The Regulation of Elections

The natural order of the subject brings me to the provision of the Constitution that lets the national legislature regulate, as a last resort, the election of its own members. It reads: “The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing senators.” This clause has been attacked not only by those who condemn the Constitution wholesale, but also by milder, more moderate objectors; in one case it has even been faulted by a gentleman who has declared himself the advocate of every other part of the system.

Yet I am much mistaken if any article in the whole plan is more completely defensible than this one. Its propriety rests on a plain proposition: every government ought to contain within itself the means of its own preservation. Any sound reasoner will at first sight approve the convention’s adherence to this rule, and will disapprove every departure from it that does not appear forced by the need to fit in some particular ingredient with which strict conformity was incompatible. Even where such a departure is unavoidable, he will not stop regretting it as a flaw in the system, a flaw that may become the seed of future weakness, and perhaps anarchy.

No one will claim that an election law could have been written into the Constitution to fit every probable change in the country’s situation; so no one will deny that a discretionary power over elections must exist somewhere. There were only three reasonable ways to place that power: lodge it wholly in the national legislature, wholly in the State legislatures, or primarily in the States and ultimately in the national legislature. The convention rightly chose the last. They gave regulation of federal elections, in the first instance, to the local administrations, which in ordinary cases, when no improper aims prevail, may be both more convenient and more satisfactory; but they reserved to the national authority a right to step in whenever extraordinary circumstances might make that intervention necessary to its safety.

Nothing is more evident than this: an exclusive power to regulate elections for the national government, held by the State legislatures, would leave the Union’s very existence at their mercy. They could destroy it at any moment simply by neglecting to provide for the choice of those who administer its affairs. It is little use to say such a neglect is unlikely. The mere constitutional possibility of it, with no compensating benefit for the risk, is an unanswerable objection, and no satisfactory reason has yet been offered for running that risk. The wild surmises of a feverish jealousy do not qualify as one. If we are inclined to presume abuses of power, it is just as fair to presume them in the State governments as in the general government; and since sound theory favors trusting the Union with the care of its own existence rather than handing that care to others, if abuses must be risked on one side or the other, it is more rational to risk them where the power would naturally sit than where it would sit unnaturally.

Suppose an article had been added empowering the United States to regulate the elections of the individual States. Would any man hesitate to condemn it, both as an unwarrantable transfer of power and as a deliberate engine for destroying the State governments? The violation of principle would need no comment. To an unbiased observer it is no less clear in the reverse project: subjecting the existence of the national government, in the same respect, to the pleasure of the State governments. An impartial view cannot fail to conclude that each, as far as possible, ought to depend on itself for its own preservation.

An objection arises here. The structure of the national Senate, it may be said, carries the very danger feared from an exclusive State power over federal elections: by declining to appoint Senators, the State legislatures could at any time deal a fatal blow to the Union. If the Union’s existence already depends on them in so essential a point, the argument runs, there can be no objection to trusting them in the present case as well. And the interest of each State in keeping its representation in the national councils, it is added, would be a complete safeguard against any abuse of the trust.

This argument is plausible but, on examination, not solid. It is true that the State legislatures, by refusing to appoint senators, could destroy the national government. But it does not follow that, because they hold this power in one instance, they ought to hold it in every other. There are cases where such a power would be far more dangerous, and where no motive as compelling as the one that shaped the Senate exists to justify granting it. The Senate’s construction does expose the Union to possible injury from the States, and that is an evil; but it is an evil that could not have been avoided without shutting the States, in their political capacities, entirely out of the national government’s structure. To have done so would have been read as a complete abandonment of the federal principle, and would have stripped the State governments of the absolute safeguard they enjoy under this provision. However wise it was to accept this inconvenience for a necessary advantage or greater good, that gives no warrant to pile on the same evil where no necessity demands it and no greater good invites it.

It is also easy to see that the national government would run a far greater risk from State power over elections to the House of Representatives than from State power to appoint senators. Senators serve six-year terms; a rotation vacates and refills one third of the seats every two years; no State has more than two senators; and a quorum of the body is sixteen members. Taken together, these facts mean that a temporary combination of a few States to suspend senatorial appointments could neither destroy the body nor cripple its activity; and it is not a general, permanent combination of the States that we have anything to fear. The first kind would spring from the sinister designs of a few leading members in a few State legislatures; the second would require a fixed, deep-rooted disaffection in the great body of the people, which will either never exist at all, or will most likely arise from experience that the general government is unfit to advance their happiness, in which case no good citizen could wish it to continue.

The House of Representatives, by contrast, is meant to face a general election of its members once every two years. If the State legislatures held an exclusive power to regulate these elections, every election period would become a delicate crisis in the national situation, one that could end in the dissolution of the Union if the leaders of a few of the most important States had conspired beforehand to prevent an election.

I will not deny there is some weight in the observation that each State’s interest in being represented in the federal councils guards against abuse of a power over its elections. But the safeguard will not seem complete to anyone who attends to an obvious distinction: between the people’s interest in the public welfare and the interest of their local rulers in the power and importance of their own offices. The people of America may be warmly attached to the Union at the very moment when particular State rulers, spurred by the natural rivalry of power, by hopes of personal aggrandizement, and backed by a strong faction in each of those States, are in a very opposite temper. This split between a majority of the people and the individuals with the greatest credit in their councils is on display in some States right now, on this very question.

The scheme of separate confederacies, which always multiplies the chances of ambition, will be a never-failing lure to every influential figure in the State administrations who would prefer his own profit and advancement to the public good. With so effective a weapon in hand as the exclusive power to regulate national elections, a combination of a few such men, in a few of the most considerable States where the temptation is always strongest, might accomplish the destruction of the Union: they would seize on some chance dissatisfaction among the people (perhaps one they themselves had stirred up) and stop the choice of members for the federal House of Representatives. It should never be forgotten that a firm union of this country, under an efficient government, will likely become a growing object of jealousy to more than one nation of Europe; that schemes to subvert it will sometimes begin in the intrigues of foreign powers; and that such schemes will rarely fail to be encouraged and aided by some of them. Its preservation, therefore, ought never, in any avoidable case, to be entrusted to any but those whose situation will always give them an immediate interest in the faithful and vigilant performance of the trust.

We have already seen that an unchecked power over federal elections could not safely be left to the state legislatures. The danger on the other side now deserves the same scrutiny: what risk follows from trusting the Union itself with the final right to regulate its own elections? No one pretends this power would be used to shut any state out of its share in the representation; on that point the interest of all would secure all. The real charge is that it might be used to promote the election of some favorite class of men to the exclusion of others, by confining the places of voting to particular districts and making it impractical for citizens at large to take part in the choice. Of all the far-fetched suppositions, this seems the most far-fetched.

Two things stand against it. First, no sober weighing of probabilities would lead us to imagine that the temper behind so violent and extraordinary a course could ever take hold in the national councils. Second, if such an improper spirit ever did gain admittance there, it would show itself in a wholly different and far more decisive form.

The improbability of the attempt follows from a single reflection: it could never be made without provoking an immediate revolt of the great body of the people, led and directed by the state governments. It is easy enough to conceive that in turbulent and factious times a victorious, overbearing majority might violate this characteristic right of freedom against some particular class of citizens. But that so fundamental a privilege, in a country so situated and so enlightened, should be invaded against the great mass of the people by the deliberate policy of the government, and without setting off a popular revolution, is altogether inconceivable and incredible.

Beyond this general point, there are more precise considerations that forbid all alarm. The differing materials that will make up the national government, and still more the differing ways those materials are brought into action in its several branches, form a powerful obstacle to any common scheme for rigging elections. There is enough variety in property, in the genius, manners, and habits of people across the different parts of the Union to produce a real diversity of disposition among their representatives toward the various ranks and conditions in society.

Close dealings under a shared government will, over time, blend some of these traits together; yet causes both physical and moral may permanently nourish, to a greater or lesser degree, different inclinations in this respect. But the circumstance most likely to weigh in the matter is the dissimilar way the several parts of the government are constituted. The House of Representatives is to be elected directly by the people, the Senate by the state legislatures, and the President by electors chosen for that purpose by the people. With origins so different, there is little chance of a common interest binding these branches together in a shared favoritism toward any particular class of electors.

Consider the Senate. The only thing proposed for national regulation as to that body is the time and manner of its elections, and no such regulation can touch the spirit that will guide the choice of senators. The collective sense of the state legislatures can never be swayed by extraneous circumstances of that kind, and that alone should satisfy us that the feared discrimination would never even be attempted. What inducement could the Senate have to join in a preference from which it would itself be excluded? To what purpose would such a scheme be set up for one branch of the legislature if it could not reach the other? The makeup of the one would in that case counteract the other. We can never suppose the scheme would extend to Senate appointments unless we also suppose the willing cooperation of the state legislatures, and if we grant that, it becomes immaterial where the power sits: in their hands or in those of the Union.

But what is supposed to be the object of this capricious favoritism in the national councils? Is it to be exercised among the different branches of industry, or the different kinds of property, or the different degrees of property? Will it tilt toward the landed interest, the moneyed interest, the mercantile interest, or the manufacturing interest? Or, to use the fashionable phrase of the Constitution’s adversaries, will it court the elevation of “the wealthy and the well-born” by excluding and degrading everyone else?

If the favoritism is to run toward those engaged in some particular kind of industry or property, the contest for it will plainly lie between landed men and merchants. And I do not hesitate to affirm that it is far less likely that either of them should gain the upper hand in the national councils than that one or the other should dominate in all the local councils. The inference follows: conduct that would give undue preference to either is much less to be feared from the national government than from the states.

The several states are devoted in varying degrees to agriculture and commerce. In most, if not all, agriculture predominates; in a few, commerce nearly shares the field, and in most it carries considerable influence. Whichever prevails in a state will be carried into the national representation. And precisely because that representation draws from a greater variety of interests, and in far more varied proportions than exist in any single state, it will be much less apt to embrace either interest with decided partiality than the representation of any single state would be.

In a country made up chiefly of those who cultivate the land, where the rules of equal representation hold, the landed interest must on the whole predominate in the government. As long as this interest prevails in most of the state legislatures, it must keep a matching superiority in the national Senate, which will generally be a faithful copy of the majorities in those assemblies. We cannot presume, then, that sacrificing the landed class to the mercantile class will ever be a favorite object of that branch of the federal legislature.

In applying this general observation so particularly to the Senate, I am guided by a further point: the credulous devotees of state power cannot, on their own principles, suspect that the state legislatures would be swayed from their duty by any outside influence. But in reality the same situation must produce the same effect, at least in the original composition of the federal House of Representatives. An improper bias toward the mercantile class is as little to be expected from that quarter as from the Senate.

To prop up the objection at any cost, it may be asked: is there not a danger of the opposite bias, one that disposes the national government to secure a monopoly of the federal administration for the landed class? Since there is little chance this supposed bias will hold any terror for those it would immediately injure, a labored answer can be dispensed with. Three brief remarks suffice. First, for reasons assigned elsewhere, any decided partiality is less likely in the councils of the Union than in those of any of its members. Second, there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderance as it could desire. Third, men used to studying the sources of public prosperity on a large scale must be too convinced of the value of commerce to wound it so deeply as the entire exclusion of those who best understand its interest would do. The importance of commerce, in the matter of revenue alone, must effectually guard it against the enmity of a body that would be continually pressed in its favor by the urgent calls of public necessity.

I have been brief on the chance of a preference founded on discrimination between kinds of industry and property, because, as far as I understand the objectors, they have a different sort of discrimination in view. The objects of the preference they use to alarm us are those they label “the wealthy and the well-born.” These, it seems, are to be raised to a hateful pre-eminence over the rest of their fellow citizens. At one moment their elevation is said to follow necessarily from the smallness of the representative body; at another, it is to be achieved by stripping the people at large of the chance to exercise their right of suffrage in choosing that body.

But on what principle would the places of election be marked off to serve the intended preference? Are “the wealthy and the well-born,” as they are called, confined to particular spots in the several states? Have they, by some miraculous instinct or foresight, set apart a common place of residence in each one? Are they to be met with only in the towns and cities? Or are they, on the contrary, scattered across the face of the country wherever avarice or chance happened to cast their own lot, or that of their forebears? If the latter is the case, as every intelligent man knows it to be (particularly in the Southern States and in New York), is it not plain that confining the places of election to particular districts would defeat its own aim, quite apart from every other objection to it? The truth is that there is no way to secure the preference feared for the rich except by prescribing property qualifications, either for those who may vote or for those who may be chosen. But that forms no part of the power to be granted to the national government. Its authority would be expressly limited to regulating the times, the places, and the manner of elections. The qualifications of those who may choose or be chosen are, as noted on other occasions, defined and fixed in the Constitution, and cannot be altered by the legislature.

Grant, for argument’s sake, that the suggested expedient might succeed, and grant too that every scruple a sense of duty or a fear of the experiment might inspire were overcome in the breasts of the national rulers. Even so, it can hardly be pretended that they could ever hope to carry such an enterprise through without a military force large enough to subdue the resistance of the great body of the people. That no force equal to that object is likely to exist has been discussed and demonstrated elsewhere in these papers.

But to expose the futility of the objection in the strongest light, concede for a moment that such a force might exist and that the national government actually held it. What then follows? Men disposed to invade the essential rights of the community, and possessing the means to gratify that disposition, would hardly amuse themselves with the ridiculous task of drafting election laws to secure a preference for a favorite class. Would they not rather prefer a course better fitted to their own immediate aggrandizement? Would they not boldly resolve to entrench themselves in office by one decisive act of usurpation, instead of trusting to precarious expedients that, despite every precaution, might end in the dismissal, disgrace, and ruin of their authors? Would they not fear that citizens, as tenacious as they are conscious of their rights, would flock from the remote corners of their states to the places of election to overthrow their tyrants and put in their place men ready to avenge the violated majesty of the people?

The more candid critics of the convention’s provision on elections will sometimes admit, when pressed, that the provision is proper; they qualify the concession only by saying it should have come with a rule that all elections be held in the counties where the voters live. Such a precaution, they argue, was necessary to guard against abuse of the power. A declaration of that kind would certainly have done no harm, and insofar as it quieted fears it might even have been welcome. In truth, though, it would have added little or no security against the danger people fear, and no fair-minded examiner will ever treat its absence as a serious objection to the plan, much less an unanswerable one. The arguments in the two preceding papers should satisfy every calm and discerning reader that if public liberty is ever sacrificed to the ambition of national rulers, this particular power, at least, will be innocent of the crime.

Those inclined to indulge their suspicion would find, if they inspected the several state constitutions carefully, nearly as much cause for alarm in the latitude most of them allow over elections as in the latitude proposed for the national government. A review of the states on this point would go far to remove any lingering bad impression. Because such a survey would run into long and tedious detail, I confine myself to the single example of the state where I write. The constitution of New York provides for the locality of elections only by requiring that Assembly members be chosen in the counties, and Senate members in the large districts into which the state is divided; at present there are four such districts, each comprising from two to six counties.

It is plain that the New York legislature could defeat the votes of New York’s citizens, by confining elections to particular places, no less easily than the legislature of the United States could defeat the votes of the Union’s citizens by the same means. Suppose Albany were made the sole place of election for the county and district it belongs to. Would the people of that city not soon become the only effective electors of the Senate and Assembly members for the whole county and district? Can we imagine that voters living in the remote parts of the counties of Albany, Saratoga, Cambridge, or anywhere in Montgomery County, would travel to Albany to vote for state legislators sooner than they would go to New York City to help choose members of the federal House of Representatives? The alarming indifference people already show toward this invaluable privilege, even under laws that make voting easy, answers the question at once.

Even setting all experience aside, we can be sure that when the polling place sits at an inconvenient distance from the voter, the effect on his conduct is the same whether that distance is twenty miles or twenty thousand. It follows that objections to the federal power of regulating elections apply with equal force to the same power as it stands in this state’s constitution; for that reason it is impossible to acquit the one while condemning the other. A like comparison would yield the same conclusion for most of the other state constitutions.

Someone may object that defects in the state constitutions are no excuse for defects in the proposed plan. My answer is that the state constitutions have never been thought careless about the security of liberty; so where the charges leveled against the plan can be shown to apply to them as well, the charges look more like the carping refinements of a predetermined opposition than the honest conclusions of a candid search for truth. To those who treat as innocent omissions in the state constitutions what they call unpardonable flaws in the convention’s plan, nothing can really be said. At most they can be asked to give some solid reason why the people’s representatives in a single state should be more proof against the lust for power, or other corrupt motives, than the people’s representatives in the United States.

If they cannot do this, they should at least prove that it is easier to subvert the liberties of three million people, who have local governments to lead their resistance, than the liberties of two hundred thousand people, who have no such advantage. And on the precise point at issue, they should convince us that a dominant faction in a single state is less likely to favor one class of electors, in order to keep its hold on power, than that the same spirit should seize the representatives of thirteen states, spread across a vast region and divided from one another by a diversity of local circumstances, prejudices, and interests.

So far my arguments have defended the provision on three grounds: that it is proper in theory, that placing the power elsewhere would be dangerous, and that placing it as proposed is safe. But there remains a positive advantage that this arrangement secures and that no other could supply as well: uniformity in the timing of elections for the federal House of Representatives. Experience may well prove this uniformity to be of great value to the public, both as a safeguard against the same spirit perpetuating itself in the body and as a remedy for the diseases of faction.

If each state could fix its own election time, there might be as many different dates as there are months in the year. The times of election in the several states, as now set for local purposes, already vary between extremes as wide apart as March and November. The result of such variety would be that the body could never be wholly renewed at one moment. If an improper spirit of any kind took hold in it, that spirit would tend to infect the new members as they arrived in succession, and the body as a whole would stay nearly the same, constantly assimilating its gradual additions to itself. There is a contagion in example that few men have the firmness to resist; I am inclined to think that triple the term of office, paired with a complete renewal of the body at one time, would threaten liberty less than one third of that term subject to gradual and successive change.

Uniformity in the timing of elections also seems necessary for carrying out the regular rotation of the Senate, and for conveniently assembling the legislature at a fixed period each year.

It may be asked why, then, a time was not simply fixed in the Constitution. Since the plan’s most zealous opponents in this state are generally just as zealous in admiring the state’s own constitution, the question can be turned back on them: why was no such time fixed in the constitution of this state? No better answer can be given than that the matter could safely be left to legislative discretion, and that a time fixed in advance might, once tried, prove less convenient than some other. The same answer applies to the question raised against the plan. To this I add that the feared danger of gradual change is merely speculative, and it would hardly have been wise, on that speculation, to make a fundamental rule that would deny several states the convenience of holding their own and the national elections at the same dates.