Some Thoughts on the Election Process

Some Thoughts on the Election Process

 Gary Hunt
Outpost of Freedom
November 22, 2010

 Introduction

Whether we want to refer to the United States as a Democracy, a Republic or a Constitutional Republic is inconsequential.  It is how the government operates that really matters.

In all three decryptions, it is assumed that there will be elections, and that we will have our choice of candidates — to represent us in local, state, and federal offices.

We must wonder, considering the results of elections, especially in our recent past, whether we have been exercising that franchise in a proper manner — as was intended by the Framers.

Understand that what we are talking about is “electors”.  This is not to be misunderstood as to be referring to the electors in the “electoral college” any more than students of a grade school would be misunderstood to include students of a college.

Though the minimum qualifications may be the same, the various levels of electors are based upon their function.  The function described herein is of those at the lowly level of electors within a Republican (Article IV, Section 4) State.

Constitution

Article I, Section 2, clause 1:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article I, Section 4, clause 1:

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 chusing Senators.

Article II, Section 1, clause 2:

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Amendment XIV [1868]

Section 1–All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2–Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.  But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 5–The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Amendment XV [1870]

Section 1–The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Amendment [XIX] [1920]

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Amendment [XXIV] [1964]

Section 1–The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Amendment [XXVI] [1971]

Section 1–The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Federalist Papers

In Federalist Papers #52, James Madison says, Those of the former [House of Representatives] are to be the same with those of the electors of the most numerous branch of the State legislature.  The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.  It was incumbent on the convention, therefore, to define and establish this right in the Constitution.  To have left it open for the occasional regulation of the Congress, would have been improper…”

Later, in that same Paper, he says, “Who are to be the electors of the federal representatives?  Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.  The electors are to be the great body of the people of the United States.  They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.

Other Historical Sources

Delaware Charter of 1701:

FOR the well governing of this Province and Territories, there shall be an assembly a yearly chosen, by the Freemen thereof

Address of General Assembly of New York to Lieutenant Governor George Clarke,
September 7, 1737.

Persons that are fairly and freely chosen, have only right to represent the People, and are most likely to do the most effectual, as well as the most acceptable Service to the Public: Whereas those who have recourse to Frauds and unbecoming Arts, to procure themselves to be raised to those Stations, must be under the Government of narrow and selfish Views, unworthy any Representation of a free People, and will no doubt basely submit to those same detestable Measures, to continue themselves (by any Means) in the Exercise of a Trust unjustly acquired.  It is by such as these, that the Liberties of the most free People have been in various Ages of the World, undermined and subverted: And it is to prevent this, as much as we may, that we gave Leave to bring in the Bill, for regulating of the Elections.

William Blackstone, Commentaries 1:165, [1765]

1.  As to the qualifications of the electors.  The true reason for requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own.  If these persons had votes, they would be tempted to dispose of them under some undue influence or other.  This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with the general liberty.  If it were probable that every man would give his vote freely, and without influence of any kind, and, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life.  But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.

John Adams, On the Importance of Property for the Suffrage [1776]

James Sullivan, a member of the provincial congress of Massachusetts, corresponded with John Adams in May 1776 when the latter was a member of the Second Continental Congress.  On May 6, Sullivan wrote a letter to Adams in which he discussed the principles of representation and legislation and called for some alterations in the qualifications for voters.  Adams replied in the following letter of May 26, 1776.

IT IS CERTAIN, in theory, that the only moral foundation of government is the consent of the people.  But to what an extent shall we carry this principle?  Shall we say that every individual of the community, old and young, male and female, as well as rich and poor, must consent, expressly, to every act of legislation?  No, you will say, this is impossible.  How, then, does the right arise in the majority to govern the minority against their will?  Whence arises the right of the men to govern the women without their consent?  Whence the right of the old to bind the young without theirs?

But let us first suppose that the whole community, of every age, rank, sex, and condition, has a right to vote.  This community is assembled.  A motion is made, and carried by a majority of one voice.  The minority will not agree to this.  Whence arises the right of the majority to govern, and the obligation of the minority to obey?

From necessity, you will say, because there can be no other rule.

But why exclude women?

You will say, because their delicacy renders them unfit for practice and experience in the great businesses of life, and the hardy enterprises of war, as well as the arduous cares of state.  Besides, their attention is So much engaged with the necessary nurture of their children that nature has made them fittest for domestic cares.  And children have not judgment or will of their own.  True.  But will not these reasons apply to other?  Is it not equally true that men in general,  in every society, who are wholly destitute of property are also too little acquainted with public affairs to form a right judgment, and too dependent upon other men to have a will of their own?  If this is a fact, if you give to every man who has no property a vote, will you not make a fine encouraging provision for corruption by your fundamental law?  Such is the frailty of the human heart that very few men who have no property have any judgment of their own… talk and vote as they are directed by man of property who has attached their minds to his interest.

Upon my word, Sir, I have long thought an army a piece of clockwork, and to be governed only by principles and maxims, fixed as any in mechanics; and, by all that I have read in the history of mankind and authors who have speculated upon society and government, I am much inclined to think a government must manage a society in the same manner; and that this is machinery too.

Harrington has shown that power always follows property.  This I believe to be as infallible a maxim in politics, as that action and reaction are equal is in mechanics.  Nay, I believe we may advance one step farther, and affirm that the balance of power in a society accompanies the balance of property in land.  The only possible way, then, of reserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society; to make a division of the land Into small quantities, so that the multitude may be possessed of landed estates.  If the multitude is possessed of the balance of real estate, the multitude will have the balance of power, and in that case the multitude will take care of the liberty, virtue, and interest of the multitude in all acts of government.  I believe these principles have been felt, if not understood, in the Massachusetts Bay from the beginning; and therefore I should think that wisdom and policy would dictate in these times to be very cautious of making alterations.  Our people have never been very rigid in scrutinizing into the qualifications of voters, and I presume they will not now begin to be so.  But I would not advise them to make any alteration in the laws, at present, respecting the qualifications of voters.

Your idea that those laws which affect the lives and personal liberty of all, or which inflict corporal punishment, affect those who are not qualified to vote, as well as those who are, is just.  But so they do women as well as men; children as well as adults.  What reason should there be for excluding a man of twenty years eleven months and twenty-seven days old from a vote, when you admit one who is twenty-one?  The reason is you must fix upon some period in life when the understanding and will of men in general is fit to be trusted by the public.  Will not the same reason justify the state in fixing upon some certain quantity of property as a qualification?

The same reasoning which will Induce you to admit all men who have no property to vote with those who have, for those laws which affect the person, will prove that you ought to admit women and children; for, generally speaking, women and children have as good judgments, and as independent minds, as those men who are wholly destitute of property; these last being to all intents and purposes as much dependent upon others who will please to feed, clothe, and employ them, as women are upon their husbands, or children on their parents.

As to your idea of proportioning the votes of men, in money matters, to the property they hold, it is utterly impracticable.  There is no possible way of ascertaining, at any one time, how much every man in a community is worth; and if there was, so fluctuating is trade and property that this state of it would change in half an hour.  The property of the whole community is shifting every hour, and no record can be kept of the changes.

Society can be governed only by general rules.  Government cannot accommodate itself to every particular case as it happens, nor to the circumstances of particular persons.  It must establish general comprehensive regulations for cases and persons.  The only question is, which general rule will accommodate most cases and most persons.

Depend upon it, sir, it is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it.  New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing will demand an equal voice with any other, in all acts of state.  It tends to confound and destroy all distinctions and prostrate all ranks to one common level.

North Carolina Constitution of 1776, Arts.  7 – 8

VII. That all freemen, of the age of twenty-one years, who have been inhabitants of any one county within the state 12 months immediately preceding the day of any election, and possessed of a freehold within the same county of 50 acres of land, for six months next before, and at the date of the election, shall be entitled to vote for a member of the Senate. 
VIII.  That all freemen of the age of twenty-one years, who have been inhabitants of any one county within the state 12 months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the House of Commons for the county in which you resides.

Georgia Constitution of 1777, Art. 9

ART. IX. All male white inhabitants, of the age of twenty-one years, and possessed in his own right of ten pounds value, and liable to pay taxes in this state

Usurpation

We can see that the Constitution recognized that every state was guaranteed “a Republican Form of Government”.  That being the case, the Constitution clearly made the determination of who shall be “electors” a prerogative of each state.  The only federal intervention was to set qualifications as to who may hold office in the legislative and executive branches of government.

The states, in their “republican” capacity could determine who was qualified as an elector for the most numerous branch (House of Representatives or equivalent), and that those so qualified could also participate as an elector in all federal elections.

The “Time, Places and Manner of holding Elections” could be regulated by the Congress, though nothing is said of the qualifications of the electors.  Clearly, then, the qualifications of electors was not within the purview of the Congress and the federal government.

Even the selection of the electoral college was not restricted, rather was simply defined as to the number of such electors and a prohibition against anyone serving in such capacity if they were a “Senator or Representative, or Person holding an Office of Trust or Profit under the United States”.

This absence of authority was further recognized in the Federalist Papers, by James Madison, when he explained that “the right of suffrage is very justly regarded as a fundamental article of republican government”, and, that “[t]o have left it open for the occasional regulation of the Congress, would have been improper.”

So, it would be improper, and, a denial of that Republican Form of Government to allow the federal government to intrude upon the right of any state to determine just who could be an elector, and, who could not.

Even after the Civil War, the Congress realized that it could not go where the Constitution provided prohibition against its intrusion.  With the ratification (this raises a whole new question, which will not be addressed in this paper) of the 14th Amendment [1868], Congress realized that they could not determine who could be an elector, and, who could not.

Following the only recourse that the Constitution allowed, they modified the representation, for the number of Representatives to be adjusted based upon denial of allowing some males over twenty-one the franchise of voting, the representation would be reduced by the same proportion as those not allowed to vote to the whole number of such class of males.  Congress realized that they had no authority to remove the right of the state, in its “Republican Form of Government”, to determine who the electors could be.

It is also interesting to note that the anti-slavery amendment was the first, though not the last, to incorporate the wording that “Congress shall have power to enforce this article by appropriate legislation”, as if to provide them authority which was not granted by the Constitution — to legislate outside of their originally granted powers.

It would appear, however, that having been able to pass two Amendments to the Constitution (“anti-slavery and 14th), that they felt that they could go beyond the authority granted by the Constitution (usurpation — the unlawful encroachment or assumption of the use of property, power or authority which belongs to another.), so, two years later [1870], they passed to the states and obtained ratification of the 15th Amendment.

The Fifteenth Amendment, taking advantage of the newly created class of “citizen” (see Two Classes of Citizen), provided that “race, color or previous condition of servitude” could not be cause for denying a member of this new class of citizen to vote — including both federal and state elections.

Though many states had already allowed women to vote, apparently, given the success of previous usurpations, determined that they wanted the states to extent equal suffrage (contrary to what the Constitution and Madison had declared as the right of the states) to women with the 19th Amendment [1920].

By 1964, the 24th Amendment removed the obstacle that required a demonstration of commitment (see “Qualification”, below) to allow one to vote.  Though many states had already dropped the provision for a “poll tax”, the Congress was looking for total equality in the election process.

In a final blow to the authority reserved to the States, in the Constitution, and in the pursuit of equality (submission of the “Republican Form of Government” within the respective states), they removed the centuries old provision for age twenty-one and incorporated a whole new class of voters — those who had yet to have experienced life and its responsibilities, with the ratification of the 26th Amendment [1971].  The argument was that if they could go to war, they should be able to vote, notwithstanding the fact that the Revolutionary War, the Civil War, and, World Wars I and II were fought by young men who had no right to participate. 

It becomes difficult to imagine that a franchise that should be so sacred can be extended even further.  In all of the above, the rights extended to the voting franchise only apply to “citizens of the United States”.  Though without an amendment on the subject, it does seem that Congress has removed the State’s right to determine if a potential elector has that qualification.

The extension of the voting franchise had been subordinated to federal authority, and the pool of participants was increased to allow all to vote.  This, along with current prohibition regarding determination of citizenship, have made American elections open to just about anybody who is present at the time of elections and willing to take the time to vote.

Qualifications

Beginning with the 15th Amendment (above), we see that there has been a change in the method of addressing the franchise.  This, and the subsequent amendments on the subject, do not address qualifications of electors; rather, they talk about the right to vote. 

From Webster’s 1828 Dictionary:

elector, n.

One who elects, or one who has the right of choice; a person who has, by law or constitution, the right of voting for an officer.  In free governments, the people or such of them as possess certain qualifications of age, character and property, are the electors of their representatives, &c., in parliament, assembly, or other legislative body.  In the United States, [also] certain persons are appointed or chosen to be electors of the president or chief magistrate.

freeholder, n.

One who owns an estate in fee-simple, fee-tail or for life; the possessor of a freehold [basically, a land owner],   Every juryman must be a freeholder.

freehold, n. 

That land or tenement which is held in fee-simple, fee-tail, or for term of life.  It is of two kinds; in deed, and in law.  The first is the real possessor of such land are tenement; the last is the right of a man as to such land are tenement, before is entry or seizure.
In the United States, a freehold is an estate which a man holds in his own right, subject to no superior nor to conditions.

Freeman, n. 

1. One who enjoys liberty, or who is not subject to the will of another; one not a slave or vassal.
2.  One who enjoys or is entitled to a franchise or peculiar privilege, as the freemen of a city or state.

From Black’s Law Dictionary, Fifth Edition:

Elector

A duly qualified voter; one who has a vote in the choice of any officer; a constituent.  One who elects or has the right of choice, or who has the right to vote for any functionary, or for the adoption of any measure.  And in a narrower sense, one who has the general right to vote, and the right to vote for a public officers.  One authorized to exercise the elective franchise.
[also]  One of the persons chosen to comprise the electoral college.

Freeholder

One having title to realty; either of inheritance or for life; either legal or equitable title.  A person who possesses a freeholder estate.

Freeman

A person in the possession and enjoyment of all the civil and political rights accorded to the people under a free government.

From colonial times through the 14th Amendment, the colonies/states have always had the right to determine just who should be an elector, and who should not.  In early colonial times, a freeman had to have an estate of 14 schillings.  This means that he had to have 14 schilling above and beyond any debt obligation that he might have.

The Delaware Constitution of 1701 simply requires that one be a “Freeman”.  A Freeman, as defined above, is someone who is not a slave or vassal.  A vassal is one who owed servitude.  And, since credit, as we know it today, was unheard of in colonial times, and if an obligation was owed, it was owed to the point that it would require no less than servitude until the obligation was satisfied, it would seem that a Freeman is one without obligation.

When Lt. Governor Clarke addressed the New York General Assembly, he justified the enactment of a “Bill, for regulating of the Elections”.  In so doing, he made clear that “those who have recourse to Frauds and unbecoming Arts” to secure elections, and, when elected, must be “ of narrow and selfish Views, unworthy any Representation of a free People, and will no doubt basely submit to those same detestable Measures, to continue themselves (by any Means) in the Exercise of a Trust unjustly acquired.”  This was the justification to pass laws necessary to assure that those elected were “fairly and freely chosen”.

If we consider some of the problems we face, today, we can see that they are not new to this country, nor the history of man.  Divisive people pursuing public office will use divisive means to gain and retain that office.

William Blackstone provides us some insight into why ownership of property (freeholder) should be a requisite to becoming an elector.  He explains that those without property have proven to be in “so mean (vulgar, lacking dignity) a situation that they are esteemed to have no will of their own”.  Suggesting that they would subject their vote to influences that should not be considered in choosing proper officers or representatives.

In 1776, North Carolina adopted one of the first Constitutions subsequent to the Declaration of Independence.  In that document, the need to qualify electors for both houses of the legislature, each qualification being different, is clearly understood.  For the higher house, the Senate, ownership (freehold) of fifty acres was required.  For the House of Commons, one need only be a taxpayer.  In both instances, he must be twenty-one years of age.

Georgia, just one year later, required that one have ten pounds of his own money and pay taxes.

There can be little doubt that the understanding that the electors must be both mature (aged twenty-one) and responsible was a condition of becoming an elector.  The idea that someone who was unable to make well for himself was, in any way, competent to make decisions so important to the community, state or federal government, was not worthy of consideration.

One might wonder what good is served by extending the franchise to everybody, without consideration of maturity or ability.  Well, from history, the 14th and 15th Amendments, we know that the federal government wanted to punish the Confederate States for the insurrection by both denying the vote to those who fought for the South and to give the vote to those who had never demonstrated their ability to be responsible for their own lives, which leads to a nearly untenable situation for many decades, putting the ex-slaves as masters over the white man, at least politically.

In a rather curious turn of events, we can see that by 1920, nine states had granted women suffrage.  Obviously, as per the Constitution, the prerogative was left with the states.

Since just a few years before, in 1913, the Seventeenth Amendment, requiring popular vote for Senators, taking the state legislature’s assertion of state input into Congressional decisions away, we see that though only the nine states had enacted suffrage, three quarters of the states ratified the Nineteenth Amendment, granting women suffrage.  One must wonder why only nine states had granted suffrage and then 36 states (of the then 48) ratified the universal suffrage amendment.  Both a usurpation and a statistical quandary.

One of the early measures of participation in the election process was that of status.  If one was a freeholder or freeman, he could participate.  Some had to pay public taxes.  A poll tax was a measure of that capability and some states retained that qualifier in the form of a poll tax.

In 1964, the Twenty-fourth Amendment was ratified, which outlawed this measure of participation and commitment on the part of the elector, “the right of the elector… shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”  This provision made room for participation by those who could not even take responsibility for their own lives, though they were now qualified to help determine the course and future of the state and country.

Considerations

Both William Blackstone and John Adams provide us some insight into the reasons behind the existence of the qualification for electors.  Clearly, the more one participated in his community, by ownership of land (which is, nowadays, rather easily achieved by those who wish to and are willing to work for it), or, at least, by independency and his ability to care for his family, without reliance upon others.

Age, another consideration of whether one has the maturity and ability to judge and reason, is probably more significant today than in 1776.  Ages fourteen to 17 allowed entry into the military service.  Many college students entered their institution of learning at age 12.  By 21 years of age, most males had already established their own home, and, were far more worldly than those of the same age, today.

Should these requisites be considered in the determination of who is qualified as an elector?

Should electors and candidates have clearly established investment in their community?

Should registration of electors be as carefully scrutinized as many other aspects in our society?

Conclusion

In the early years of this country, nobody ran for office, as they do, today, though their friends and associates would encourage voting for them.  Today, massive campaigns are conducted, many costing in the tens to hundreds of millions of dollars for a job that pays less than two million for a full term.  Therefore, we must carefully consider what effect the qualifications of electors would have on the election process.

Let’s start with the candidates, themselves.  Residence requirements were six months or a year, required citizenship, and, in many instances, required a freehold (land ownership).  Back then, six months in a community would familiarize you with the community and the people who resided in it.  Commuting dozens of miles was impractical, and simply renting space to establish ‘residency’ was unheard of.  Where your family was and lived, was where you had your roots set.

Nowadays, you can buy an expensive house in New York (having moved from Arkansas to Washington, and then deciding that Arkansas was too backward and lacked influence), stop there from time to time to furnish the house, and then, having establish national name recognition, running for Senator from that state in complete violation of the intent, as described above.

This modern age has made transient living quite easy.  That being the case, perhaps, to achieve the intent of investment in the community, the time for residency of a candidate should be longer than it was in our past.

Now, for the electors.  Were Adams, Blackstone and the various constitutions correct in judging that certain requirements imposed upon qualifying as an elector provide a more reasoned and qualified elector?  Surely those who have earned their way in life, and, in so doing, have provided more to the upkeep of the nation (via various forms of taxation); have a vested interest in the course and cost of government by virtue of land ownership; and, are inclined to keep the expense of government down, since they are, ultimately, the ones who most pay the cost of maintaining government, are more qualified to make rational decisions with regard to those who take the reins of government and make decisions that will affect all.

It is unlikely that a corporation would allow employees to vote in the election of officers, though shareholders, by all means, should be allowed to participate.  After all, they are vested in the corporation and have far more at stake than the employees have.  Their concern for the productive direction of the corporation is far greater than that of the employees.

Should a country be any different?  Should those vested, or, at least, productive in support of the country be considered more competent to make rational decisions with regard to the course of the country than those who would be more inclined to vote because of influence, threats, coercion, or, to achieve gain for themselves?

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