Balkinization: The Lack of Uniformity in Presidential Elections--the 1891 Edition

The Lack of Uniformity in Presidential Elections--the 1891 Edition

Gerard N. Magliocca

In light of some of the comments at oral argument on Thursday, I thought I'd highlight a discussion from President Harrison''s 1891 Annual Message about how states allocate electoral votes. Here is what the President said about this:

The method of appointment by the States of electors of President and Vice-President has recently attracted renewed interest by reason of a departure by the State of Michigan from the method which had become uniform in all the States. Prior to 1832 various methods had been used by the different States, and even by the same State. In some the choice was made by the legislature; in others electors were chosen by districts, but more generally by the voters of the whole State upon a general ticket. The movement toward the adoption of the last-named method had an early beginning and went steadily forward among the States until in 1832 there remained but a single State (South Carolina) that had not adopted it. That State until the Civil War continued to choose its electors by a vote of the legislature, but after the war changed its method and conformed to the practice of the other States. For nearly sixty years all the States save one have appointed their electors by a popular vote upon a general ticket, and for nearly thirty years this method was universal.

After a full test of other methods, without important division or dissent in any State and without any purpose of party advantage, as we must believe, but solely upon the considerations that uniformity was desirable and that a general election in territorial divisions not subject to change was most consistent with the popular character of our institutions, best preserved the equality of the voters, and perfectly removed the choice of President from the baneful influence of the "gerrymander," the practice of all the States was brought into harmony. That this concurrence should now be broken is, I think, an unfortunate and even a threatening episode, and one that may well suggest whether the States that still give their approval to the old and prevailing method ought not to secure by a constitutional amendment a practice which has had the approval of all.

After discussing the issue further, the President concluded with this:

[I]t is not my purpose here to discuss the question whether a choice by the legislature or by the voters of equal single districts is a choice by the State, but only to recommend such regulation of this matter by constitutional amendment as will secure uniformity and prevent that disgraceful partisan jugglery to which such a liberty of choice, if it exists, offers a temptation.

The upshot was that you needed a constitutional amendment to have uniformity among the states in how presidential electors are selected, even though a single state could for partisan reasons change the method of allocation and thereby swing the national election. Neither the 1787 Constitution nor the Fourteenth Amendment contains such a rule.

Posted 8:46 AM by Gerard N. Magliocca [link]