THE ELECTORAL COLLEGE: ITS PREROGATIVES

T

AND POSSIBILITIES

JOHN WALKER HOLCOMBE

HE devolution of the executive power has ever been the weak spot in systems of government. When ancient nations outgrew the primitive idea of the divinity of their kings, the problem of transmission of supreme power from ruler to ruler was solved by the strong man with the sword. With the exception of the few most enlightened peoples for comparatively brief periods of their career, the progress of nations has been checkered by wars and massacres to determine the sovereignty.

The governments of Europe enjoyed little stability till the principle of hereditary succession became fixed in their constitutions. Where this principle was imperfectly recognized there was turmoil, where it failed entirely extinction followed. It is not necessary to cite illustrations of these propositions from English and continental or ancient history, nor to argue the perils of republics in the revolutions of our American neighbors.

Therefore, when a people undertake to select their own rulers, the method of doing so is of the utmost importance. In its every step, in all its procedure, it must be simple, direct, easily understood. There must be no elaborate and involved minutiæ, out of which confusion may arise, or into which uncertainty may be injected by designing persons.

When our ancestors threw off royal rule, the old problem faced them, and in the Constitutional Convention this was regarded as one of the most difficult questions. There were no satisfactory precedents. Many of the delegates were versed in history, but they learned therefrom of the wreckage of states through feebleness of the executive power or imperfect methods of its transmission. After careful consideration of various plans, they adopted the method of election of the President by Electors "appointed" in the several States, and equal in number to the Senators and Representatives in Congress. They rejected after thorough discussion the proposal of election by suffrage of all

the voters, possibly because they distrusted the people, as has been alleged, perhaps also because they saw that election by general ballot would not be a real choosing by the people.

The persons to be voted for must be selected, designated, nominated, by some mortal agency. That agency, unless a single dictator, must be a body of men, small enough for discussion. Consequently, some junta or caucus would dictate candidates, that is, select the President. In order that this service might not fall to an irresponsible oligarchic body, the authors of the constitution created a responsible body clothed with full and final power both to choose and elect, exercising this power under the solemn sanctions of an oath of office and duty to the people, by whom now they are directly elected. This body was to represent as nearly as possible the States and the people of the States, and to embody their highest wisdom and virtue. Meeting as "a grand Electoral College," it was to be at once the nominating convention and plenary elective agency of the nation.

There can be no doubt but the Electoral College in this form would have proved itself a reality, would have vindicated its prerogatives and actually chosen our Presidents to this day. Its members would not have tolerated dictation from without, but would have procured immunity from pressure and undue influence through protective statutes enforced by the courts. But most unluckily the Convention changed its perfected plan at the last moment, and thereby unwittingly negatived its own will. In apprehension of the difficulties and expense of travel in that day, the Electors were permitted to meet and vote in their several States. Thus the power of making a choice was annihilated; the Electors were paralyzed in their essential function.*

Why the fatal result of this after-thought amendment was not foreseen, may be partly explained by conditions then existing. In the person of Washington the immediate candidate for all

* Bancroft summarizes substantially as follows: "And now the whole march to the mode of election of the President may be surveyed. The Constitutional Convention at first reluctantly conferred that office on the national legislature, voting in joint ballot. To escape from danger of cabal and corruption, it next transferred full and final power of choice to an Electoral College that should be the exact counterpart of the joint convention of the two Houses of Congress in the representation of the States, as well as the population of the States, and should meet at the seat of government. . . . From confidence in the purity of

electoral votes needed no nomination, and several other statesmen stood forth so distinguished by great services that the inevitability of contemporary selections obscured the fact that the first step in the process, the agreement upon a person on whom enough votes could be concentrated to effect an election, would be the prime difficulty of all. Also, the committee of correspondence was a familiar agency of that time. Through committees of correspondence, worked up by the Revolutionary patriots in the New England towns and in the counties of the middle and southern colonies, public sentiment had been aroused and united, agreement on policies and concert of action brought about. By their means conventions had been called and the colonial Assemblies had been influenced to send delegates to the Continental Congress; all the machinery which carried through the war for independence and the formation of the constitution, had been created. The expedient of correspondence among the Electors might be used to effect unity of choice. But if this was regarded as the appropriate means, it was speedily nullified, not only by other influences, but by legislation which required the Electors to give and certify their votes one month after their own election, allowing no sufficient time for correspondence.*

However this may be, as soon as it became necessary really to make and agree upon a choice, the Electors found themselves powerless to do so. They therefore accepted such advice as was tendered or forced upon them from without. In the early years of the Republic, the needed advice was supplied by various selfconstituted caucuses or committees, which in turn assumed the function, until finally, with the stronger organization of political parties, the national nominating convention became an established institution. Now the choice is actually made by a voluntary extra-legal and irresponsible convention, or some clique

...

the electoral body thus established, the re-eligibility of the executive was again affirmed. . . . . Then fearing that so large a number of men would not travel to the seat of government for that single purpose or might be hindered on the way. . . . nor would the first characters in the State feel sufficient motives to undertake the electoral office. ... the thought arose that the Electors might cast their votes in their own several States, and transmit the certificates of the votes to the general legislature.”—History of the Constitution, Vol. II, p. 184.

*The time was extended in 1887 to the second Monday in January.

within such a convention. It is accomplished not through wise deliberation, but through every art of political strategy, accompanied with excitement and uproar. The reality of this extralegal choice is not affected by the custom that two or more conventions present rival candidates, from whom the people indirectly select one. The fact remains that one of these conventions chooses the President in the first instance, and thus usurps the power of a constitutional body elected by the people. In so doing it usurps the rights of the people themselves.

That the people are aware of, and deeply dissatisfied with, this usurpation of their rights by irresponsible conventions, is evidenced by the rapid spread of the system of primary elections, the enactments of several States and the numerous bills in State legislatures and in Congress, proposing to elect delegates to party conventions by popular vote, and to instruct them as to candidates by party primaries. This paper endeavors to show that such bills as to Presidential elections are framed on erroneous principles.

In the first place the law ought not to attempt to control politics. In his politics and religion the citizen is free. It has ever been our theory that the voluntary activities of citizens in forming parties, assembling in conventions and carrying on political campaigns, are outside the sphere of law, that legislation is for the whole people, recognizing no sects, parts or parties. Accordingly it is improper for the law to prescribe the election of delegates or provide for instructing them or regulate the holding of conventions. But the law may altogether prohibit such activities, whether in or out of conventions, so far as they impair the freedom of any constituted agency of the government.

Furthermore, it is believed that no plan of electing delegates to party conventions, and expressing Presidential preferences, and certifying such preferences and instructing such delegates, can be devised, which will not violate the necessary rule of simplicity, and seriously impair the political liberties of the citizen. On inspection of a few proposed bills, one is astonished at the elaborate and complicated provisions and minute instructions and enormous expense found necessary to make the system effective. The enactment of such a measure would raise up a class of spe

cialist lawyers and professional politicians to operate it, and the consequent reign of confusion is unpleasant to contemplate.

Again, it is doubtful whether the people would remain satisfied with such a system. They have recognized the abuses of huge conventions, which become more glaring with each perpetration. The people are turning to the primary election, which they desire as a substitute for, not an aggravation of, the nominating convention. They wish to express their preferences among Presidential candidates, but they do not wish their expression to pass through the medium of party conventions. Such a medium is highly undesirable, and it is emphatically urged that it be not fixed by law upon our electoral system.

To complicate the preferential primary with the national conventions would be a calamity of the first magnitude. Little less calamitous would be the elaborate hierarchy of State boards and national boards, composed of salaried members appointed by the President, which are the substitutes proposed for the certifying function of party conventions. The extent to which these bills propose to regulate elections appears to infringe upon the province of the State legislatures, to which the constitution gives the power to determine the manner of appointing the Electors. All these difficulties are avoided by prohibiting any form of dictation either to the people as voters at large or to their chosen Electors. Let there be party organizations to proclaim and promote party principles, but let there be no nominating of candidates for President by caucuses, conventions or petitions, in advance of the general election. Party activity may be directed to the nomination of candidates for Electors, to be chosen under State laws. Here party organizations may have free scope, to bring forward robust partizans who, if chosen Electors, will fight vigorously for party principles and party men.

The influence of the people will be profoundly felt by the Electors. They are the responsible agents, elected and commissioned by the people; they are themselves of and from the people, among whom they live and move and have their being. They know and feel the popular sentiments in which they fully share, and in the performance of their duties they will prove a sensitive reflector of public opinion. Why then should there be two or