Letters from The Federal Farmer to The Republican
(Richard Henry Lee ?)

XII.

January 12, 1788.

Dear sir,

On carefully examining the parts of the proposed system, respecting the
elections of senators, and especially of the representatives, they appear to me
to be both ambiguous and very defective. I shall endeavour to pursue a course
of reasoning, which shall fairly lead to establishing the impartiality and
security of elections, and then to point out an amendment in this respect.

It is well observed by Montesquieu, that in republican governments, the
forms of elections are fundamental; and that it is an essential part of the
social compact, to ascertain by whom, to whom, when, and in what manner
suffrages are to be given.

Wherever we find the regulation of elections have not been carefully
fixed by the constitution, or the principles of them, we constantly see the
legislatures new modifying its own form, and changing the spirit of the
government to answer partial purposes.

By the proposed plan it is fixed, that the qualifications of the
electors of the federal representatives shall be the same as those of the
electors of state representatives; though these vary some in the several states
the electors are fixed and designated.

The qualifications of the representatives are also fixed and designated,
and no person under 25 years of age, not an inhabitant of the state, and not
having been seven years a citizen of the United States, can be elected; the
clear inference is, that all persons 25 years of age, and upwards, inhabitants
of the state, and having been, at any period or periods, seven years citizens
of the United States, may be elected representatives. They have a right to be
elected by the constitution, and the electors have a right to chuse them. This
is fixing the federal representation, as to the elected, on a very broad basis:
it can be no objection to the elected, that they are Christians, Pagans,
Mahometans, or Jews; that they are of any colour, rich or poor, convict or not:
Hence many men may be elected, who cannot be electors. Gentlemen who have
commented so largely upon the wisdom of the constitution, for excluding from
being elected young men under a certain age, would have done well to have
recollected, that it positively makes pagans, convicts, &c. eligible. The
people make the constitution; they exclude a few persons, by certain
descriptions, from being elected, and all not thus excluded are clearly
admitted. Now a man 25 years old, an inhabitant of the state, and having been a
citizen of the the states seven years, though afterwards convicted, may be
elected, because not within any of the excluding clauses, the same of a beggar,
an absentee, &c.

The right of the electors, and eligibility of the elected being fixed by
the people, they cannot be narrowed by the state legislatures, or congress: it
is established, that a man being (among other qualifications) an inhabitant of
the state, shall be eligible. Now it would be narrowing the right of the people
to confine them in their choice to a man, an inhabitant of a particular county
or district in the state. Hence it follows, that neither the state legislatures
or congress can establish district elections; that is, divide the state into
districts, and confine the electors of each district to the choice of a man
resident in it. If the electors could be thus limited in one respect, they
might in another be confined to chuse a man of a particular religion, of
certain property, &c. and thereby half of the persons made eligible by the
constitution be excluded. All laws, therefore, for regulating elections must be
made on the broad basis of the constitution.

Next, we may observe, that representatives are to be chosen by the
people of the state. What is a choice by the people of the state? If each given
district in it choose one, will that be a choice within the meaning of the
constitution? Must the choice be by plurality of votes, or a majority? In
connection with these questions, we must take the 4th sect. art. 1. where it is
said the state legislatures shall prescribe the times, places, and manner of
holding elections; but congress may make or alter such regulations. By this
clause, I suppose, the electors of different towns and districts in the state
may be assembled in different places, to give their votes; but when so
assembled, by another clause they cannot, by congress or the state
legislatures, be restrained from giving their votes for any man an inhabitant
of the state, and qualified as to age, and having been a citizen the time
required. But I see nothing in the constitution by which to decide, whether the
choice shall be by a plurality or a majority of votes: this, in my mind, is by
far the most important question in the business of elections. When we say a
representative shall be chosen by the people, it seems to imply that he shall
be chosen by a majority of them; but states which use the same phraseology in
this respect, practice both ways. I believe a majority of the states, chuse by
pluralities, and, I think it probable, that the federal house of
representatives will decide that a choice of its members by pluralities is
constitutional. A man who has the most votes is chosen in Great-Britain. It is
this, among other things, that gives every man fair play in the game of
influence and corruption. I believe that not much stress was laid upon the
objection that congress may assemble the electors at some out of the way place.
However, the advocates seem to think they obtain a victory of no small glory
and importance, when they can shew, with some degree of colour, that the evils
is rather a possibility than a probability.

When I observed that the elections were not secured on proper
principles, I had an idea of far more probable and extensive evils, secret
mischiefs, and not so glaring transgressions, the exclusions of proper district
elections, and of the choice by a majority.

It is easy to perceive that there is an essential difference between
elections by pluralities and by majorities, between choosing a man in a small
or limited district, and choosing a number of men promiscuously by the people
of a large state; and while we are almost secure of judicious unbiassed
elections by majorities in such districts, we have no security against
deceptions, influence and corruption in states or large districts in electing
by pluralities. When a choice is made by a plurality of votes, it is often made
by a very small part of the electors, who attend and give their votes, when by
a majority, never by so few as one half of them. The partialities and
improprieties attending the former mode may be illustrated by a case that
lately happened in one of the middle states.—Several representatives
were to be chosen by a large number of inhabitants compactly settled, among
whom there were four or five thousand voters. Previous to the time of election
a number of lists of candidates were published, to divide and distract the
voters in general—about half a dozen men of some influence, who had a
favourite list to carry, met several times, fixed their list, and agreed to
hand it about among all who could probably be induced to adopt it, and to
circulate the other lists among their opponents, to divide them. The poll was
opened, and several hundred electors, suspecting nothing, attended and put in
their votes; the list of the half dozen was carried, and men were found to be
chosen, some of whom were very disagreeable to a large majority of the
electors: though several hundred electors voted, men on that list were chosen
who had only 45, 43, 44, &c. votes each; they had a plurality, that is,
more than any other persons: the votes generally were scattered, and those who
made even a feeble combination succeeded in placing highest upon the list
several very unthought of and very unpopular men. This evil never could have
happened in a town where all the voters meet in one place, and consider no man
as elected unless he have a majority, or more than half of all the votes; clear
it is, that the men on whom thus but a small part of the votes are bestowed,
cannot possess the confidence of the people, or have any considerable degree of
influence over them.

But as partial, as liable to secret influence, and corruption as the
choice by pluralities may be, I think, we cannot avoid it, without essentially
increasing the federal representation, and adopting the principles of district
elections. There is but one case in which the choice by the majority is
practicable, and that is, where districts are formed of such moderate extent
that the electors in each can conveniently meet in one place, and at one time,
and proceed to the choice of a representative; when, if no man have a majority,
or more than half of all the votes the first time, the voters may examine the
characters of those brought forward, accommodate, and proceed to repeat their
votes till some one shall have that majority. This, I believe, cannot be a case
under the constitution proposed in its present form. To explain my ideas, take
Massachusetts, for instance, she is entitled to eight representatives, she has
370,000 inhabitants, about 46,000 to one representative; if the elections be so
held that the electors throughout the state meet in their several towns or
places, and each elector puts in his vote for eight representatives, the votes
of the electors will ninety-nine times in a hundred, be so scattered that on
collecting the votes from the several towns or places, no men will be found,
each of whom have a majority of the votes, and therefore the election will not
be made. On the other hand, there may be such a combination of votes, that in
thus attempting to chuse eight representatives, the electors may chuse even
fifteen. Suppose 10,000 voters to attend and give their votes, each voter will
give eight votes, one for each of eight representatives; in the whole 80,000
votes will be given—eight men, each having 5001 votes, in the whole
40,008 will have each a majority, and be chosen—39,092 votes will be
bestowed on other men, and if they all be bestowed on seven men, they may have
each a considerable majority, and also be chosen. This indeed is a very rare
combination; but the bestowing all the votes pretty equally upon nine, ten, or
eleven men, and chusing them all, is an event too probable not to be guarded
against.

If Massachusetts be divided into eight districts, each having about
46,000 inhabitants, and each district directed to chuse one representative, it
will be found totally impracticable for the electors of it to meet in one
place; and, when they meet in several towns and places in the district, they
will vote for different men, and nineteen times in twenty, so scatter their
votes, that no one man will have a majority of the whole and be chosen: we
must, therefore, take the man who has the most votes, whether he has three
quarters, one quarter, or one tenth part of the whole; the inconveniencies of
scattering votes will be increased, as men not of the district, as well as
those that are in it, may be voted for.

I might add many other observations to evince the superiority and solid
advantages of proper district elections, and a choice by a majority, and to
prove, that many evils attend the contrary practice: these evils we must
encounter as the constitution now stands.

I see no way to fix elections on a proper footing, and to render
tolerably equal and secure the federal representation, but by increasing the
representation, so as to have one representative for each district in which the
electors may conveniently meet in one place, and at one time, and chuse by a
majority. Perhaps this might be effected pretty generally, by fixing one
representative for each twelve thousand inhabitants; dividing, or fixing the
principles for dividing the states into proper districts; and directing the
electors of each district to the choice, by a majority, of some men having a
permanent interest and residence in it. I speak of a representation tolerably
equal, &c. because I am still of opinion, that it is impracticable in this
extensive country to have a federal representation sufficiently democratic, or
substantially drawn from the body of the people: the principles just mentioned
may be the best practical ones we can expect to establish. By thus increasing
the representation, we not only make it more democratical and secure,
strengthen the confidence of the people in it, and thereby render it more
nervous and energetic; but it will also enable the people essentially to
change, for the better, the principles and forms of elections. To provide for
the people’s wandering throughout the state for a representative, may sometimes
enable them to elect a more brilliant or an abler man, than by confining them
to districts, but generally this latitude will be used to pernicious purposes,
especially connected with the choice by plurality; when a man in the remote
part of the state, perhaps, obnoxious at home, but ambitious and intriguing,
may be chosen to represent the people in another part of the state far distant,
and by a small part of them, or by a faction, or by a combination of some
particular description of men among them. This has been long the case in
Great-Britain, it is the case in several of the states, nor do I think that
such pernicious practices will be merely possible in our federal concerns, but
highly probable. By establishing district elections, we exclude none of the
best men from being elected; and we fix what, in my mind, is of far more
importance than brilliant talents, I mean a sameness, as to residence and
interests, between the representative and his constituents; and by the election
by a majority, he is sure to be the man, the choice of more than half of
them.

Though it is impossible to put elections on a proper footing as the
constitution stands, yet I think regulations respecting them may be introduced
of considerable service: it is not only, therefore, important to enquire how
they may be made, but also what body has the controuling power over them. An
intelligent, free and unbiassed choice of representatives by the people is of
the last importance: we must then carefully guard against all combinations,
secret arts, and influence to the contrary. Various expedients have been
adopted in different countries and states to effect genuine elections; as the
constitution now stands, I confess, I do not discover any better than those
adopted in Connecticut, in the choice of counsellers, before mentioned.

The federal representatives are to be chosen every second year (an odd
mode of expression). In all the states, except South-Carolina, the people, the
same electors, meet twice in that time to elect state representatives. For
instance, let the electors in Massachusetts, when they meet to chuse state
representatives, put in their votes for eight federal representatives, the
number that state may chuse, (merely for distinction sake, we may call these
the votes of nomination), and return a list of the men voted for, in the
several towns and places, to the legislature, or some proper body; let this
list be immediately examined and published, and some proper number, say 15 or
20, who shall have the most votes upon the list, be sent out to the people; and
when the electors shall meet the next year to chuse state representatives, let
them put in their votes for the eight federal representatives, confining their
votes to the proper number so sent out; and let the eight highest of those thus
voted for in the two votes (which we may call, by way of distinction, votes of
election), be the federal representatives: thus a choice may be made by the
people, once in two years, without much trouble and expence, and, I believe,
with some degree of security. As soon as the votes of nomination shall be
collected and made known, the people will know who are voted for, and who are
candidates for their votes the succeeding year; the electors will have near a
year to enquire into their characters and politics, and also into any undue
means, if any were taken, to bring any of them forward; and such as they find
to be the best men, and agreeable to the people, they may vote for in giving
the votes of election. By these means the men chosen will ultimately always
have a majority, or near a majority, of the votes of the electors, who shall
attend and give their votes. The mode itself will lead to the discovery of
truth and of political characters, and to prevent private combinations, by
rendering them in a great measure of no effect. As the choice is to be made by
the people, all combinations and checks must be confined to their votes. No
supplying the want of a majority by the legislatures, as in Massachusetts in
the choice of senators, &c. can be admitted: the people generally judge
right when informed, and, in giving their votes the second time, they may
always correct their former errors.

I think we are all sufficiently acquainted with the progress of
elections to see, that the regulations, as to times, places, and the manner
merely of holding elections, may, under the constitution, easily be made useful
or injurious. It is important then to enquire, who has the power to make
regulations, and who ought to have it. By the constitution, the state
legislatures shall prescribe the times, places, and manner of holding
elections, but congress may make or alter such regulations. Power in congress
merely to alter those regulations, made by the states, could answer no valuable
purposes; the states might make, and congress alter them ad infinitum:
and when the state should cease to make, or should annihilate its regulations,
congress would have nothing to alter. But the states shall make regulations,
and congress may make such regulations as the clause stands: the true
construction is, that when congress shall see fit to regulate the times,
places, and manner of holding elections, congress may do it, and state
regulations, on this head, must cease: for if state regulations could exist,
after congress should make a system of regulations, there would, or might, be
two incompatible systems of regulations relative to the same subject.

It has been often urged, that congress ought to have power to make these
regulations, otherwise the state legislatures, by neglecting to make provision
for elections, or by making improper regulations, may destroy the general
government. It is very improbable that any state legislature will adopt
measures to destroy the representation of its own constituents in congress,
especially when the state must, represented in congress or not, pay its
proportion of the expence of keeping up the government, and even of the
representatives of the other states, and be subject to their laws. Should the
state legislatures be disposed to be negligent, or to combine to break up
congress, they have a very simple way to do it, as the constitution now stands—they have only to neglect to chuse senators, or to appoint the electors
of the president, and vice-president: there is no remedy provided against these
last evils: nor is it to be presumed, that if a sufficient number of state
legislatures to break up congress, should, by neglect or otherwise, attempt to
do it, that the people, who yearly elect those legislatures, would elect under
the regulations of congress. These and many other reasons must evince, that it
was not merely to prevent an annihilation of the federal government that
congress has power to regulate elections.

It has been urged also, that the state legislatures chuse the federal
senators, one branch, and may injure the people, who chuse the other, by
improper regulations; that therefore congress, in which the people will
immediately have one, the representative branch, ought to have power to
interfere in behalf of the people, and rectify such improper regulations. The
advocates have said much about the opponents dwelling upon possibilities: but
to suppose the people will find it necessary to appeal to congress to restrain
the oppressions of the state legislatures, is supposing a possibility indeed.
Can any man in his senses suppose that the state legislatures, which are so
numerous as almost to be the people themselves, all branches of them depending
yearly, for the most part, on the elections of the people, will abuse them in
regulating federal elections, and make it proper to transfer the power to
congress, a body, one branch of which is chosen once in six years by these very
legislatures, and the other biennially, and not half so numerous as even the
senatorial branches in those legislatures?

Senators are to be chosen by the state legislatures, where there are two
branches the appointment must be, I presume, by a concurrent resolution, in
passing which, as in passing all other legislative acts, each branch will have
a negative; this will give the senatorial branch just as much weight in the
appointment as the democratic: the two branches form a legislature only when
acting separately, and therefore, whenever the members of the two branches
meet, mix and vote individually in one room, for making an election, it is
expressly so directed by the constitutions. If the constitution, by fixing the
choice to be made by the legislatures, has given each branch an equal vote, as
I think it has, it cannot be altered by any regulations.

On the whole, I think, all general principles respecting electors ought
to be carefully established by the constitution, as the qualifications of the
electors and of elected: the number of the representatives, and the inhabitants
of each given district, called on to chuse a man from among themselves by a
majority of votes; leaving it to the legislature only so to regulate, from time
to time, the extent of the districts so as to keep the representatives
proportionate to the number of inhabitants in the several parts of the country;
and so far as regulations as to elections cannot be fixed by the constitution,
they ought to be left to the state legislatures, they coming far nearest to the
people themselves; at most, congress ought to have power to regulate elections
only where a state shall neglect to make them.