of whom has consented that his name appear as candidate for Vice President on the ballot with the name of the said candidate for President.

It is this presidential candidacy that must receive a 40-percent plurality to win. Congress also can provide the manner in which candidacies appear on the ballot.

The purpose here is to eliminate the problem of how to count the votes of an individual who might happen to run on several tickets with various vice-presidential candidates, or vice versa. Only the candidacy wins.

I believe this provision approximates the convenience of the present actual method we have been using within (but actually in defiance of) the electoral college system. This provision would discourage a multiple-party system. It would discourage an unnecessary and confusing array of people running for office.

My bill also allows Congress to determine by law when the vote shall be counted, rather than following the old custom of counting the vote in January. Such a change seems necessary to me if we adopt direct popular election of the kind suggested here and in the Senator's bill because in the eventuality that a 40-percent plurality is not received and another election is necessary, a delay until January would put off the final choice of President and Vice President until a dangerously late date.

Mr. Chairman, that concludes my statement.

Senator BAYH. May I ask one question, please. I know how busy you are.

Congressman Roush, have you given thought to the relative merit of the runoff election, or the decision being made by joint session of Congress with each Member thereof having one vote?

Mr. ROUSH. Well, I had thought about it, Mr. Chairman.

If at all possible, I would prefer that the people, by direct vote, choose the President and Vice President of the United States. It is quite conceivable that the political balance in the Congress would be inconsistent with the political balance, insofar as the people's thought, as to who should be their President and Vice President. And I think the people themselves should make the choice.

I think as the chairman stated in his opening remarks there are many congressional districts in the United States represented by Members of Congress who are there, not because necessarily of the convictions and beliefs of their people insofar as party affiliation is concerned, but because of the popularity of the Member, because of his own aggres siveness and his own personality, and he does not necessarily reflect their political views. He is supposed to, I know. But as I look about me, in the House in particular, I think that this is true.

There are many of us-and I happen to be one-who represent districts which are either Republican if I happen to be a Democrat, or Democrat in many instances when the Congressman is Republican. Senator BAYH. I suppose you would be a good example of a constituency which might well go for one presidential candidate, and for you, because of your philosophical beliefs, as far as the party is concerned.

Mr. ROUSH. I think so; yes.

Senator BAYH. Let me ask you one other question.

Mr. ROUSH. May I further this example by pointing out that in the 1960 election, which by the way was my most tedious election, President Kennedy in my district_received-he lost my district by some 34,000 votes. And of course I won by 99 votes, finally. But still I would not be representing the view of my people insofar as the candidate for President is concerned.

Senator BAYH. Let me ask you one other question.

I just thought that I have not had the opportunity to discuss with any Congressmen their feelings about the effect that an electoral college district plan might have on their individual elections.

Here you have really two district-wide races. One would be the district-wide race where the votes would be divided for Congressman. The other would be divided for the presidential candidates. There is significant support for this. Twenty-two percent of the people in the recent poll expressed support for this type of change.

As a Member of the other body of Congress, can you see any particular effects on your activities or your efforts in your district as far as this is concerned, or would that be insignificant?

Only a Congressman can speak to that really.

Mr. ROUSH. Senator, I really cannot speak to it. I just simply have not given much thought to that particular proposal.

I had made the determination that the way to elect a President of the United States is by popular vote of the people, and that the majority of the people of the United States should determine who should be the President and the Vice President. And I must confess that I just have not given as much thought to that proposal as I should have. And until I have, I would really prefer not commenting on it.

Senator BAYH. Perhaps that is an unfair question. I can see definite advantages to the district system over what we now have. The question I have asked myself, and have found answered in my own mind is should we, in trying to amend the Constitution, be satisfied with a step that in my judgment goes only part way as far as some of the shortcomings that exist. I refer to circumstances that permit a minority of the people to elect a President, disenfranchisement of large segments of our population, and the centralization of large blocs of power. The district system deals with these problems, but it does not, in my judgment, deal as effectively with them as the popular vote.

Mr. ROUSH. Mr. Chairman, if we consider this other proposal as going only part way, then I don't believe it has merit.

I think that our job is to provide to go all the way in providing that which is best. And it seems to me that you and your committee have been very diligent in your search for truth and for that which will provide the best way of electing a President, and that is the way we should go. If that is the best way, then let us go that way. But if the direct popular election of the President is the best way in the determination of the Congress, and the people of the United States, then let us go that way.

Senator BAYH. Well, I appreciate your comment. I must say that so far it has been my judgment that our search for truth has led us to believe that it all depends who you are talking with as far as what is truth. We have had some very conscientious and learned individuals who have described the truth in varying terms. I suppose that is only to be expected.

Senator, do you have a question to ask the Congressman?

Senator HRUSKA. No; I have not, except to thank him and commend him for taking the time and also the effort that he did to testify before us. We always welcome Members of the other body in this committee here. And that is especially true when that Member of the other body comes from Indiana, when the chairman of this subcommittee is presiding.

Mr. ROUSH. Thank you, Senator.

Senator HRUSKA. Your statement is very fine. It will add a great deal to the record.

Mr. ROUSH. Thank you, Senator.

Senator BAYH. Our next witness is Prof. Paul Freund, Harvard Law School, who is not a stranger to this committee.

Professor, it is good to have you before this committee again. You were so helpful to this committee in finding an answer to the Presidential disability-succession matter. We are anxious to have your thoughts for the record.

STATEMENT OF PAUL A. FREUND, HARVARD LAW SCHOOL, AND A MEMBER OF THE AMERICAN BAR ASSOCIATION COMMISSION

Dr. FREUND. Thank you, Mr. Chairman. It is a very great privilege to appear again before this Subcommittee which in recent years has done so much to illuminate in a dispassionate way some very fundamental constitutional issues.

Although I am a member of the American Bar Association Commission in Electoral College Reform I appear in an individual capacity, expressing my views as a constitutional lawyer.

I support the proposal to eliminate the electoral college and substitute a system of direct popular election of the President and Vice President. After some hesitation for reasons that I will indicate, I have become a convert to this position because it seems to me to be right in principle and to have fewer inequities and risk attached to it than the present system or any suggested alternative.

It is right in principle because our highest national offices ought to be filled by the popular choice of their constituency, the country as a whole. Whatever one's views on the problem of legislative districting, whether one approves or condemns the reapportionment decisions. the presidential election is the strongest possible case for equality of individual voting power, since it does not involve representation in a collegial body but the choice of a single leader of a great national constituency. The burden is on those who would subordinate this basic principle because of collateral benefits or values that may be promoted by the present system. In fact, the balance of such values and hazards seems to me to support, rather than to weaken, the case for direct popular vote.

I will not dwell on the historical accidents that have transformed the electoral college plan into something totally unlike the concept of the framers. The rise of political parties, with their designated candidates, converted the electoral college into a group at best of useless ciphers and at worst of dangerous mavericks. Moreover, the other central feature of the present system-the unit count in each Statecame about in contravention of the original understanding, through the unilateral action of the largest States in the early nineteenth

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 flamboyance, 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