century, and a similar response by the smaller States in order to keep such leverage as they could in the total electoral count.

Beyond the historical anomalies stand the practical inequities and risks of the system.

1. The one objective that any democratic electoral system must achieve is to avoid the election of a candidate who secures fewer popular votes than an opposing candidate. The electoral college system offers no assurance of this, and in fact three times in our history the election went to a candidate other than the winner in the popular count. It has been said that this record is a good one, showing that in 93 percent of our elections the popular winner was the actual winner. This is like boasting that 93 percent of the planes leaving Washington airport arrive at their destination.

Senator BAYH. I must say that is about the best comparison of the dangers of this system I have ever heard. We would not be content with 93 percent, or even 99-percent success in aviation.

Excuse me. Go ahead.

I just had not heard that exact comparison before.

Dr. FREUND. Thank you.

2. The present system rests on any uneasy tension between opposing distortions of the popular will. On the one hand, the smaller States receive a bonus for their two Senators. On the other hand, the large closely contested industrial States are the chief prizes in the contest, enjoying a focus of attention and influence that is theirs because of the magnified value of even the smallest popular majority in the State. 3. The present system fails to reflect the actual strength of the voter turnout in each State, giving a premium to those States where the turnout is relatively light.

4. The value of an individual's ballot depends upon the State in which he votes. If his vote is for the candidate who loses in his State the vote is in effect discarded at this point. If his vote was for the local winner his vote is in effect multiplied in value. This may or may not affect the outcome, but it is a hazard and is wrong in principle, like ballot box stuffing which may or may not change the result.

In the face of these deep-seated objectives, how does one explain any hesitation in supporting a drastic reform? The answer, it seems to me, is twofold.

First, the electoral college system does serve to maintain the twoparty system in making it relatively profitless for a splinter party to enter the race with no real prospect of capturing the electoral vote of one or more States. Thus the system has in fact served to promote an accommodation of interests within the major parties that ought not lightly be abandoned. The proper solution, I submit, lies in finding a means of preserving the values of the two-party system without the hazards and unfairness of the electoral college and its count. In my opinion this is done by a combination of factors. The two-party system rests also on the political structure of Congress, which would not be affected. Moreover, the method of nominating presidential candidates by convention will continue to give importance to diverse State interests and promote accommodations at this stage of the electoral process. For all its tiresome flambovance, the national convention does serve a useful unifying purpose. Finally, and in my opinion highly important, is the proposal for a runoff election between the two highest

candidates in the event no candidate receives 40 percent of the votes cast. This provision should serve as a deterrent to proliferation of political parties, which might amass a fair number of votes in the aggregate but which at best could look forward only to a final contest between the major party candidates. At that point the power of the splinter parties would, in my judgment, be less than in the case of a contingent election in Congress, where a few undecided votes leaning to a splinter party candidate would enjoy undue leverage in the outcome. The provision for a popular runoff seems to me not simply a collateral feature of the proposal but an integral and vital part, exercising a salutary reflex effect on the potentialities of splinter parties in the system as a whole.

The second reason for hesitation over reform has been the feeling that the present system, by giving admittedly excessive weight to small crucial groups in large closely contested States, has served to offset the undue weight of rural interests in a malapportioned House. It is not necessary to believe that the reapportionment decisions will work miracles to perceive that they do have an appreciable effect in strengthening the representation of urban and metropolitan areas. Beyond this, and in the longer view, there is the prospect that the concentration of population in the whole country will inevitably give greater weight to the urban constituency.

This trend was recently pointed out by a significant source-the Committee on Federal Legislation of the Association of the Bar of the City of New York-in endorsing the plan for a direct popular vote. I may add I understand the association as a whole had the other day accepted the recommendation of its committee.

The committee observed:

"Whatever the system, we doubt that candidates and campaigns appealing primarily to rural or smalltown voters any longer have any real prospect of success in a country in which an increasingly larger majority lives in large cities or suburbs of large cities."

It remains to consider several alternative measures of reform. The proposal sponsored by the administration at the last session had the merit of eliminating the human element in the electoral college and changing the method of the contingent election in the Congress. But it would have frozen in constitutional form the unit count in each State, thus preserving the inequities of the bonus to smaller States and the undue leverage of crucial groups in the large States.

The plan for election of electors by districts would achieve a closer correspondence between the electoral vote and the popular vote. But it would retain the bonus to smaller States, would retain the premium to States with a light voter turnout, and would still involve the risk that the candidate with the highest popular vote would not win the election. In addition, it would intensify the importance of district lines and thus aggravate controversy over gerrymandering and other problems of apportionment.

The plan for a proportionate count in each State of the electoral vote according to the distribution of the popular vote would provide a still closer correlation between the two, but would retain the inequitable features inherent in the allotment of electoral votes to the States and again would not take account of voter nonparticipation. Moreover, the arithmetic of the distribution of electoral votes might cause

difficulty unless electors were to be fragmented into fractions of themselves.

The details of a popular election procedure are properly left to Congress, including provision for the conduct of a runoff election. The qualification of voters, and entitlement to be placed on the ballot, may be left to the States as at present subject to a reserved power in Congress to prescribe uniform criteria. Age and residence qualifications are the obvious factors which may at some time call for uniform regulation, and these are specified in the proposal as endorsed by the American Bar Association. Nevertheless, it should be understood that other qualifications, such as literacy, are likewise subject to the reserved power of Congress under decisions of the Supreme Court applying the equal protection clause.

If the committee recommends a plan of direct popular vote, it would be well to make clear in its report that specification of age and residence as items within the power of Congress is not meant to negate the authority of Congress to deal with other qualifications as well, where considerations of equal protection so require.

Thank you, Mr. Chairman.

Senator BAYH. Thank you very much, Professor Freund.

I appreciate your very learned presentation here. As you know, I, too, have become a convert to the direct popular system, and one of the things that concerned me more than any other was the preservation of two-party system. In fact, I will say that it was that matter which concerned me most. I do not want a system which will proliferate the two-party structure.

I note that you point out that the runoff provision will preserve the two-party system.

Of course, the two-party structure would be preserved, would it not, if the decision would be made by the Congress.

Have you compared the practicability of a runoff election with the decision being made by a joint session of Congress in the event no candidate has received 40 percent of the vote?

Dr. FREUND. Yes, I tried to do that in my mind. And it has seemed to me that what I call the leverage of the splinter parties would be less in a popular runoff between the two highest candidates, and if that is true, then there would be less incentive for a proliferation of such parties at the outset.

What I have in mind is this.

In a body of 535 Members, relatively few doubtful votes can attain an enormous importance, and splinter parties, by appealing or, if you will, controlling a few swing votes could exert at the end of the whole electoral process, as it seems to me, a disproportionate influence in bargaining power-whereas in a popular runoff between the two highest candidates, the influence of or control over millions of voters would seem to me to produce a good deal less leverage on the part of the splinter parties.

And so in my thinking the popular runoff has the distinct virtue of diminishing the influence of the splinter parties more than would a contingent election in the Congress as a whole.

Senator BAYH. One of the aspects about the runoff which apparently concerned the New York City Bar Committee on Federal Legislation, which did in fact endorse this proposal, was the problem of time.

Mr. Brownell the former Attorney General allegedly felt that the direct election was fine. However, he was concerned that we might be confronted with a situation where we did not have enough time to adequately conduct a runoff election, and still let the President assume the reins of government as he now traditionally does in January. Have you given this any thought, sir?

Dr. FREUND. I have thought about it a little. Of course, there is a runoff in France which requires, I think, something like-what is itthree or four weeks after the original election. And I suppose even though we are a larger country, we are not second to the French in efficiency.

Furthermore, any amendment would go into effect at the earliest some years from now, and I would suppose that in a computer age, the actual count will be expedited.

We have runoff elections in a number of Southern States, as you know, in primaries, and those do not take an inordinate amount of time.

So I think such experience as we have, together with the promise of even greater mechanical efficiency in the future, would minimize the troubles of a runoff.

Of course, it is not anticipated that a runoff will be a common occurrence if you adopt a 40 percent plurality as sufficient for election. Senator HRUSKA. At that point, would the Senator yield.

Has there ever been a time in America when there was less than 40 percent achieved?

Dr. FREUND. Rarely. President Lincoln had not quite 40 percent. But then his name was not included on the ballot in a number of States. And I think in 1824, where you had a four-man race, no one had 40 percent.

But in all fairness, Senator, I think one has to acknowledge that the likelihood may be somewhat greater under a popular vote system if more splinter parties enter the field thinking that they can amass a certain appreciable number of popular votes.

Senator HRUSKA. Memory fails me on the 1948 election. Do you recall the percentages there of the popular votes?

Dr. FREUND. The figures, I believe, are given in the American Bar Association Committee report.

Senator BAYH. As I recall the electoral college system was extremely close there. A change of about 30,000 votes would have changed that. President Truman had about 2 million plurality over Governor Dewey, as I recall.

Dr. FREUND. Yes; he had 2,100,000. The electoral vote was 49.5 percent as against 45.1 percent for Mr. Dewey.

Senator HRUSKA. Is that the year Strom Thurmond ran?

Dr. FREUND. That is the year Senator Thurmond ran. He polled 39 electoral votes.

Senator HRUSKA. In popular votes, what percentage was it-the difference between the other two?

Dr. FREUND. Yes; the difference between the totals. 49.5, 45.1would be about 9 percent; would it not? No, no. Yes.

Senator HRUSKA. About 10.4.

Senator BAYI. Professor Freund, you might correct my memory here, but another significant fact, as I recall-was that the reason the

electoral vote was so tediously balanced was that in five of the major States, where they had the big blocs of electoral votes, there were very small margins in the race. As I recall a change of about 30,000 votes in the right places would have changed the outcome of the electoral vote, and a change of about 15,000 votes would have thrown it in the House of Representatives. That was because Senator Thurmond received 39 electoral votes.

Dr. FREUND. Yes; that is true.

Senator BAYH. Is my memory correct on that?

Dr. FREUND. Yes, that is true.

Mr. Truman would still have won the electoral votes, but with a slight change in certain key areas, the electoral vote could well have gone the other way.

The ABA Committee report states:

In 1948 a shift of about 17,000 votes in Illinois, 9,000 in California, and 3,500 in Ohio, would have given Dewey 78 additional electoral votes and the election, with Truman having over 2 million more popular votes.

Senator HRUSKA. Mr. Freund, I notice in your statement that-and I say this advisedly and kindly-you speak somewhat disparagingly of the inequities of the bonus to the smaller States of two Senators. Of course, that was an inequity that was not only invited originally by the founders of our Republic, but it was necessary in order to achieve a Republic in the minds of many students of history.

I am wondering-how far would you press that concept of inequities of the bonus of two Senators to each State? Would you go beyond the electoral college? Little by little we are being inched-we smaller States are being inched out of existence, and after a while the lines between States will be of interest only to the Rand McNally Map Co., and that is about all, and to the tourist who will say, "Well, here once was a State, and now it is a part of the United States."

How far would you push that?

Senator BAYH. Would the Senator permit me to be so forward as to suggest that while he is answering that question that he also answered if there is anything to be gained by the small States to compensate for the loss of the additional two Senators which are added to their popular vote? I think that is very, very significant to Members of the Congress, particularly the Senate.

Senator HRUSKA. The field is open, Professor. You can go as far as you want.

Dr. FREUND. Senator Hruska, in the first place, I certainly have no intention, in the slightest, of questioning the allocation of Senators by States. And when I speak of an inequity in the county, you are right, I am in no way begging the question, because I am assuming that our highest national office ought to be elected by a popular vote of its constituency, which I have assumed to be the United States.

But I would say this in respect to the original plan.

True, the electoral vote from the beginning included the two Senators allotted to each State. But it is not true that from the beginning those two electoral votes were added to the total of the winner in that State. And I think when that practice came about, extraconstitutionally, so to speak, it intensified, it magnified the effect of the two senatorial electoral votes. But I think more fundamentally, Senator, the smaller States have on balance been the loser under the present system.