manner as the legislature thereof should direct, each State having one vote. The only proposition of the whole series which left the choice to the legislatures of the States was presented by Mr. Stevens of Virginia in this same year. In case of no election in the primary colleges, the legislatures of the respective States were to choose, by joint ballot, one from the three persons having the highest number of electoral votes.2

(8) A large number of the amendments proposing various ways in which a direct vote should be given for President and Vice-President contained provisions for a second election conducted in the same manner as the first, but the candidates were to be restricted to the two receiving the largest number of votes at the first election. These propositions were presented within a few years subsequent to the election of 1824,3 but the same plan was revived with the renewal of the introduction of resolutions for the election of the President by popular vote.1

(9) A modification of the last-mentioned plan, which received extended consideration in 1835-36, provided in case of no choice by the people at the second election, then the choice should be made by the House of Representatives. Still others, like the amendment urged by Senator Benton, and in later years by Andrew Johnson, stipulated that if the two candidates in the second election received an equal number of votes, then the person who had received the greatest number of votes in the greatest number of States should be President.

Mr. Morton's proposition, which, like Benton's, proposed establishing the district system, made no provision for the case of two or more persons receiving an equal number of Presidential votes, as the committee which reported the measure were unable to agree upon any plan to cover this contingency. That provision of the Constitution which confers the choice of the President in case of no election by the electors upon the House voting by States has frequently been attacked and stigmatized as unjust, but the possibility of the choice of a

1 App., No. 555. A similar provision in Mr. Tucker's amendment of 1828, App., No. 585. 2 App., No. 573.

3 As the one presented by Mr. Dayton of South Carolina, in 1826. App., No. 574.

4 App., Nos. 1104, 1227b, 1283a, 1352, 1368, 1389, 1464, 1505, 1506, 1626, 1668, 1695. See ante, par. 42. A second election was to be held only in case no one received a majority of the votes.

App., Nos. 641, 654.

G App., Nos. 552, 601, 632, 765, 770, 813, 1240. Ante, par. 43.

"minority President" has never been more forcibly presented than by Mr. Morton, who showed that under the apportionment in force at that time (1875) it was possible for forty-five members of the House of Representatives to elect a President against the wishes of the remaining two hundred and fortyseven members.1

(10) Another favorite plan, in order that the choice might in no instance devolve upon Congress, made provision for successive elections until some one should be elected. This was first proposed in the thirties, but has frequently been urged since.2

(11) Several of the proposed plans did away with the necessity of a second election by providing that a plurality of the electoral or popular vote, as the case might be, should elect, and the election was only to devolve upon Congress in the very remote case of a tie.3

51. DISCUSSION OF SCHEMES FOR PRESIDENTIAL ELECTION.

All the proposed amendments affecting the election of President and Vice-President have now been considered. It may be well, however, to review some of the more important of them.

Although at the time of the adoption of the Constitution the electoral system excited little opposition, yet at no considerable interval since has it failed to be the object of attack. First it was early found necessary to perfect the system in some of the minor details by the adoption of the twelfth amendment. We have already shown how the system has utterly belied the expectation of its framers, for the electoral college, instead of exercising its own unfettered

App., No. 1393, ante, par. 44. Record, p. 631. At that time forty-five members would control the votes of nineteen States. "Nevada with 42,000 population would have an equal vote with New York, having a population one hundred and four times as great." As at present constituted sixty-six members, representing twenty-three States, could elect the President in opposition to the will of the remaining two hundred and ninety-one members. Such a combination while possible is of course not probable.

2 By Mr. McComas of Virginia, in 1836. App., No. 661. In the seventies by Messrs. Wright and Riddle. App., Nos. 1391, 1420, 1464.

3 As Nos. 554, 1058; and the following: Four provided for the decision of the tie for the President by the House, for the Vice-President by the Senate, each member to have one vote. App., Nos. 1408, 1420, 1443, 1447. Two that the tie for either office be decided by the House. App., Nos. 1359, 1367, ante, par. 42.

4 The following resolutions to amend the Constitution in regard to the election of President were introduced, but it has been impossible to classify them, as the text has not been found. App., Nos. 657, 658, 863. Since par. 42 was sent to press, resolutions from the legislature of Vermont (1818) favoring the district system have been found. App. No. 480b.

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. III 4 See ante, par. 50, p. 110, section 9, Morton's proposition.

2

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 aá 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.

2 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.

H. Doc. 353, pt. 2-8

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.5

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.

1 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.

2 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.