ing the thin margin for a winner-take-all result under the present unit system. The proportional method is attractive to many of the minority in one-party States as their votes would really count in the total national result rather than being canceled out under the winner-take-all unit system with all electoral votes going to one candidate regardless of how close the vote in a State.

And the basic argument for the proportional method is that it would provide a far more accurate division of popular strength between the candidates than does the present system.

Against these arguments for the proportional method are the arguments that can be expected against any compromise plan. Just as its compromise character provides it with strength, that compromise character creates weaknesses.

It would not protect against the possibility that a candidate losing the popular vote contest could still win the election with the electoral votes. Had it been in effect in the past, in 1880 James Garfield would have been defeated under the proportional method although winning the popular vote, and in 1896 William Jennings Bryan would have defeated McKinley.

There is some resistance to it in Congress because it is viewed as the opening wedge of a threat to extend proportional representation to Congress-in other words, instead of electing Representatives by congressional districts, to elect them statewide. The threat this poses is that of the multiparty system that has made the Government of France so unstable.

The third basic proposal of change is the direct-election plan of electing Presidents. It was first considered in 1787 at the Constitutional Convention. It was rejected by the States by a vote of 9 to 2 against-Delaware and Pennsylvania being the only two States to vote for it.

The arguments used to defeat it at that time were not very flattering to the American people when judged by our present-day concepts. The arguments reflected on the intelligence and tolerance of the American people and imputed regional prejudice to them.

Most effective argument was that the American people just didn't know enough to be able to vote intelligently-didn't know enough about the qualifications and character of the candidates.

There was the fear of regional favoritism leading to favorite son candidacies and resulting inability of States to agree on one candidate sufficiently to give him a clear majority.

The first attempt to amend the Constitution to provide for the direct-election plan was made by Representative William McManus of New York in 1826. Since that time there have been approximately 90 amendments embodying the direct-election plan proposed in Congress.

I have already alluded to the unsuccessful efforts in 1950 and 1956 by Senator Langer. There are two current proposals now before the Senate and several before the House.

One is Senate Joint Resolution 23 introduced by Senator Mike Mansfield of Montana, the majority leader of the Senate. The other is Senate Joint Resolution 1, introduced by myself with Senators Aiken, of Vermont, Beall, of Maryland, Chavez, of New Mexico, and Morse, of Oregon.

There are two basic differences between the Mansfield plan and the Smith plan. First, under the Mansfield plan the election could be won by a plurality and without a clear majority-while under the Smith plan the election could be won only with a clear majority.

Secondly, the Smith plan proposes nomination by direct primary, while the Mansfield plan would retain the present nomination by convention system. Principal argument against the direct-election plan is that it would be at the expense of minorities and would provide no protection against what has been called the tyranny of the majority. It is contended in this respect that it violates the republic concept of our Government-the limited democracy that places some restraints upon the majority for the protection of the minority. Specifically, it is pointed out that this would penalize a small State like my State of Maine and would reward a large State like the State of New York in that it would remove the slight advantage of the two extra electoral votes given each State, regardless of size of population.

The States rights issue is raised against the direct-election plan because it tends to national laws regulating voting for President-such as minimum voting age, whether 21 or 18, poll taxes, education, and other criteria-which might extend to all other offices.

A further detailed argument on the States rights issue is that the directelection plan would give relative weight by the actual number voting rather than by the population of a State. Consequently, States with smaller voter participation, such as Mississippi, feel the heavy voter participation States would gain too much advantage under the direct-election plan.

Finally, this very type of opposition is given as a practical reason for opposing the direct-election plan: That with small States and Southern States opposing it, a direct-election amendment would never be ratified by the necessary threefourths or 38 of the 50 States.

Answers to these "anti" arguments are quick. The direct-election plan for President is no more a threat of tyranny of the majority and impairment of our republic form of democracy than is the direct-election system that practically all of our States have for all elective offices.

As to the penalty it would place on a small State like my own Maine by removing the slight advantage of the two electoral votes given to each State regardless of population size, I say that it is the individual citizen who is more important than the state and that the will of the individual must not be subservient to that of the state as in totalitarian nations.

As to States rights-as to the fostering of national uniform laws on elections and election results being made by those who vote instead of just by State population and thereby indirectly to some extent to those who don't voteI say that these are actually the very objectives to be sought rather than opposed.

As to the argument that Congress should not pass the direct-election plan because the small States and Southern States would probably refuse to ratify it, I say this is a defeatist attitude it is the standpat perpetuation of the status quo attitude—and "faint heart never won fair lady.”

In my opinion, not only do these observations answer such arguments against the direct-election plan but the arguments for it are unanswerable. Under it the vote of every citizen would count equally. It would remove the feeling of frustration on the part of many voters in one-party States. It would stimulate the two-party system.

It would abolish all the potential abuses under the present system. It would prevent the possibility of electors disobeying instructions from the voters. It would prevent State legislatures from tampering with the election of Presidents. It would remove the unfair advantages of small population States over big population States and vice versa. It would prevent the possibility that the popular-vote winner would not be elected President by the quirks of the electoral college with its unit-rule system. It would insure that the President would be elected by the people.

The arguments advanced against the direct-election plan are accentuated with even greater emphasis against the Smith plan than against the Mansfield plan because the Smith plan goes further and would extend to primaries and would abolish the national convention system of nominating Presidents.

Naturally I am prejudiced for the Smith plan or I would never have introduced it. My position is very, very simple. I think the party nominees for President should be chosen by the voters at direct primaries instead of by party delegates at national conventions.

I believe this for the very same reasons as those advanced for electing Presidents under the direct-election plan. What is good enough for electing Presidents should be good enough for nominating party candidates for President.

It is only the logical end of putting the power in the hands of the people, for they should be able to choose among all possible candidates and not just in the final round at the general election.

In addition to abolishing the electoral college and electing the President by direct popular vote, my plan would provide the following changes. It would abolish the nominations by national conventions and replace this system with direct primaries on the first Tuesday after the first Monday in August.

In the event that no one candidate received a clear majority or more than 50 percent of the total vote cast, a runoff election would be held between the two highest candidates 28 days later. This runoff system would apply both in the primary and in the general election.

In order to qualify as a candidate in the direct primary, a presidential aspirant would have to file a petition signed by at least 1 percent of the total vote cast in the last presidential general election—this would require 688,327 for a 1964 primary.

A political party would have to have a registered membership of more than 5 percent of the total registered voters in the United States in order to qualify to get on the ballot.

There is one other significant point in my proposal for direct primaries. It is significant in that under this arrangement it would be the people themselves-millions of Americans making the choice for Vice President-instead of that privilege being limited to two men-the Democratic nominee for President and the Republican nominee for President who choose their own running matesinstead of the choice for voters being limited to between only two persons, each handpicked by one person.

Now having considered these various proposals for reform of the system of electing Presidents, let us apply them to the last election and see what would have been the result in view of the closeness in the popular vote-as contrasted to Mr. Kennedy's very substantial margin in the electoral college vote.

There is one complication in applying the various proposals to the 1960 election results. That is the vote in Alabama where six of the presidential electors elected were Independents who ran as unpledged delegates and five ran as Kennedy delegates.

Strictly speaking, this would mean that while it could not be said, without fear of contradiction, that more than half of Alabama's Democratic vote was against both Kennedy and Nixon, by the same token it could not be said that it was for either of them.

The only valid conclusion that could be made would be that more than half of Alabama's vote was for neither Kennedy nor Nixon-and therefore would have to be withheld from the total given to Mr. Kennedy or Mr. Nixon in computations under the various proposals.

And this is a very important point, because it points up the uncertainty and the conjecture under the present electoral college system-an uncertainty and conjecture that would be removed completely under the direct-election plan and only partially under either the district plan or the proportional method.

When this factor is properly applied, it withholds at least 160,000 votes from Kennedy in the national total otherwise generally accorded to him on the basis of giving him the unpledged votes in Alabama. This would drop his national total to about 50,000 less than that of Mr. Nixon.

With this in mind, under the district plan or the unit rule applied by congressional districts instead of statewide Mr. Nixon would have garnered more electoral votes than the combination of Mr. Kennedy, the unpledged electors and the splinter candidates-and would have been elected by a clear majority in the electoral college.

With this in mind, under the proportional method plan, Mr. Nixon would have received a razor edge over Mr. Kennedy-but less than a clear majority because of the unpledged electors and percentage for splinter candidates.

Yet, where the proportional method plan as presently advocated, in effect— the Kefauver plan-Mr. Nixon would have been elected because the Kefauver plan does not require a candidate to get a clear majority but only to be the highest man and to get at least 40 percent of the electoral votes.

With this in mind, Mr. Nixon would have won by the 1956 Humphrey compromise plan of giving the two statewide electoral votes to the winner in the State but dividing the rest of the electoral votes in the State by the proportional method.

With this in mind, under the Mansfield direct-election plan, Mr. Nixon-and not Mr. Kennedy-would have won the election and be President today because with the 160,000 or more Alabama votes withheld from Kennedy and given to the unpledged electors, Mr. Nixon would have won the popular vote by a national plurality of 50,000 or more-and the Mansfield plan does not require a majority.

In fact, if any of these plans were applied to the 1960 election, Mr. Kennedy would not have been elected-but instead Mr. Nixon would have been elected. The only major plan existing or advocated, by which it can be said unequivocally Mr. Kennedy would definitely have won the election is the present electoral college system.

On the other hand, the only major proposed reform (other than abolishing electors as such) under which it can be said unequivocally that Mr. Nixon might not have won is the Smith plan. This is it to not say that Mr. Kennedy would have been defeated.

For under the Smith plan neither Mr. Kennedy nor Mr. Nixon would have been elected on November 8, 1960, for the simple reason that neither received a clear majority of the total vote cast.

Under the Smith plan, the decision of the people would not have been made until December 6, 1960, when a required runoff election would have been held between the two of them-and in which one of them would have received a clear majority of the vote of the people and would be an unquestioned majority President today instead of a minority President.

With a final difference of only sixteen-hundredths of 1 percent between Mr. Kennedy and Mr. Nixon in the November 8, 1960, election, who can say which would have won in a runoff election such as would have been required under my plan.

I have given you analyses of the various proposals for changing our way of electing Presidents. Naturally I am prejudiced and think my plan is the best-and I believe that its strongest logic is in the hindsight application of the various reform proposals to the 1960 election results.

Senator KEFAUVER. We will now stand in recess until 9:30 tomorrow morning.

NOMINATION AND ELECTION OF PRESIDENT AND VICE PRESIDENT AND QUALIFICATIONS FOR VOTING

FRIDAY, MAY 26, 1961

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess and subsequent postponement at 9:40 a.m., in room 457, Old Senate Office Building, Senator Estes Kefauver (chairman of the subcommittee) presiding. Present: Senators Kefauver, Keating, and Dodd.

Also present: James C. Kirby, Jr., counsel to the subcommittee, and Angelina T. Gomez, clerk.

Senator KEFAUVER. The committee will come to order.

The committee is delighted to have with us this morning the very distinguished and able senior Senator from Maine, Senator Margaret Chase Smith, with whom it has been the chairman's privilege to serve in the House of Representatives and in the U.S. Senate for more than

12 years.

Senator Smith has long been interested in reforms in our nominating and election procedures for President and Vice President and other matters of great concern to this committee.

We have before us, which has been made a part of the record, Senate Joint Resolution 1, which Senator Smith filed for herself, Senator Beall, Senator Chavez, Senator Morse, and Senator Aiken. We have already included in the record, Senator Smith, a very splendidly prepared analysis of all that you have submitted to us on Senate Joint Resolution 1, along with a summary which you have prepared.

We appreciate your coming and testifying orally before the committee this morning.

STATEMENT OF HON. MARGARET CHASE SMITH, A U.S. SENATOR FROM THE STATE OF MAINE

Senator SMITH. Thank you very much, Mr. Chairman. It has been an honor to serve with such a great statesman as you. I greatly appreciate this opportunity, as I do all that you are contributing toward our presentations.

I did prepare a long statement, but felt it would be better not to take the time of the committee to read the 7,500 words, and instead highlight it with a very brief summary giving the specific proposals:

(1) Abolish the electoral college system of electing the President and Vice President;

(2) Provide for election of the President and Vice President by direct popular vote;

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