The Electoral College - Why It Ought To Be Abolished

Fordham Law Review, Dec 1968

By John D. Feerick, Published on 01/01/68

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The Electoral College - Why It Ought To Be Abolished

The Electoral College - W hy It Ought To Be Abolished John D. Feerick 0 0 Fordham University School of Law Recommended Citation John D. Feerick, The Electoral College - Why It Ought To Be Abolished, 38 Fordham L. Rev. 1 (1969). Available at: http://ir.lawnet.fordham.edu/flr/vol38/iss1/1 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information, please contact . - Article 1 VOLUM19E68-6X9XXVII RHODA S. RoTH Articles Editor PAUL K. BIA Case Notes Editor KENNEHHELD Comments Editor MEMBERS Anes 3w MEETIG LEGAL ExPENSE.S. Barlow F. Christensen ........................ 383 AssiozN rrs FOR SEcURiTy AND FEDERAL T&X LmEs. John J. Creedon ............ 535 Coim mcis SuccEss As EvmmzcE OF PA=TABUrr.i. Spencer H. Boyer .......... 573 THE ELcToRAL COLLEGE-WHY sr OUGHT TO BE Asor.Lxs=D. John D. Feerick ...... 1 EQUiTABLE PREcLusIo-v OF jUsaDIcrIOwAL. ATrACxs on Vom Dvoncns. Earl Phillips 355 I BY R 1, 2, 3, 5, 7 - - - . Robert A. Kessler .................................... 81 NTio- ovER TmsS: Ax EXPo-RATon OF UCC 2-207 AND NEw SEro: 60, RE STATE-T OF CONTRACTs. John E. Murray, Jr............................... 317 INTERPRE G ARTICLE 11 OF THE OUTER SPACE TREATY. Stephen Gorove .......... 349 LEGAL PROBims OF ALCOHOLISM. L. S. Tao .................................... 405 MARRIGE: A "BAsIC CrVL RIGHT oF MfAN." Henry H. Foster, Jr................. S1 OIL Po=T.-oN OF T OCEAws. Joseph C. Sweeney .............................. 155 THE REESOLUTION OF REPRESENTATION STATUS DISPUTES UNDER THE TAYLOR LW. Joseph R. Crowley ....................................................... 517 UNioEm, UIN'oRIS AND UNTARY LAws REGULATING CoNsULME CREDIT. Carl Feisenfeld ...................................................................... 209 TABLE OF LEADING ARTICLES-AUTHORS BOYER, SPENcER H., Commercial Success as Evidence of Patentability .............. 573 CHRISTENSEN, BARUOW F., Aids in Meeting Legal Expenses ....................... 383 CREEDoN, Jom J., Assignments for Security and Federal Tax Liens ............... 535 CROWlEY, JosEPH R., The Resolution of Representation Status Disputes Under the Taylor Law .............................................................. 517 FEmcx, JoHN D., The Electoral College-Why it Ought to be Abolished .......... 1 F.smqFELD, CARL, Uniform, Uniformed and Unitary Laws Regulating Consumer Credit 209 FOSTER, HENRY H., JR., Marriage:"A Basic Civil Right of Man" .................. 51 GoRovE, STEPHEN, InterpretingArticle 11 of the Outer Space Treaty ............... 349 KESSLER, ROBERT A., I by R 1, 2, 3, 5, 7 . . . .................................. 81 MnEmy, Jonw E., JR., Intention over Terms: An Exploration of UCC 2-207 and New Section 60, Restatement of Contracts ....................................... 317 PHI=Is, EARL, Equitable Preclusion of JurisdictionalAttacks on Void Divorces .... 355 SWEENEY, JosEPH C., Oil Pollution of the Oceans ................................ 155 TAO, L. S., Legal Problems of Alcoholism ....................................... 405 TABLE OF BOOKS REVIEWED ANDERSON: AERICAN LAW OF ZONING: ZONMG, PLNNING, SUBDIVISION CON-MOL. Roger A. Cunningham ..................................................... BARXUN: LAw WrrooUT SANcrIoxs: ORmE IN PRnnrr SOCIETIs AND TIME WORLD Coixnxun=rY. Joseph G. Cook .............................................. 679 137 iv FORDEAM LAW REVIEW COMMENTS INDEX DIGEST ADMINISTRATIVE LAW CAB-Presidentially Approved Board Orders Held Reviewable (Case Note) 267 FCC-Personal Attack Rules Unconstitutional as Violative of First Amendment (Case Note) 271 ALCOHOLISM Legal Problems of Alcoholism 405 -The Foundation of Responsibility 406 -- Strict Liability for Public Intoxication 408 -Determination of Criminal Responsibility 411 -The Relevance of Psychiatry 416 -Differences in Perspectives 420 -Civil Committment 422 ASSIGNMENTS See Taxation BANKRUPTCY Discharge in Bankruptcy and Self-Incrimination (Comment) 450 -Bankruptcy Legislation 450 -Self-Incrimination: Past and Purposes 454 -The Relation of Self-Incrimination to Bankruptcy 457 CIVIL RIGHTS Private Housing-Civil Rights Act of 1866 Held to Prohibit Discrimination in Sales and Rentals (Case Note) 277 Public Accommodations-Coverage Provisions of Title H, Civil Rights Act of 1964 to be Liberally Construed (Case Note) 285 CONSUMER CREDIT Uniform, Uniformed and Unitary Laws Regulating Consumer Credit 209 -The Uniform Consumer Credit Code and the Federal Consumer Protection Act 209 -Climate that Forced Legislation 212 -The Case for Uniformity 221 -A Case Against Uniformity 231 -Principles of the CCPA and UCCC 236 CAPITAL PUNISHMENT Directors Liable to Corporation for Profits From Corporate Stock Sales Made Because of Inside Information (Case Note) 477 COURTS CRIMINAL LAW Crisis in the Courts (Book Review) 501 See also Criminal Procedure The Limits of Criminal Sanction (Book Review) 702 Plain Error Rule-Standards for Application of the Rule Set Forth (Case Note) 481 Stop and Frisk-Court Establishes Reasonable Man Test (Case Note) 300 CRIMINAL PROCEDURE See also Criminal Law Indictments Based Solely Upon Hearsay Will Not Be Dismissed Where the Hearsay Was Deliberately Relied Upon When Competent Evidence Was Readily Available (Case Note) 305 Jury Selection-Jury's Imposition of Death Penalty Held Unconstitutional Where Procedure for Choosing Jurors Eliminated Those with Scruples Against Capital Punishment Not Amounting to Absolute Opposition (Case Note) 129 DOMESTIC RELATIONS -Legislative -Recent -The Developments, 1797-1962 26 Developments, 1963-1968 30 Basic Plans 35 ESTATE TAX -Mental Distress and the "Impact" Rule 431 -Mental Distress and Bystander Recovery-England 434 -Mental Distress and Bystander Recovery-United States 437 -Majority View--"Zone of Physical Risk" Doctrine 437 -Majority View--"Impact" Rule 438 -The New York Rule 441 -Minority View 444 MILITARY LAW Homosexuals in the Military (Comment) 465 -Development of Current Regulations 468 -Interpretations of Regulations and Article 125, UCMJ 469 -Punishment Through Discharge 472 -Psychological Aspects of the Homosexual in the Military and Suggested Methods of Separation 473 NEGLIGENCE Landowner May be Liable to Trespassing Infant Injured by Volatile Fluid (Case Note) 495 PATENTS Sale of Goods in Service-Predominated Transactions (Comment) 115 The Sales Statute of Limitations in the Uniform Commercial Code-Does it Preclude Prospective Implied Warranties (Comment) 247 SECURITIES REGULATION TABLE OF CASES Case names prefixed with an asterisk are the subjects of Case Notes *Babcock & Wilcox Co., Hylte Bruks Aktiebolag v ................... 292 Baker v. Carr .................... 270 Barbier v. Connolly ............. 664 Battalla v. State ....... 432-33, 441-43 Baum, Berg v.................... 441 Beaty v. Buckeye Fabric Finishing Co . ........................ 439-40 1969] 603 487 296 121 661 $98 1969] 652 589 521-22 257-58, 266 301 301-05 53 478 579-81, 584, 589, 594 1969] INDEX TO VOLUME XXXVII Wyman, Kelly v ............ Young, Bourhill v............. Zorach v. Clauson ............ 433-34 109 663 470 129 ERRATA Page 15, note 60, 6th line from end. For "five-sixths" read "five-elevenths." Page 115, note 1. For "1-202(2) (a)" read "1-102(2) (a)." Page 120, line 18. For "we" read "he." Page 131, line 7. Delete "five-to-four." Page 132, lines 4-6. For sentence '%r. Justice . . . holding." read '"Mr. Justice Douglas' concurring opinion disagreed with the basic reasoning of the Court in several critical respects including the resultant narrowness of the holding." Page 284, note 1, line 2. For "2000-2" read "2000a-2." Page 317, 11 lines from bottom of text. Delete "in." Page 369, note 69, line 8. Delete line and substitute "v. Landsman, supra, such as Lodati v. Lodati, 261 App. Div." 2d to last line. For "rev'd" read "rev'g." Page 405, * line 2. For "Profesor" read "Professor." Page 421, line 19. For "C." read "2." Line should be in Roman type. Page 477, note 5, lines 5, 10 and 15. For "Security" read "Securities." Page 477, note 6, line 2. For "with" read period. Delete remainder of note to word "Diamond." THE ELECTORAL TO COLLEGE-WHY BE ABOLISHED JOHN D. FEERICK* F the popular-vote winner were to lose a presidential election, or if the House of Representatives were required to select the President or the Senate the Vice President, resentment, unrest, public clamor for reform and an atmosphere of crisis would probably ensue. Yet these and other situations can, and do, arise under the electoral college system. Inherent in this system is the possibility that the will of the people will be frustrated. In the forty-five presidential elections under the electoral college system, three popular-vote losers were elected President, two Presidents were selected by the House of Representatives, one Vice President was chosen by the Senate, and one President was elected as a result of a straight party vote by members of an electoral commission appointed by Congress. In fifteen other elections a shift of less than one percent of the national vote cast would have made the popular-vote loser President. In five elections a minor shift of the popular vote would have thrown the election into Congress. Within the last twenty years, two elections narrowly missed being decided by Congress; Democratic and Republican electors defected and voted against their party nominees in the electoral college; and voters in one state were afforded no opportunity in two elections to vote for the national candidates of one of the major parties. To many observers in the United States and abroad, the election of the President and Vice President has appeared to be a relatively simple matter: Every four years, on the Tuesday after the first Monday in November, many millions of people go to the polls and express their choice for President and Vice President. Later that day or early the next they expect to learn via the communications media whom they have elected. They assume that the popular-vote winners will take office on January 20 as President and Vice President. Actually, the election of the President and Vice President is not so simple. It involves a system which has been characterized by a prestigious commission of the American Bar Association as "archaic, undemocratic, complex, ambiguous, indirect, and dangerous."' This article discusses * Member, New York Bar. The author served as advisor to the American Bar Association Commission on Electoral College Reform and currently is a member of the Special Committee on Electoral College Reform of the American Bar Association. 1. American Bar Association, Report of the Commission on Electoral College Reform, Electing The President, at 3-4 (1967) [hereinafter referred to as "Electing The President!,. See notes 132-33 infra. 1968] In 1950 the Lodge-Gossett plan was vigorously debated in Congress."' Its proponents argued that it would more accurately reflect the popular strength of the candidates than the present system; would encourage political activities in every state, and would eliminate defects in the system arising out of the "winner-take-all" feature, the use of presidential electors and the formula for electing a President in the House of Representatives. Its opponents urged that it would endanger our two-party structure by making it possible for splinter groups to obtain electoral votes; would weaken our federal system, since states no longer would have a voice as to the method of selecting electors; and would give inordinate influence to one-party states and states with low voter turnout inasmuch as their electoral votes would not be effectively split, as it was assumed would be the case in large states. On February 1, 1950, the Senate passed the Lodge-Gossett proposal by a vote of 64 to 27.11- However, it failed to pass the House."' In 1951 it was endorsed by the House and Senate Judiciary Committees, but no action was taken on the floor of Congress. In 1955 it was reported out by the Senate Judiciary Committee and in March of the following year Senator Price Daniel of Texas, a strong advocate of the proportional plan, moved to substitute for the Committee's proposal a proposal which would give each state a choice between the district and proportional plans."1 By coupling the support for one with the support for the other, he hoped to get the necessary two-thirds vote for passage. In the ensuing debate, opponents of the proposal, led by Senators Paul H. Douglas of Illinois and John F. Kennedy of Massachusetts, argued that a change to a proportional or district vote system would greatly enhance the power of conservatives in both parties."' They reasoned that the large states, where two party competition was keen, would likely split their electoral votes between the parties, whereas the conservative southern states would continue to cast most, if not all, of their votes for Democratic candidates, thereby increasing the influence of that wing of the party. Since the importance of large states and their urban centers, where liberal Republicans would have their strength, would be decreased, the influence of conservative rural interests of the Republican Party would be increased. Kennedy forcefully argued in favor of the present system, stating that the nation's big cities and the minority groups within 111. See 96 Cong. Rec. 877-86, 1064-85, 1148-63, 1259-79 (1950). 112. Id.at 1278. 113. Id. at 10427-28. On a motion to suspend the rules for its consideration, 210 Representatives voted against and 134 in favor. 114. The substitute was to S.J. Res. 31, 84th Cong.) 1st Sess. (1955). 115. See 102 Cong. Rec. 5150, 5248-54, 5539-64 (1956). them were greatly underrepresented in the state legislatures and in Congress. The electoral college, said Kennedy, compensated for these inequities by giving urban centers and their minority groups an influential role in presidential elections. Said Kennedy: "[I] t is not only the unit vote for the Presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider all the others.""' 6 Addressing himself to the nature of the substitute proposal, Kennedy declared: The two schemes joined together by this shotgun wedding . . . are wholly incompatible, the sponsors of each having thoroughly and accurately assailed the merits of the other over the years. The Mundt proposal multiplies the general ticket system; the Daniel proposal [his proportional vote proposal] abolishes it. The Mundt proposal continues the importance of States as units for electoral purposes; the Daniel proposal reduced it.... And yet it is now proposed that the Senate, being unable to give its approval to either system, should lump them together and give each State its choice. tNooralsusryesrtemmethcooudldobfeindtreovdisuecdi.n"g17confusion and loss of public confidence in our elec On March 27, 1956, the Daniel proposal passed, by a vote of 48 to 37, as a substitute for the proportional vote plan recommended by the Senate Judiciary Committee in 1955.11' Since the vote was short of two-thirds, Daniel and others decided not to submit the measure for a final vote and the proposal was recommitted to the Senate Judiciary Committee. No proposed amendment has reached the floor of either House of Congress since then. While the proportional and district plans were receiving careful attention in 1950 and 1956, direct election proposals received scant attention and were soundly defeated in the Senate." 9 In 1961 extensive hearings were held by the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee, and the following year the Subcommittee reported a district plan to the full committee, where it died. B. Recent Developments, 1963-1968 During the past few years renewed interest has been focused on the subject of electoral reform. A number of reasons for this can be cited. 116. Id. at 5150. 117. Id. at 5159. 118. Id. at 5673. 119. In 1950, William Langer of North Dakota recommended 'a direct vote, coupled with national nominating primaries. It was rejected by a margin of 60 to 31. 96 Cong. Rec. 1276 (1950). Senator Hubert Humphrey's substitute amendment providing only for direct election was defeated by a vote of 63 to 28. Id. at 1276-77. Senator Langer's proposal was rejected in 1956 by a vote of 69 to 13. 102 Cong. Rec. 5637 (1956). Senator Herbert Lehman of New York then offered an amendment providing only for direct election, which was defeated by a vote of 66 to 17. Id. at 5657. In 1962, 1963 and 1964 the Supreme Court rendered its historic decisions in the field of legislative reapportionment, which removed numerous inequities from the political scene and firmly established the principle of "one person, one vote.' 20 In a message to Congress on January 28, 1965, President Johnson urged reform of the electoral college so as to "assure the orderly continuity in the Presidency that is imperative to the success and stability of our system."'' The President stated: "Today there lurks in the electoral college system the ever-present possibility that electors may substitute their own will for the will of the people. I believe that possibility should be foreclosed."' 22 The President said that the general ticket system of awarding electoral votes should be retained as it was "an essential counterpart of our Federal system.... . Accompanying the President's message was a draft of a proposed constitutional amendment which would retain the electoral votes of each state, abolish the office of elector, provide for the automatic casting of electoral votes for the plurality winner in the state, and refer the contingent election to the Senate and House meeting jointly. Thereupon, proposals incorporating the President's recommendations were introduced in Congress by Senator Birch Bayh of Indiana and Representative Emanuel Celler of New York.12' However, no action was taken in Congress with respect to these or other proposals. 120. In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court broke into the thicket of legislative apportionment, holding that the federal courts had jurisdiction over the apportionment of the state legislatures. Less than one year later, in Gray v. Sanders, 372 U.S. 368 (1963), the Court held that Georgia's county unit vote system violated the equal protection clause of the Fourteenth Amendment, stating: "Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote.... The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications." Id. at 379-80. In 1964, in Wesberry v. Sanders, 376 U.S. 1, the Court found that a Georgia congressional districting statute violated Article I, Section 2 of the Constitution, which "means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Id. at 7-8. Four months later, in Reynolds v. Sims, 377 U.S. 533 (1964), the Court held that the equal protection clause "requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." Id. at 568. Finally, in Avery v. Midland County, 390 U.. 474 (1968), the Court held that "the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body." Id. at 484-85. 121. Public Papers of the Presidents of the United States, 1 Lyndon B. Johnson 103 ,1965). 122. Id. at 102-03. 123. Id. 124. S.J. Res. 58, 89th Cong., 1st Sess. (1965); H.J. Res. 278, 89th Cong., 1st Sess. (1965). See also H. J. Res. 469, 90th Cong., 1st Sess. (1967). On January 20, 1966, the President renewed his recommendation for electoral reform.12 5 On July 20, 1966, the State of Delaware moved in the United States Supreme Court for leave to file a complaint against the other forty-nine states and the District of Columbia. Delaware asked the Court to issue an injunction against continued use of the "winner take all" formula, arguing that it was unconstitutional. Following the bringing of this suit, twelve other states, both large and small, moved to be joined as plaintiffs. New York opposed the motion and on October 17, 1966, the Supreme Court, without opinion, declined to hear the complaint. 2 ' Suits seeking similar relief were subsequently commenced by interested citizens in Mississippi, Virginia and California. They have either suffered or are likely to suffer the same fate as the Delaware suit. 2 7 In 1966 and 1967 the Chamber of Commerce of the United States announced that it favored abolishing the present system in favor of a district system or direct nationwide popular vote,22 and Gallup polls showed that a substantial majority of the people favored its elimination 125. 112 Cong. Rec. 703-04 (1966). 126. Delaware v. New York, 385 U.S. 895, rehearing denied 385 U.S. 964 (1966). The states which moved to be joined as plaintiffs were Arkansas, Florida, Iowa, Kansas, Kentucky, North Dakota, Oklahoma, Pennsylvania, South Dakota, Utah, West Virginia, and Wyoming. See Cong. Q. Weekly Rep., Aug. 19, 1966, at 1811-15. 127. In Penton v. Humphrey, 264 F. Supp. 250 (S.D. Miss. 1967) , a citizen's suit to enjoin the appointment of electors by any method not designed to reflect the will of the people as evidenced by its popular vote was dismissed. In so deciding, the court relied on the Supreme Court's decision in Delaware v. New York, 385 U.S. 895 (1966), and the Supreme Court's recognition in Gray v. Sanders, 372 U.S. at 380, that the inequities of the electoral college are an exception to the one person, one vote doctrine. On March 21, 1968, a group of citizens representing each of Virginia's congressional districts commenced an action to have the state's presidential electors elected from districts and to bar in Virginia the continued use of the winner take all system of selecting electors. On July 16, 1968, a specially-convened three-judge court dismissed plaintiffs complaint, holding that the winner take all system was permissible under the Constitution, that no specific method of appointing electors can be forced upon the state legislatures, and that any successful modification of the electoral college must be done on a nationwide basis and by way of a constitutional amendment. Williams v. Virginia State Bd. of Elections, 37 U.S.L.W. 2065 (E.D. Va. July 7, 1968); see N.Y. Times, March 22, 1968, at 38, col. 3. On May 6, 1968, a suit was filed in California by four residents of that state against the United States and the governor and secretary of state of California, seeking to declare void and unconstitutional and to enjoin the election of the President and Vice President by electors selected pursuant to the winner take all system. On July 29, 1968, the United States was dismissed as a party defendant, California's motion to dismiss the complaint was denied, and the convening of a three-judge panel was ordered. The court is not expected to decide the question before it (i.e., whether or not the general ticket system is constitutional) until early 1969. Letter to the author from James R. Hagan (a lawyer and one of the plaintiffs), dated August 22, 1968. See N.Y. Times, May 7, 1968, at 27, col. 5. 128. N. Peirce, supra note 2, at 189. and the substitution of a popular-vote system. -9 A poll of the nation's state legislators revealed that about ninety percent of those who responded favored reform.' Of these, 58.8 percent supported direct election. Also in 1966 Senator Birch Bayh withdrew his support for the automatic vote system recommended by the President, and introduced a proposed constitutional amendment providing for direct election.1 3 ' On January 7, 1967, a commission of the American Bar Association, composed of governors of both parties, judges, practicing lawyers, law professors, political scientists, and representatives of labor and management, released the results of a year-long study of the system. 3 2 It suggested the complete abolition of the electoral college in favor of direct election. The recommendations of the Commission subsequently were adopted by the American Bar Association and embodied in proposals introduced in Congress." 129. Id. at 360-61. 130. The poll was taken by Senator Quentin N. Burdick of North Dakota. He received responses from about 2,500 of the country's approximately 8,000 state legislators. Cong. Q. Weekly Rep., Dec. 16, 1966, at 3030; see N. Peirce, supra note 2, at 192-93. 131. SJ. Res. 163, 89th Cong., 2d Sess. (1966). The proposal was also co-sponsored by Senators Alan Bible of Nevada, Robert C. Byrd of West Virginia, Joseph S. Clark, Jr. of Pennsylvania, Paul H. Douglas of Illinois, Warren G. Magnuson of Washington, Wayne Morse of Oregon, Edmund S. Muskie of Maine and Gaylord Nelson of Wisconsin. This proposal required at least a forty percent plurality for election and provided that in the event no candidate received such a number, Congress would select the President and Vice President in a joint session, with each member having one vote. In 1967 Senator Bayh introduced a similar proposal, except that the contingent election was changed to a popular vote runoff election between the top two teams. S.J. Res. 2, 90th Cong., 1st Sess. (1967). In providing for the runoff, Senator Bayh adopted a recommendation made by the American Bar Association Commission on Electoral College Reform. See note 133, infra. 132. "Electing the President," supra note 1. The members were Robert G. Storey, its chairman, Dean Emeritus of the Southwestern Legal Center, and a former ABA President; Henry Bellmon, a former Republican governor of Oklahoma; Professor Paul Freund of Harvard Law School; E. Smythe Gambrell, Georgia attorney and a former ABA President; Ed Gossett, Texas attorney and a former Democratic member of the House of Representatives from Texas; William T. Gossett, current President of the ABA, former President of the American Bar Foundation and former general counsel to the Ford Motor Company; William J. Jameson, a former ABA President and a federal district court judge in Montana; Kenneth B. Keating, an associate judge on the New York Court of Appeals and a former United States Senator from New York; Otto E. Kerner, then Democratic Governor of Illinois and now a federal court of appeals judge; James C. Kirby, Jr., a professor of law and former chief counsel to the Senate Judiciary Subcommittee on Constitutional Amendments; James M. Nabrit, Jr., former President of Howard University and former Deputy United States Representative to the United Nations; Herman Phleger, California attorney and former legal advisor to the United States Department of State; C. Herman Pritchett, former President of the American Political Science Association; Walter P. Reuther, President of the United Automobile Workers Union; and Whitney North Seymour, New York attorney and former President of the ABA. Id. at vii-viii. 133. The Commission recommended that an amendment to the Constitution be adopted so as to: In 1966 and 1967 the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee conducted extensive hearings on the subject, at which witnesses testified in favor of the four basic plans for reform.' Although its hearings have concluded, the Subcommittee has not yet reported out a proposal, and no hearing s have been scheduled by 1968 ] THE the House of Repre sentatives. In August, 1968 , the Republican and Democratic Conventions adopted platform planks calling for electoral reform."3'5 Whether the Ninety-First Congress will accept the opportunity presented to improve our electoral system remains to be seen. C. The Basic Plans When Congress does deal with the problem of electoral reform, the main proposals before it will undoubtedly be the proportional, district, automatic and direct vote plans. Of these plans, the author believes that direct, nationwide popular vote is superior in all basic respects to the rest. All the electoral vote plans are subject to serious objections. Since they would retain the formula for distributing electoral votes among the states, they would not eliminate the inequities arising out of the use of that formula. Each state would continue to cast its assigned electoral votes regardless of vote turnout or population changes occurring between decennial censuses; and the ratio of electoral votes to population would vary from state to state. Consequently, the proportional, district and automatic vote proposals all leave open the possibility of the popular vote loser being elected President.' Since each provides for an election by Congress when no candidate receives the required number of electoral votes, an area for widespread wheeling and dealing remains, in which the plurality winner in the nation could lose. 3 7 135. Neither Convention endorsed a specific proposal. The Republicans proposed "to reform the Electoral College system, establish a nation-wide, uniform voting period for Presidential elections, and recommend that the states remove unreasonable requirements, residence and otherwise, for voting in Presidential elections." N.Y. Times, Aug. 5, 196S, at 25, col. 8. The Democratic plank provided: "We urge reform of the electoral college and election procedures to assure that the votes of the people are fully reflected." 136. In his article, John F. Banzhaf, Ill, shows by way of mathematical analysis that: (i) under a winner take all system, citizens of thirty-two states and the District of Columbia have less than average voting power (i.e., ability to affect the election by his vote), while citizens of such states as New York and California have two and one-half times the voting power of citizens of some of the smaller states; (ii) under a proportional vote system, citizens of thirty-six states and the District of Columbia would have less than average voting power, while citizens of such states as Alaska and Nevada would have more than four times the voting power of citizens of states like New York and California; and (iii) under a district vote system, citizens of thirty-four states would have less than average voting power. Only under direct election, he concludes, would all citizens have "equal voting power and an equal chance to affect the outcome of the election." Banzhaf, supra note 56, at 325. 137. None of the major plans suggest a contingent election other than in Congress. An automatic vote proposal introduced in the House by Representative Jonathan Bingham, however, does provide for a runoff election. H.J. Res. 1086, 90th Cong., 2d Sess. (1968 ). A proposal by Representative Edward Hutchinson of Michigan would simply change the contingent election provision so as to provide for a joint vote of both Houses, with each member having one vote. H.J. Res. 1112, 90th Cong., 2d Sess. (1968 ). FORDHAM LAW 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 features of the electoral college. While it might appear not to be the case, the "winner-take-all" system could effectively continue in a number of states under a district vote system. This would be true in the five states which have only one Representative, in the District of Columbia, in one-party states, in states where party strengths are uniform throughout, and in the voting in each state for the two electors corresponding to its two Senators. 1 8 Even in states where the electoral votes would be split, 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. The district vote proposal is subject to the further objections that it could lead to the gerrymandering of districts for partisan advantage and that it would favor small states by reducing the importance of large states. As one authority observed: The basic conservative bias of the district system could be expected to reassert itself in election after election because the balance of the existing general ticket system-the inflated electoral vote power of conservatives in small states versus the swing power of liberal groups in the large states-would be erased. Conservatives, moreover, would frequently win more of the districts in large states than their percentage of the statewide vote would justify, because the popular vote majorities in conservative suburban and rural districts generally tend to be less than the liberal majorities in center-city districts.... There would be a continuing danger of minority Presidents in close Presidential elections.'13 While the proportional vote plan would more accurately reflect the popular vote cast in each state than the district and automatic vote plans, it would favor citizens of the smaller states and introduce new inequities. This is because larger states would lose the advantage they possess by reason of the "winner-take-all" or unit vote rule feature of the present system, while small states would retain the voting advantage they have by reason of the unequal distribution of electoral votes, which gives such states greater electoral votes per resident. Another defect in the propor138. In the fifty-two instances that district vote plans were used between 1789 and 1892 (see supra note 102), all of a state's electoral votes were cast as a unit thirty-six times. In 1960, if the then existing congressional districts were employed as electoral districts, twentyone states would have cast their votes as a bloc; seven would have cast all but one as a bloc; and in six states, the minority party would have won under twenty-five percent of the votes. The electoral votes of most large states, on the other hand, would have been effectively split. Under such a district system in 1960, Nixon would have won a substantial majority of the electoral votes. "The Electoral College," supra note 85, at 21. 139. N. Peirce, supra note 2, at 163. 1968] tional plan is that it could seriously weaken the two party system by encouraging third parties to enter candidates in an effort to split the electoral vote and throw the election into Congress. The ability of splinter groups to do so would be substantially increased, since each state's electoral votes would be divided among all the candidates in proportion to their statewide popular vote. 40 When examined, the objections which have been addressed to direct election do not present a very good case against such a change in our system. Perhaps the most serious objection which has been levelled is that direct election would lead to a proliferation of parties and thereby weaken our two-party system. Extensive research by political scientists has pointed to numerous reasons for our two-party system.' 4 ' A renowned political scientist stated that: [S]everal factors conspired toward the development of the American dual party pattern. These included the accidents of history that produced dual divisions on great issues at critical points in our history, the consequences of our institutional forms, the clustering of popular opinions around a point of central consensus rather than their bipolarization, and perhaps others.1 ' Another said: The bounty of the American economy, the fluidity of American society, the remarkable unity of principle of the American people, and, most important, the success of the American experiment have all militated against the emergence of large dissenting groups that would seek satisfaction of their special needs through the formation of political parties. Third-party politics is generally radical politics, and surely we need not rehearse once again the obvious fact that the appeals of radicalism have gone unheeded in America .... 143 Others have concluded that our state party structure and the selection of representatives by plurality vote from single member districts have strongly contributed to the two-party system. 44 The Presidency itself is regarded as a principal factor because it, unlike a multiparty cabinet, cannot be parceled out among minuscule parties. The circumstances stimulate coalition within the electorate before the election rather than within the parliament after the popular vote. Since no more than two parties can for long compete effectively for the Presidency, two contending groups tend to develop, each built on its constituent units in each of the So states. 145 The abolition of the electoral college would not change these and other contributing factors. If anything, direct election could strengthen the two-party system, since a third party would no longer have the ability to influence the outcome of an election, as at present, with a small number of electoral and popular votes. Furthermore, a direct election system can be coupled with institutional safeguards which would operate to support the system. 4 6 It has been suggested that direct election would destroy our federal system and wipe out state lines. 1 At the base of this argument is the contention that the allotment of two electoral votes to each state, corresponding to its two Senators, represented a great compromise reached between small and large states at the Constitutional Convention and, therefore, the abolition of the electoral college would vitiate a compact which made the Constitution possible. As earlier noted, the historical facts are to the contrary; and, as Senator Mike Mansfield put it: [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. 1' 8 Furthermore, it has also been suggested that direct election would weaken the position of minority groups and cause many of their grievances to go unheeded. 4 This argument is based on the view that the present system gives them greater voting strength than their numbers would justify and forces the political parties to be responsive to their needs, since they may be able to influence the disposition of all the electoral votes of their state. This reasoning runs contrary to the fundamental principle of representative government in the United States today, 1968 ] namely, "one person, one vote," without regard to race, sex, economic state, or place of residence. "The notion that one group can be granted greater voting strength than another is hostile to our standards for popular representative government." 5 0 Theory aside, it is questionable whether minority groups would be any less effective under a system of direct election. Since presidential elections would be decided on the basis of popular votes, neither of the parties could afford to alienate any large groups of voters. In addition, under direct election, groups in one state could unite with groups in other states and the votes of all would be counted at the national level. This factor could well increase the voting strength of groups whose members were distributed throughout the United States. One objection that used to be urged was that despite its defects and dangers, the electoral college should be retained because it is the only institution weighted in favor of the interests of large states and their urban centers.151 It was further argued that representation in Congress and the state legislatures was weighted, due largely to malapportionment and gerrymandering, in favor of the interests of small states and their rural areas. Thus, the electoral college was part of a "solar system" in which the interests of all were represented. However this was before the "one person, one vote" decisions of the Supreme Court which have substantially changed the "solar system" of the 1950's and early 1960's and have brought new standards of political equality to the field of legislative reapportionment. The corresponding rationale for the electoral college has now largely disappeared as a result of these decisions. On the positive side, direct election is the only method that can assure that the candidate with the largest number of popular votes will be elected President. It is the only method that would eliminate once and for all the principal defects of our system: the "winner-take-all" feature and its cancellation of votes; the inequities arising from the formula for allocating electoral votes among the states; the anachronistic and dangerous office of presidential elector; and the archaic method by which contingent elections are handled. There would no longer be "sure states" or "pivotal states" or "swing voters" because votes would not be cast in accordance with a unit rule and because campaign efforts would be directed at people regardless of residence. Factors such as fraud and accident could not decide the disposition of all of a state's votes. Direct election would bring to presidential elections the principle which is used and has worked well in elections for Senators, Representatives, governors, state legislators, may150. MacDougall v. Green, 335 US. 281, 290 (1948). 151. This argument was effectively articulated during the 1956 Senate debates by Senators Paul H. Douglas, John F. Kennedy, and others. See 102 Cong. Rec., supra note 115. ors, and thousands of other officials at all levels of government. That principle, "one person, one vote," would make the votes cast by all Americans in presidential elections of equal weight. All votes would be reflected in the national tally. None would be magnified or contracted. All citizens would have the same chance to affect the outcome of the election. Finally, under a popular vote system, presidential elections would operate the way most people think they operate and expect them to operate. With respect to the implementation of such a system, the recommendations of the American Bar Association Commission on Electoral College Reform offer a practical and workable formula." 2 The Commission, as already noted, suggested a constitutional amendment requiring a popular plurality of at least forty percent to be elected President and Vice President'53 and in the event no candidate received such a number, a runoff between the top two candidates. The requirement of a plurality rather than a majority would be consistent with the rule which prevails in every other election, including the election of electors, and with the total popular vote received by fourteen of our Presidents. The ABA Commission chose a forty percent figure so as to render remote the possibility of a contingent election and to assure a reasonable mandate to the person elected President. The Commission felt that a forty percent figure, together with a national runoff, would operate to discourage splinter parties from trying to decide the outcome of an election. The Commission reasoned that it would seldom happen that neither of the major candidates would receive a forty percent plurality, even with third party candidates in the field; and that it would be unlikely that a minor party candidate could ever obtain such a plurality.154 However, even if a third party candidate obtained more than twenty percent of the popular vote and succeeded in 152. See "Electing the President," supra note 1; see supra note 133. 153. The Commission recommended that each voter cast a vote jointly applicable to both offices so as to eliminate the possibility of a split ticket and implement the expectation of the people that the presidential and vice presidential candidates of the same party will be elected. This recommendation is similar to provisions which appear in the various state constitutions requiring a joint vote for governor and lieutenant governor. E.g., Conn. Const. art. 4, § 3; Hawaii Const. art. IV, § 2; N1M. Const. art. V, § 1; N.Y. Const. art 4, § 1. 154. Only in the elections of 1856 and 1912 did a third party candidate receive more than twenty percent of the popular vote, and on both occasions a major party candidate received more than forty percent of the popular vote. In the elections of 1824, 1848, 1860, and 1924 third party candidates received between ten and twenty percent of the popular vote, while one or both (1848) major candidates had more than forty percent. In 1860, Lincoln received 39.8 percent of the popular vote, even though his name was not on the ballot In ten states and in the face of two third party candidates who obtained a total of 30.8 percent of the popular vote. In the close election of 1948, J. Strom Thurmond and Henry A. Wallace each received under three percent of the popular vote. See Appendices B and C. preventing the election of a President in the first election, he would not be able to decide the election in Congress or in such an archaic device as the electoral college. I" The people, in a runoff between the top two candidates, would decide the election. As the Commission stated: 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. 158 The Commission's recommendation that the qualifications for voting in a presidential election be the same as those for voting for members of Congress would make substantially uniform the voting qualifications in both federal and state elections. This is because qualifications for voting in congressional elections are defined by state law and are tied in with the qualifications for voting for members of the most numerous branch of the state legislatures.157 However, under the ABA's recommendations, a state could prescribe less stringent residence requirements for presidential elections, as many have already done,"' and Congress could establish 155. While elections and nominations usually are settled on the basis of plurality voting at the state level, the runoff has been used with success in primary elections in the following states: Alabama, Arkansas, Georgia, Florida, Iowa, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, and Virginia. In most of these states, the runoff is resorted to when no candidate receives a majority of the popular votes and it is limited to the top two vote getters in the first election. Iowa and South Dakota, however, require a plurality of thirty-five percent. See generally, C. Ewing, Primary Elections in the South (1953); V. Key, Jr., Southern Polities in the State and Nation 416-23 (1949). The runoff is used in connection with presidential elections in France and in a number of Latin American and African countries. In December 1965, France held its first presidential election by direct election. Due to the presence of six candidates, no one received a majority of the popular vote and a runoff between Charles De Gaulle and Francais Mitterrand was held two weeks later. Valuable information on the workings of runoff elections in the United States and abroad appear in the unpublished papers of the ABA Comm'n on Electoral College Reform. 156. "Electing the President," supra note 1, at 6. 157. US. Const. art. I, § 2, and US. Const. amend. XVII require voters for members of Congress to have the "qualifications requisite for electors of the most numerous branch of the State legislatures." The twenty-fourth amendment prevents a state from imposing a poll or other tax as a voting qualification in elections for Preident or Vice President, for presidential electors, or for Senators or Representatives. The recommendation of the ABA Commission would likely operate to prevent a state from unreasonably reducing its voting requirements so as to gain some special advantage in presidential elections from the number of its voters, since the reduction would apply to elections for state legislators and Congressmen as well. It does not follow, therefore, as some have maintained, that the nationalization of voting qualifications would be the by-product of direct election. See 113 Cong. Rec. 6587 (daily ed. May 9, 1967) . 158. More than one-half of the states have relaxed their residence rules for voting in uniform residence and age requirements should the need ever arise for it to do so.' The Commission's recommendation that the state legislatures be authorized to prescribe the places and manner of holding presidential elections, subject to a reserve power in Congress to make or alter such regulations, is similar to provisions now in article I governing elections for Senators and Representatives. 0 The recommendation that Congress be given the residual power to legislate on the question of appearances on the ballot would, if accepted, represent an expansion of congressional power. The ABA Commission regarded it as essential that the people of every state have the right to vote for major party candidates. Were a state to exclude the name of a major candidate from the ballot, Congress would have the power to deal with such a case.'' On balance, the author believes that a system of direct, nationwide popular vote presents the only real alternative to the existing electoral college system. V. CONCLUSION The workings of the electoral college over a period of almost two centuries have demonstrated the compelling need for substantial reform. The electoral college is ridden with defects and dangers which could operate to reject the popular-vote winner-the man intended by the people to be their President. Its continuance plainly constitutes a serious threat to the smooth functioning of our governmental system. The philosophy behind the electoral college belongs to a bygone age.'" The college was designed for an age when America was an agrarian society, when isolation, poverty and illiteracy were common, when transportation and communication were in their infancy, when the right to vote was severely restricted, when political parties did not exist, when the principle of popular vote was not firmly established and when our leaders presidential elections. See Nomination and Election of the President of the United States, supra note 5, at 252-59. See also The Wall Street Journal, March 20, 1968, at 1, col. 1. 159. For the residence and age requirements of the states, see The Council of State Government s, The Book of the States, 1968 -69. The voting age is eighteen in Georgia and Kentucky, nineteen in Alaska, twenty in Hawaii, and twenty-one in forty-six states and the District of Columbia. 160. U.S. Const. art. I, § 4. 161. See note 92 supra, and accompanying text. In order to get on the ballot, a political party must comply with the requirements imposed by state laws. These requirements are easily met in some states, while in other states they are difficult to meet. See generally Nomination and Election of the President and Vice President of the United States, supra note 5. 162. The Supreme Court gave recognition to this fact in Gray v. Sanders, 372 U.S. 368, 376-77 n.8 (1963). doubted the capability of the people to choose the President. The reasons which motivated the Framers to create the electoral college no longer exist. The America of today is a highly industrialized and sophisticated society and the world's leader in free enterprise. Most of the people enjoy a good standard of living, are literate, and are in constant contact with others near and far. Transportation is rapid and communication almost instantaneous. The right to vote is nearly universal,'3 and political parties present the various choices for President. And, most important, the principle of popular election has met the test of time so that today, in the United States, it is a cherished and firmly established principle of representative government. Not only have the reasons for the electoral college long since vanished, but the institution has not fulfilled the design of the Framers. Today it represents little more than an archaic and undemocratic counting device. There is no good reason for retaining such a formula for electing the President of the United States. As it exists today, the nature of the Presidency demands that there be no election barrier between the President and the people. The President stands at the head of our government. He serves as our highest national officer and as the symbol and spokesman for all the people. The United States, not any particular section, state or group of voters, is his constituency. His powers and duties are national in character, and the problems and issues with which he must deal are national and worldwide in scope. He has been aptly described as First Executive, First Legislator, First Diplomat, Commander-in-Chief, and Leader of his Party." Because the President plays so large a role in the affairs of our nation, it is all the more essential that he be elected by a method which assures fair and equal votes for all and not by a method which could operate to frustrate the workings of democracy, undermine the office of President, and render suspect from the outset his administration. "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 person, one vote.""' Surely, the time has arrived when we should recognize this principle in the election of our nation's two highest officials. 163. See N. Peirce, supra note 2, at 205-48. 164. L. Heren, The New American Commonwealth 34-35 (1968). 165. Gray v. Sanders, 372 U.S. 368, 381 (1963). APPENDIX A PresentDistributionof Electoral Votes and Ratio of Votes to Population (Based on 1960 Census) Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming THE APPENDIX A (Continued) Votes 8 6 29 4 8 4 11 25 4 3 12 9 7 12 3 * This column shows the number of persons (based on the 1960 census) per electoral vote in each state and the District of Columbia. The national average per electoral vote is 333,314. See 1961 Senate Hearings at 670. This column shows the rank of each state (and the District) by reason of its ratio. It will be noted that states with few electoral votes have low ratios and high ranks. 1824 1828 1832 1836 1840 1844 1848 1852 1856 1860 1864 John Q. Adams Andrew Jackson William H. Crawford Henry Clay Andrew Jackson John Q. Adams Andrew Jackson Henry Clay William Wirt Martin Van Buren William H. Harrison Hugh L. White William H. Harrison Martin Van Buren James K. Polk Henry Clay Zachary Taylor Lewis Cass Martin Van Buren APPENDIX B Percentageof Popular Vote and Electoral Vote of Presidential Candidates, 1824-1964* Percentage of Popular Vote 32 38 16 14 68 32 77 17 2 58 25 9 80 20 62 38 56 44 0 86 14 59 39 2 59 4 24 13 91 9 1868 1872 1876 1880 1884 1888 1892 1896 1900 1904 1908 1912 1916 1920 Rutherford B. Hayes Samuel J. Tilden James A. Garfield Winfield S. Hancock Grover Cleveland James G. Blaine 52.7 47.3 73 27 82 1858 42 55 45 58 42 62 33 5 61 39 65 35 71 29 66 34 82 16.5 1.5 0 52 48 76 24 1924 1928 1932 1936 1940 1944 1948 1952 1956 1960 1964 Candidates Calvin Coolidge John W. Davis Robert M. LaFollette Herbert C. Hoover Alfred E. Smith Franklin D. Roosevelt Herbert C. Hoover Franklin D. Roosevelt Alfred M. Landon Franklin D. Roosevelt Wendell Willkie Franklin D. Roosevelt Thomas E. Dewey Harry S Truman Thomas E. Dewey J. Strom Thurmond Henry A. Wallace Dwight D. Eisenhower Adlai E. Stevenson Dwight D. Eisenhower Adlai E. Stevenson John F. Kennedy Richard M. Nixon Lyndon B. Johnson Barry M. Goldwater Percentage of Popular Vote 72 26 2 84 16 89 11 98 2 85 15 81 19 57 36 7 0 83 17 86 14 62 36 90 10 * All electoral percentages are rounded to the nearest whole number and only the names of candidates are listed who received more than five percent of the total popular vote cast, except for the close election of 1948. The winning candidate in each election is listed first. Those whose names are italicized were elected President with less than a majority of the popular vote. See supra note 52 for the sources upon which the popular vote is based. - Since Greeley died before the electors met (see supra note 93), the sixty-six electoral votes which he would have received were distributed among four other persons. The chart reflects the percentage of the electoral vote these sixty-six votes represented. C.) T? s 5. . 0 0 0 I- co U)C% '0 %n 00 '0 U) co U) C') ~4 0-40' C2 '0 - U) 0C~2 U) ~0 0- U) 0C~ 0- 00002 0' 0 -4 U) ~oz '0')0- U) ci Co C4 1968] THE ELECTORAL - tt 4 00 C C') 00 %0 co co C4) C4) a' Ca %n C4) 0- U, -4 eq. C91 T0- r 00 0U) 0 '0 00 cc a, C) 11) 0 CIL -4 C') -40' cs~~0 0' 0-0 00 %n 0 es 0 *0 0 0' -4 -4S. 0 "0g Go 00 wC w? 4 U) U) ~ U) '-4 0' 0 d 0o 0 49I C, -s ,o 67 06* 49 0 0 > .2 CCCC C i2'2 C)c, 0 .9 0 00 0 '0 Co Co ~'0 C'- C'. ~C. 49 Co 49 C'. C'. 6o 0 V Cox: T[E WARE CouRT. Albert M. Witte ..................................... 140 HENXIN: How NATIONS BEHAVE: LAw AND FOREIGN POLICY. Sidney B. Jacoby ...... 698 JAMES: CRISIS IN THE CoURTS . Thomas F. McCoy .............................. 501 KATz: THE RELEVANCE OF INTERNATIONAL ADJUDICATION . Albert H. Garrelson ...... 696 LEVY: ORIGINs OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION. Roger Paul Peters ........................................................ 688 LEVY: ORIGINS OF THE FITH AMENDMENT: THE RIGHT AGAINST SELF-INCRMNATION. Arthur E. Sutherland ...................................................... 691 LEVY: ORIGINS OF THE F= AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION. Samuel S. W ilson ......................................................... 694 PACKER: THE LIMITS Or THE CP.IMNAL SANCTION. Charles M. Whelan ............ 702 SCHLESINGER: FORMATION OF CONTRACTS: A STUDY Or THE COMMON CORE O LEGAL SYSTEMS. Joseph M . Perillo ................................................ 144 WELLINGTON: LABOR AND TI LEGAL PROCESS. Samuel M. Kaynard ................ 502 Abbington School District v. Schempp ...................... 125 Abrams v. United States .......... 143 Adderly v. Florida ............... 141 Aerovox Wireless Corp. v. Dubilier Condenser & Radio Corp. .. 581 , 594 Alabama Board of Education, Dixon v................................. 607 Alabama , Marsh v................ 282 A. LA. Schechter Poultry Corp. v. United States ............ 640 , 642 *Alfred H. Mayer Co ., Jones v.... 278 *Allen, Board of Education v....... 123 Allen Bradley Co. v. Local 3 , Electrical Workers .............. 106 - 07 Amaya v. Home Ice , Fuel & Supply Co ................. 442 - 43 , 445 - 47 Ambler Realty Co. , Village of Euclid v. ........................ 680 American Automobile Accessories Co., v. Jerome H. Remick & Co. 598 American Central Insurance Co., Klefstad v..................... 298 American Tri-Ergon Corp . v. Paramount Publix Corp. 580-82 , 593 - 94 *Amusement Enterprises Inc ., Miller v. ............................ 285 Andis Clipper Co. v. Wahl Clipper Corp ................... 583 , 593 - 94 Andrews v . Board of Adjustment .. 685 *Anna, Sirianni v................. 134 Apollo Co ., White-Smith Music Publishing Co. v................... 599 *Arcuri, United States v........... 306 Arizona , Miranda v.............. 303 Aquilino v . United States .. 543-51 , 570 Augustine , Perry v............... 249 Automatic Devices Corp . v. Cuno Engineering Corp .... 586 , 588 , 593 Bell , Buck v ..................... 66 Beltram , United States v .... 307 , 309 Berg v. Baum .................. 441 Berger v . New York .......... 302 - 03 Bess , United States v. .. 541 , 543 - 47 , 570 Beth David Hospital , Perlmutter v ..................... 115 - 17 , 119 - 21 Blacker , McPherson v ........... 22 Blake v. Midland Ry............. 430 Boardman v. Sanderson .......... 437 Board of Adjustment, Andrews v. 685 *Board of Education v . Allen ...... 123 Board of Education, Everson v .. 124 - 28 Boddie v. State ................. 664 Bond v. Smith .............. 442 - 43 Bourhill v. Young ............ 435 - 37 Bowers v. City Bank Farmers Trust Co ......................... 499 - 500 Bradley v. O'Hare ........ 257 - 58 , 266 Brancato Iron Works , Inc......... 656 Brinegar v. United States ........ 304 Brook v. Brook ................ 63 Brophy v . Cities Service Co.... 479 Brown v . Union of Marine Cooks . 259 Brunswick-Balke-Collender Co ., v. Poel ....................... 346 - 47 Buck v. Bell .................... 66 Buck v . Jewell-La Salle Realty Co . 600 - 01 Buckeye Fabric Finishing Co. , Beaty v . ......................... 439 - 40 Buffalo Tank Corp. , Morse v .... 500 Burns v. Wilson .................. 470 * CAB , Pan American World Airways, Inc. v. ....................... 268 Cady , Roberts & Co ......... 491 - 92 Cafeteria Workers , Local 473 v. M cElroy ...................... California v . Robinson .... 608 456 303 406 , 416 , 423 - 24 , 475 Cambridge Lee Metal Co., Continental Finance , Inc. v. 568 - 70 Carpenter , United States v. 294 , 299 Carr , Baker v................. 270 Chase National Bank v. United States ...................... 668 - 69 Chemung County ................ 525 Cheshire v. Southhampton Hospital Association ................. 121 - 22 Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp.. 267 - 71 *Christian, Rowland v............... 676 Cities Service Co. , Brophy v...... 479 City Bank Farmers Trust Co ., Bowers v. ................ 499 - 500 City of Cambridge, Nectow v. 680 - 81 City of Los Angeles, Consolidated Rock Prods. Co. v......... 680 - 81 City of New Britain, United States v. ............................ 554 City of New York, Levine v.... 498 City of Ogdensburg .......... 521 - 22 City of Rock Hill, Hamm v .... 288 Civil Rights Cases ............ 280 - 81 Clackum v. United States ...... 471 Clark , Field v. .............. 644 , 646 Clark v. Fitzgerald .............. 256 Clauson , Zorach v........... 128 - 29 Cochran v. Channing Corp ....... 487 Cohen v. Hurley .............. 457 Cohen , Teamsters Local 107 .... 265 Colson & Stevens Construction Co.. 103 Community Blood Bank , Inc., Russel v . ........................ 117 Connecticut , Griswold v........ 51 - 53 , 55 - 56 , 60 - 62 , 70 , 75 , 79 - 80 Connolly , Barbier v............... 664 Consolidated Rocks Prods . Co. v. City of Los Angeles ........ 680 - 81 Continental Finance , Inc. v. Cambridge Lee Metal Co....... 568 - 70 Cook v. Cook .................. 358 Costello v . United States ..... 306-08 Cravotta , Lahann v ............ 441 - 42 Crest Finance Co . v. United States 553 , 555 - 50 266 Cumberland Shoe Corp. , NLRB v. 650 - 52 Cuno Engineering Corp . v. Automatic Services Corp. .. 586 , 588 , 593 Curtiss-Wright Export Corp. , United States v.................... 643 - 44 Dadourian Export Corp. , NLRB v. 655 Dan Howard Manufacturing Co. , NLRB v....................... 657 Deering Milliken & Co. v. TempResisto Corp .................. 589 Denis , Ellis, Inc. v............... 593 *Diamond v. Oreamuno .......... 478 Dichner v. United States ........ 482 Dillon v. Legg ................ 446 - 47 District of Columbia v . Easter . 405 , 411 , 424 Dixon v . Alabama Board of Education .......................... 607 Driver v. Hinnant ...... 407 , 410 - 11 , 416 , 424 Dublier Condenser & Radio Corp . v. Aervox Wireless Corp. .. 581 , 594 Dulieu v. United States ....... 433 - 34 Durham Lumber Co. v. United States ........ 543 , 546 - 48 , 550 , 570 Easter v . District of Columbia ... 405 , 411 , 424 645 Electric Machinery Manufacturing Co. v. General Electric Co... 582 , 594 Ellis , Inc. v. Denis .............. 593 Engel v. Vitale .................. 126 Enlarged City School District of Auburn ....................... 528 Erie County Agricultural Society , Kingsland v................... 500 Erie R.R. v. Tompkins .......... 142 Esso Petroleum Ltd. v. Southport Corp . ........................ 172 Everson v . Board of Education . 124 - 28 Fahey v. Mallone .............. 642 Fairfax Family Fund , People v .... 218 * FCC , Radio Television News Directors Association .............. 272 FCC , Red Lion Broadcasting Co. V......................... 273 - 74 , 276 Fibreboard Paper Products Corp. v. NLRB ................ 10S , 108 Field v. Clark ............. 644 , 646 *First National Bank v. United States ........................ 665 Fitchburg R.R. , Walsh v......... 497 Fitzgerald , Clark v............... 256 Fletcher , Rylands v........... 179 , 196 Florida , Adderly v................. 141 Fortnightly Corp ., United Artists Television, Inc. v........... 599 - 603 F.P. Bartlett & Co., Roto-Lith Ltd. v..................... 329 , 331 , 338 F.W. Woolworth Co ., Lorenz v. .. 591 Garrity v . New Jersey ....... 456 - 57 , 461 - 64 655 72 - 73 Hammes v. Tucson Newspapers , Inc . ...................... 555 , 557 Hannah v. Larche .............. 615 Harker v. McKissock ............ 260 Harper v . Virginia Board of Elections .......................... 141 Harris , United States v........... 281 Hart , Hoisting Engine Sales Co. v. 116 Hassett , Liebman v.............. 670 Hempfield Area Joint School Building Auth. v. Tectum Corp .... 249 Hershey Chocolate Corp......... 261 Hill , Maynard v.................. 53 Hill v. Seattle .............. 405 , 408 , 411 , 414 Hill , Time, Inc. v................ 141 Hinnant v. Driver ....... 407 , 410 - 11 , 416 , 424 Hodge , Hurd v.................. 281 Hogan , Malloy v......... 455 - 57 , 695 Hoisting Engine Sales Co. v. Hart 116 Hollywood-Maxwell Co ., NLRB v. 259 Home , Ice, Fuel & Supply Co ., Amaya v ............ 442 - 43 , 445 - 47 Hotchkiss v . Greenwood .. 577 , 583 , 588 House v. Schwartz ............... 254 Houston Insulation Contractors Association v. NLRB ........ 104 , 108 , 111 - 13 281 457 Isbrandtsen Co . v. Longshoremen's Local 1291 . ................... Jewell-La Salle Realty Co., Buck V.............................. 292 663 - 64 129 72 - 73 Jungersen v . Ostby & Barton Co . 585 , 590 J.W. Hampton , Jr. & Co. v. United States ........................ 645 Kaiser-Frazer Corp . v. Otis & Co. 674 Kalina v. General Hospital .... 441-43 Kaplan , Polin v.................. 253 Kelly v. Wyman ............. 612 - 16 Ker v. California ................ 303 King v. Phillips .................. 436 Kingsland v. Erie County Agricultural Society ................... 500 Klein , Spevack v............. 298 456 - 57 , 461 - 63 Knaub v. Gotwalt .......... 439 , 443 Kollsman Instrument Corp. , Goldberg v ......................... 118 Krause v. Krause ............. 376 - 78 Lahann v. Cravotta ........... 441 - 42 Larche , Hannah v................ 615 Lawrence , Norman v........... 589 *Law Research Service, Inc., Globus v. ............................ 673 Legg , Dillion v................ 446 - 47 Lehman , Rocnore v.......... 557 - 58 Le Sage & Co. v. McGhee ........ 580 Lessard v. Tarca ................ 440 Levine v . City of New York ...... 498 Liebman v. Hassett .............. 670 Lilly v. United States ............ 601 Liverpool Corp ., Owens v......... 435 Local 3 , Electrical Workers , Allen Bradley Co. v............... 106 - 07 Local 106 , United Association of Journeymen Plumbers .......... Local 1976 , United Brotherhood of Carpenters v . NLRB (Sand Door) 99 - 100 130, 132 438 Longshoremen's Local 1291 , Isbrandsten Co. v..................... McClain v . Ortmayer .... 462 S79-81 , 384 , 589 , S94 McElroy , Cafeteria Workers , Local 473 v. ........................ 603 McElroy , Greene v............... 603 McEwen , Haight v............ 442 - 43 McGhee v. LaSage & Co ......... 580 McKissock , Harker v............. 260 McPherson v. Blacker ............ 22 Meyer v. Nebraska .............. 52 Miami Beach First National Bank v. Simons ..................... 78 Midland Ry ., Blake v........... 430 *Miller v. Amusement Enterprises Inc.. .......................... 285 Milton Savings Bank v. United States ........................ 547 Mitchell v. Rochester Ry......... 433 Miranda v. Arizona ............. 303 Montgomery , Wheeler v....... 612 - 14 Moore , Reed v................... 445 Morse v. Buffalo Tank Corp...... 500 Muhlenberg Hospital , Jackson v ... 121 Mulkey , Reitman v............... 141 Mullaney v. Spence .............. 497 National Broadcasting Co. v. United States ......................... 274 National Woodwork Manufacturers Association v . NLRB 103-05 , 107 - 10 , 112 - 13 Nebraska , Meyer v............... 52 Nectow v . City of Cambridge 680-81 Nelson v. Johnson ............... 265 New Jersey , Garrity v........ 456 - 57 , 461 - 64 New York, Berger v........... 302 - 03 New York, Ginsberg v ............ 66 New York, Gitlow v ............. 143 *New York, Sibron v .......... 300 - 05 New York Dugan Brothers Inc., Tierney v...................... 498 New York State Div. of State Police ........................ 523 New York State Thruway .. 525 , 530 New York Times v. Sullivan .. 275 - 76 NLRB , Fibreboard Paper Products Corp. v................... 105 , 108 NLRB v . Cumberland Shoe Corp . 650 - 52 NLRB v . Dadourian Export Corp. 655 NLRB v . Dan Howard Mfg. Co. 657 NLRB v . Gilmore Industries, Inc. 654 NLRB v . Gorbea, Perez & Morrell, S. en C. ...................... 653 NLRB v . Hollywood-Maxwell Co. 259 NLRB , Houston Insulation Contractors Association .... 104 , 108 , 111 - 13 NLRB , Local 1976 , United Brotherhood of Carpenters v . ( Sand Door) ...................... 99 - 100 NLRB , National Woodwork Manufacturers Association v...... 103 - 05 , 107 - 10 , 112 - 13 NLRB v . River Togs , Inc ....... 656 NLRB v. Rohstein .............. 655 NLRB v. S.E. Nichols Co . .. 651 , 653 , 657 - 58 NLRB v. Southbridge Sheet Metal Works , Inc ................... 654 NLRB v . Stow Manufacturing Co. 652 Ostby & Barton Co ., Jungersen v. 585 , 590 Otis & Co., Kaiser-Frazer Corp v. 674 Otto v. Steinhilber .............. 684 Owens v. Liverpool Corp ......... 435 Padover v . Township of Farmington ..................... 681 , 683 Palsgraf v. Long Island R.R .... 438 Panama Refining Co . v. Ryan 640 , 642 *Pan American World Airways, Inc. v. CAB ....................... 268 Paramount Publix Corp . v. American Treiergon Corp. .. 580 - 82 , 593 - 94 *Patterson v. Proctor Paint & Varnish Co. ...................... 495 Pennsylvania Coal Co . v. Mahon 143 , 680 People v . Fairfax Family Fund .... 218 People v. Peters ............. 300 , 304 People v. Rivera ................. 301 People v. Sibron ................. 300 People v. Taggart ............. 304 - 05 Pennington , UNW v .............. 109 Pennsylvania Coal Co. v. Mahon .. 143 Perez v. Sharp .............. 53 , 55 - 56 Perry v. Augustine .............. 249 Peters , People v............. 300 , 304 Perlmutter v . Beth David Hospital 115-17 , 119 - 21 436 53 164 - 65 Poel v . Brunswick-Balke-Collender Co . ........................ 346 - 47 Polemis , In Re ................... 173 Polin v. Kaplan .................. 253 Powell , McAlpin v............... 497 Powell v . Texas ..... 406 , 408 - 11 , 414 *Proctor Paint & Varnish Co ., Patterson v .......................... 495 *Radio Television News Directors Association v. FCC ............ 272 Railroad Co. v. Stout ............ 496 Ray-o-Vac Co. , Goodyear Tire & Rubber Co. v........... 587 , 590 Red Lion Broadcasting Co. v. FCC 273 , 276 Reed v. Moore .................. 445 Reitman v. Mulkey .............. 141 Reynolds v. United States ......... 53 R.F. Ball Construction Co. v. United States ............ 353 - 54 , 557 , 559 Rivera , People v................. 301 River Togs , Inc ................. 656 Rives , Virginia v................. 280 Robertson v. Johnston ........... 289 Robinson v . California ...... 406 , 416 , 423 - 24 , 475 Rochester Ry ., Mitchell v........ 433 Rockmore v . Lehman .... 557-58 , 563 Rohstein , _NLRB v............... 655 Roto-Lith Ltd. v. F.P. Bartlett & Co......................... 329 , 331 *Rowland v. Christian ............ 676 Russel v . Community Blood Bank , Inc ............................ 117 Ryan , Panama Refining Co. v. 640 , 642 Rylands v. Fletcher .......... 179 , 196 Sales Affiliates Inc. v. Hutzler Bros. Co . ........................... 586 Sanderson , Boardman v.......... 437 Schwartz , House v................ 254 Scott , Ward v................... 685 Searchlight Horn Co . Sherman-Clay & Co. v................... 580 , 594 Seattle v. Hill ...... 405 , 408 , 411 , 414 Sebastian , Hadacheck v......... 680 *SEC v. Texas Gulf Sulphur Co .... 486 S.E. Nichols Co. , NLRB v... 651 , 653 , 657 - 58 Shaffer , Williams v............... 663 Sharp , Perez v.............. 53 , 55 - 56 Shelley's Case .................. 88 Sherman-Clay & Co. v. Searchlight Horn Co ................. 580 , 594 Shempp , Abbington School District v. ............................ 125 *Sibron v. New York .......... 300 - 05 Sibron , People v.................. 300 Simons v. Miami Beach First National Bank ................... 78 *Sirianni v. Anna ................. 134 Skinner v. Oklahoma ............. 53 Smith , Bond v................ 442 - 43 Smith v. Goodyear Dental Vulcanite Co ............... 577 , 579 , 592 , 594 Smith v. Texas .................. 132 Society of Sisters, Pierce v......... 53 Southbridge Sheet Metal Works , Inc., NLRB v................. 6S4 Southhampton Hospital Association , Cheshire v.................. 121 - 22 Southport Corp ., Esso Petroleum Ltd. v ......................... 172 South West Africa Cases ...... 697 - 98 Southwestern Cable Co. , United States v.................... 602 - 03 Spade v . Lynn & Boston R.R.... 432 Spence , Mullaney v ............... 497 Spevack v . Klein ...... 456-57 , 461 - 63 Stanley , Greenberg v............. 440 Star-Kist Foods , Inc. v. United States ........................ 645 State , Battalla v....... 432 - 33 , 441 - 43 State , Bodie v................... 664 Steele v. Louisville & Nashville R.R . 263 Steinhilber , Otto v ............... 684 Stokes Brothers , Hambrook v. 434 - 37 , 442 Stout , Railroad Co. v........... 496 Stow Manufacturing Co......... 652 Sullivan , New York Times v... 275 - 76 Supermarket Equip . Corp., Great Atlantic & Pacific Tea Co . v.... 590 *Summerour, United States v........ 481 Swan Super Cleaners Inc ., NLRB v. 652 Taggart , People v............. 304-OS Tane , United States v............. 310 Tarca v. Lessard ................ 440 Teamsters Local 107 v. Cohen .... 265 Tectum Corp ., Hempfield Area Joint School Building Auth. v .... . 249 Temp-Resisto Corp ., Deering , Milliken & Co. v................... 589 Terry v. Ohio ................ 301 - 05 Texas v . Powell ..... 406 , 403 - 11 , 414 *Texas Gulf Sulfur Co., SEC v.... 486 Texas , Smith v.................. 132 The Barbed IWire Patent .... 579 , 594 The Cargo of the Brig Aurora v . United States .................. 644 The Plymouth ................ 164 - 65 The Wagon Mound .............. 173 *Tierney v. New York Dugan Brothers, Inc .................. 498 Time , Inc. v. Hill ................ 141 Tishman , United States v ......... 646 Tobin v. Grossman .............. 443 Tompkins , Erie R.R. v............. 142 Topliff v. Topliff ................ 579 Torrey Canyon Case ......... 204 , 208 Town of Hempstead, Goldblatt v. 680 Township of Canton, Guest v .... 681 Township of Farmington, Padover v. 681 , 683 Tucson Newspapers , Inc. Hammes v. 555 , 557 Umans , United States v ...... 307 , 309 UMW v. Pennington ............. 109 Union of Marine Cooks, Brown v. 259 United Artists Television , Inc. v. Fortnightly Corp ........... 599 - 603 United States , Abrams v .......... 143 United States , A. LA. Schechter Poultry Corp. v........... 640 , 642 United States v . Aquilino .. 543-51 , 570 United States v. Arcuri .......... 306 United States v . Beltram ..... 307 , 309 United States v . Bess .... 541 , 543 - 47 , 570 304 294 , 299 304 United States , Chase National Bank v........................... 668 - 69 United States v . City of New Britain 554 United States , Clackum v .......... 471 United States , Costello v....... 306 - 08 United States , Crest Finance Co. v. 553 , 555 - 56 United States v . Curtiss-Wright Export Corp .................. 643 - 44 United States , Dichner v ......... 482 United States v. Durham Lumber Co ........... 543 , 546 - 48 , 550 , 570 *United States , First National Bank v. 665 United States , Gorman v... 665 , 668 - 69 , 672 471 - 72 282 281 United States , J.W. Hampton , Jr. & Co. v.......................... 645 United States v. L.R. Foy Construction Co ..................... 549 - 51 United States , Lilly v........... 601 United States , Logan v.......... 130 - 32 United States , Milton Savings Bank v. ............................ 547 United States , National Broadcasting Co. v. .................... 274 United States , Reynolds v ......... 53 United States , R.F. Ball Construction Co ........... 553 - 54 , 557 , 559 United States v. Southwestern Cable Co . ........................ 602 - 03 *United States v. Summerour ...... 481 United States , Star-Kist Foods , Inc. v. ............................ 645 United States v. Tane ............ 310 United States , The Cargo of the Brig Aurora v . .................... 644 United States v. Tishman ........ 646 United States v. Umans ...... 307 , 309 *United States v. White ........... 493 Village of Euclid v . Ambler Realty Co . ........................... 680 Virginia Board of Elections, Harper v. ............................ 141 Virginia , Loving v ....... 51 - 53 , 55 - 56 , 62 , 79 - 80 280 126 Wahl Clipper Corp. v. Andis Clipper Co ..................... 583 , 593 - 94 Walsh v. Fitchburg R.R ......... 497 Wagner v. International Ry .... 134-36 Wagon Mound , The ............. 173 Ward v. Scott .................. 685 Warrington , Waube v ......... 437 - 38 Waterman Steamship Corp. , Chicago & Southern Air Lines, Inc. v. 267 - 71 Waube v . Warrington ..... 437-38 , 446 Weil , Crocker v.................. 266 Wheeler v. Montgomery ...... 612 - 14 White-Smith Music Publishing Co. v. Apollo Co . .................... 599 *White, United States v ............. 493 *Witherspoon v. Illinois ........... 1. provide for the election of the President and Vice-President by direct, nationwide popular vote; 2. require a candidate to obtain at least forty percent of the popular vote in order to be elected President or Vice-President; 3. provide for a national runoff election between the two top candidates in the event no candidate receives at least forty percent of the popular vote; 4. require the President and Vice-President to be voted for jointly; 5. empower Congress to determine the days on which the original election and the runoff election are to be held, which days shall be uniform throughout the United States; 6. provide that the places and manner of holding the presidential election and the inclusion of the names of candidates on the ballot shall be prescribed in each state by the legislature thereof, with the proviso that Congress may at any time by law make or alter such regulations; 7. require that the voters for President and Vice-President in each state shall have the qualifications requisite for persons voting therein for Members of Congress, with the proviso that each state may adopt a less restrictive residence requirement for voting for President and Vice-President provided that Congress may adopt uniform age and residence requirements; and 8. contain appropriate provisions in case of the death of a candidate. "Electing the President," supra note 1 , at 3. See the following direct election proposals: S. J. Res. 2 (Senator Birch Bayh and eighteen co-sponsors), S. amend . No. 163 to S.J. Res . 2 ( Senator Everett M. Dirksen ), 6 (Senator Margaret Chase Smith) , 15 ( Senator Quentin N. Burdick ), 90th Cong., 1st Ses . ( 1967 ); S.J. Res . 179 ( Senator Mike Mansfield ), 90th Cong., 2d Sess . ( 1968 ) ; H.J. Res . 470 (Repre- sentative Emanuel Celler) , 447 (Representative Charles E. Bennett), 90th Cong., 1st Sess. ( 1967 ). S.J. Res . 6 requires a majority vote for election, while the others provide for a plurality of at least forty percent of the popular vote. 134. Hearings Relating to the Election of the President, Before Subcomm . on Constitu- tional Amendments of the Senate Comm. on the Judiciary, 89th Cong., 2d Sess.; 90th Cong ., 1st Sess . ( 1968 ). 85 persons testified or submitted statements. Support for the proportional See 113 Cong. Rec . 6587 - 88 (daily ed. May 9 , 1967 ), 6824 (daily ed. May 15 , 1967 ); S.J. Res. 3 (Senator George Smathers) , 7 (Senator Spessard Holland), 84 ( Senator John Spark- man and two co-sponsors) , 90th Cong., 1st Sess . ( 1967 ). Senators Karl E. Mundt, Hugh Scott and Thruston B. Morton spoke in favor of the district proposal . See 113 Cong . Rec. 1586- 87 (daily ed. Feb. 6 , 1967 ); S.J. Res . 12 ( Senator Karl Mundt and ten co-sponsors), 90th Cong., 1st Sess . ( 1967 ) ; see also S . J. Res . 25 ( Senator Hugh Scott ), 55 (Senator Norris Cotton) , 86 (Senator Ernest Gruening), 90th Cong., 1st Sess . ( 1967 ). Senator Robert Ken- Chase Smith and others urged a change to direct election . See 113 Cong. Rec . 1551 - 52 (daily ed. Feb. 6 , 1967 ). 140 . See N. Peirce , supra note 2, at 358- 59 . 141 . The material in this section is derived from the work papers of the American Bar Association Commission on Electoral College Reform. 142. V. Key , Jr., Politics , Parties and Pressure Groups 210 (Sth ed., 1964 ). 143. C. Rossiter, Parties and Politics in America 8 ( 1962 ). 144 . See W. Goodman , The Two Party System in the United States 30-32 ( 1956 ); E. Schattschneider , Party Government 69-84 ( 1942 ). See also V. Key , Jr., supra note 142 , at 208- 09 ; A. Sindler , Political Parties in the United States 50-56 ( 1966 ). 145. V. Key , Jr., supra note 142 , at 209 . 146. See pages 40 - 41 , infra. 147. See 113 Cong. Rec. 1586 - 87 (daily ed. Feb. 6 , 1967 ), 113 Cong. Rec. 6586 - 88 (daily ed. May 9 , 1967 ). See Spering, How to Make the Electoral College Constitutionally Repre- sentative , 54 A. BA .J. 763 ( 1968 ). 148 . 107 Cong. Rec. 350 ( 1961 ). 149 . This view is articulated by Professor Albert J. Rosenthal of Columbia Law School . Leader in the fall of 1968; Rosenthal, "The Constitution , Congress, and Presidential Elec- tions , " to be published in the Michigan Law Review in the fall of 1968.


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John D. Feerick. The Electoral College - Why It Ought To Be Abolished, Fordham Law Review, 1968,