from being written off as worthless, stimulating, I think, genuine two-party competition in every state.

Those who advance the two-party objection frequently overlook the fact that the present system offers special incentives to third-party candidates and can easily give them power disproportionate to their numbers. Direct election would fully cure the defects in our system which third-party candidacies in 1912, 1924, 1948 and 1968 sought to exploit. It would also remedy other faults that could magnify third-party efforts. Close analysis proves that direct election will actually strengthen the twoparty system-not weaken it-by removing special incentives to third parties and equalizing all voters throughout the nation.

RUNOFFS

We have looked at the question of runoffs under the contingent election procedure of S.J. Res. 1. By requiring a candidate to obtain at least 40 percent of the popular vote in order to be elected, we believe the possibility of a runoff to be extremely remote. History demonstrates that it is unlikely in a presidential election that neither of the major candidates would receive at least forty percent of the vote. For this unlikely contingency, we believe the runoff to be a desirable procedure since it assures that the people would elect their President under all circumstances.

We also believe that a runoff between the top two candidates is conducive to the maintenance of our two-party system. The most a splinter group could hope for would be to cause a runoff between the top two, an accomplishment that probably would not be worth the effort in the first place, particularly in view of the unlikelihood that it could deny 40 percent to both major candidates. The runoff, we believe, would encourage splinter groups to exercise their influence inside, instead of outside, the existing party structure. As Paul Freund, a member of the ABA Commission, said before the House Judiciary Committee in 1970:

"This provision for a run-off is important not only as a democratic solution to the problem of a deadlock, but as a deterrent to the rise of splinter parties. Some critics of a direct popular vote have feared that by giving effect to every vote in the final tally, the plan would foster the growth of minor parties and would jeopardize the two-party system. If, however, the only achievement that such splinter parties could hope for would be to force a runoff between the two leading candidates, their gain would probably not seem to be worth the candle in the first place, and there would be an incentive to come to terms with a major party, as at present.

"The two-party system, in addition, is buttressed by more than the unit count of the present electoral system; it rests on the foundations of the party system in Congress and the states, and there is no solid reason to expect that these foundations would be shaken by the direct election of the President."

FRAUD AND VOTING IRREGULARITIES

Some opponents of the direct election plan argue that a benefit of the electoral college system is that it minimizes the risks of voting fraud and other irregularities. In our view, the dangers of fraud are, if anything, less probable under a direct popular election procedure than under the electoral college. Under the winner-takeall feature of the present system, relatively few fraudulent votes in one or two key states could be decisive in delivering an entire bloc of electoral votes. Under popular election, there is less incentive for fraud, since a much larger shift of votes on a multi-state basis would be required to affect the result.

RECOUNTS

We do not believe that a demand for frequent recounts is likely under a system of popular election. As a statistical matter, we believe that the larger the number of votes involved in an election, the less likely it is that the election will be close enough for a candidate to ask for a recount. In our opinion, the possibility of a recount is far more likely under our present system where a small shift in the popular vote in a few close states could change the nationwide result.

The vote-counting problems that are likely to be encountered under a direct election system are really no different in kind from those that exist in the election of a governor or a United States Senator. The principal difference now under the electoral college is that in every election some states are written off by one or more parties. When a party has little or no chance of winning the state, it is not likely to be active in the presidential election because the minority votes in the state are cancelled. If, however, every vote counted in the national total, both parties would participate actively in the election, including policing the polls, thus assuring an accurate count.

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In addition, the trend toward better regulated and more scientific vote counting has reduced and in our opinion will continue to reduce the possibilities of irregularities while expediting the final outcome. With a cooperative effort on the part of the states and federal government, the Association is confident that procedures and methods can be adopted to assure an effective system of direct popular election of the President.

OTHER PROPOSALS

I would like to address the reform proposals other than direct, popular election and the reasons why we believe they should not be accepted by this Subcommittee. The proposals I speak of are the automatic plan, which would assign all of a state's electoral votes to the winner of its popular vote; the district plan, which would assign two of each state's electoral votes to the popular winner in the state and the rest to the winner of the popular vote in each of the state's districts; and the proportional plan, which would allocate each state's electoral vote in accordance with the percentage won by each candidate of that state's popular vote.

Under each of these plans, the present formula for distributing electoral votes among the states would be retained. As a consequence, none of these plans would eliminate the voting inequities arising from the use of that formula. Each state would continue to cast its assigned electoral votes regardless of voter turnout. Second, the allocation of electoral votes would continue to be based on the decennial census. Thus, our 1980 presidential election will be governed by an electoral vote apportionment based on the census of 1970, thereby disadvantaging the voters of states that grew in size in the 1970's.

Third, the ratio of electoral votes to population would continue to vary from state to state because each state is now assigned three electoral votes regardless of size. The ratio might be one to 75,000 persons in state A and one to four times as many persons in state B. As the Supreme Court noted in MacDougall v. Green [335 U.S. 281, 290 (1948)], the notion that one group can be granted greater voting strength than another is hostile to our standards of popular representative government. Consequently, the proportional, district and automatic vote proposals all leave open the possibility of the popular vote loser being elected President. Under the automatic vote proposal, for example, it is possible for a person to become President with considerably less than one-fourth of the total popular vote. Studies indicate that the application of the proportional and district vote plans to past election returns would have resulted in the election of popular vote losers in some cases and would have thrown the election into the House of Representatives in other cases. The automatic vote proposal is particularly objectionable because it would freeze the winner-take-all system into the Constitution, thus perpetuating one of the most criticized aspects of the electoral college. That feature totally suppresses at an intermediate stage all minority votes cast in a state; gives inordinate voting power to organized groups within a state; discourages voter turnout; limits campaigning; and places an undue premium on the effects of fraud, accident and other factors. While it might appear not to be the case, the winner-take-all system also could effectively continue in a number of states under a district vote system. This would be true in the states which would have one Representative, in the District of Columbia, in one party states, in states where party strengths are uniform throughout, and with respect to the two electoral votes in each state awarded to the popular vote winner. This is more than theory. In the instances where district vote plans were used between 1789 and 1892, electoral votes of the states involved were cast as a unit approximately two-thirds of the time. In 1960, if the then existing congressional districts were employed as electoral districts, 21 states would have cast their votes as a bloc and 7 would have cast all but one as a bloc. On the other hand, the electoral votes of most large states effectively would be split by use of a district system because of the rigorous two-party competition there.

Even in states where the electoral votes would be split under a district plan, the votes of the minority in each district would be suppressed at an intermediate stage. Indeed, it would be possible for the popular vote loser in a state to obtain a majority of its electoral votes. This could happen where a candidate won a majority of districts by narrow margins and lost a minority of districts by large margins. If a district system were used in 1960, Nixon would have won the Presidency by a substantial majority of the electoral votes even though he lost the popular vote. The district vote proposal would not provide a voting incentive to minority party voters in each district, since their votes would be suppressed at an intermediate stage. Moreover, the district proposal might encourage spoiler candidates because of the possibility of their obtaining electoral votes. This proposal is subject to the further objections that it could lead to the gerry-mandering of districts for partisan

advantage and that it would favor small states with few districts by reducing the importance of large states with many districts.

Although the proportional vote plan more accurately reflects the popular vote cast in each state than the district or automatic vote plans, it favors citizens of the smaller states and introduces new inequities. Larger states would lose the advantage they possess by reason of the winner-take-all unit vote feature of the present system while smaller states would retain the voting advantage they have by reason of the unequal distribution of the electoral votes which gives such states greater electoral votes per resident. This plan also would increase the influence of states with a low voter turnout and states dominated by one party. Computer studies show that citizens of smaller states would obtain disproportionate power under the proportional system in influencing the outcome of a national election. In addition, the ability of spoiler candidates to throw and election into the House of Representatives would be substantially increased under the proportional plan, since each state's electoral votes would be divided among all the candidates in proportion to their statewide popular vote. Based on the application of the proportional plan to past election results, a minority President might have been elected in 1880, 1900, and 1960.

In contrast, the direct, popular vote plan would embrace the best features of the district and proportional vote proposals while remedying all of the major defects and dangers of the present electoral college system.

CONCLUSION

It sometimes is said, Mr. Chairman, that if the system isn't broken, we shouldn't fix it. In our view, the workings of the electoral college over long period of time have demonstrated the need for substantial repair. While we have been fortunate in the caliber of our Presidents, a number of defects and dangers have manifested themselves which could operate to distort, frustrate and reject the will of the people. Its continued use constitutes, we believe, a serious threat to the smooth functioning of our governmental system. As a distinguished committee of this body observed more than 30 years ago:

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"The only legitimate object of an election is to accomplish the will of the people. If we permit a system to prevail that thwarts that will, we trifle with one of the most serious purposes of Government. When that may happen lessly test the serenity and security of our Government. We plant hate, discord, and distrust where we could have Nationwide concurrence in the goodwill acceptance of the just verdict of the American people. H. Rep. 262, 73d Cong., 1st Sess. (1940)." We believe the case for a system of nationwide popular vote as the best alternative to the present system is clear. No other proposal can claim that it will_assure that the winner of the popular vote will always be the election winner. Can we afford to continue a system of election to our most precious office which is unable to give this assurance?

Senator THURMOND. Now, there is another witness here, Dr. Judith Best, is she here? Would you come around, Dr. Best?

Now, Dr. Best, if it meets your approval we can put your entire statement in the record and it will be printed word for word—and then would you care to talk just off the cuff and emphasize any particular points you had in mind?

TESTIMONY OF JUDITH BEST, PROFESSOR OF POLITICAL SCIENCE, STATE UNIVERSITY OF NEW YORK, CORTLAND, N.Y. Dr. BEST. Thank you, Senator, I appreciate the opportunity to be here. I appreciate the opportunity to defend the electoral college and to point out that the proposal to institute a direct election system is a proposal to fundamentally change our system of government. And I would like to recall the words of my late colleague, Martin Diamond, a leading authority on the American founding, who said:

It seems quite clear to me that the electoral college is easy to defend, once one gets the hang of it. It is a paradigm of the American idea of democracy. Thus to defend it is not only to help retain a valuable part of our political system, but also to help rediscover what the American idea of democracy is.

We are now beginning preparations for the celebration of the Bicentennial of our Constitution, the oldest living constitution in the world. At such a time it is particularly appropriate that we rediscover the American idea of democracy, an idea that has served us so well for so long. The proposal for a direct election system is in itself evidence that the idea needs rediscovery.

What is this enduring and fundamental idea of American democracy? It is the idea of the rule of the concurrent majority. It is the idea that no important decision would be reached without the concurrence of each interest vitally affected by the decision. The operating prescripts of the concurrent majority are consultation, compromise, and coalition building. This Madisonian principle seeks and has largely achieved a governmental system that reflects the views and interests of broad cross-sections of the polity. It is the organizing principle of American politics. Nowhere is the evidence for this more clearly found than in the Congress of the United States. Congress is formally organized on geographic lines and because of ethnic, occupational, and religious clustering, because of the coincidence in the interests of people who live in close proximity, Congress represents interests as well as numbers. The electoral college system incorporates the Presidency into the system of concurrent majorities by making it necessary for the President to win States, to win broad cross-sectional support. This Presidential election system is now being attacked in the name of another principle, the principle of the simple numerical majority. The principle of the simple numerical majority is not the American idea of democracy because it rests on a fallacy, the fallacy that the numerical majority are the people and that any restrictions or conditions set upon the rule of the numerical majority are restrictions on the rule of the people. Let us remember that the numerical majority is merely a part of the people. Let us remember that restrictions and conditions set upon the rule of the numerical majority may be necessary to protect the minority and to accomplish the will of the people as a whole. As Madison pointed out in Federalist 47, the unconditioned, unrestrained exercise of power by the one, or the few, and, yes, even by the many, is, according to the American principle of democracy, the very essence of tyranny. The principle of the concurrent majority does set conditions on the rule of the numerical majority. It sets a distribution condition. It says numbers are not enough for legitimacy. It says we must take into account the fact of group formation and group alliance; we must take into account the intensity of preferences, we must take into account the geographic distribution of interests.

The major concern of those who oppose the electoral college system is the possibility of a runner-up President. They fear that the people would not tolerate a runner-up President because they apparently believe that the numbers of popular votes are all that matter to the people. They apparently believe that numbers of ballots are the only test for legitimacy. In light of the fact that the people have just recently accepted the legitimacy of Gerald Ford, the first President in the history of the republic who had not been confirmed by a national election, these conclusions and fears seem unfounded. The people in their commonsense recognized that electoral systems serve and must serve more than the simple numeri

cal majority principle. The people recognized that the uninterrupted flow of government has a high priority. When we recall that Richard Nixon, the President who won the highest popular vote majority in the history of the Presidency, resigned the office in disgrace, or when we recall that Lyndon Johnson, the President with the second highest popular vote majority, could not seek a second nomination while engaging in the most unpopular war in the Nation's history, we may begin to understand why our pragmatic people do not worship at the altar of the majority principle. The system of electing the President should have three characteristics: First, it must be democratic-everyone's vote should count the same. Under our current system everyone's vote does count the same, in the States. As Martin Diamond pointed out, "The elections have already become as directly popular as they can be, but in the States." The direct election plan would not make our Presidential elections more democratic, rather this plan would defederalize our Presidential elections.

Second, an electoral system should produce a definite accepted winner and avoid prolonged contests and disputes. The current system does this admirably. It has never failed. It has a very strong bias in favor of a single election. Runoffs and contests would thrust the country into a Pope/anti-Pope situation. What would throw the country into turmoil is uncertainty about who the real President is. The 40 percent run-off provisions of the direct election plan are an open invitation to this kind of crisis, and might easily result in not one but two contests: A contest to determine if anyone had won 40 percent of the vote and, if so, who; and, in the event that no one had, a contested runoff. In each contest every ballot box in the country would be subject to challenge.

Third, the electoral system should produce a President who represents the concurrent majority, a President who has won the support of a broad cross-section of the country, a President who represents the Nation in its diversity. The current system does this and it does it quite well. Because it severely penalizes sectional candidates, it prevents lopsided sectional majorities from dominating the Presidential contest. The requirement for a broadly based victory is essential in a continental heterogeneous nation. This requirement, in a country that has already suffered one civil war, should be prized. The price of this highly desirable characteristic of the Presidency is the remote possibility of a runner-up President. I submit that the remote risk of a runner-up President is not too great a price to pay for such an important benefit.

The direct election system has but one concern: the size of the popular vote. The electoral college system is concerned not only with the size of the popular vote, but also with the distribution of the popular vote. This is what makes it a paradigm of the American idea of democracy. The organizing principle of American politics rests on two conditions not simply one. The first is the principle of the numerical majority and the second is the distribution of that majority. This complex principle, the principle of the concurrent majority, is, has been, and was intended to be the American idea of democracy because the size of the popular vote is not sufficient to maintain liberty.