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Strange to say, these violations of the democratic principle of equality in representation do not seem to incur any serious opposition on the part of the people - probably owing to the tenacity with which the rural districts cling to their special privileges and also to the general indifference shown to constitutional questions by the electorates of the great urban centres.
On account of the general practice of "gerrymandering," it has become the custom to fix in the state constitution some general principles controlling the distribution of representatives. This custom may be illustrated by the New York constitution, which fixes the number of the senate and the assembly, provides for a reapportionment every ten years, and prescribes that the senate districts shall be as nearly equal as possible, compact in form, and consisting of contiguous territory. It further stipulates that in making senate districts no county can be divided, except to make two or more senate districts wholly within such county; and lays down the limitation, mentioned above, discriminating against the most populous counties. It prescribes that each county, with one exception, shall have at least one member in the assembly, and places the apportionment of assemblymen in counties entitled to two or more members in the hands of the board of supervisors, or the common council.1 It also provides that each assembly district must be wholly within a senate district, and that under no consideration may a township or city block be divided. To give the citizen a remedy against gerrymandering, the constitution explicitly states that a legislative apportionment law is subject to review by the court of appeals at the suit of any citizen.
Only a few states in the Union have departed from the ancient practice of electing members of the legislature by single districts. In Illinois, a system of minority representation has been in force since the adoption of the constitution of 1870. The law provides that the house of representatives shall consist of
party, to insure the election of its state ticket, felt compelled to promise the submission of the repeal of the prohibitory law to a referendum. When the legislature met, the house of representatives without division voted for submission. On the referendum the repeal was passed, though the voting disclosed a majority of eighty towns opposed. For this statement concerning Vermont I am indebted to Professor Thomas Reed Powell.
1In each city embracing an entire county.
three times the number of the members of the senate; that three representatives shall be elected in each senatorial district at the regular biennial election; and that in the election of representatives each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute his votes or equal parts thereof among the several candidates as he sees fit. The three candidates standing highest on the list after the votes are counted are declared to be elected.
Mr. B. F. Moore has made a careful study of the working of this system of minority representation and has arrived at certain important conclusions.' He shows that in actual practice the system almost always secures a minority party representative in every district, although it by no means works out proportionately for all of the smaller parties. He demonstrates that the system, furthermore, does away with many of the evils and gross inequalities of the gerrymander. He cites, for example, that, in 1894, 21,783 votes were required for each Democratic member elected to the lower house of the legislature of New York while each Republican member had only 6341 votes to his credit
that is, taking averages. He also shows that in Michigan in the same year the Republicans with a vote of 237,215 elected 99 members to the lower house of the legislature, while the Democrats with 130,823 votes secured but one representative. He then turns to Illinois. It required 9089 Republican or 35,889 Democratic votes to elect a state senator in 1906, while under the cumulative system applied to the lower house the averages for the same year were substantially equal, each Republican representative averaging 12,970 votes and each Democratic representative 14,268 votes. His general conclusion is that "while the house vote shows some variation and can scarcely be regarded as ideal, nevertheless it has none of those glaring inequalities so frequently prevalent as the result of the inherent injustice of the majority system combined with the consummation of political art in juggling district boundary lines."
On other questions Mr. Moore was unable to come to such precise conclusions. With regard to whether cumulative voting
1 B. F. Moore, The History of Cumulative Voting and Minority Representation in Illinois, University of Illinois Studies, 1909.
increases or diminishes the power of party organization, a variety of conflicting opinions was found among men of broad political experience. A number maintained that the system had no effect whatever on party organization, but a still larger number contended that the influence of the party machine had been decidedly increased owing to the necessity of controlling the distribution of the three votes placed in the hands of each voter.
With regard to the still more important question of the influence of the cumulative system on the legislative personnel, Mr. Moore found almost insuperable obstacles in the way of securing convincing conclusions. On this point one member of the Illinois legislature said, "I would say in general that they are probably more representative men;" while another member of the legislature declared, "The worst candidate stands the best chance of election, as appreciating the fact that he is weak, the 'plumping' is oftentimes overdone to even up the vote." After all, concludes Mr. Moore: "The strongest recommendation for the cumulative system is the fact that at all times it secures representation for a minor party, thus insuring a strong minority in the lower house. An ever present minority also serves to check the tendency to corruption which almost invariably follows when one party has for a considerable time a large majority in the legislature."1
With regard to the term2 enjoyed by members of state legislatures there is a general tendency to increase the length. More than one-half of the states elect senators for a period of four years; about one-third fix the term at two years; while Massachusetts and Rhode Island alone retain the old practice of annual elections. In all but a few states the term of the members of the lower house is placed at two years; Alabama, Louisiana, and Mississippi have fixed the term at four years, while Massachusetts, New York, New Jersey, and Rhode Island retain the old custom of annual elections.
'The cumulative system in Illinois did not originate in any abstract theories of representation, but in the fact that the Democrats had an overwhelming majority in the southern part of the state and the Republicans an overwhelming majority in the northern part of the state, and that the antagonism between the two sections produced much unnecessary ill feeling in Illinois politics. It was hoped to break up the solid South and the solid North of the state by securing minority representation in each section.
2 See table below, p. 527, note.
A serious attempt was made in the New York constitutional convention of 1894 to increase the term, but without avail. On that occasion, Mr. Bush argued against any change, declaring that it was to the best interest of the state to have the members of the assembly returned to the people every year in order that the latter might pass upon their acts. "You take away the dread," he said, "that the average member of the assembly has that his constituents at home are watching his acts and will pass upon them at the coming election and you will take away one of the greatest incentives to right action." 1
Experience and practice, however, seem to argue against this position. When a member is elected for one year, unless he has already served one or more terms in the legislature, he hardly has time to learn the rules of the body before his period of service expires; and if he contemplates reëlection, he must devote a considerable portion of his energies every year to "nursing" his district. As everybody knows, effective work in a legislature can only be done by a man of experience - notwithstanding the best intentions. A district can be effectively represented only by a man who is able to accomplish results.
The legislator must have the qualifications of a voter of the commonwealth, and several states fix an age limit, differentiating between members of the senate and of the lower ouse. An examination of the composition of our state legislatures by Dr. S. P. Orth shows that they are fairly representative of the diverse elements of our population. In the senate of Vermont, in 1904, for example, there were nine farmers, four lawyers, four physicians, thirteen merchants; three were college graduates, seven had received training in professional schools, seven had been educated in academies, and thirteen had never gone beyond public schools. Of these men, twenty-seven had had considerable previous political experience; one had been township clerk for thirty-five years; another, during his career, had held most of the town offices; and some had had both legislative and official experience. In the Vermont lower house of the same year there were 252 members; of these 123 were farmers, six were lawyers, ten were physicians, forty-eight were merchants and manufacturers,
1 Revised Record of the Convention, Vol. III, p. 1021.
2S. P. Orth, "Our State Legislators," Atlantic Monthly, Vol. XCIV, pp. 728 ff. Parts of the article are simply condensed in the above text.
three were bankers, five were preachers, six were insurance writers, two were hotel proprietors, three were liverymen, fourteen were laborers or artisans, and six apparently had no occupation except that of general politician and office-seeker. "One member, says Mr. Orth, "made his daily bread by occasional speculation." One member was a lawyer, farmer, and breeder. Another was town clerk and treasurer and clerk in a general store. But the most versatile of this coterie of men was one who professed to be at the same time a furniture dealer and undertaker and miller and dealer in grain and feed. Of the members of the lower house seven-eighths had held public office, some of them for fifteen, eighteen, twenty, and thirty-six years; but strange to say, — and this is a significant fact, — only nineteen of the total number of senators and representatives had ever sat in a former legislature. The great majority of them, therefore, had had no practical experience for legislative work.
Mr. Orth has taken Ohio as a type of a populous state in which manufacturing, mining, and agriculture are nearly of equal importance. In the senate of thirty-three members, fourteen were lawyers, and there were nine business men, two teachers, two editors, two farmers, and one physician; one-third were college men, another third had received some training in academic, normal, and professional schools, while the remainder had completed their education in the common schools. Only one-half of them had been office-holders and twenty-seven of them had had no previous legislative experience whatever. Of the 110 representatives in the lower house of the Ohio legislature, about one-third were lawyers, one-fifth farmers, one-sixth business men; and there were ten teachers, five physicians, three editors, one preacher, ten laborers and artisans, two auctioneers, a commercial traveller, a law school student, a court crier, a music composer "with a national reputation, being the author of many works on music and over 100 piano compositions, many of which had proven very popular." Of the members of the lower house two-thirds had never held office, while three-fourths had never had any legislative service.
A further analysis of our state legislatures shows that the features prominent in Vermont and Ohio are quite common in the other states. The members are of the same miscellaneous character: lawyers, farmers, merchants, and representatives of