CHAPTER VII.

ELECTIONS.

88. Early Simplicity and Growing Complexity of Elections.

JAMES ROBERTSON, writing to Governor Sevier from Nashville after the gubernatorial election of 1797, said:

I maid known at the opening of the poles, that you ware a candidate for Govener, likewise did Colo. Lewis, some few which had thare tickets wrote did not alter them, and a few that wished to shue thay ware not your Frends, voted for others, not to exceed twenty. we have 1037 voters, in this county. you had 906 in voats. I have not heard from the other Countyes, but perhaps some of them may have dun as a Number ware like to do heare, and your Frends, that it was unnecessary for all to have your name in as you had no opponant."

The simplicity of the electoral procedure indicated is illustrative of the times and of the Tennessee constitution which contained no regulations of the conduct of elections, save that they should be by ballot on specified days and be free and equal.8

As citizens and voters have increased in number and social and political life has become more and more complex, electoral procedure has necessarily undergone much change. Candidates for office can no longer leave their announcements to their friends at the opening of the polls, nor can their supporters depend upon personal knowledge in making a choice. constituency of many thousands of voters men cannot, as in neighborhood elections, know how everyone else stood and so know whether the ballots were honestly counted.

In a

In order that the people of large communities may express their will through elections, elaborate machinery must be employed to formulate their desires into clear-cut issues and afford them the means of selecting officials who will be in some measure representative of all. To supply this need political parties

General References: Jones, C. L., Readings on Parties and Elections in the United States; Macy, Jesse, Party Organization and Machinery; Commons, J. R., Proportional Representation; Hoag, C. G., Effective Voting; Proportional Representation Review (Quarterly).

'Draper Manuscripts, U, Vol. 5, No. 166.

Const. 1796, I. 5; III, 3; XI, 5. The votes for governor were to be transmitted to the legislature-II, 2.

-groups of citizens having similar wishes in regard to governmental activities—have arisen and habitually place before the people at elections candidates and programs which their influential members deem most in accord with the needs of the state or most likely to meet with a favorable reception by the voters. The increasing greatness of the interests at stake in elections has led to countless abuses, such as bribery and intimidation of voters, and the increasing difficulty of agreeing upon issues and candidates has tended to make their selection the highly specialized business of a few party agents.

To prevent the continuation of abuses and provide methods by which a complex electorate may continue to express its will, various complex restrictions and requirements have been placed in the constitutions and numerous statutory election laws of tome-like proportions have been enacted by the legislatures." Nomination systems have been legalized and the manner of conducting campaigns and elections minutely prescribed and the ascertainment of results provided for. Effort will be made in this chapter to present some account of the constitutional provisions concerning these subjects.

Methods of

Nominations for office are made in several different ways. 89. Where the constituency is too large for the voters of a party Nomination. to come together in a meeting and propose candidates for office it is commonly divided into districts of suitable size in which the voters may assemble and choose delegates who will convene in some central place and, as representatives of the whole body of voters, make nominations for the office to be filled. Disregard by the nominating conventions of the wishes of their constituents has led to efforts on the part of the latter to devise more direct methods of naming candidates. These efforts have resulted chiefly in nomination by petition and primary elections. According to the first method, if a certain small percentage of the electors sign a petition to that effect a candidate's name is placed upon the official ballot. According to the second method, candidates, usually named by petition, are voted upon by the members of the party throughout the whole constituency and the party candidate chosen.

That of N. Y., e. g., contains more than 200 printed octavo pages (Consolidated Laws of New York, 1909, pp. 801-1029.)

90. Direct Primaries.

Provisions concerning nominations or nominating conventions are found in several constitutions. Louisiana and Mississippi,10 for instance, declare that the legislature shall enact laws to secure fairness in naming party candidates whether in convention or otherwise, and in the latter only registered voters can take part in nominating. In Alabama1 the qualifications for voting or participating in any convention, mass meeting or other method of party action are the same as those prescribed by the constitution for voting at elections. California2 expressly authorizes laws relating to the election of delegates to conventions. In Ohio3 delegates to national conventions must be chosen by direct vote of the electors; the ballots are to state the delegates' first and second choices among the presidential candidates; but the name of a presidential candidate must not be used without his written authority.

Nomination by petition is authorized in Ohio and Oklahoma* and the general application of the principles of proportional representation and preferential voting may be made to nominations by political parties in Oregon.5

As in the case of other state regulations of party nominations-originally left entirely to party control,--provisions for direct primaries are usually made by legislative enactment. So important has this reform been considered in some states, however, that constitution-makers have not felt justified in utterly neglecting it.

Thus in Oklahoma' the legislature is required to enact laws for a mandatory primary system, for state, district, county and municipal officers, including United States senators, but the right to place non-partisan candidates on the ballot by petition is allowed. In California3 the legislature must enact a direct primary law and must determine conditions for participation of electors, parties or organizations in primaries, which primaries it may make "mandatory and obligatory." In Alabama,9

10215, 200; XII, 247. See also Va. II, 35.

1VIII, 183.

2II, 22.

3V, 7.

on the other hand, the legislature cannot make primaries compulsory. In several states1o it is specified that only registered electors may take part in primaries.1 In over half of the states the legislatures have passed direct primary laws-which, incidentally, legalize political parties and subject them to state control.2

The reason underlying the very earnest and vigorous efforts3 that have been made to secure direct primary nominations is the increased popular control which such a method promises. A party caucus or nominating convention, say the proponents of direct primaries, is almost invariably controlled by men who do not represent the party. The rank and file of the party should control its nominations, hence the direct primary is simply a measure of democracy within the party. Wilson has said,

President

I want the people to come in and take possession of their own premises; for I hold that the government belongs to the people, and that they have a right to that intimate access to it which will determine every turn of its policy.5

Surely no means of controlling a government is more elementary than the selection of officers. Direct primaries propose to lessen machine control by carrying opportunity for popular influence and control a little farther back, a little nearer the beginning of the process of election.

On the other hand, it is widely argued that electorates are too apathetic to take advantage of such an opportunity for control. Indeed, the argument perhaps most forcefully advanced against direct primaries is not only the increased complication of election machinery which they entail but also the increased number of elections with which they burden an already election

10 Ala., 183; La., 200; Va., II, 35.

For other regulations see-Ala. VIII, 182, 190; Ariz. VII, 14; Cal. II, 22; Del. V, 9; La. 201, 215; Miss. XII, 247; S. C. II, 10; Va. II, 36.

See also

2See Dealey, Growth of American State Constitutions, 158-9. Under its police power a state may regulate primaries voluntarily held by parties. Young, The New American Government and Its Work, 306. Including those enforced merely by party rules direct primaries are held in 38 states.

Most notably that of Governor Hughes of New York.

See McCarthy, Charles,-The Wisconsin Idea, p. 88, seq.; Reinsch, Paul S., Readings in American State Government, 93-103, 383, 394, 399-404, 404, 421; Beard, C. A., American Government and Politics (1910 Ed.)-693, seq.

"The New Freedom, 77.

91. Conduct of Campaigns.

ridden people. Furthermore, it is said, they will not greatly lessen machine control, for the machine will dictate the names to be placed upon the primary ticket just as it does the names of the candidates to run in the final election.

Concerning the manner of conducting campaigns an occasional constitutional provision is found. Thus in ArizonaR the legislature must provide for publicity of contributions both before and after election and contributions by corporations organized or doing business in the state are prohibited. In Virginia' the legislature may add disqualification for office-holding to the other penalties upon those violating such provisions.8 These so-called corrupt practices acts are among the widelyadvocated reform measures of the day and have already been widely adopted. They are expressly required' or permitted2 by three constitutions. Numerous other states require laws to protect the purity3 or regularity of elections and to prevent abuses of the elective franchise. Fraud and bribery' have long been expressly provided against.

In Kentucky candidates are expressly made responsible for bribery by their agents and corporations convicted of bribery are liable to forfeiture of charter or the right to do business in the state. In Maryland the legislature may remove all penalties from the vote-seller so as to place penalties for purchase of votes on the vote-buyer alone. In Alabama1 paying one's poll tax to influence his vote is expressly made bribery. Freedom of elections is guaranteed by about two-thirds of the constitutions. Fifteen constitutions3 prescribe that elections shall

"See Del. V, 1; Okla. III, 6; Pa. VIII, 9, 14; R. I. II, 6; Tex. VI, 4; W. Va. IV, 11.

"See, e. g., Cal. XX, 11; Tenn. X, 3; Tex. XVI, 2.

1VIII, 95.

2e. g., Ind. II, 1; Tenn. I, 5, IV, 1; Wash. I, 19.

3e. g., Ind. II, 1; Mass. Pt. I, 9; Pt. II, ch. I, sec. II, 2; Tenn. I, 5; Wyo. 1, 27.