dangerous. Among other things, the present system allows a person to become President with fewer popular votes than his major opponent; grants all of a state's electoral votes to the winner of the most popular votes in the state, thereby cancelling all minority votes cast in the state; makes it possible for presidential electors to vote against the national candidates of their party; awards all of a state's electoral votes to the popular winner in the state regardless of voter turnout in the state; assigns to each state at least three electoral votes regardless of its size; fails to take into account population changes in a state between censuses; allows for the possibility of a President and a Vice-President from different political parties; and employs an unrepresentative system of voting for President in the House of Representatives.

It is claimed that the system gives too much weight to some voters and too little to others; discourages voter turnout in many states; gives excessive power to organized groups in states where the parties are evenly matched, since such groups sometimes are able to swing the entire electoral vote of a state to one candidate or the other; limits campaigns to pivotal states and nominations for the Presidency to persons from large states; places an undue premium on the effects of fraud, accident, and other factors since a slight change in the popular vote may determine who receives a state's entire electoral vote; and allows for possible abuse and frustration of the popular will because state legislatures have the plenary power to establish the method of appointment of electors.

While there may be no perfect method of electing a President, we believe that direct, nationwide popular vote is the best of all possible methods.' It offers the most direct and democratic way of electing a President and would more accurately reflect the will of the people than any other system. The vote of every individual in the constituency (including the District of Columbia) would be of equal weight, as it now is in elections for the United States Senate and House of Representatives and for statewide, municipal, county, town, and village offices throughout the United States.

Direct popular vote would eliminate the principal defects in the present system. It would eliminate the unit vote rule or the winnertake-all feature which totally suppresses at an intermediate stage all

1 Our recommendations are applicable to both the President and Vice-President, whom, we believe, should be voted for as a team, i.e., there should be but one vote for the two officers.

minority votes cast in a state. It would do away with the ever-present possibility of a person being elected President with fewer popular votes than his major opponent, as has happened on a few occasions in American history. It would abolish the office of presidential elector, which is an anachronism and a threat to the smooth functioning of the elective process. It would minimize the effects of accident and fraud in controlling the outcome of an entire election. It would put a premium on voter turnout and encourage increased political activities throughout the country.

We do not consider the objections that have been made to direct popular vote as sufficient to overcome the numerous advantages which attach to such a method.

Perhaps the most important objection that has been voiced to direct election is that it would lead to a proliferation of parties and weaken the American two-party system. The winner-take-all feature of the electoral college system undoubtedly is conducive to the bipartisan pattern by limiting the effectiveness of votes for minorityparty candidates, although there have been times when third parties have played an important, if not decisive, role in presidential elections.

It should be noted that several factors, not the electoral college alone, have worked to produce our two-party system. Authorities who have studied our party system in great depth attribute the dualism to both noninstitutional and institutional factors. There is general agreement that, institutionally, the selection of representatives by plurality vote from single member districts has strongly encouraged and reenforced the two-party structure. Neither this factor nor other contributing factors would be changed by direct election of the President. They would continue to operate to support the two-party system. Moreover, our recommendations do include factors which, we think, would have a substantial tendency to support the twoparty system.

3

We recommend that a candidate should receive at least 40 percent of the popular vote in order to be elected President. A 40 percent plurality requirement would encourage factions and splinter groups

2 See, e.g., Key, Politics, Parties, & Pressure Groups 205-11 (5th ed. Thomas Y. Crowell Co. 1964); Schattschneider, Party Government 65-84 (Farrar & Rinehart 1942); Sindler, Political Parties in the United States 49-59 (St. Martin's Press 1966).

3 The Presidential Election Campaign Fund established by Public Law 89-809 (1966) surely will be a new factor tending to preserve the two-party pattern. Under this law minor parties are entitled to receive no payments unless they polled more than 5,000,000 votes in the preceding presidential election.

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to operate, as now, within the framework of the major parties, since only a major candidate would be in a position to obtain such a vote. At present, third parties have the power to "tip the balance" in a relatively close election by drawing crucial votes from a candidate. The power of third parties would be considerably reduced under a 40 percent rule because the likelihood of a third party candidate obtaining 20 percent of the popular vote is small. A group existing outside of either of the major parties would not be able to thrive in view of the certainty of defeat.

We further recommend that there be a national runoff popular election between the top two candidates in the event that no candidate receives at least 40 percent of the popular vote. A runoff between the highest two would seem to have the tendency to limit the number of minor party candidates in the field in the original election because it is improbable that a minor candidate would be one of the top two; and the influence of such a group would be asserted more effectively, as now, before the major party nominations and platforms are determined.

In addition, it should be mentioned that it is no easy matter for a group to become a national party. It would have to comply with the various state requirements for the formation of a party. These requirements are not easily met by minor parties.

It is also said that direct election of the President would wipe out state lines or destroy our federal system. The following should be noted:

The President is our highest nationally elected official. He occupies the most powerful office in the world. The problems and the issues with which he deals are largely national in character. It is only fitting that he be elected directly by the people.

Under direct election as embodied in our recommendations, states would continue to play a vital role in the elective process. They would continue to have the primary responsibility for regulating the places and manner of holding the presidential election, for establishing qualifications for voting in such elections, and for controlling political activity within their state boundaries.

We do not believe that our federal system would be destroyed by direct election of the President and Vice-President. As Senator Mike Mansfield has stated:

[T]he Federal system is not strengthened through an antiquated device which has not worked as it was intended to work when it was included in the Constitution and which, if anything, has become a divisive force in the Federal system by pitting groups of

States against groups of States. As I see the Federal system in contemporary practice, the House of Representatives is the key to the protection of district interests as district interests, just as the Senate is the key to the protection of State interests as State interests. These instrumentalities, and particularly the Senate, are the principal constitutional safeguards of the Federal system, but the Presidency has evolved, out of necessity, into the principal political office, as the courts have become the principal legal bulwark beyond districts, beyond States, for safeguarding the interests of all the people in all the States. And since such is the case, in my opinion, the Presidency should be subject to the direct and equal control of all the people.*

There is the view that the practical objection to direct election is that it would never be proposed by Congress as a constitutional amendment or ratified by the necessary number of state legislatures. In this connection, it is interesting to note that members of Congress from both large and small states have been leading proponents of direct election. Recent supporters include Senators Aiken, Bayh, Bible, Burdick, Byrd, Clark, Douglas, Magnuson, Mansfield, Morse, Muskie, Nelson, and Smith. Moreover, thirteen states, both large and small, recently attempted to have the Supreme Court of the United States strike down as unconstitutional the unit vote feature of our system.”

Significantly, a recent poll of state legislators was conducted by Senator Quentin N. Burdick of North Dakota to determine their preferences regarding electoral reform. The published results revealed that over 59 percent of the more than 2,200 legislators who responded indicated that they would support a direct popular vote for President. We are advised that since the published results, over 1,000 additional legislators have responded, with a similar ratio of support for direct popular vote. This support, moreover, comes from both small and large states in all parts of the country.

In summary, direct election of the President would be in harmony with the prevailing philosophy of one person, one vote. "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one

4 107 Cong. Rec. 350 (1961).

5 See pages 35-36 infra.

6 Cong. Quart. Fact Sheet on Electoral Reform, Dec. 16, 1966.

person, one vote." This equality in voting should extend above all to the Presidency.

Plurality of at least 40 percent

We recommend that a candidate should receive at least 40 percent of the popular vote to be elected President. We chose a 40 percent limitation rather than a lesser or greater one for several

reasons.

A figure less than 40 percent would not furnish a sufficient mandate for election to the Presidency. It also could have the effect of weakening the two-party system by encouraging the formation of splinter parties, since a figure less than 40 percent would increase the chances of a minor party candidate being able to become President.

On the other hand, a majority vote requirement or a limitation of greater than 40 percent would increase the possibility of having to use the machinery established to handle a case where no candidate receives the required vote. That this possibility would be increased is underscored by the fact that fourteen Presidents received less than a majority of the popular vote. Eleven of the fourteen received between 45 and 50 percent, and one between 40 and 45 percent. Abraham Lincoln received 39.79 percent in 1860, but his name did not appear on the ballot in ten states. John Quincy Adams received 30.54 percent in 1824, but Andrew Jackson received 43.13 percent, and six states did not choose their electors by popular vote.

Guided by what is reasonably foreseeable under a method of direct election, a figure of 40 percent would render extremely remote the possibility of having to resort to the contingent election procedure. A 40 percent rule, as noted, would be conducive to the maintenance of our two-party tradition, and it would be consistent with the principle of plurality voting which operates in congressional elections and in elections for statewide and local offices throughout the United States.

National runoff between highest two

Although we believe that the use of any contingent election machinery would be rare, it nevertheless is essential to provide in an amendment for the case where no candidate receives the required vote. In such event, we recommend that a national runoff election

7 Gray v. Sanders, 372 U.S. 368, 381 (1963).