does it diminish the demand nationwide for basic reform that will make subsequent reform impossible? That is something that is strictly hypothetical and none of us really

can answer.

Representative BINGHAM. Could I just make this comment on that, Mr. Chairman? And this comes back to something I said at the outset. I think we should bear in mind that while we have every right to be concerned about this whole matter, the questions really only do arise in the case of close elections, so that nine elections out of 10 it does not make any difference which system you have, you are going to get the same result, and that is why I am not as disturbed as you are about not trying initially to cope with this very difficult problem of how you count the votes.

Senator BAYH. We appreciate having your thoughts. Thank you very much, Congressman Bingham.

Representative BINGHAM. Thank you very much, Mr. Chairman. (The text of Representative Bingham's prepared remarks follows:)

TESTIMONY OF REPRESENTATIVE JONATHAN B. BINGHAM

It is now clear to all that the present system of electing the President must be changed. The country had a scare last Fall, a legitimate scare. What would have happened if the election had gone to the House? What if the House could not agree, and the Senate chose a Vice-President who would act as President? How would the uncertainty, spread out over weeks, have affected the country? These are the questions that worried us last Fall. They should not be forgotten now. More recently, Dr. Lloyd Bailey of North Carolina made us focus our attention on another problem. Dr. Bailey, in casting his vote for Mr. Wallace instead of Mr. Nixon, who won in North Carolina, pointed up the danger that electors may, in most states, vote for anyone they wish. In a close election, very few renegade electors could change the election results by changing their votes. At present, only seventeen states have laws containing specific instructions to electors. Three additional states require that only citizens who have made a pledge may be selected as electors. Thus, the electors of thirty states are free to vote as they please.

There is consensus on these two major defects in the present system: first, possible election of the President by the House, along with election of the VicePresident by the Senate; and second, the problem of the faithless elector. There is general agreement that the system must be reformed to correct these two de fects. Beyond that, there is no agreement.

However, there is wide, and seemingly growing, pressure to shift to a direct popular election. Senator Bayh and Representative O'Hara, along with many cosponsors, have introduced Joint Resolutions proposing such an amendment. The American Bar Association has supported this proposal, as has Americans for Democratic Action. The polls seem to show that the majority of Americans presently favors a direct vote.

But what is needed at this time is not so much enthusiasm as examination. Great newspapers have come out in favor of the direct vote without sufficient analysis, without the caution that ought to be shown when the consequences of such a shift are so unclear.

In contrast, the distinguished Chairman of this Committee has submitted two different proposals for the high purpose of stimulating discussion about them, rather than to rush one or another through. For this, I salute him.

Because of the current focus on the direct vote proposals, I will discuss the merits of this proposal before any other.

DIRECT ELECTION-PROS AND CONS

The merits of the direct vote are: first, that it removes the dangers of throwing the election into the House; second, that it does away with the problem of the faithless elector; and third, that it makes it impossible that a minority, or more technically, a non-plurality President-that is, one with less popular votes than another candidate could be elected.

The dangers of election in the House and of the faithless elector can be remedied by a number of less fundamental changes, so the main argument for direct elec tion is that it is the only plan that makes absolutely impossible the election of a President with a plurality of electoral votes but with less than a plurality of popular votes.

The election of a non-plurality President is possible under the present electoral system, but it is possible only when the election is very close.

The only time in our history that a popular plurality has actually produced less than the highest number of electoral votes was in the Harrison-Cleveland election of 1888, where Harrison won, even though Cleveland had 100,000 more popular votes. (We have had two other non-plurality Presidents, Adams in 1824 and Hayes in 1876, but these results were attributable to the intervention of the House.)

In the situation where there is a possibility of a non-plurality President, what is the magic of having such tremendous consequences flow from having 100,000 votes swing one way or the other? As Alexander Bickel of Yale Law School has pointed out, referring to the 1960 election: "When 70 million votes divide so closely, only an immensely dogmatic majoritarianism would insist that the socalled winner has the sole legitimate claim to office. In truth, there is a stand-off, and the question is merely of a convient device any convenient device previously agreed upon-for letting one of two men govern."

One of the marvels of the American political system is the peaceful acceptance of the result by the defeated candidate and his followers, even where the margin is very small. Surely we do want to be careful not to jeopardize this tradition of acceptance.

Professor Bickel says that, since the electoral college has had a tendency to magnify small popular vote margins into definite electoral college victories, the electoral vote system tends to insure greater acceptance than would a small popular vote margin. An electoral victory makes it quite clear who the winner is. This is the central question of any election: the winner must be clearly identified as such, for he must govern. In this respect, the electoral vote system may well be superior to a direct popular vote.

There are, in addition, several substantive objections that have been raised against the direct popular vote. The first is that an entirely new system of electing the President might create new political institutions. Professor Ernest Brown of Harvard Law School has said that, since our institutions slowly adjusted over a period of 60 years to become effective under the present electoral machinery, a change in that machinery should not be made unless we are wholly sure that we wish to junk our present political institutions in favor of whatever may develop under new election machinery.

The most significant institution to be threatened by the direct popular vote proposal (with a run-off) is the two-party system. No one claims to be able to predict what will happen, but the likelihood of danger does seem significant enough to require that we examine the warning carefully.

Professor Bickel argues that, under the present electoral system, each party exerts centripetal force, discouraging individual forays, and tying to itself the ambitions and interests of men who compete for power. The system tends to insure that the winners can govern, says Professor Bickel, and tends to insure that there are few irreconcilable losers. A two-party system has the advantage of forcing coalition and compromise before a general election. In a multi-party system, the compromise does not come until after the voter has had a chance to select from among pure positions. Bickel says that the result is that ideologies become hard-edged, that accommodation is more difficult, more grudging, and often impossible.

The electoral college defers splinters because a challenge must now have a regional base to be effective. But with a direct popular vote, Professor Bickel shows, non-regional interests that have failed to influence conventions would be tempted to enter the general election in the hope of gathering enough votes to bargain with in the run-off. In Bickel's view, it is likely that enough separate candidacies would emerge to cause a run-off practically every time. Under such conditions, it is difficult to see how the two parties could maintain their present dominance.

Professor Ernest Brown of Harvard Law School states that the object of every candidate under a popular vote run-off system would be to cause at least a run-off if he himself cannot win. The best way to do this is to try to divide the electorate along doctrinaire lines. Thus a one-issue doctrinaire candidate stands to profit if he can encourage other one-issue candidates to enter the race, even though their views may be opposed to his, if he believes a run-off would give him bargaining power.

Professor Brown is confident that, had the 1968 election been by direct popular vote with a run-off provision, there would have been several one-issue candidates, and that each of the two leading candidates might well have had no more than 30 or 33% of the vote.

Under the present system, it is relatively difficult to throw the election into the House (our present form of run-off) because it requires electoral votes to do so, not just popular votes. Thus, splinter candidates are encouraged today only if they can expect to win in several states.

If the hypotheses of Professors Brown and Bickel are even remotely realistic, the prospect of third, fourth, and even fifth party candidates, bargaining for concessions from the front-runners becomes uncomfortably real.

Another question that must be raised about a direct popular vote is that it might create a change in the delicate balance between the legislative and executive branches-what the then Senator John Kennedy called, in 1956 hearings on electoral college reform, "the whole solar system of government."

Professor Bickel argues that a direct vote system would put a premium, not on carrying the big industrial states (as is now the case), but on achieving the largest possible majority in the smaller, more homogeneous ones. Furthermore, Bickel says, there would be little or no incentive for the President to be a par

ticular spokesman for urban and minority groups, as a countervailing force to Congress.

He argues that such a countervailing force is needed, since the Senate is con. stitutionally malapportioned in favor of the smaller, mostly rural states, and since the House, largely because of its internal methods of distributing powermainly the seniority and committee systems-tends to be somewhat conservative. Professor Bickel further argues that: "A system of countervailing centers of power may be better for a country as large and still as diverse as ours than one in which Congress and the President represent more nearly the same constitu ency."

Other scholars are beginning to speak out against the direct vote proposal. Professor Charles Black of Yale Law School has written me that one thing about it is certain: "it would tend to make the political voice of the great cities less audible."

The New Republic magazine notes editorially that "Congress is the institution where less industrialized, less urbanized, less pluralistic regions of the country have a disproportionate political power," and that "in the electoral college a countervailing disproportion tends in the other direction, toward the industrialized, urbanized, heterogeneous states, in which racial, ethnic and other minority groups have the clout they lack in Congress."

The magazine's editorial continues to say that it would hardly be a wise objective of national policy to work the diminution of the political power of the people of the nation's urban centers that would come about through changing the election of the President to direct popular vote without any offsetting change in the nature of Congress.

That individual voters in large, often evenly divided, states have the largest influence on the outcome of the Presidency has been demonstrated mathematically. John Banzhaf, an expert on weighted voting, has done a computer study which demonstrates that New Yorkers have 3.312 times as much chance of influencing the outcome of the Presidential election as voters in the District of Columbia and almost twice the potential for affecting the outcome of voters in Alaska, Delaware, Nevada, Vermont, or Wyoming. Voters in Pennsylvania, Ohio, Michigan, and Illinois are also in advantageous positions. This evidence confirms what anyone who has observed the strategy of Presidential campaigns already knows.

A fourth question that must be raised about the direct vote concerns the counting of the votes and election contests. First, in a close election, such as we had in 1960 and 1968, we would not be sure of the result until all ballots had been counted and tabulated. By present methods this can take weeks. Professor Brown suggests the possibility of a nation-wide election contest in such a situation. Under the present system, each segment is insulated from the others, and, if questions of irregularity arise, they are limited to particular states. But a close and contested election under the direct popular vote system could mean that every ballot box and voting machine in the country would have to be examined, or recounted, with considerable delay. Imagine the recount that happened in Oregon recently taking place nation-wide! And such a nation-wide recount might be nec essary not only to determine the winner but to see whether a run-off was required. Professor Brown states:

"With 40% of the vote required to avoid a run-off, the possibility of a nationwide recount and contest to determine whether a run-off was required, is not a remote one. The result might well turn on a few tens or hundreds of votes, even though one candidate had a very substantial plurality. Indeed, it is quite possible candidates would have a significance almost equal to the votes for major candidate had achieved 40% of the vote, and, if so, which candidate. In such contests concerning the 40% minimum, questionable votes, possibly write-ins, for minor candidates would have a significance almost equal to the votes for major candi dates. The total number of votes would be as significant a number and equally subject to contest, as the votes for a given candidate. The grounds of question and contest would be innumerable."

The last point I would like to make is a purely practical one: ratification of a direct vote proposal by the legislatures of three-fourths of the states is most unlikely. First, the large states may be reluctant to give up the mathematical advantage they have; second, the very small states may, ironically enough, be reluctant to give up the advantage they have the two extra electoral votes, and finally there are those states, especially in the deep south, that would resist such a proposal as a further encroachment on states' rights, especially since the direct vote system would require the imposition of federal standards for voting. Finally,

there might well be many state legislators who would oppose the direct vote for some of the substantive reasons discussed above.

The New York Times has argued editorially that it is wrong for Members of Congress to refuse to support direct election for such practical reasons. The yardstick, says the Times, "must be the adequacy of the proposed changes. Inadequate reforms must not be submitted to the states out of fear that sounder measures would never win ratification."

Such a rigid position seems doctrinaire at best, running counter to the customary give-and-take of the legislative process. But it might be justified if the case for direct popular election were on the merits overwhelming. As I have tried to show, it is not, but is rather highly debatable. That being so, I suggest the Congress should just proceed by proposing for ratification an amendment that will cure the two agreed defects, the problem of the faithless elector and the possibility that the election might be thrown into the House. After that is done, we can proceed to thrash out the merits of the direct popular vote.

OTHER PROPOSALS

There are other proposed schemes that I would like to say a few words about. First, there are proposals affecting only the method of ascertaining electoral votes: the district plan and the proportional plan.

The district plan would eliminate the present procedure of giving all of a state's electoral votes to only one candidate and would provide instead for electors, equivalent to the number of representatives in Congress, to be chosen from districts, Congressional or otherwise. In addition, two electors would be elected at large in each state.

Under the proportional plan, the electoral votes of each state would be divided in proportion to the candidates' state-wide votes.

Both of these plans are subject to most of the same objections raised against direct election; in fact, they would not only end the advantage now enjoyed by large urban states but would also discriminate in favor of the small states.

Moreover, both of these proposals would reduce the likelihood of an election producing a majority in the electoral college, because splinter parties could easily win some electoral votes, and hence would increase the need for a run-off or some other system for resolving a deadlock.

If the present system of counting electoral votes is to be abandoned, it is hard to see why we should not abandon the electoral vote altogether and move to direct popular election, which certainly has greater superficial appeal.

Finally, there are various proposals which envisage leaving the electoral vote count system unchanged but which would alter the present method of coping with a deadlock.

For example, you, Mr. Chairman, have introduced a resolution providing that, if no candidate receives a majority of electoral votes, the President and Vice President will be chosen by the Senate and the House meeting jointly, with each Member having one vote.

While this would be a great improvement over the present system, I see grave disadvantages in permitting the election to go to the legislative branch at all. What has happened on previous occasions when the election went to the House strongly suggests that no similar event should be allowed to re-occur. In the election of 1800, the outcome was decided in the House after 35 ballots and an incredible amount of maneuvering. The election of 1824 focused on a single undecided representative, Stephen van Rensselaer of New York, who finally had to rely on what he took to be divine guidance. The charges and countercharges of deals and treachery, especially when Clay-a defeated candidate-turned up as Secretary of State, did not die down for a long while. Moreover, the danger of involving the House in the Presidential election is further illustrated by the sordid story of 1876, when backroom deals deprived Tilden of the election. The payoffs included Cabinet appointments, restoration of "home rule" in the South (that is, rule by white Democrats), and a certain amount of what is now known as "pork barrel."

I do not suggest that the Members of today are anything like their predecessors, but I do suggest that it might be better if the new President could not be placed in the uncomfortable position of owing anything, either to the Legislative Branch as a whole, or to individual Members or Senators.