The CHAIRMAN. Without objection it will be included in your

statement.

(Information referred to follows:)

(By Robert J. Taylor)

WASHINGTON (UPI)-If Congress decided to abolish the electoral college and elect the President by direct vote, the legislatures of 38 States would have to give their approval. But a preliminary survey indicated today only 12 States, at most, now firmly favor the idea.

By contrast, it would take negative votes in only 13 States to veto such a proposed constitutional amendment. And the same survey indicates there are already 10 States where that would probably happen.

The outlook comes from interviews with legislative leaders made in all 50 States by United Press International. The composite picture is this:

Only three States are solidly behind direct election and only nine more show a noticeable preference for the plan.

Six States estimate the plan has no chance in their legislatures and sentiment in four others is running against direct election.

In the remaining 28 States the issue is either too divided or undeveloped to make a judgment.

The CHAIRMAN. Thank you very much, Mr. Dennis.
Next we shall hear from Mr. Poff.

STATEMENT OF HON. RICHARD H. POFF, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA

Mr. POFF. Mr. Chairman, I think I should first apologize that I have no prepared text. Second, I shall be as brief as my conscience will permit.

Third, it would be well to capsulize my position before I attempt to explain it in depth.

I favor electoral form. If my choice were limited to the present system and the popular vote system, I would support the popular vote system.

But, Mr. Chairman, my choice is not so limited, and I do not prefer the popular vote system principally because I feel earnestly that it will not achieve electoral reform, and this because it cannot successfully be merchandised among the States.

That leaves me a choice of the two principal alternatives; namely, the district plan and the proportional plan. I strongly favor, and have since I was a student in law school, the district plan. Specifically I endorse the Dowdy-Dennis district plan as it is now structured, with possibly one minor amendment to which I shall address myself in a moment.

If the Dowdy-Dennis plan fails, I shall be prepared to offer what might be an agreeable compromise. I repeat, however, that I hope it will not become necessary for me to offer my substitute.

Now, by way of explanation, in an effort to systematize the analysis of this issue, and it is an extremely complex issue, I have undertaken to compartmentalize it in four separate areas and to identify each with one question.

The first question is does the present system need to be changed? Second, if so, what, specifically, is wrong with the present system? Third, which of the new systems proposed would best solve the problems inherent in the old system?

Finally, which of the new systems proposed can best be sold to the several States?

Answering the first question first: yes, I think the present system does need to be changed. Let me just cite a few examples to tell why I think so.

It is easy to assume, I suppose, that because our system has been tested so long and fails so little that no change is necessary. It is true that the system has always furnished the Nation a President, but it is not true that the Nation's system has never faltered. Fifteen times the winner has received less than a majority of the popular vote. Three times the winner has received fewer popular votes than his principal opponent. Twice the system failed to give the Nation a President until the House of Representatives had done what the voter properly should have done. And on one occasion the system failed to give the Nation a Vice President until the Senate did what the voters should have done.

Against a backdrop of 46 presidential elections that handful might not seem very impressive. But more impressive, I suggest, is the catalog of near failures which the present system has exposed this Nation to.

On 15 occasions a shift of less than 1 percent of the popular vote would have made the popular vote loser the President of the United States.

On seven occasions a shift of less than 1 percent of the popular vote in several key States would have thrown the election into the House and the Senate. Yes, I think the system does need to be changed.

Specifically what is wrong with the system? Well, I suggest, gentlemen, that what is wrong is not so much conceptual as functional. The concept originally came from the great compromise of 1787, and its spirit is translated into this system under which we have been operating since that time. However, functionally what is wrong is what has been loosely called the winner-take-all system. That is another term for the general-ticket system.

The winner-take-all system did not originate in the Constitution. The winner-take-all system was devised by the several States after the rise of the political-party system. You will recall that the Constitution empowered the individual States to decide the manner in which electors would be appointed, and after political parties began to grow it soon became obvious to the dominant political party in each State that the best way to promote its own growth was to adopt the winner-take-all system so that it would effectively cancel all minority votes in that State.

Ultimately all of the States in self defense were obliged to adopt the winner-take-all system, so let us be plain about it-it is not the Constitution which is primarily responsible for the functional frailty of the present system. It is, rather, the several State legislatures.

Specifically what is wrong under this winner-take-all system? We might make a long inventory, but principally I suggest that first of

all what is wrong is that it gives disproportionate power to the big States.

Let me explain in more definitive detail. Eleven States today jointly have a majority of the 538 electoral votes in the electoral college system. It is possible then for 11 of the largest States in the Union to elect a President under the present system.

Second, the present winner-take-all system, I think, places disproportionate power in the individual voter in the big State. Let me explain that if I can.

Professor Banzhof has undertaken to define voting power as the power the individual has by changing his vote to change the outcome of the election. Well, if that definition is valid then the voter in the State of New York, which has 43 electoral votes, has a voting power with a multiplicity factor of 43 and the individual voter in a State like Virginia, which has 12 votes, has a voting power with a multiplicity factor of 12.

Another frailty under the winner-take-all system, I suggest, is that it places disproportionate power in the hands of the tightly organized, highly disciplined, swing-vote elements in the large cities of the large States.

Another frailty of the winner-take-all system has already been explained, I think, rather fully. I will pause to identify it againnamely, that it tends to place a premium on vote fraud. As long as a few votes in some remote precinct have the power to change the total vote in the State at large and thereby effect a large prize of electoral votes, electoral fraud will be attractive.

One final fault and I will leave that point. I think clearly the present system does indeed discourage voter participation in the "sure" States, and if I may in a moment I will try to elaborate on the point which Mr. Latta so well made in that area.

It also has been said here, but again only to identify the problem, in addition to the problems inherent in the winner-take-all system there are three constitutional faults which, no matter which system might be chosen, ought to be cured. One of those is the faithless elector. We have had seven elections where electors were faithless to the commitment they were assumed to have undertaken when their names were placed upon the ballot.

Second, the present system now permits, through the mechanisms, for the contingency election in the House and Senate, the Nation to have a President of one party and a Vice President of another party. Finally, and this has not been referred to, I think, the Constitution fails adequately to provide today for the case of the death of both the President-elect and the Vice-President-elect before inauguration.

All the plans suggested cure all three of those constitutional faults, and all three would in one measure or another improve the winnertake-all system. The popular plan would improve it by abolishing the electoral college and electoral votes.

The proportional plan and the district plan would cure it in the one case by requiring that the total electoral votes in a State be divided on the one hand pro rata on the basis of popular votes earned, and on the other, as Mr. Dennis just explained, on the basis of individual dis

tricts and the State at large. Therefore all the plans, I think, would cure in one degree or another the major problems we want to attack.

The argument has been made against the district plan and the proportional plan that they will not absolutely guarantee that the winner of the popular vote will be the winner of the electoral vote and, therefore, President of the United States. Mathematically, this is true.

The argument has also been made against the direct plan that it will not guarantee absolutely that the winner will be a majority president. Conceding that this is true, is that any reason why we should abandon all effort at reform? I suggest that it is no reason, but on the contrary it illustrates the need to try to do the proper thing. What we need to do is to try to select the plan which best solves most of the problems and which can most likely receive the ratification of three-fourths of the States.

The next question I suggested was which of the plans can best be sold to the legislatures.

As already has been said, you will have to convince 38 State legislatures, and that means both bodies of each, to act affirmatively to support whatever proposition the Congress proposes. Conversely that means that 13 States by either acting negatively or simply by refusing or failing to act at all can defeat any proposition that Congress pro

poses.

There are 99 legislative bodies in the 50 States of this Nation. It seems unrealistic to me to believe that in those 99 there will not be 13, one each in a different State, which will not either fail to act or will act and act negatively on a popular-vote system. Here is why I think so.

I think so because I am persuaded by the figures contained in the UPI survey quoted by my colleague, Mr. Dennis. As a practical pragmatic proposition, I am persuaded because the small States are convinced that they have a voting power advantage in the present system. Whether or not they have a power advantage in the present system is absolutely irrelevant. They are convinced that they have the power, and moreover they are convinced that they are entitled both in the electoral college and in the Senate to have the same power as the large States.

Therefore I say it is unrealistic to expect that you will have the support of a sufficient number of the small States to ratify a popular vote proposition.

It is possible that none of the plans, including the Dennis-Dowdy plan, will receive a two-thirds vote in the House. On that occasion I will be prepared to offer a substitute which I have strung together in the hope that it might be something of an acceptable compromise, and it is just that, a compromise. It is a joinder of several parts. It partakes in part the district plan, in part of the direct plan, and in part of the proportional plan. Let me see if I can explain briefly what the essential parts of this are.

First, the vote in each State would be divided. The electoral vote in each State would be divided proportionately according to the share of the popular vote which the candidates win in a State. If any presidential candidacy earns a majority of those electoral votes then they would be elected President and Vice President.

If no candidate earns a majority then two possible contingency mechanisms would become operative. The first contingency mechanism would provide that the candidacy receiving the greatest number of popular votes, at least 40 percent, would become the President and Vice President. Then if there were none receiving such number, the second contingency mechanism would become operative and that would provide that the election would be decided in the House and the Senate sitting jointly with each Member casting one vote, the choice. being confined to the two top candidates in the electoral college.

A majority would be required to elect and two-thirds of the constitutional membership of each House would be necessary for a quorum. I think I should pause parenthetically at this point to say that I would be obliged to offer an amendment to the Dennis-Dowdy bill with respect to the contingency mechanism because I happen to share the concern that was raised by my colleague from California, Mr. Smith, at the last hearing. He made the point that if a third candidate were on the ticket in the House and in the Senate it might create some unpredictable problems, and I suggest that the best proof of what he says has a historical antecedent. In the election of 1824 Mr. Jackson won the most electoral votes. Mr. Adams won the second largest number of electoral votes. Mr. William Crawford was third. Henry Clay was fourth.

Under the Constitution the choice was confined to the top three; namely, Jackson, Adams, and Crawford. If you all remember, Adams, who won a minority of both the popular votes and the electoral votes, and both less than Jackson, was elected President. But had Henry Clay been third in the electoral college he might very well have been elected President of the United States, and I say that for this reasonHenry Clay was then Speaker of the House of Representatives. So I add my voice to that of Mr. Madison and others who have spoken on this subject and opt in favor of limiting the choice in the contingency mechanism to the two top candidacies.

Mr. Chairman, I shall conclude in just a moment. I regard the direct plan faulty in many respects, but I shall not attack it frontally. But I shall, if I may, address myself to one of the chief problems in the plan, and that is the runoff contingency mechanism. My fears are twofold here. First, as soon as the general election is concluded and the votes are tabulated, if one candidacy fails to receive 40 percent then will begin the wheeling and dealing. That may or may not be desirable. I happen to feel there is a great danger there, particularly if there should be a proliferation of the party system, as there might very well be under a popular vote plan.

Second, I am concerned about the time schedule involved in that proposal. We now have our elections in early November and our inaugurations in late January. The time interval is not very long. I suggest that in the first election there will be contests and challenges based on fraud, defective ballots, errors in the tabulation of the votes, and when those challenges are made they have to be resolved.

Under the laws of most States they have to first run the gauntlet of an administrative appeal procedure which is rather time consuming in some areas. Also in most States, after all administrative remedies have been exhausted, there is still access to the courts. I need not

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