The twelfth amendment was a virtual recognition of the existence of political parties, and stimulated the growth of the system of the nomination of candidates and the pledging of electors, which had already made its appearance.'

39. CHOICE OF ELECTORS BY DISTRICTS.

The lack of uniformity in the choice of electors early led to various attempts to secure an amendment to the Constitution prescribing a method which would be binding upon all. The mode most frequently suggested during the first quarter of this century was for the choice of Presidential electors by districts. Some forty-two amendments of this character have been proposed. They naturally fall into two classes; the one providing that the States should be divided into as many districts as it was entitled to Senators and Representatives in Congress; the other for the choice of the electors in Congres sional districts in each State, and the two remaining to be selected in some other way.

The first of these objects has been sought by thirty resolutions, introduced for the most part between 1800 and 1826.* The first proposition of this character was presented by Mr. Nicholas of Virginia, in 1800,5 together with a resolution for the choice of Representatives by districts. In 1802 the resolutions of the legislatures of Vermont, New York, and North Carolina, calling for the election of Presidential electors by districts, as well as the designation of the person voted for as

For centralizing effect of amendment, see Adams, History of the United States, II, 132– 133; Story, II, 302-304.

2 See post, par. 40.

In the election of 1796 six States employed the district system, viz: Massachusetts. Virginia, Kentucky, North Carolina, Maryland, and Tennessee (divided into three districts). O'Neil, p. 63. Wilson had suggested the plan in the Federal Convention, ante, p. 75, note 8. Gallatin favored the district system, letter to Jefferson September 14, 1801. Writings of Albert Gallatin (ed. by Henry Adams), I, p. 49. Hamilton also favored it, letter to Morris, April 6. 1802, Works VI, p. 556. Madison in a letter to George Hay of August 23, 1823, writes: "The district mode was mostly, if not exclusively, in view when the Constitution was framed and adopted." He shows advantage of the system and gave a "sketch" of an amendment which he drew up "for this faulty part of the Constitution in question." Works, III, pp. 332, 335. Jefferson seems also to have approved of it. McKnight, p. 387. See App., No. 77.

4 The following introduced between 1800-1826: App., Nos. 338, 340, 345, 346, 350, 353, 355, 357, 373, 407, 409, 414, 450, 453, 455, 460, 463, 491, 532, 534, 537, 540, 555, 556, 738.

5 Virginia had employed the district system in the three previous Presidential elections, but in 1800 by advice of Madison and Jefferson, who feared that their party might not secure all the electors, the change to the general-ticket system was made. O'Neil, p. 75. The Federalists in Massachusetts also changed from the district system to joint ballot by the legislature for the same purpose.

6 Ante, par. 24.

President and Vice-President were presented to Congress. Such an amendment was favored by the leading men in both political parties.' Amendments proposing the district system were introduced in both branches of Congress. The resolu tion which passed the House in this session making provision for the designation of the persons voted for as President and Vice-President in its original form, also contained an article providing for the choice of electors by districts. The resolution was divided so that the article establishing the district plan was not brought to a vote.

Owing to the great excitement which prevailed in North Carolina in consequence of the act of the legislature of that State in 1812, depriving the people of their traditional right to choose the electors, the Senators and Representatives from North Carolina were particularly zealous in advocating this amendment. The circumstances attendant upon the choice of electors in Massachusetts and New Jersey in this same year also showed the desirability of a uniform system being prescribed. In the former State a deadlock between the two branches of the legislature had almost deprived the State of its vote, which loss was averted only by the calling an extra session of the legislature. In the latter State, on the very eve of the election, the legislature, for partisan purposes, took the direct choice of electors to itself, depriving the voters of their expected suffrage.5

These events so aroused the Senate that the amendment proposed in 1813 by Senator Turner of North Carolina, upon the instruction of the new legislature of his State, passed that body by the vote of 22 to 9, but was not advanced to a vote in the House. A similar amendment was repeatedly urged by Representatives from all sections of the country during the next few years. In 1816 the legislature of Massa

'Hamilton had favored this method in the Convention of 1787, and the passage of the resolutions by the New York legislature at this time were due to his efforts, ably seconded by De Witt Clinton. For attitude of Gallatin and Jefferson, see note 3 above.

2 Ante, par. 38.

3 App., Nos. 407, 414, 450, 455, 460, 463, 540. The action of the legislature was defended on the ground that large numbers of voters favorable to Madison had enlisted in the Army; that their absence might have made the State doubtful. O'Neil, 106; Niles' Register, IX, 349.

+ McMaster, IV, 195; O'Neil, 104-105; Niles' Register, III, 128; IX, 349.

5 McMaster, IV, 193-194; Stanwood, Presidential Elections, 61; O'Neil, 105-106; Niles' Register, III, 160.

6 App., No. 409. See Niles' Register, III, 174-175.

7 App., Nos. 414, 450, 453, 455, 460, 463, 491, 507 b, 532, 534, 537, 540, 555, 556.

H. Doc. 353, pt 2—6

chusetts added her indorsement of the district system to that of the States already referred to. This was significant in view of her recent experience. The hostility to the Congressional caucus system of nominating candidates favored in this same year the passage of such an amendment, which was urged with renewed vigor by its champion, Mr. Pickens of North Carolina, but the support of two-thirds of the members of either branch of Congress could not now be secured.2

Some of the later amendments presented some peculiarities, one or two of which are worthy of mention. The one proposed by Mr. Livingston, in 1824, was extremely novel.3 It provided that the voters meeting in their respective districts shall vote for one person to be President, another to be Vice-President, and the third to be an elector. The person having the greatest number of votes as President, Vice President, and elector, respectively, shall be considered as entitled to the vote of such district for the said office. The electors to be called upon to serve only in case two persons have a majority of the whole number of district votes for President, in which event they shall assemble in their respective States and choose one of the two persons to be President.

The need of uniformity in the filling of vacancies in the electoral colleges was shown in the election of 1824.4 This doubtless suggested the provisions of the amendment introduced by Mr. Saunders of North Carolina, in the following year. It provided that when the electors assembled in their respective States, in case of the nonattendance of any elector, the electors present should fill the vacancies. It further stipulated that the person having the greatest number of votes for President shall be President, if such number be one-third of the whole number.

1 App., No. 453. Again, in 1819, App., No. 488a b. The Virginia legislature also approved of the North Carolina proposition in 1816. App., No. 451a. But the legislatures of Rhode Island, Connecticut, and Ohio disapproved. Massachusetts Archives, Misc. 8178-8183.

2 App., Nos. 453, 460. Pickens's speech is quoted in part by McMaster, iv, 369–371. An editorial in Niles' Register (IX, 349) refers to this amendment, after the failure of Congress to consider it favorably, and says: "And we jog on in the old way, swindling and to swindle." The legislature of Illinois, in 1821, passed resolutions favoring an amendment for a uniform mode of electing President and Vice-President. App., No. 507b. 3 App., No. 537.

4 In that election vacancies in the college of electors had been supplied in New York by the electors present, in New Jersey by the governor, and in Virginia by the legisla

ture.

5 App., No. 540.

This was done in Texas in 1872. Cong. Record, Forty-third Congress, second session, p. 627. Also in 1876 in Michigan, Oregon, Pennsylvania, Rhode Island and Vermont. Stanwood, pp. 340-342.

A group of seventeen additional resolutions made a distinct provision in regard to the choice of the two electors at large from each State, in addition to the electors chosen by districts.' These, with three exceptions, were introduced between the years 1817 and 1826. Senator Dickerson of New Jersey, in December of 1817, after laying before the Senate the proceedings of the legislature of his State in relation to amending the Constitution in regard to the election of President and Vice-President, introduced a resolution providing for its amendment in this particular, the two additional electors to be chosen as the legislatures of each State should direct.2

The legislature of North Carolina which, up to the previous session of Congress, had continued to advocate the other method of the division of State into electoral districts, now instruct their Senators to use their best endeavor to secure an amendment similar to the one proposed by Senator Dickerson.3 The New Jersey resolution was not brought to a vote until March, when, although it received a good majority, it failed for the lack of the two-thirds vote of the Senate. To the resolution of these two States, at the next session of Congress, the legislatures of New York, New Hampshire, and Connecticut added the weight of their indorsement. Again Senator Dickerson presented his resolution. This time the resolution was debated at much length, and three times referred to committees, and finally passed (28 to 10) the Senate February 3, 1819, but failed to be considered favorably by the House.5

Senator Dickerson continued to introduce this resolution in every session of Congress, with one exception, down to 1826, presenting it in all eight different times. As he had been the first so he was the last to advocate its adoption at this period. This resolution passed the Senate twice afterwards, but each

App., Nos. 468, 472, 482, 484, 485, 488, 489, 497, 500, 506, 519, 525, 529, 577, 869b, 1247, 1324. 2 App., No. 468. The electors, when convened for the purpose of giving their votes, should have the power to fill such vacancies as there should be in their number. By act of 1845, "Each State may provide for the filling of any vacancy or vacancies which may occur in its college of electors, when such college meets to give its electoral vote." Rev. Stat. U. S., sec. 133. J. Q. Adams, while he refused to recommend any amendments to Congress while he was President, nevertheless favored the choice of the electors by districts, the two at large by the legislature of each State. But he would not change the contingency of its devolving upon the House of Representatives in case of no choice by the electors. "The House of Representatives was, of all others, the body peculiarly fitted for making the election." Memoirs, VII, p. 301. See post, par. 50.

3 App., No. 472.

4 App., Nos. 482, 484, 488.

App., No. 485.

App., Nos. 489, 500, 506, 519, 527, 577,

time it failed to be brought to a vote in the House.1 This identical proposition was introduced by a Representative of South Carolina in the House in 1820 and secured a vote of 92 yeas to 54 nays, but this was short of the necessary two-thirds. The amendment never again came so near to success, for if it could have been pushed through the House it would have speedily received the indorsement of the Senate.2

An amendment, the first part of which was similar to that proposed by Senator Dickerson, was reported by the select committee of the House in 1823.3 It differed, however, in many other details. The electors, besides filling vacancies in their number, were to appoint the two electors at large.1

Over thirty-five years later Mr. Douglas revived the proposition for the choice of electors by districts. Two isolated propositions, introduced in the later "sixties," called up this plan for the last time. The first of these departed in certain features from the early plan in that only the States which were entitled to more than two Representatives were to be divided into districts, and only in such States shall two additional electors be appointed. The second resolution conferred the choice of the two electors at large upon the voters of the State."

40. CHOICE OF ELECTORS BY GENERAL TICKET IN EACH STATE.

The States have by the Constitution the right to choose electors as they prefer, except that Congress may fix the time of the election. As a result, in the early years a great variety of methods were in use, as, in the election of 1824, the electors were chosen in six of the States by the legislature, in others

1 In 1820 and 1822. 2 App., No. 497.

3 App., No. 524.

App., Nos. 489, 506.

Ever afterwards the House refused to consider this amendment.

4 This method of choosing the two additional electors was employed in Maine and New York in 1828. Stanwood, p. 100; post, par. 40. Other clauses of this amendment made provision for case of no election, and division of the States into districts by Congress, if necessary. Post, pars. 50, 53.

5 App., No. 869 (1). The two electors at large to be chosen by the legislature in joint convention.

6 App., Nos. 1247, 1248. A second election provided for in case no one received a majority of all the votes. If after the third election there is a tie, then it shall be decided by lot.

7 App., No. 1324.

* Delaware. South Carolina, Vermont, New York, Georgia, Louisiana. It has been claimed that the election by the legislature of a State was a usurpation and “a departure from the Constitution." Report of Committee on Election of President, Forty-fifth Congress, second session, H. Rep., Vol. IV, No. 819. McDuffie, in a speech in 1825. For reference, see App. No. 542; but in McPherson v. Blacke (146 U. S., 1.) it was held that the power of the legislature to fix the method was complete. See also In re Green, 134 U. S., 377.