Before being chosen elector, each candidate for the office shall officially declare the persons for whom he will vote for President and Vice President, which declaration shall be binding on any successor. In choosing electors of President and Vice President the voters in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that the legislature of any State may prescribe lesser qualifications with respect to residence therein.

It is the clause, "In such manner as the legislature thereof may direct," that is the root of the present problem. Only 10 States participated in the election of our first President, George Washington. North Carolina and Rhode Island had not yet ratified the Constitu tion; and New York's two houses of the legislature could not agree on who the electors should be.

No uniform method of choosing electors was followed. Electors were chosen in a variety of ways: election by legislatures, election by the people in districts, and election by the people on a general ticket which means that each voter in the State could vote for every one of the State's electors. In Massachusetts, each of the eight districts chose two electors from which the legislature selected on per district and added two electors at large.

In the succeeding presidential elections through 1832, the various methods were used with States changing from one to the other. In 1836, the general ticket system was used in every State but South Carolina, which continued to elect by the legislature through 1860.

After Washington's two elections, the Presidency was contested every 4 years on a party basis as it is today. The majority party in each State was quick to see the advantage of consolidating its electoral strength either through legislature selection or through use of the general ticket system so as to exert maximum influence in electing a President. Federalists did this where they were in control of the New England States, for example, and the anti-Federalists, later Jefferson's Republicans, did the same thing in their States.

Since 1836, with the exception of South Carolina, there have been only three instances of departures from the general ticket system, the one we now employ. They were Florida in 1868 and Colorado in 1876, in which the elections were by the legislature and Michigan in 1892, when the district system with two electors at large was used.

It is extremely doubtful if any voter living today has used anything but a general ticket system in Presidential elections. This use of the general ticket system in every state is largely responsible for many of the misunderstandings of the electoral college system which exists today.

When we regard the electoral college as the exact numerical counterpart of Congress we can see readily that it combines the two principles of representation in our Federal Union of States. We have the Federal principles of equal representation of the State in the Senate, regardless of population, and, then, we have the national principle of unequal representation of the States in the House of Representatives based on their unequal populations. State representation in the House in the present Congress ranges from 1 to 41.

Each citizen of each State is represented in the Senate by two Senators and in the House of Representatives by one Representative, with a few exceptions. His representation in Congress, therefore, is two parts Federal and one part National. In the electoral college, with the

general ticket system in force in every State, there is no equality of citizen representation. It ranges from a high of 43 members of the electoral college for a citizen of New York-to three for a citizen of each of the five States that sent only one Representative to the present Congress.

Conversely, each citizen has as many votes in presidential elections as his State has members in the electoral college, because they are elected on a general ticket. In other words, when a New York voter pulls a voting machine lever for a presidential ticket, he is actually casting 43 votes for President, one for each of 43 electors on a party slate.

On the other hand, the citizens of the five States which have only one Member of the House of Representatives have only three votes each in the presidential election. In my own State of South Dakota. cach citizen has four votes. If this is not a violation of the civil rights concept, I do not know what civil rights and equality is. When you deliberately provide that in one State a citizen can vote 43 times for President and another citizen because he lives in another State, and for that reason only, can vote only three times for President, this is indeed a violation of civil rights.

This tremendous disparity in voting weight between the individual citizens of the large States and the small States is the true source of all the valid complaints which have been made against the electoral college system. The real culprit is the use of the general ticket by every State. Of course, each State legislature could abandon the general ticket, but none will without certain knowledge that all other States will abandon it at the same time. To do so as an individual State. acting alone, would of course be to sharply lessen its influence in the selection of a President. This is why a constitutional amendment is necessary to bring about a change.

Mr. Chairman, there is no more justification for choosing electors on a general ticket than there is for electing a State's delegation to the House of Representatives, counterparts of electors, on a statewide bloc-basis, which is what the general ticket does. All of us remember the consternation on the part of both the Congress and the people, following the Wesberry v. Sanders decision, when it appeared as though some States might have to elect all of their Representatives at large if they did not redistrict.

The people in particular were outraged at the thought that their district's Representative was to be taken from them and given to the entire State. And yet it would be just as fair to use the general ticket for Representatives as it is to use it for their counterparts in the elec toral college.

I submit that the number of persons which entitled a State to one Representative in the Congress should entitle the same group of people to one member of the electoral college.

What have been the effects of the general ticket system of choosing electors? I suggest these:

(1) It excludes from the Office of President of the United Staus all men, no matter how able and outstanding they may be, unless they come from a State with a large bloc of electoral votes.

(2) By the same token, the dominant forces in the large, pivotal States which are responsible for the nomination and election of our

Presidents have inordinate influences at the White House and in the executive branch of our Government.

(3) It invites fraud in the large States that are crucial and where the vote is expected to be close. The effect of such vote fraud is statewide under the general ticket. A fraudulent vote, undetected, counts just as much as a valid vote in the statewide total. Fraudulent votes count up to 43 in New York and nobody can contest that.

This invitation to fraud in key or pivotal States works hand in hand with another evil of our political system-the large campaign contributions that gravitate to the big cities in the heavily populated States. Where the stake is some 40 electoral votes, which is just over one-sixth of the number necessary to elect a President, the temptation to make sure that the money achieves its objective is alarmingly strong.

By utilizing the district system, if fraud would still prevail, it could influence simply the electors coming from the specific electoral district. Instead of influencing 43 it would influence three.

It would, therefore, minimize the impact of fraud and, consequently, tend to minimize the importance of anybody coming forth. At worst, fraud or corruption in any specific area or election constituency could influence only three electoral votes, not 30 or 40 as can now occur.

(4) Although the Constitution gives each State the same numerical representation in the electoral college that it has in the two Houses of Congress by using the general ticket for electors, we have formed a constituency for the President which is altogether different from that which elects the Congress. The great difference between these two constituencies is that almost all Representatives are elected in single member districts while their counterparts in the electoral college are elected in multimember districts consisting of entire States. This situation permits voters of a State, voting straight party tickets, to produce one result in the electoral college and an altogether different result in the House of Representatives at the same election. The effect of all this is that we have what I have called a "presidential United States" and a "congressional United States" that are, politically speaking, two different countries within one national boundary.

I would like at this time to turn to the question of the districts themselves but first I believe a little background information is in order. As originally introduced several years ago, the then Mundt-Coudert amendment provided that a State's electors corresponding to its Representatives in Congress should be elected from congressional districts. and the two corresponding to its Senators should be elected statewide, as Senators are elected. Critics, most of them supporters of the status quo, objected strongly and with justice that the use of congressional districts was open to criticism since in some States districts were nowhere near being equal in population and district lines had been unfairly drawn by whatever political party controlled the State legislature, a practice long known as gerrymandering.

To meet this criticism the amendment was redrawn to provide for the establishment of electoral districts to be composed of-compact and contiguous territory containing as nearly as practicable the number of persons which entitled the States to one Representative in the Congress.

Such language was, I believe, considered fair and acceptable by those who had earlier harbored some reservations as to the district

system. I know that it has brought additional supporters to Senate Joint Resolution 12.

Subsequently, however, doubts were raised as to the enforceability of this provision. From a practical viewpoint they questioned whether Congress would exercise the power granted to it to refuse to count the electoral votes not chosen in compact and contiguous districts.

Of far greater importance was the question of judicial enforcement. The last full hearings were held during the months of May, June, and July of 1961. At that time serious doubts existed as to whether the judicial branch could or should accept jurisdiction of a case alleging malapportionment. The legal precedents on judicial enforcement of districting standards were not clear and, although I felt then that by placing the provision in the U.S. Constitution we had overcome this hurdle, I would be willing to admit that many individuals, both among my colleagues and in the academic circles, had reasonable grounds to question the effectiveness of the recourse to legal enforcement even though they by this time believed that the revised district system was a fair and acceptable method of reforming the electoral college.

When in the summer of 1961 this subcommittee mulled over the problem of enforceability, events were already taking place in the judicial branch of the Government which would have a profound impact on this question and indeed our entire system of government. On March 26, 1962, the Supreme Court on the United States handed down its historic decision in Baker v. Carr. It is not necessary at this time to go into the background of this case for I am sure that we are all familiar with it. The result, however, is important for the Court held that legislative apportionment problems were within the jurisdiction of the Federal courts, that a justiciable cause of action exists and that a voter within a district that is allegedly malapportioned has standing in court to challenge such an arrangement.

In the wake of its Baker v. Carr opinion the Court has handed down additional decisions spelling out further what has come to be known as the "one-man, one-vote" priniciple. In certain aspects that relate to the right of the majority of the people to choose their own course and system of government I find myself in disagreement with the Court, but that is not important for the purpose of today's discussion. What is important is that the judicial branch has very clearly and vigorously indicated that they not only can but will enforce districting standards.

One of these subsequent decisions, and from a practical viewpoint the one that has had the greatest impact on the district plan of electoral college reform, was the aforementioned Wesberry v. Sanders which was rendered on February 17, 1964. Not only was this the first instance in which the Court applied the "one-man, one-vote" principle on a nationwide basis but the objects of their directive were the congressional districts rather than State legislative districts. Admittedly, the Court based its decision on the history and wording of article I, section 2 of the Constitution which refers only to the makeup of the House of Representatives rather than on the 14th amendment but the Supreme Court rested on the findings of the Baker case to show that districting cases were justifiable.

As the result of Wesberry great strides have been made over the past 2 years toward bringing congressional districts into line with

"one-man, one-vote" standards. Redistricting has been completed by the legislatures of 21 States and significantly has been brought about by the courts in three instances Arizona, İllinois, and Montana.

Using the 15 percent deviation standard only 52 Congressmen in 14 States at the present time could be considered from districts that are either over or underrepresented and in some of those States efforts are currently underway to redistrict.

In addition, mention should be made of H.R. 5505 which has already passed the House of Representatives and as you know is currently being considered by your parent committee. Because this legislation is before your subcommittee I do not feel that it would be appropriate to dwell on it at length. For the record, however, I would like to point out that this bill as passed by the House would establish minimum standards for its districts. The House-passed version would include the 15 percent deviation standard and includes language regarding compactness and contiguousness similar to Senate Joint Resolution 12. It would also prohibit at-large districts when a State has more than one representative. I understand that some of these provisions are being questioned by your committee.

I have mentioned both the progress made in redistricting as a result of Wesberry and H.R. 5505 because it would appear that the machinery is being developed which would enable the Mundt-Coudert plan to evolve back to its original proposal, which was the election in congressional districts of those electors corresponding to the State's Representatives in Congress. The establishment of House of Representatives districts that are nearly equal in population and meet the requirements of anti-gerrymandering would make it unnecessary, I assume, to establish separate districts for the electoral process. However, we retain that provision in our amendment as a double safety factor against gerrymandering.

For the time being no changes have been made in the wording of Senate Joint Resolution 12 regarding the utilization of existing congressional districts but I am sure that this would be a relatively simple matter to accomplish should such a change be deemed appropriate and if the double safety factor in Senate Joint Resolution 12 be considered unnecessary. Under existing court decisions and the present statutes, however, there is no requirement that Congressmen be elected in districts. Two States having two or more Representatives-Hawaii and New Mexico-elect their Representatives at Large and this must be taken into consideration.

In summing up this particular part of my tesitmony I would like to emphasize these points:

(1) Electoral districts that are as equal in population as practical appear to present no problem. The States themselves are moving rapidly in this direction and the courts have shown no hesitancy in enforcing population standards, thereby correcting a great evil in the field of civil and voting rights.

(2) Electoral districts that are compact and contiguous could be enforced, if need be, through the courts by various means:

(a) Passage of H.R. 5505 may require all House of Representative districts to meet these standards, a provision enforcible by the courts, and thus the existing congressional districts could be utilized.