Experiences of Confederation showed need of single strong executive Term of president, four years Two-term precedent Attempted violation by Grant, 1880 Roosevelt, 1912 CHAPTER VII THE ELECTION OF THE PRESIDENT CONSTITUTIONAL AND LEGAL PROVISION CONCERNING THE The experience under the Confederation convinced the members of the convention of 1787 of the necessity of creating a strong executive. A few proposals were made looking toward an executive council, but after comparatively little discussion the convention decided upon a single executive — a president. The method of choice and the term of the president required longer consideration. The fear of despotism and the fixed habit of frequent elections each tended to reduce the length of the term, while the obvious advantage which experience would add argued against any limitation upon reëlection. It was finally decided that the term should be four years, with no restrictions upon reëlection. The age of Washington and his weariness of party conflicts caused him to retire at the end of his second term. Jefferson followed his example, although he emphasized the theoretical dangers of a third term. Thus a precedent was created which, although strengthened by time, has no legal but a strong moral force. Only two presidents have dared to question it. General Grant vainly sought renomination from the Republican party in 1880, and Theodore Roosevelt also sought in vain the Republican nomination in 1912. The supporters of Grant acquiesced in his defeat and supported the regular party nominee. The followers of Roosevelt, however, created a new organization, which gained more votes than were cast for the regular Republican candidate. The issue was not solely upon the question of the third term, nor can it be established that the breaking of the long-established tradition lost Roosevelt many votes which he otherwise would have received; nevertheless, his action was felt to be contrary to the traditional American Proposed Congress would have the theory of election by broken down separation of practice and furnished a point of attack for his opponents. Whether his defeat should be considered to have strengthened the tradition is a matter of opinion; and it is also doubtful whether the tradition would still have operated against him had he been the candidate of one of the long-established parties. The method of electing the president long vexed the convention. Opinion, almost unanimous against direct election by the people, seemed hopelessly divided as to the actual process to be employed. The prevailing sentiment during the early weeks of the debates was overwhelmingly in favor of an election by Con- powers and gress, and this method was twice adopted once unanimously liamentary — only to be reconsidered. Had such a plan been the final one system it is conceivable that the American theory of separation of powers might have broken down, and it is possible that the English system of responsible or parliamentary government might have in time developed. Finally, in the last days of the convention the method of indirect election by electors chosen by the states was agreed on. made a par possible over choice The finished draft of the Constitution reduced the action of State control Congress to a minimum. Article II, Sect. i, clause 2, provided of presidenthat "each State shall appoint, in such manner as the Legis- tial electors lature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. . . ." The method of choice of electors is thus absolutely in the hands of the state legislatures, and so complete is their power in this respect that they may vest their appointment in any body they see fit"in a board of bank directors, a turnpike corporation, or in a synagogue," as one writer has put it. As a matter of fact, however, the electors have always been chosen either by the legislatures or by direct election within the states. Until 1812 the majority Now chosen of the states by law vested the choice of the electors in the legislature, although at every election there was at least one state in which the electors were chosen by popular vote. From 1812 onward the majority of the states have followed the plan of popular election. South Carolina, however, did not adopt it 1 Dougherty, The Electoral System of the United States, p. 21; quoted by Willoughby, The Constitutional Law of the United States, Vol. II, p. 1126. everywhere by popular vote Choice of electors by districts or on general ticket Reasons for choice on general ticket until 1860, while the Colorado constitution of 1876 reverted to the older method.1 Whether the electors should be chosen by districts or upon a general ticket has also been answered variously. At first, since the electors were generally chosen by the legislatures of the states, the state was regarded as the constituency, and all the electors represented the majority of the legislature, while the minority in the state, no matter how large, was unrepresented. Nevertheless, in some of the more democratic communities, the rights of the individual local districts were recognized. By 1828 the number of states which chose electors by districts had declined to four, and from this time on the general rule was to choose all the electors upon a single general ticket. One reason which strengthened this tendency was the development of political parties and the decline in importance of the functions of the electors. Although, legally, the presidents were chosen by the electors, the electors themselves were morally bound to express the will of the popular majority within the state. Party policy made it of advantage that the electoral vote of a state should be as large as possible- unanimous if possible—hence the district system gave place to the general ticket, and the entire electoral vote was determined by the popular majority within the state, while the minority, no matter how large, was disregarded. This practice is now universal in all states. So strong had this custom become that when in 1892 Michigan experimented with the district system, the law was questioned in the courts. The Supreme Court upheld it in an opinion which summarized the debate in the convention and the practice of the states. The portion which bears upon the particular question is as follows: If the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to perceive why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket and not by districts. In other words, the act of appointment is none the less the act of the state in its entirety because arrived at by districts, for the act is the act of political agencies duly authorized 1I. H. Finley, The American Executive, p. 332. to speak for the state, and the combined result is the expression of the voice of the state, a result reached by direction of the legislature, to whom the whole subject is committed.1 President not elected by popular vote Election by use of gen states and eral tickets lead to con This use of general tickets and large constituencies, from which minorities are discarded, still further emphasizes the fact that the president is not elected by popular vote. Out of the ten elections held since 1880 the successful candidate, although receiving the majority of the electoral votes in all the elections, has received a majority of the popular vote only five times. For example: in the election of 1912 President Wilson with a popular vote of a little over six million gained four hundred and thirty-five electoral votes. His leading opponent, ex-President Roosevelt, polled more than four million votes and gained only eighty-eight electoral votes ; while the entire popular vote cast for all the candidates other than President Wilson was more than eight million, and resulted in only ninety-six electoral votes. Certain very important consequences result from this condition. Politicians are led to concentrate their attention upon doubtful states which have a large electoral vote. Thus, in the election of 1884 the Democrats were successful in carrying centration New York by a majority of only about a thousand votes. These states thousand votes, however, determined the character of the thirtysix electoral votes of New York, which in turn determined. the election of President Cleveland. Hence, in a closely contested election the value of even a small majority in a single state becomes so important that the temptation to bribery and corruption becomes enormous. On the other hand, since there are as many electors as there are senators and representatives combined, a majority of whom is necessary for choice, the successful candidate must have more than merely a sectional support. Sectionalism Through the massing of the population in a few contiguous states, an unchecked popular election might result in a sectional election. But unless the population becomes decidedly more concentrated than it is at present such a result is impossible. It is, however, entirely possible for the states north of the Ohio River to control the majority of the electoral vote, and 1 McPherson v. Blacker, 146 U. S. 1, 25-26. on doubtful prevented Electors chosen in November meet and since the Civil War this has been the case in every election in which a Republican candidate has won; but such a majority was obtained only by combining the East with the Middle West and Pacific states, thus avoiding the taint of sectionalism. By the law of 1845 the electors are chosen in the states, whatever method may be adopted, on the same day, the Tuesday following the first Monday in November. According to the act of 1887 the electors must meet and vote within the various votes counted states at such places as their respective legislatures shall direct, vote in the following January; in February How the electoral votes are counted The election of 1876 upon the second Monday in the following January. Upon the second Wednesday in the following February the Senate and House meet in joint session in the chamber of the House, where the president of the Senate opens the votes of the various states, and four tellers, two from the House and two from the Senate, count the votes. It is to be noted that the provision of the Constitution1 regarding the counting of the votes reads as follows: "... the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. . . ." In assuming the prerogative of counting the votes, which involves the passing upon their validity, Congress has usurped a function which the framers of the Constitution intended to be entirely in the hands of the states. The action of the convention would lead to this conclusion. During the first sessions the sentiment was overwhelmingly in favor of a congressional election, but in the final draft Congress was reduced to a mere witness. The early practice also leads to the same belief; for until 1809 the president of the Senate opened and counted the votes, the Houses acting merely as witnesses. Not until 1821 did Congress claim the power to pass upon disputed returns. Until 1876, however, the counting and passing upon disputed votes was regulated entirely by resolution of Congress, and the duty of the president of the Senate was confined to merely opening the votes. In the election of 1876 four states sent plural returns, in all twentyone votes were in dispute, any one of which would have elected the Democratic candidate. Two questions were involved: Which 1 The Constitution of the United States, Amendment XII. |