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Car. Laws, 1715 to 1800, c. 15 of 1792. At the same session an act was passed dividing the State into districts for the election of electors in 1796, and every four years thereafter. Id. c. 16.
Sixteen States took part in the third presidential election, Tennessee having been admitted June 1, 1796. In nine States the electors were appointed by the legislatures, and in Pennsylvania and New Hampshire by popular vote for a general ticket. Virginia, North Carolina, and Maryland elected by districts. The Maryland law of December 24, 1795, was entitled "An act to alter the mode of electing electors," and provided for dividing the State into ten districts, each of which districts should "elect and appoint one person, being a resident of the said district, as an elector." Laws Md. 1795, c. 73, [2 Kelty]. Massachusetts adhered to the district system, electing one elector in each Congressional district by a majority vote. It was provided that if no one had a majority, the legislature should make the appointment on joint ballot, and the legislature also appointed two electors at large in the same manner. Mass. Resolves, June, 1796, p. 12. In Tennessee an act was passed August 8, 1796, which provided for the election of three electors, "one in the district of Washington, one in the district of Hamilton, and one in the district of Mero," and, "that the said electors may be elected with as little trouble to the citizens as possible," certain persons of the counties of Washington, Sullivan, Green, and Hawkins were named in the act and appointed electors to elect an elector for the district of Washington; certain other persons of the counties of Knox, Jefferson, Sevier, and Blount were by name appointed to elect an elector for the district of Hamilton; and certain others of the counties of Davidson, Sumner, and Tennessee to elect an elector for the district of Mero. Laws Tenn. 1794, 1803, p. 109; Acts 2d Sess. 1st Gen. Assembly Tenn. c. 4. Electors were chosen by the persons thus designated.
In the fourth presidential election, Virginia, under the advice of Mr. Jefferson, adopted the general ticket, at least "until some uniform mode of choosing a President and VicePresident of the United States shall be prescribed by an amend
ment to the Constitution." Laws Va. 1799, 1800, p. 8. Massachusetts passed a resolution providing that the electors of that State should be appointed by joint ballot of the senate and house. Mass. Resolves, June, 1800, p. 13. Pennsylvania appointed by the legislature, and upon a contest between the senate and house, the latter was forced to yield to the senate in agreeing to an arrangement which resulted in dividing the vote of the electors. 26 Niles' Reg. 17. Six States, however, chose electors by popular vote, Rhode Island supplying the place of Pennsylvania, which had theretofore followed that course. Tennessee, by act of October 26, 1799, designated persons by name to choose its three electors as under the act of 1796. Laws Tenn. 1794-1803, p. 211; Acts 2d Sess. 2d Gen. Ass. Tenn. c. 46.
Without pursuing the subject further, it is sufficient to observe that, while most of the States adopted the general ticket system, the district method obtained in Kentucky until 1824; in Tennessee and Maryland until 1832; in Indiana in 1824 and 1828; in Illinois in 1820 and 1824; and in Maine in 1820, 1824 and 1828. Massachusetts used the general ticket system, in 1804, (Mass. Resolves, June, 1804, p. 19,) chose electors by joint ballot of the legislature in 1808 and in 1816, (Mass. Resolves, 1808, pp. 205, 207, 209; 1816, p. 233;) used the district system again in 1812 and in 1820, (Mass. Resolves, 1812, p. 94; 1820, p. 245;) and returned to the general ticket system in 1824, (Mass. Resolves. 1824, p. 40.) In New York the electors were elected in 1828 by districts, the district electors choosing the electors at large. N. Y. Rev. Stat. 1827, Part I, Title vi, c. 6. The appointment of electors by the legislature, instead of by popular vote, was made use of by North Carolina, Vermont and New Jersey in 1812.
In 1824 the electors were chosen by popular vote, by districts, and by general ticket, in all the States excepting Delaware, Georgia, Louisiana, New York, South Carolina, and Vermont, where they were still chosen by the legislature. After 1832 electors were chosen by general ticket in all the States excepting South Carolina, where the legislature chose them up to and including 1860. Journals 1860, Senate pp. 12, 13; House, 11,
15, 17. And this was the mode adopted by Florida in 1868, (Laws 1868, p. 166,) and by Colorado in 1876, as prescribed by § 19 of the schedule to the constitution of the State, which was admitted into the Union August 1, 1876. Gen. Laws Colorado, 1877, pp. 79, 990.
Mr. Justice Story, in considering the subject in his Commentaries on the Constitution, and writing nearly fifty years after the adoption of that instrument, after stating that "in some States the legislatures have directly chosen the electors by themselves; in others, they have been chosen by the people by a general ticket throughout the whole State; and in others, by the people by electoral districts, fixed by the legislature, a certain number of electors being apportioned to each district," adds: "No question has ever arisen as to the constitutionality of either mode, except that by a direct choice by the legislature. But this, though often doubted by able and ingenious minds, (3 Elliot's Deb. 100, 101,) has been firmly established in practice ever since the adoption of the Constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it." And he remarks that "it has been thought desirable by many statesmen to have the Constitution amended so as to provide for a uniform mode of choice by the people." Story Const. 1st Ed. § 1466.
Such an amendment was urged at the time of the adoption of the Twelfth Amendment, the suggestion being that all electors should be chosen by popular vote, the States to be divided for that purpose into districts. It was brought up again in Congress in December, 1813, but the resolution for submitting the amendment failed to be carried. The amendment was renewed in the House of Representatives in Decem
1 See Stanwood on Presidential Elections, (3d ed.,) and Appleton's Presidential Counts, passim; 2 Lalor's Encyclo. Pol. Science, 68; 4 Hild. Hist. U. S., (Rev. Ed.,) 39, 382, 689; 5 Id. 389, 531; 1 Schouler's Hist. U. S. 72, 334; 2 Id. 184; 3 Id. 313, 439; 2 Adams' Hist. U. S. 201; 4 Id. 285; 6 Id. 409, 413; 9 Id. 139; 1 McMaster's Hist. People U. S. 525; 2 Id. 85, 509; 3 Id. 188, 189, 194, 317; 2 Scharf's Hist. Md. 547; 2 Bradford's Mass. 835; Life of Plumer, 104; 3 Niles' Register, 100; 5 Id. 372; 9 Id. 319, 349; 10 Id. 45, 177, 409; 11 Id. 296.
ber, 1816, and a provision for the division of the States into single districts for the choice of electors received a majority vote, but not two-thirds. Like amendments were offered in the Senate by Messrs. Sanford of New York, Dickerson of New Jersey and Macon of North Carolina. December 11, 1823, Senator Benton introduced an amendment providing that each legislature should divide its State into electoral districts, and that the voters of each district "should vote, in their own proper persons," for President and Vice-President, but it was not acted upon. December 16, and December 24, 1823, amendments were introduced in the Senate by Messrs. Dickerson of New Jersey and Van Buren of New York, requiring the choice of electors to be by districts; but these and others failed of adoption, although there was favorable action in that direction by the Senate in 1818, 1819 and 1822. December 22, 1823, an amendment was introduced in the House by Mr. McDuffie of South Carolina, providing that electors should be chosen by districts assigned by the legislatures, but action was not taken.1 The subject was again brought forward in 1835, 1844, and subsequently, but need not be further dwelt upon, except that it may be added that, on the 28th of May, 1874, a report was made by Senator Morton, chairman of the Senate Committee on Privileges and Elections, recommending an amendment dividing the States into electoral districts, and that the majority of the popular vote of each district should give the candidate one presidential vote, but this also failed to obtain action. In this report it was said: "The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several States. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the State at large, or in districts, as are members of Congress, which was the case formerly in many States; and it is, no doubt, competent for the legislature to authorize the governor, or the
11 Benton's Thirty Years View, 37; 5 Bent. Cong. Deb. 110, 677; 7 Id. 472-74, 600; 3 Niles' Reg. 240, 334; 11 Id. 258, 274, 293, 349; Annals Cong., (1812-13,) 847.
Supreme Court of the State, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the States by the Constitution of the United States, and cannot be taken from them or modified by their State constitutions any more than can their power to elect Senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated." Senate Rep. 1st Sess. 43 Cong. No. 395.
From this review, in which we have been assisted by the laborious research of counsel, and which might have been greatly expanded, it is seen that from the formation of the government until now the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.
Even in the heated controversy of 1876-1877 the electoral vote of Colorado cast by electors chosen by the legislature passed unchallenged; and our attention has not been drawn to any previous attempt to submit to the courts the determination of the constitutionality of state action.
In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States. They are, as remarked by Mr. Justice Gray in In re Green, 134 U. S. 377, 379, "no more officers or agents of the United States than are the members of the state legislatures when acting as electors of Federal senators, or the people of the States when acting as the electors of representatives in Congress." Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power and jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that Congressional and Federal influence might be excluded.
The question before us is not one of policy but of power, and