The Regulation of Elections

The natural order of the subject brings me to the provision 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 by those who condemn the Constitution wholesale. It has also been faulted by milder, more moderate objectors. In one case a gentleman who calls himself the advocate of every other part of the system has faulted it too.

Yet I am much mistaken if any article in the whole plan is more 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 approve the convention’s adherence to this rule at first sight. He will disapprove every departure from it, unless the departure was forced by the need to fit in some particular ingredient that strict conformity could not accommodate. Even where such a departure is unavoidable, he will not stop regretting it. He will see it as a flaw in the system, one that may become the seed of future weakness, and perhaps anarchy.

No election law could have been written into the Constitution to fit every probable change in the country’s situation. No one will claim otherwise, so no one will deny that a discretionary power over elections must exist somewhere. There were only three reasonable ways to place that power. It could be lodged wholly in the national legislature, or 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. In ordinary cases, when no improper aims prevail, this 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. No satisfactory reason has yet been offered for running that risk, and 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. Sound theory favors trusting the Union with the care of its own existence rather than handing that care to others. So if abuses must be risked on one side or the other, it is more rational to risk them where the power would naturally sit. Better there 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? He would 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. That project subjects 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. The Union’s existence already depends on them in so essential a point, the argument runs, so 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 it is 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 they ought to hold this power in every other case because they hold it in one. 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. It would have stripped the State governments of the absolute safeguard they enjoy under this provision. It was wise to accept this inconvenience for a necessary advantage or greater good. But 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 where the greater risk lies. 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. That disaffection will either never exist at all, or will most likely arise from experience that the general government is unfit to advance their happiness. In that 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. Suppose the State legislatures held an exclusive power to regulate these elections. Then every election period would become a delicate crisis in the national situation. It 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.

There is some weight in one observation, and I will not deny it. 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. It is the 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 are in a very opposite temper. Those rulers are spurred by the natural rivalry of power, by hopes of personal aggrandizement, and backed by a strong faction in each of those States. 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 always multiplies the chances of ambition. It 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. The exclusive power to regulate national elections is so effective a weapon that a combination of a few such men might accomplish the destruction of the Union. They would act in a few of the most considerable States, where the temptation is always strongest. 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. More than one nation of Europe will come to view it so. Schemes to subvert it will sometimes begin in the intrigues of foreign powers, and 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 different. It might be used to promote the election of some favorite class of men over others. The trick would be to confine the places of voting to particular districts, 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 this case is different. This is a fundamental privilege, in a country so situated and so enlightened. That it 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 national government will be made up of differing materials, and those materials will be brought into action in differing ways across its several branches. That variety forms a powerful obstacle to any common scheme for rigging elections. Across the different parts of the Union there is enough diversity in property, and in the genius, manners, and habits of the people. That diversity produces 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. 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. 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 the point. It is infinitely 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 that representation draws from a greater variety of interests, in far more varied proportions, than exist in any single state. For that very reason 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. That body 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? Might the national government be disposed to secure a monopoly of the federal administration for the landed class? There is little chance this supposed bias will hold any terror for those it would immediately injure, so 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. 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. And that is just what the entire exclusion of those who best understand its interest would do. The importance of commerce, in the matter of revenue alone, must guard it against the enmity of such a body. That body would be continually pressed in commerce’s 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. 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? The latter is the case, as every intelligent man knows it to be (particularly in the Southern States and in New York). So 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. It could be done only 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. 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, they could hardly hope to carry such an enterprise through by consent alone. It would take 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? Suppose men disposed to invade the essential rights of the community, and possessing the means to gratify that disposition. They 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? They would rather do that than trust to precarious expedients that, despite every precaution, might end in their own dismissal, disgrace, and ruin. And 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? They would come to overthrow their tyrants, and to put in their place men ready to avenge the violated majesty of the people.

The more candid critics of the convention’s election provision will sometimes admit, when pressed, that the provision is proper. They add one condition: it should have come with a rule that all elections be held in the counties where the voters live. Such a precaution, they say, was needed to guard against abuse of the power. A declaration of that kind would certainly have done no harm. So far as it quieted people’s fears, it might even have been welcome. But in truth it would have added little or no security against the danger they fear. 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 on one point. If public liberty is ever sacrificed to the ambition of the national rulers, this power, at least, will be innocent of the crime.

Those inclined to indulge their suspicion should inspect the several state constitutions carefully. If they did, they would find nearly as much cause for alarm in the latitude most states 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 bad impression that remains. But such a survey would run into long and tedious detail, so I confine myself to a single example: the state where I write. The constitution of New York provides for the locality of elections in only one way. It requires 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.

The New York legislature could plainly defeat the votes of New York’s citizens by confining elections to particular places. It could do this 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? Consider the voters who live in the remote parts of the counties of Albany, Saratoga, Cambridge, or anywhere in Montgomery County. Can we imagine they 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, one thing is clear. 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 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 this. The state constitutions have never been thought careless about the security of liberty. So suppose the charges leveled against the plan can be shown to apply to them as well. Then the charges look more like the nitpicking of a predetermined opposition than the honest conclusions of a candid search for truth. To those who treat the same omissions as innocent in the state constitutions but unpardonable in the convention’s plan, nothing can really be said. At most they can be asked to give one solid reason. Why should the people’s representatives in a single state 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 of one thing. A dominant faction in a single state might favor one class of electors in order to keep its hold on power. They must show that this is less likely 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. I mean 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. It guards against the same spirit perpetuating itself in the body, and it serves 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. 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 two other purposes: carrying out the regular rotation of the Senate, and 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. The plan’s most zealous opponents in this state are generally just as zealous in admiring the state’s own constitution, so 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 this. The matter could safely be left to legislative discretion, and 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 one point. The feared danger of gradual change is merely speculative. 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 elections and the national elections on the same dates.