Pennsylvania (Stats. Ann., Purdon's, South Carolina (Code (1952) §23-261, Tennessee (Code Ann., 1955, and 1959 Supp. §§2-801, 2-1205; 2-403, 2-1210, 2-413). "Each candidate for Presidential elector so selected shall pledge himself, if elected, to vote in the electoral college for the candidates of his party for President and Vice President." "the words at the head of the group of electors * * reveal the name of the candidates for president and vice-president * * whom such group of electors is pledged to support." There shall be printed on ballot pected to vote in the electoral 101, 22-301, 22-303, 22-304). 1 No statutory requirement for primary. Party organization decides method. 2 Governor shall nominate electors upon recommendation of State executive committee, and shall nominate only persons who have taken an oath to vote for their party's Presidential candidate. & Pledged. 4 Electors are chosen at convention or primary, according to party rules. Candidates for Presidential electors to support candidate for President nominated by national party convention but not endorsed by State central committee of party may be nominated by petition signed by 1,000 qualified voters. Manner of nominating electors is discretionary with State committee of political party. 7 State convention shall "nominate or provide for the nomination of candidates for Presidential electors... • Every person nominated as a Presidential elector by the convention of a political party must file an oath to support such party's candidates for President and Vice President. Electors are nominated by the nominee of each political party for President. 10 By party organization. 11 Presidential and Vice Presidential candidates. 12 A vote for candidates for President and Vice President shall be counted as a vote for the candidates for Presidential electors of such Presidential candidate's party. 18 Discretionary with Secretary of State. He may place Presidential candidate's name on ballot in lieu of names of electors. 14 There may be 2 or 3 slates of candidates and electors; 1 endorsed by State central committee, 1 to support national candidate if not endorsed by State central committee, and I composed of independent electors. 15 Unless Presidential candidate requests that his name be omitted. 16 Office title, however, reads: "Elector of President and Vice President of the United States.' " 17 May have 2 groups of electors, 1 headed by national party candidates for President, and 1 under heading Unpledged." 18 Office title, however, reads: "Electors of President and Vice President of the United States." 19 Office title reads: "Presidential electors for." 20 Where voting machines or short ballots are authorized. 21 Office title on ballot is "Presidential electors." 22 However, means must be furnished whereby the voter can cast a vote in part for the candidates for Presidential electors of one party, and in part for those of one or more other parties or in part or in whole for persons not nominated by any party. 23 In voting machine. 24 Law provides that names of the Presidential electors selected at party State convention shall be placed on ballot labels for the forthcoming election (§17-12-13), but voting machine may also be provided with one device for each party for voting for all Presidential electors of that party by one operation, and a ballot therefor containing only the words "Presidential electors for" preceded by the name of the party and followed by the names of the candidates thereof for the offices of President and Vice President. * * * (§ 1719-3(d)). 25 Names of Presidential candidates may be printed above names of electors if so requested in certification or petition. 28 A voter is not required to vote a party ticket. 27 The names of the candidates for President and Vice President may be added to the party designation on the ballot, which must show the names of the electors of the party. (The following is reprinted from the American Bar Association Journal, vol. 47, p. 251, March 1961:) THE ELECTORAL PROCESS AND THE POWER OF THE STATES (By Donald M. Wilkinson, Jr., of the New York Bar (New York City)) Every 4 years considerable attention is directed to the wholly unique process of selecting the President of the United States. It seems appropriate at this time to consider the constitutional aspects of this-the electoral process— and the consequent, although not widely realized, power of the states to control it. "APPOINTMENT" OF ELECTORS The second clause of section 1 of article II of the Constitution provides: "Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress * * *." The twelfth amendment to the Constitution, having superseded another paragraph of that clause, sets forth the procedure whereby the "appointed" electors select a President. Section 2 of article I of the Constitution provides for popular election of Representatives, and the seventeenth amendment has made a similar provision with respect to Senators. It is clear that the framers of the Constitution did not have in mind the selection of a President in the same manner. When the Constitution was drafted, the subject of the proper method of choosing a President gave rise to a divergence of views, and the second clause of section 1 of article II appears to represent both a compromise of these views and a retreat from the problem, granting to the respective State legislatures the power to appoint, in whatever manner they might deem proper, electors who in turn select a President. And the case of McPherson v. Blacker1 confirms this. There the court upheld the "appointment" of electors by the State of Michigan as a result of popular elections on a districtwide basis, but went on to recognize the wide scope of State power in this field. Reference was made to the following earlier, and apparently acceptable, procedures for the choice of electors: by the 1146 U.S. 1 (1892). 70784-61-pt. 4– -2 legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; partly by the people voting in districts and partly by the legislature; and by the legislature from candidates voted for by the people in districts. 2 There is a clear distinction between the right to vote for a Presidential elector and the right to vote for Members of Congress. The former is a right granted by the individual State; the latter, a federally derived right. The voter at a congressional election derives his right from section 2 of article I of the Constitution in the case of an election of Representatives and from the seventeenth amendment to the Constitution in the case of an election of Senators. Yet it is within the power of each State to prescribe suffrage qualifications for all popular elections." However, such State power in the case of congressional elections is indirect, for the Constitution specifically provides that suffrage qualifications must be the same as those for "electors of the most numerous branch of the State Legislature." There is no similar constitutional requirement if states choose to "appoint" Presidential electors by popular election and a State could in such case prescribe suffrage qualifications different from those governing elections of Congressmen and State legislators. 997 Certainly, however, the power of the States to appoint Presidential electors is not unlimited. LIMITATIONS ON RIGHT OF STATES TO RESTRICT SUFFRAGE If election by the people is the method of "appointment" chosen, the fifteenth and nineteenth amendments clearly impose limitations on the State in question in the framing of suffrage qualifications. Although at the time of its adoption the fourteenth amendment was not considered restrictive of the power of the States to set up voting qualifications. certain decisions indicate that it is now not without impact in this field. In two of the celebrated "white primary" decisions, Nixon v. Herndon' and Nixon v. Condon, the Supreme Court, after having disposed of the "state action" question, ruled that the procedure in question was unconstitutional as a violation of the 14th amendment. In the former, the Court, speaking through Mr. Justice Holmes, said: 10 "We find it unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth." " In the latter, through Mr. Justice Cardozo : "The fourteenth amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the court to level by its judgment these barriers of color." 12 In the more recent case of Davis v. Schnell,13 where a Federal district court invalidated a literacy test as a suffrage requirement, it did so on the ground that in application it conflicted with the "equal protection" clause of the fourteenth 2 In re Green, 134 U.S. 377 (1890). Er Parte Yarborough, 110 U.S. 651 (1884); Wiley v. Sinkler, 179 U.S. 58 (1900); Swafford v. Templeton, 185 U.S. 487 (1902); U.S. v. Classic, 313 U.S. 299 (1941). "The House of Representatives shall be composed of members chosen every second year by the people of the several States * "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof. * Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1874); Williams v. Mississippi, 170 U.S. 213 (1898); Pope v. Williams, 193 U.S. 621 (1904); Guinn v. United States, 238 U.S. 347 (1915); Breedlove v. Suttles, 302 U.S. 277 (1937); Pirtle v. Brown (6th Cir. 1941). 118 F. 2d 218, certiorari denied, 314 U.S. 621 (1941). Article I, § 2; seventeenth amendment. 8 Cooley, "Constitutional Limitations," pp. 16-17. Note also the following statement by the Supreme Court: "The fifteenth amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. it is not," United States v. Reese, 92 U.S. 214 at 217 (1875). 273 U.S. 536 (1927). 10 286 U.S. 73 (1932). 11 Nixon v. Herndon, supra, note 9 at 540. 12 Nixon v. Condon, supra, note 10 at 89. 13 81 F. Supp. 872 (S.D., Ala., 1949), affd. per curiam, 336 U.S. 933 (1949). Now amendment as well as the fifteenth amendment." Although it seems quite clear that the same decision would have been reached in these cases on the basis of the fifteenth amendment alone, it is noteworthy that the impact of the fourteenth amendment in cases dealing with State action with respect to the voting process is now judicially established. We have no reason to doubt that its effect will reach beyond the fifteenth and nineteenth amendment limitations. Consider the following language of the Court in Pope v. Williams: 16 15 "The question might arise if an exclusion from the privilege of voting were founded upon the particular State from which the person came, excluding from that privilege, for instance, a citizen of the United States coming from Georgia and allowing it to a citizen of the United States coming from New York or any other State. In such case an argument might be urged that, under the fourteenth amendment of the Federal Constitution, the citizen from Georgia was by the state statute deprived of the equal protection of the laws. Other extreme cases might be suggested. We neither assert nor deny that in the case supposed the claim would be well founded that a Federal right of a citizen of the United States was violated by such legislation, for the question does not arise herein✶✶ ✶" With the expansion of the scope of the fourteenth amendment since Pope v. Williams, there seems little doubt as to how the Court would resolve such a controversy today. In any event it would seem that judicial interpretation of the fourteenth amendment has rendered the fifteenth, and perhaps even the nineteenth, amendment superfluous insofar as State action is concerned. LIMITATIONS ON STATE CONTROL OF ELECTION MACHINERY Part and parcel of the power of each State to "appoint" Presidential electors is the right to regulate election machinery if it chooses to "appoint" by virtue of a popular election. Here too the Federal Constitution imposes restraints. In MacDougall v. Green," the Progressive Party attacked the provision of the Illinois Election Code which required that a petition to form and to nominate candidates for a new political party be signed by 25,000 voters, including at least 200 from each of at least 50 of the 102 counties in the State. The requirement was upheld on the ground that it served a legitimate legislative purpose. Nevertheless, here again it was tacitly conceded that a meritorious question had been raised under the "equal protection" clause of the fourteenth amendment. And the limitations in this field imposed by the fourteenth amendment necessarily apply to all State regulation of election machinery, whether Federal or State offices are at stake. It has been suggested that State regulation of election machinery must necessarily fall in the face of conflicting congressional action.18 Federal authority to impose paramount sanctions is sought in the first clause of section 4 of article I of the Constitution which provides: "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 places of choosing Senators." Speculative as is the conclusion that Congress might garner broad authority to regulate election procedures from such a clause, it is indeed questionable whether this would be authority for congressional regulation of machinery effecting State "appointment" of presidential electors.10 14 And where the court has refused to invalidate tests of this nature it has recognized that meritorious issues under the fourteenth amendment and the fifteenth amendment were raised. Williams v. Mississippi, supra, note 6; Trudeau v. Barnes (5th Cir. 1933) 65 F. 2d 563, certiorari denied, 290 U.S. 659 (1933); Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959). 18 And the growing importance of the "equal protection" clause makes this question more than academic. See Tussman and ten Broek, "The Equal Protection of the Laws," 37 Calif. L. Rev. 341-81 (1949) and consider the subsequent development of the clause reflected by the school segregation cases. 16 Supra, note 6 at 634. 17 335 U.S. 281 (1948). 18 The Right To Form a Political Party," 43 Ill. L. Rev. 832 (1949). See also U.S. v. Classic, supra, note 3; Lassiter v. Northampton County Board of Elections, supra, note 14. 10 Since Presidential electors perform a Federal function, Congress, in the exercise of its power to preserve the departments and institutions of the Government from impairment or destruction, may enact legislation safeguarding elections of such officers from the improper use of money to influence the result. Burroughs v. United States, 290 U.S. 534 (1934). For statutory provisions imposing criminal sanctions on conduct in connection with elections, see 2 U.S.C.A. 241-256; 18 U.S.C.A. 591-612. |