member of the State legislature, many of our State legislatures, members of the house particularly, have the same qualifications, same requirements as Members of the Congress.

Mr. DAVIS. I just mentioned that one of the reasons why the popular vote might have some trouble in legislation is unless you control the voting age, you will have 12-year-olds voting in order to enhance the importance of the particular State. That has been raised in the committee, I am sure.

Senator BAYH. You are a member of the Nebraska State Legislature. Right now do you think your colleagues would ever lower the Nebraska voting age to 12?

Mr. DAVIS. Well, I do not think they would at the moment. But, Senator, those kind of monkeyshines have gone on from time to time. It is easy to prohibit because all you need to do is require a uniform yoting age. That would be the logical thing, to require a uniform voting age.

Senator BAYH. When you require a uniform voting age, somebody has to set that voting age. Now there are four States that have said they do not want the same voting age as everyone else.

Senator HRUSKA. My recollection is that the Nebraska State Legislature has approved putting on the ballot the question of lowering the voting age to 19.

Mr. DAVIS. Am I right that Alaska has dropped the age to 15?
Senator BAYH. I have not heard about it.

Mr. DAVIS. It appears that one of these witnesses said so in a previous hearing.

Senator BAYH. I think that was a typographical error. We have Georgia, Alaska, Hawaii, and Kentucky. Those are the four. If you have the requirement which says the voters in each State shall have the qualifications requisite for persons voting therein for Members of the Congress, and most state legislatures are not going to want 12-year-olds or 15-year-olds voting for them.

Mr. DAVIS. I am not advocating it or making an argument for it, but it has been raised in previous hearings.

Senator BAYH. It has been raised, but I think we have to weigh the relevant merits. Let me finish reading this clause. [Reading:]

The voters in each state shall have the qualifications requisite for persons voting therein for members of the Congress, but nothing in this Article shall prohibit a state from adopting a less restrictive residence requirement for voting for President and Vice President than for members of the Congress.

In other words, there is a developing feeling that people are disenfranchised in their vote for President because they are not familiar with the candidates at local levels.

Going ahead one sentence further. I think we probably could omit this and save a lot of headaches. "Or prohibit the Congress from adopting uniform residence and age requirements for voting in such election."

Now that is put in there to prohibit the very thing that you mention. All right, here is State A who determines it is going to have a larger voice in State elections and national elections, so it lowers the voting age to 12. As far as the rest of the fringe things, there is nothing in this amendment that says anything about the manner, time or place. All we are trying to do is to get some uniform provisions.

Are you concerned about these particular fringe things?

Mr. DAVIS. Oh, I am not. I think I am just trying to, I think I have not had time to get these down into tangible form. But I think I can say if the power is there, if the power is in the Congress, any number of possibilities of things will come. I do not say they will not, but I think they will result in very great enhancement of the power of the Congress over local elections.

Senator BAYH. What we have in the Constitution is determined by what is written there and what the Supreme Court says it is, of course. It seems to me that the amendment, the wording that I just proposed to you, is rather clear and concise about what power is given. The Court would have to rule that by giving these specific powers it would automatically exclude any other powers going to the Congress.

Mr. DAVIS. By excluding this power it was obviously implied Congress might have sufficient latitude to authorize

Senator HRUSKA. As in Katzenbach v. Morgan.

Senator BAYH. But that did not have anything to do with implied power.

Senator HRUSKA. But the implied power doctrine was applied generously in that decision.

Senator BAYH. Here we are specifically enumerating one, two, three areas and those would automatically exclude those not listed.

Mr. DAVIS. It should, Senator, but still I would not be too sure of it. Senator HRUSKA. Might I ask you to yield, Senator, on the point of the sometimes differing interpretations of Federal statutes. There is a Federal statute that ponders the Chairman of the Joint Chiefs of Staff shall be appointed by the President for a 4-year term. An appointment came which specified a 2-year term. Members of the Defense Department were called in and were asked, why? Why did you say 2 years when the statute says 4 years? And the initial reply was, two is part of four, therefore we thing it is legitimate to offer this man for confirmation for a 2-year term. You talk about rules of construction of Federal statutes. That was one of the most flagrant examples of abuse I have heard of in a long time. Other examples can be mentioned. I would respectfully suggest that if we are going to depend on rules of construction of Federal statutes, we ought to be very careful.

Senator BAYH. I agree also that the words in constitutional amendments can be misconstrued.

Many of us have expressed deep concern about the present inadequancies of the electoral college system in two specific areas. One, the fact that in winner-take-all system a large number of people in each State are disenfranchised, that is their votes are not counted. You mentioned that fact. Two is the fact that under the present electoral college system you can elect a President of the United States who has fewer votes than the fellow he is running against.

Mr. DAVIS. That grows out of the unit winner-takes-all system of counting elections.

Senator BAYH. But there are two different things. To disenfranchise people and elect a minority or nonpluralic winner. It seems to me that in the district system we still have these two faults remaining.

Mr. DAVIS. That is true, Senator. When you were elected Senator in Indiana, I imagine the votes of the fellow running against you were counted.

Senator BAYH. The votes were counted. Everyone's votes were counted. There were almost enough to beat me.

Mr. DAVIS. That is true. But is it not true in any election that the minority votes, even if counted, simply are not effective. That would be true here.

Senator BAYH. What I am saying is, if you do not count the votes of the loser in each district, which is what would happen in the district system, the final result could still be you would elect a President that has fewer votes than the man he runs against.

Here are just two examples. In 1964, the First Congressional District in Illinois with 184,836 voters produced a Johnson plurality of 167,358, more than 95 percent of the vote. While in the 15th Congressional District, 181,189 gave Barry Goldwater a 71-percent vote plurality. Almost 50-50. Yet under the district system each candidate would have received the same number of electoral votes-one. The district would have counted the same one electoral vote despite the popular vote of more than 167,000 or 168,000 for Mr. Johnson.

Now compounded this district after district and we could have. rather distorted results similiar to those possible under our present electoral college system. So we are not effectively dealing with one of the critical problems facing the present system.

Mr. Davis. The same is true with Members of Congress as far as that goes. You could very easily have the same thing in the election of Congressmen.

Senator BAYH. I am not suggesting that.

Mr. DAVIS. I know you are not, but that is what could happen. In other words, unless you want to go to a pure straight 100-percent democracy, you always will have these situations what you call inadequate minority representation.

Senator BAYH. You see, I am not suggesting we do away with the representative form of government. I just want to elect our President the same way we elect our Senators and Congressmen. All the votes that go for or against are counted on the final ballot, but not so in election of the President. Today they are not counted.

Mr. DAVIS. Almost half the votes in each State are thrown away or disenfranchised. If we are going to improve that system, if we are going to take a step to improve that, why do we not go all the way, count all the votes? Why stop at the district line and say you voted for the wrong fellow in this district and your vote is not going to be counted?

Senator BAYH. How about in practice?

Mr. DAVIS. As a practical matter, I think all these other things which ensue as a result of Federal control in this field, vastly outweigh the things you are talking about.

Senator BAYH. I do not mean to be at all harsh. I am just trying to get your thinking on the things that concern you, all the fringe things. As I recall, and I do not want to put words in your mouth, you were not concerned about the so-called fringe matters we contend in Senate Joint Resolution 2, just mentioning qualifications of Members of Congress and residency?

Mr. DAVIS. I suppose there are fringe things in Senate Joint Resolution 2, but they are relatively minor points. Then we get into elections and you do not preserve the identity of the States. Nebraska gives candidate A four votes and Candidate B three votes. We still preserve that.

The other way in talking about the attitude of the people and the reflection that you get in the people's mind, all that sort of thing, by a system that pays no attention at all to the State lines. I have a feeling I am probably being a backward soul.

Senator BAYH. I do not think you are backward at all.

Mr. DAVIS. That we have gotten to the point in many fields now where we are minimizing States. I think it is only fair to say I think the people of both parties pretty well agree if this thing keeps on going the way it is going you will end up with the States as merely administrative subdivisions.

Senator BAYH. I do not want to end up with that.

Mr. DAVIS. I do not think you do.

Senator BAYH. In direct election the votes would be delayed. They would be counted in each State and then the majority and the minority votes would be forwarded to Washington. Each State would do this separately.

Well, you have been very kind and I do not want to inconvenience you further.

Senator, I appreciate you having your constituent come before us and the exploration of his views have been very helpful for our record. Senator HRUSKA. Mr. Davis, is it not true that if we substitute for the question of a man's personality, which is the situation in the present presidential election, an issue that faces the House of Representatives, do we not have that same objection that all those who voted for Congressman X who voted with the losing side will be unrepresented? Mr. DAVIS. That is right.

Senator BAYH. If the Senator would yield.

If you really want to have a comparison, coupling the election of Congressman with the election of President is like comparing apples and oranges. If you want to have a comparison, instead have a districtwide election for Congressman and have an election in each county and each county then is going to cast one vote for their Congressman, and all those voting in the minority, those votes are going to be thrown

away.

Senator HRUSKA. On the longer pull, however, is there any relation between the direct popular vote provision, and advocating a nationwide referendum on a Federal statute?

Mr. DAVIS. Well, it occurs to me the next step, actually the next step is all you would do is have federal people looking over your shoulder and perhaps taking charge of the voting, really. Suppose there were some things you gentlemen passed down here that we do not like. I go out and say let us not ratify this, this does not represent the people fully.

Senator HRUSKA. Would that not be a total breakdown of the State system?

Mr. DAVIS. Well, I think so.

Senator HRUSKA. And four or five of the most populous States, if they put their mind to it, could enact Federal legislation to enforce their will on the inhabitants of the other States.

Mr. DAVIS. That is what it comes to, Senator, and no one is more aware of it than I am. There is beginning to crop up in our literature from time to time and some time in a process that scares me. The conception that Nevada ought not to have two Senators and New York

ought to have three or four. Now that is a long ways down the road and I do not think we need to worry about that this morning. The fact every State has three members of the electoral college on a popular basis, when possibly they are not entitled to three but only onehalf of one. That sort of thing. But it seems to me we are forsaking the whole basic concept of the republic of sovereign States. That is an awfully obsolete word but that is the way the country was founded just the same. Whatever we do to destroy that, it seems to me, leads us further and further into trouble. We take three electors from Delaware or some place else, take those away. We say, we will count their votes all right, but they cannot have three electors. Then someone will say, why should they have two Senators when the great State of New York has only two Senators? That is the kind of argument we get into. That is the kind of argument we get from people who do not understand government or do not care. It is along ways away, but I think we have started the pattern.

Senator HRUSKA. I sometimes wonder how far away it is when a committee of the Illinois Legislature explored the question of a constitutional amendment to allow one house of the legislature to be elected on basis other than population, the question was asked of a representative of one of the big labor unions: How do you stand on representation in the U.S. Senate, would you want that to be subject to one-man, one-vote rule? He was an honest man, frank man, and he said "yes." And he said, in substance, the day cannot come too soon. That will be on our calendar and we hope to achieve it. So we are not so far away.

Mr. DAVIS. That is right. I agree with you completely.

Senator HRUSKA. Thank you.

Senator BAYH. May I just make one observation? We have some 25 Members of the U.S. Senate who have signed their names to one form or another of a direct election proposal. That is not nearly enough to get two-thirds of the Senate. We may never get it. But I do hope we confine our considerations to the issues here. Of those extremely distinguished members of the American Bar Association panel, I would daresay not a single one would favor the abolition of the constitutional provision of two Senators from each State, nor would they be in favor of establishment of a nationwide referendum for Federal law. I think, as just one Senator speaking, that men of wisdom are not going to support either one of those two proposals. If I thought that would be the case, I would certainly not be proposing direct election. Mr. DAVIS. I am not worried about you, Senator. I am not worried about anyone in this room. I am worried about some time in the future. I was doing some research the other day on Indian law and I happened to look at the Congressional Record and some of the debates. on the 14th amendment, and I found the debates of Senator Bollis and Senator George and somebody else proved conclusively they were as sure as they could be the income tax could never possibly be more than 4 percent. But there is a new generation, new people, new faces, new age, new demands.

Senator BAYH. Hardly a comparison to the argument we are going to abolish U.S. Senators, is it?

Senator HRUSKA. I do not know that it would not be. Because if they thought the tax rate would be 80 percent, would they have voted for the 16th amendment? I doubt it. They did not want 80 percent.