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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.""

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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 candi dates for President and Vice President."

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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." 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.

48 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.

A number of states, chiefly west of the Mississipppi, worked out a plan under which popular election of senators was attained, to all intents and purposes, even before the adoption of the Seventeenth Amendment. Nebraska, in 1879,1 and other states during the same period, provided that the voters of each party were authorized to indicate at the polls which of the party senatorial candidates they preferred, and the nominations thus made were formally presented to the legislature. Usually that body was trusted, without any special precaution, to execute the public will by electing the designated candidate of the majority party. In 1909 Oregon2 and Nebraska3 introduced a system under which candidates for the legislature were asked to pledge their support in advance to the people's choice for senator, regardless of party. In either case there was, as with presidential electors, no obligation other than moral. Legally, the legislature remained free to elect whomsoever it would, but the popular will was almost invariably carried out.

Statutes of this type laid the groundwork for the state presidential primary. Senator Jonathan Bourne of Oregon, Senator Robert M. LaFollettee of Wisconsin, Teddy Roosevelt, and the other progressives of the early 1900's sought by similar means to accomplish a two-fold purpose in the field of presidential nominations: (1) to allow the voters to show their preference for the leading aspirants for their party's nomination, and, (2) to reflect this preference in the national conventions by the action of the state's delegation.

This was the immediate goal of the state primary. Some hoped that it would be "The origin of a new method of electing presidents." This has proved nothing more than a hope. The real objective was to make the state delegations more responsive

1 NEB. COMP. STAT., ch. 26, § 9 (1881).

2 LORD'S OREGON LAWS, 1910, Vol. II, Title XXVII, Ch. II, § 3361. 3 NEB. COBBEY'S ANN. STAT., ch. 16, § 5906x1 (1911). 4 U. S. Senator from Oregon, 1907-1913. (Republican).

Teddy's illustrious fifth cousin, Franklin D. Roosevelt, was one of the "insurgents" who led the fight for a direct primary bill in New York State in 1911 against Tammany Hall. The bill passed, in watereddown version. See II, F.D.R., His Personal Letters, 165-166 (1948). FDR's views on the national convention system and presidential primaries were kept carefully to himself. Neither Mrs. Roosevelt, James A. Farley, or Judge Samuel Rosenman recall hearing him express himself on that point. Letters and interviews with the author. Woodrow Wilson not only espoused state primaries, but asked Congress in 1913 to establish a national primary.

• Oregon Daily Journal, April 28, 1908.

70784 0-61-pt. 4 -12

to the wishes of the people. It was a modest goal and one which could be accomplished solely by state action.

The idea of a national primary soon followed. Its goal was automatic nomination through the primary and abolishment of the convention. Unfortunately, people still tend to confuse the goal of the national primary with the simpler purpose of the state laws. The distinction should be kept in mind while reading this article. Treatment of the national primary is outside the scope of this writing.

CHART I

LEADING CONTENDERS FOR THE
PRESIDENTIAL NOMINATION

Republican Party

1912-1956

Democratic Party

1912 William Howard Taft
Theodore Roosevelt
Robert M. LaFollettee
A. B. Cummins

1916 Charles Evans Hughes
Elihu Root

John W. Weeks 1920 Leonard Wood

Frank Lowden
Hiram Johnson

1928 Herbert Hoover
Frank Lowden

Charles Curtis

1940 Thomas E. Dewey

Robert A. Taft Arthur Vandenberg Wendell L. Wilkie 1948 Thomas E. Dewey Robert A. Taft

Harold E. Stassen

Earl Warren

1952 Dwight D. Eisenhower

Robert A. Taft

Earl Warren

Harold E. Stassen

1912 Judson Harmon
Bennett "Champ" Clark
Woodrow Wilson

1920 Wm. G. McAdoo
A. Mitchell Palmer
James M. Cox

1924 Wm. G. McAdoo
Alfred E. Smith

1932 Franklin D. Roosevelt
Alfred E. Smith
John N. Garner
Albert Ritchie
Newton D. Baker

1952 Estes Kefauver

Adlai Stevenson
Richard Russell
Averell Harriman

1956 Estes Kefauver
Adlai Stevenson

7 For President Wilson's message urging adoption of a national primary see 51 Cong. Rec. 44 (1913).

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