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House of Representatives and the manner of holding the senatorial election. There is no sound reason why Congress should not have the same power in a presidential election.

Under a system of direct election, it is of great importance that the names of the major candidates appear on the ballot in every state. We recommend, therefore, that Congress be given the power to deal with a case where a state attempts to exclude the name of a major candidate from the ballot. In making this recommendation, we are influenced by the fact that there have been times in the history of our country when the name of a major candidate did not appear on the ballot in every state. As has been stated, in 1860 the name of Abraham Lincoln was left off the ballot in ten states. Similarly, in 1948 and again in 1964, the voters of one state were not afforded any opportunity to vote for the national candidates of the Democratic party because of the device of unpledged electors.

Consequently, it is essential that Congress have the power to deal with such a case.

Voting qualifications

Under the Constitution the appointment of electors lies with the state legislatures. As with other aspects dealing with the appointment of electors, the states set the qualifications for voting for electors. Direct election of the President would require some provision in the Constitution regarding the qualifications for voting in a presidential election. The Constitution now provides that the qualifications for voting for Congressmen and Senators are the same as those for members of the most numerous branch of the state legislatures. The actual qualifications are defined by state law.

We recommend that the qualifications for voting in a presidential election be the same as those for voting for members of Congress. This would make substantially uniform the qualifications for voting in both state and federal elections. Of course, any amendment will have to use language which could not be construed so as to nullify by implication the proscriptions of the Twenty-fourth Amendment (anti-poll-tax) with respect to voting in federal elections. In addition, there should be a permissive clause in any amendment allowing the states to adopt less restrictive residence requirements for voting in presidential elections. This is necessary in order not to invalidate the laws of those states that have established special residence requirements for voting in presidential elections. These laws extend the right to vote either to new residents, even though they do not meet the residence requirements for voting in other elections, or to former residents until they are eligible to qualify to vote in their new states.

12 U.S. Const. art. I, § 4, cl. 4. 13 U.S. Const. art. I, § 2, cl. 1; amend. XVII.

We also recommend that Congress be given the reserve power to adopt uniform age and residence qualifications. It is probable that, as with other reserve powers, Congress might not have to exercise this power particularly in view of the increasing tendency on the part of the states to make uniform their qualifications for voting in elections. This tendency is certainly to be encouraged. Thus, fortysix states now have age twenty-one as the minimum voting age; and more than one-third, with others soon to follow, have adopted special residence requirements for voting in presidential elections. Moreover, the Twenty-fourth Amendment prevents a state from imposing a poll tax or other tax as a condition for voting in federal elections.

Should the need ever arise for Congress to adopt uniform age and residence requirements for presidential elections, it should have the power to do so. It can be argued that Congress now has this power," but, in any event, the existence of such power should not be in doubt under a system of direct election.

Death of a candidate

Almost all of the pending proposals would remedy the defects in our system caused by the death of a candidate. An amendment dealing with direct election should embody the necessary provisions to eliminate any possible gaps caused by such an eventuality. We have no specific provisions to recommend, believing that this is a matter which can best be worked out after congressional hearings. We suggest that serious consideration be given not only to a case of death occurring after the election but also shortly before the elecion. It would seem that various contingencies might best be dealt with by the amendment empowering Congress to provide for such cases by statute.

A system of direct election would reduce some of the risks inherent in the present system because the results of the election would probably be known far sooner than at present, where forty-one days must pass before the electors meet and another few weeks elapse before their votes are counted before a joint session of Congress.

14 See, e.8., Katzenbach v. Morgan, 384 U.S. 641 (1966).

III

Constitutional

Convention of 1787

On September 4, 1787, delegate James Wilson of Pennsylvania said of the debates at the Constitutional Convention regarding a method for electing a President:

This subject has greatly divided the house, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide.95

During the preceding months of 1787, the delegates to the Constitutional Convention offered various plans for electing a President. The suggestions were that election be by the national legislature; the Senate alone; the people at large; the state Governors or electors chosen by them; electors chosen by the state legislatures; a small group of national legislators, not exceeding fifteen, chosen by lot; electors chosen by the people in districts in each state, who would meet at one place to elect the President; the national legislature, with electors chosen by the state legislatures taking over whenever the President sought reelection; and the national legislature from among the best citizens (one nominated by the people of each state).

Election by Congress considered

Election of the President by Congress was approved by the delegates on two occasions. Each time this method later was rejected because of the belief that the President should be independent of Congress and that a legislative election would result in cabal, intrigue, and corruption. It also was felt that in order for such a method to have a chance of succeeding, the President would have to be ineligible for a second term; otherwise, he would be too dependent on Congress. An ineligibility requirement was not favored.

15 Farrand, 2 The Records of the Federal Convention of 1787, 501 (Yale Uni

versity Press 1911 and 1937).

Direct election considered

Many delegates thought that direct election of the President by the people would be the best method. Views to this effect were expressed by such leading delegates as James Madison of Virginia, James Wilson and Gouverneur Morris of Pennsylvania, Hugh Williamson of North Carolina, John Dickinson of Delaware, Elbridge Gerry of Massachusetts, and Daniel Carroll of Maryland.

In opposition to direct election, it was argued that the people would not be sufficiently informed as to the qualifications of the various candidates and that the southern states would be placed at a disadvantage because of suffrage problems. (This was a time, it will be remembered, before political parties were conceived.) Another objection was that the people would vote for candidates from their own states, with the result that the large states would control the election or that no candidate would receive a majority of votes. Delegate George Mason remarked that "it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man.' The direct election proposal was rejected first on July 17, 1787, by a vote of nine to one, and then on August 24 by a vote of nine to two. It was approved by Delaware and Pennsylvania.

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Election by electors adopted

An electoral college method of electing a President was suggested early in the Convention by James Wilson. His proposal contemplated the people choosing the electors in districts. It was rejected on the same day it was proposed by a vote of eight to two. On July 17, 1787, the delegates defeated, by a similar vote, a proposal that the President be chosen by electors appointed by the state legislatures. On July 19 this proposal was approved by a divided vote. One week later, it was defeated in favor of election by Congress. On August 24 a motion was made and defeated that the President be selected by electors chosen by the people.

On September 4, 1787, during the closing days of the Convention, a Committee of Eleven recommended that the President be elected by electors. These electors, the delegates believed, would be among the most knowledgeable and capable persons in the country. The electors would meet quadrennially in their respective states, deliberate, and then select the President and the Vice-President. In casting their votes, they would exercise good and independent judgment. Alexander Hamilton expressed in No. 68 of the Federalist the widely held view that under the electoral college system the election of the President

16 Farrand, supra note 15, at 31.

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should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellowcitizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated

investigations. Hamilton also remarked that if the manner of election “be not perfect, it is at least excellent.”

Under the electoral college plan as approved by the Convention and embodied in Article II of the Constitution, each state was to be entitled to as many electors as it had Senators (two) and Representatives (at least one). The electors were to be chosen in the manner prescribed by the state legislatures, but no member of Congress or person holding a federal office of trust or profit could serve as an elector.

The electors were to meet in their respective states and vote by ballot for two persons, one of whom could not be an inhabitant of their state. This requirement seems to have been based largely on the view that electors would likely vote for persons residing in their own states.

After the presidential election the electors were to make up a list showing the persons voted for and the number of votes for each. The list was to be signed, certified, sealed, and then transmitted to the seat of the government of the United States, directed to the President of the Senate. He was to open the certificates from the electors and count the votes before a joint session of Congress.

The person having the greatest number of votes was to become President, provided that number were a majority of the total number of electors appointed. If two had a majority and were tied, the House of Representatives, by ballot, was to choose one of them to be President. If no person had a majority, the House was to select the President from among the five highest on the list

Whenever the election of President devolved on the House, the vote was to be by states, with each state delegation having one vote.

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