wanted the Republican primary of 1956 to include the choice of delegates to the national convention. The Alexander majority faction of the Republicans also was willing for the Republican delegates to the 1956 convention to be elected. The Republicans held six of the 95 seats in the Florida House of Representatives and one of the 38 seats in the Florida Senate. Their strength in voting was therefore of no importance, but both the regular Democratic organization and the minority Republicans were mutually interested in encouraging the registration of voters under the respective party labels. Under the closed primary system, this would assure elimination of many voters from the Democratic primary with an increase in the Republican registration.

While other phases of the election code received the attention of different groups, the initial move to modernize the presidential preferential primary section of the election code was made by William Stephenson. In January, 1955, he wrote to Paul T. David requesting David's advice on the redrafting of the Florida primary law. David replied on January 24, 1955 outlining in a fourpage memorandum "Proposed Specifications for a Presidential Primary System in Florida." David also wrote to the author of this article and by agreement with Stephenson, Dauer, and Professor Bruce B. Mason, also of the Department of Political Science of the University of Florida, undertook to draft the proposed changes in this section in the Florida law.28 Mason and Dauer then studied the existing Florida law, the David proposal, the January, 1955 memorandum by Richard Childs of the National Municipal League,29 and the South Dakota law, which was deemed to have the best ballot arrangement. Before the final version was ready for the legislature, several conferences were held with Stephenson and there was also an interchange of correspondence by David with Professors Louise Overacker, Arthur N. Holcombe, and Joseph P. Harris. The final draft of the law met with the general approval of all those named, except that Mr. Richard Childs, while approving the law in part, remained committed to certain different proposals.

III

In the opinion of the senior author, the object of a presidential preferential primary should be to permit the expression of a popular choice in each state. However, the preference primary should be incorporated within the framework of existing party structure. This calls for the continuation of the national nominating convention, and the election of delegate slates favorable to the candidate named in the preference primary. Finally, the delegates at the convention should be loyal to the candidate, but should be free to compromise or change as the convention develops.

It is also desirable that the presidential preferential primary not lead to the long ballot.

"Florida Statutes Annotated, Sec. 103.101.

29 "Outline of a Model State Primary Law" (mimeographed).

The David proposals were all incorporated in the Florida law except for point 11. The main differences between the general principles of Richard Childs and the David proposals were: first, no direct effort was made to include Childs' suggestion that there be a form of proportional representation. This was contrary to the experience in Florida and would not have been deemed acceptable. On the other hand, it was equally certain that a single vote for all the delegates, electing them from the state at large, would not be acceptable. Consequently, David's point 3, that "delegates-at-large would be elected on the basis of the state-wide vote; district delegates on the basis of the vote in their respective districts," was deemed to accomplish both what was feasible in this direction and what would reflect the voters' opinion in instances where the minority

might be concentrated in one or more congressional districts. At the same time this was accomplished without the need for further marking on the ballot by the provision of the Florida Law, Sec. 101.180, Florida Statutes Annotated, and Sec. 103.101, sub-section 7, which simply specifies that a vote on the ballot shall be counted separately for the state-at-large delegates and within each congressional district. (See Figure 1.)

One other feature, found both in the South Dakota law and in the Childs proposal, was rejected: requiring a candidate's approval before his name be put on the ballot. It was believed to be desirable, both by David and in Florida practice, that the Florida law should not require approval of candidates for president before delegates pledged to him might file. On the other hand, if the presidential candidate does take an active interest in the delegates, the Secre tary of State is directed to enter on the ballot only the slate approved by the candidate. In case he does not indicate a choice of delegates and more than

one slate files for him, only the first slate which files with the Secretary of State shall appear on the ballot. In subsequent discussion with the Election Committees of the Florida House and Senate, the only objection raised to this feature was by Representative Fred C. Peterson, Republican, of Pinellas. He pointed out that this would discriminate against the minority faction of the Republican party, of which he was a member, when his party was in power nationally. If the national party recognized only the state organization as the official representative of the administration, a delegate who might win in a congressional district could be omitted from the official party slate.

In accord with Florida practice, the law (Florida Statutes Annotated, Sec. 103.101) provides that half the delegation shall be men, and half women. It also provides that each delegate shall select his or her own alternate. Finally, it provides for filling vacancies in district delegates (in case a slate carries the district, but its list is incomplete in that district) by action of the state-at-large delegation, if that group is elected which also is pledged to the same presidential candidate.

No attempt was made in Florida to pledge the delegates for a given number of ballots. The assumption was that in the average case those delegates who appear on the ballot will have the approval of the candidate for president and will have a point of view sufficiently favorable to him that they will remain loyal as long as there is any practical chance of the convention nominating the candidate. David's own view is that the delegates and the convention should be allowed reasonable freedom of action. He states: "I would be inclined to emphasize the desirability of leaving the delegate in a position to represent his constituents in accordance with his best judgment after having informed them of the preference by which he intends to be guided, particularly since the delegate does not receive any pledge that his preferred candidate will in fact be available. My view is that most delegates who are formally pledged stay frozen too long rather than not long enough, in terms of the major interests of their own constituents. However, we expect to have additional data on this after we complete studies currently in process."

*

VI ·

Since enactment of the Florida presidential preferential primary law, national reaction has been generally favorable. In the New York Times, Arthur Krock considered the law "... a great improvement over any other now in effect." He also pointed out that "Florida's new law is derived from a fivevolume study which the Brookings Institution made for the American Political Science Association."43 In this last statement, there is a certain degree of elipsis. Senator Paul Douglas in a letter to W. F. Stephenson said:

"... It is easily the best presidential primary bill in the United States and should serve as a model. I suppose that the absence of a formal pledge to stick by the candidates approved in the primary will not be a serious detriment in Florida, although I think in some states it distinctly might be. The same issue came up about 1912 in some states in the

David to Dauer, Aug. 3, 1955.

election of Senators by the State Legislatures, and as to how binding a popular and advisory vote was to be...."

Congressman Charles Bennett has also stated:

"The Florida legislature recently took a forward step in the art of democratic government. It enacted an improved presidential primary statute which pioneers in a number of respects. This statute may be the model for similar statutes in other States which share Florida's objective of giving the American people more voice in the nomination of candidates for President and Vice President."

Both Senator Douglas and Congressman Bennett continue to criticize the system of separate state primaries, however. Douglas also still feels that the pledging of delegates by law is important. Both he and Bennett desire the uniformity among states which their law would encourage. Bennett likewise believes that: "Without... Federal legislation, each candidate would continue to enter the primaries of the states in which his chances of success would be best."48 No law of a single state can, of course, assure the uniformity desired by Douglas and Bennett. However, Senator Douglas' objections concerning the pledging of delegates do not seem very serious. An active presidential candidate, who has an organization in a state, would find it more advantageous to have selected a slate than to have a pledged slate which he does not select. There is, finally, the traditional objection that the presidential primary weakens the party organization in a state. The answer to this objection is that the Florida law does provide for the closed primary. It should help to draw lines between the parties by assuring the Republicans of an additional reason for registering in the Republican party. They may expect to have more real contests in their primaries. Moreover, the law assumes that the choice of presidential nominees is a matter of vital concern to the party members as a whole. Furthermore, the Florida preference primary continues to operate within the framework of the national conventions. It assumes that conventions will be more representative and can therefore make the strongest choice for the party leadership. If the preference primary enables the convention to make a better choice, parties will in the future be more effective than they are today.

43 July 8, 1955, p. 22, col. 5.

44 Douglas to Stephenson, July 11, 1955.

Congressional Record, July 13, 1955, Vol. 101, pp. 8997-98. 48 Congressional Record, July 13, 1955, Vol. 101, p. 8998.

(The following is reprinted from Nebraska Law Review, vol. 39, 1960, p. 473:)

PERFORMANCE AND POTENTIAL OF
PRESIDENTIAL PRIMARY LAWS

Richard H. Hansen*

I. INTRODUCTION

The presidential primary, an experiment in democracy, has been a subject of controversy since its inception fifty years ago. Before using the past and present laws as a basis for endorsing or rejecting the philosophy behind the primary, lawyers, legislators, and political scientists would do well to examine and reexamine the myriad laws passed. We should determine if these laws have been successful in attaining the objectives envisioned by the originators of the primary. It is the purpose of this article to present a brief analysis of this question.

To understand the objectives of the presidential preference primary it will be helpful to review its historical development and to restate its general purpose.

II. HISTORY AND PURPOSE

Generally speaking, the presidential primary is the outgrowth of a trend to broaden popular control of our governmental processes. Because of the semi-aristocratic origins of the Constitution, this trend developed soon after its adoption. An early phase resulted in the replacement of the congressional caucus, as a means for choosing the President, by the national convention system. In other areas property qualifications for voting were abolished, negro suffrage became a reality and the movement for woman suffrage arose in the 1860's in Wyoming.

The presidential primary had its immediate genesis in the progressive era at the beginning of the century when broadening political control resulted in the popular election of senators and the general adoption of the initiative, referendum and recall by states. In fact, it was the adoption of measures for the popular election of senators which gave concrete form to proposals for the presidential primary.

B.S. 1953, LL.B., 1956, University of Nebraska; Member, Nebraska and American Bar Associations, Association of American Law Librarians, Assistant Librarian, College of Law, University of Nebraska.