will, has become a mere registering machine. In the early years there were various amendments proposed to secure a uniform system of elections throughout the States. After many attempts to secure the choice of electors by districts had failed, nearly all the States by a sort of common understanding adopted the general ticket system, and this method, although voluntary, has been retained ever since, with the recent exception of Michigan,2 and it seems to have become ingrafted upon the Constitution,3 or, as Professor Dicey would say, to have become one of the "conventions" of the Constitution. In the years immediately succeeding the election of 1824 there was a concerted effort to so amend the Constitution that the election of President should never again devolve upon the House. In the course of a few years the excitement incident to this election was allayed, and as there has been no case of an election by the House since, there has been no popular alarm over this complication. The dispute of 1876, when the decision was in doubt several months, turned rather on the method of canvassing the vote.*

Many of the plans proposed have been obviously impracticable. To leave the choice of the Chief Magistrate to a direct popular vote of the entire country seems as unwise to-day as it did at the time the Constitution was framed. In addition to the vast premium placed upon fraud and intimidation, the excitement of the election under the present system would be greatly intensified. Furthermore, it would seem undesirable to entirely do away with the influence of the States in the election, owing to the long-established custom and the appropriateness of some recognition of the federal character of our Union.

The system of electing the President by districts, either by the electoral system or without it, or with the two votes of each State given at large or otherwise, would manifestly come nearer to representing the popular vote than does the present system, especially if there was some assurance of a just and permanent

The electors, however, are only bound by moral obligation and custom to cast their votes for the candidates previously designated. In the election of 1824 three of the Clay electors deserted him, "but for this defection Mr. Clay's name would have gone to the House of Representatives instead of Mr. Crawford's, and possibly Mr. John Quincy Adams would never have been President." Stanwood, p. 86. Unsuccessful attempts were made to bribe one or more electors in 1876. Ibid., p. 330. 2 See ante, p. 86, note 4.

3 See Tiedman, The Unwritten Constitution of the U. S., chap. IIL See ante, par. 50, p. 110, section 9, Morton's proposition.

arrangement of district boundaries.' But without that assurance, which it would seem impossible to provide, there would still be the same danger of gerrymandering that there is in our Congressional elections. Of all the plans proposed, the district system has received the most favorable consideration in Congress. Not only did an amendment for the choice of electors by districts pass the Senate at four different times between 1813 and 1824,3 but in subsequent discussions some application of the district system to the choice of President has received the support of many of the leading statesmen of the country.+

The proposition for the distribution of the electoral vote of each State among the candidates in the proportion the electoral ratio shall bear to the popular vote of each candidate seems the fairest and most desirable of all the plans presented, as it retains the relative importance of each State, and at the same time secures to the minority its due proportion of the vote."

The almost countless variety of the plans proposed is not only indicative of the dissatisfaction there is with the present anomalous system, but also shows that it would be next to an impossibility to secure the adoption of a new method of election, owing to the difficulty of uniting a sufficient number of the States in favor of any one plan. The fact that it was impossible to secure the indorsement of any one of the plans proposed in the years succeeding the contested election of 1876 by even one branch of Congress indicates that the adoption of a new system of electing the Chief Magistrate is improbable before the present method of amending the Con- . stitution is itself changed. Since 1876 no proposition for a change of the method of electing the President has been

The adoption of the district system in any of the proposed forms would undoubtedly insure the election of a President in political sympathy with the majority in the House of Representatives.

? See Madison's Works, III, p. 333.

3 In 1813, 1819, 1820, and 1824, and the amendment passed by the Senate in 1869 would have permitted its use. See ante. par. 33, note 1; pars. 39, 49.

4 See ante, pars. 39, 43, 44.

The following are some of the reasons which have been urged for the adoption of the proportional system: (1) It provides for a direct vote. (2) It retains the electoral votes, while dispensing with electors and electoral colleges. (3) It is a more perfect expression of popular will. (4) Reduces the chance of a disputed election. (5) Renders impossible the election of a minority candidate. (6) Tends to eliminate pivotal States, and insures a real contest in each State. (7) Discourages and prevents unfairness and fraud. In this respect its superiority to other plans of amendment is conspicuous and unquestionable. The effect of any common fraud would be inappreciable, and the motive for committing fraud removed." Ante, par. 45.

brought to a vote in Congress, and since 1880 even the slight promise of success implied in a favorable report by a committee of either House of Congress, has been lacking. Likewise in recent years the general public has exhibited little interest in the matter.2

52. TIME OF ELECTION.

Some of the amendments for changing the method of electing the President contained clauses extending the time for casting the votes to two or three days, making our system more like the English. Three of these are cited by way of example. One amendment for the election of President by a direct vote by districts provided that the first Thursday and succeeding Friday of August of 1828 and every fourth year thereafter should be the election days. This was reported by the select committee of the Senate in 1826.3

A resolution proposing that the election of President should be held uniformly in the several States on the first Monday and succeeding Tuesday and Wednesday in the month of September was received in 1837 from the legislature of Indiana.*

The fourth Monday of October and the two succeeding days was fixed for the election days by the amendment introduced by Mr. Underwood of Kentucky, in 1842, for the nomination of Presidential candidates by the different State legislatures and election by the people."

It is noticeable that these propositions came largely from the frontier States, where the facilities for traveling were poor and more time was needed to reach the voting places.

By the terms of the Constitution, "Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which shall be the same throughout the United States." The original act of Congress, passed March 1, 1792, simply provided that electors were to be appointed thirty-four days preceding the first Wednesday in December.

Amendment reported in 1880, App., No. 1508; ante, par. 45. Since the close of the first century of the history of the Constitution there has been one report by the House Committee on Election of President and Vice-President, February 7, 1893, Fifty-second Congress, second session, H. Rep. 2439.

The following articles contain valuable discussions of the merits of one or more of the different plans: Atlantic, vol. 42, 543; vol. 63, 428; Arena, vol. 5, 286; Forum, vol. 12, 702; vol. 18, 532; No. Am. Rev., vol. 117, 383; vol. 124, 1, 161, 341; vol. 125, 68; vol. 140 (February). 3 App., No. 552.

App., No. 668.

5 App., No. 724.

6 Art. II, sec. 1, cl. 3.

The demand for a uniform day for the choice of electors led to the frequent petition from the legislatures of the States for Congress to fix such a day by law,' and also for the insertion of a clause to this effect in certain of the proposed amendments in regard to the election of President, as the one presented by Mr. Gilmer, in 1835. Ten years later Congress passed a law, which is still in force, fixing upon the Tuesday after the first Monday in November as the day for the choice of electors.3

Some of the proposed amendments, especially those introduced in recent years, make provision for a uniform day for holding the election throughout the States; some retain the present date,5 others fix upon another, usually somewhat earlier. Three of these in addition prohibit the voting for any other officers, save Representatives to Congress, on the day appointed for the election of Presidential electors. Two of these were presented just after the Presidential election of 1888, and were evidently suggested by a desire to prevent the trading of Presidential votes for votes for State officers between the different political parties, as it was alleged had been done in New York in the election just held.

7

53. FEDERAL CONTROL OVER THE ELECTION OF PRESIDENT.

Although Congress has never gone to the extent of its constitutional powers in regulating elections to Congress, various amendments have been proposed which, if they had been adopted, would have greatly increased that power of Congress over the election of President. One of the first of these, repeatedly introduced by Mr. Dickerson of New Jersey for the election of President by districts, while not directly increasing the power of Congress, yet it limited the power of the legislature to alter the division of the State into districts at any other time than the decennial census. In 1823 a resolution was introduced to give Congress power to make or alter the

Especially in the thirties and early forties.

2 App., No. 641.

3 Revised Statutes of the United States, sec. 131.

As App. Nos.1437, 1438, 1503, 1508, 1537, 1542, 1589, 1639, 1672, 1697, 1705, 1731.

5 As App., Nos. 1439, 1514, 1569, 1624, 1640, 1735.

6 As App., No. 813, the first Tuesday in August. App., No. 1078, the second Tuesday

in October. App., No. 1652, the third Tuesday in October.

7

App., Nos., 1652, 1731, 1733. No. 1514, however, proposed the same day for the election

of President and Vice-President, members of Congress, and State and county officers.

See post, par. 84.

See ante, par. 24.

9 Ante, par. 39.

regulation prescribed by the State legislatures for the election of President, and to redistrict any State which was not divided as was directed.1

Many of the resolutions for the choice of the Executive aimed to give to Congress the same power in Presidential elections as it already possessed over the Congressional. Since the civil war there has been a marked tendency in this direction. Several amendments have been proposed authorizing Congress to prescribe "the time, place, and manner," and other regulations for conducting Presidential elections.2 The one reported by the Committee on Privileges and Elections in both Houses in 1874-75, as well as that introduced by Senator Morgan, in 1876, conferred upon Congress the power to provide for the holding and conducting of all elections of President and Vice-President, and while it permitted the States to be divided into districts by the legislatures thereof, such division was subject to the revision of Congress.3 In 1880 a resolution was introduced proposing that the following section should be added to the twelfth amendment: "The Congress shall have power by legislation to establish rules and regulations for certifying, transmitting, receiving, opening the votes of the electors, etc. Up to the present time the procedure has been regulated by an act of Congress passed in 1792, which, with certain modifications, is still in force, although there is no express provision in the Constitution authorizing such a law. It would seem desirable that the control of the conduct of Presidential elections should be vested in Congress, but it is hardly probable that this reform will be secured."

54. SETTLEMENT OF CONTESTED PRESIDENTIAL ELECTIONS.

Not only is the power given to Congress to elect the President and Vice-President in case there is no choice by the electors, and to fix the time for the election, but it has also assumed authority to canvass and count the vote. The only ground for this authority is the ambiguous provision of the Constitution

1 Mr. McDuffie of South Carolina, App., No. 524.

2 As App., Nos. 1058, 1078, 1309, 1317, 1408, 1420, 1464, 1672. No. 1058, introduced by Mr. Jenckes of Rhode Island, was all inclusive, "Congress shall have power to pass laws providing for registration of voters, for ascertaining the qualifications, for the time and manner of conducting such elections and for preventing frauds therein, and for declaring the result." Propositions to confer upon Congress the power to prescribe the method of electing the President by the people have been discussed in ante, par. 49.

3 App., Nos. 1386, 1393, 1400.

4 By Mr. Morgan of Alabama, App., No. 1513.