a decision. But, if the result had depended on the vote of Wisconsin, a decision would have been necessary. The question whether a failure to comply with a constitutional provision invalidates a vote cast under it, is one in which the general trend of custom tends toward the affirmative. Counts of precincts are thrown out on formalities much less serious than this. Should such a circumstance again occur, and should the election be close enough to turn on the vote of a State, the decision would probably be a purely partisan one. How great an evil this would be is shown by the demoralizing result of the election of 1876.

It is true that this danger is lessened by a provision of law in some or all of the States that, if all the electors are not assembled at the appointed time, those actually present may fill vacancies. But this does not wholly do away with the danger. If no electors at all are present, which might well be the result of such a snowstorm as sweeps down from the northwest every few years, there will be no one with authority to fill vacancies. Moreover, in so hurried a choice, the danger that an ineligible elector may be taken is very great. It is all the greater because of the purely perfunctory character of the duties devolving upon them, which is liable to result in forgetfulness as to the constitutional qualifications.

We sometimes smile at the antiquated proceedings which accompany the accession of a monarch to a throne-such as the proclamation of a herald announcing the change. But we are far ahead of this in our adherence to our antiquated system of electing a President. To make the cases parallel, we must suppose that the discovery, by a Parliamentary Commission, that the herald who made the proclamation was not a liege subject of our Lord the King, would result in a question whether the latter was legally proclaimed, and had the right to mount the throne.

All this presupposes that the ballots have been prepared and ast in due form by the qualified voters of the several States. But we have, in addition to all this, to consider the danger arising from the voter's failing to understand exactly what he must do in order to make his official ballot valid for all of the electors. Where only a single candidate for each office is to be chosen, this involves little difficulty, now that the system is well understood by nearly all the voters of all the States. But when it comes to choosing a large number of electors on the same ballot, the

danger of failure increases. We now have before us the case of Maryland in the recent election, where it is scarcely yet known for whom the vote of the State would have been cast, had all the voters understood the ballot. Such cases of a divided electoral vote are quite frequent. The personal popularity or unpopularity of a candidate for elector may decide the question whether he shall receive a majority of the votes. All this would be done away with if the President and Vice-President were voted for directly. The conclusion to which we are led is that a constitutional amendment doing away with the electors, and providing a direct vote for President and Vice-President, is urgently necessary to avoid the constantly recurring danger of an election being vitiated through accidents, or failure in carrying out antiquated and useless formalities.

While the mere doing away with the electors would certainly be a great improvement, we should not be satisfied with anything less than the adoption of a reasonably good system. The present one is subject to the objection that the entire vote of a State may be determined in one direction or the other by a very small number of votes. The case of New York in 1884, when the question whether Cleveland or Blaine should be President turned upon the 35 votes of New York State, and when the decision in favor of Cleveland rested only on a majority of about 1100 votes in that State, is fresh in our minds. In the general average there is about one electoral vote for every forty thousand voters. But here was a case in which 35 electoral votes and the Presidency itself were determined by six hundred voters. This ought not to be, and there is no necessity that it should be. It is quite true that, in any election, the majority may be ever so small on one side or the other. But a close election is much less likely to occur where the number of voting units is very large than where it is small.

Our inattention to possible dangers from this source is curiously shown by a circumstance of the Presidential election of 1888. The candidates were then Cleveland and Harrison. New York was carried by the Democrats on the State ticket, electing David B. Hill as Governor. But, by causes which have never been satisfactorily explained, the Presidential vote was in favor of Harrison instead of Cleveland. Among the other States the electoral vote was so evenly divided that, had New York voted for

Cleveland, the whole election would have turned upon the vote of West Virginia. This was so close that it was not known for several days after the election. Consequently, in the case supposed we should have had something very like a repetition of the TildenHayes contest of twelve years before. It must be remembered that the law of 1889, which was designed to provide more clearly than had previously been done for contested cases, was not yet enacted. No doubt, had the conjuncture arrived, we should have devised a way out of it, as we did in 1876. But a system under which such contests are bound to occur with great frequency ought to be done away with. To devise a more rational system, let us look into the question from another point of view.

The simplest method of electing a President would be by a count of the popular vote of the entire country, regardless of State lines. The proper authorities in every State certify to a central authority how many votes were cast by the voters of that State for each candidate. The candidate found to receive a majority of the whole number would be declared elected. If no candidate has a majority, the proceedings may be the same as at present in the case of no candidate receiving a majority of the electoral vote; if we choose to continue that part of the system.

An objection to the choice by count of the popular vote, pure and simple, is that the large States, and the States having large majorities for one party, would exercise too great an influence in the election. As a constitutional amendment must receive the votes of three-fourths of the States, it may be assumed that the smaller States would object to an amendment which increased the preponderance of the larger ones over them.

But there are several intermediate systems between a general count of the entire popular vote and a count by States pure and simple. The best of these intermediate systems is that of combining States and Congressional districts. At the present time, the people of each district vote for members of Congress. They could, on the same ballot, vote for President and Vice-President. Then, in each district, the candidate receiving a plurality of the votes would be entitled to have the one vote of that district counted for him. Besides this, the State would be entitled to two electoral votes, determined by the majority of the entire State. When, as is sometimes the case, one or more representatives are chosen by the State at large, each State would be entitled to an

equal number of electoral votes for President and Vice-President. This would give to each State precisely the power it now has; only, instead of that power being determined by never so small a majority in each State, it would be divided among the Congressional districts. The voting units would be smaller. The preponderance of the larger States would be lessened rather than increased, so that the smaller States would have fully the influence they now have. Such States as New York and Pennsylvania, instead of voting "solid" as they now do, would be sure to give a few Congressional districts to the other party, just as they elect a few members of Congress for the minority.

The change from the present system is so slight that it could be put into operation without difficulty. The votes in each Congressional district would be counted and certified to the authorities of the State, as they are now. The Presidential candidate of each district would be determined by the vote of that district; that of the State by the entire vote. These votes would be certified by the Executive to the President of the Senate, and counted in joint session, as the electoral votes now are.

This system seems to be the best and easiest that can now be adopted. But there still remains a defect in our present system, which would be worth curing at the same time. The Constitution provides that if no Presidential candidate receives a majority of the electoral vote, the choice between the three highest candidates devolves upon the Representatives, each State voting separately. A majority of all the States is now necessary to a choice. A State equally divided between two candidates would be left out from a majority, but would have to be counted in the whole number. The chances would, therefore, be against any election by the House, in the frequent case of a close division of parties. The Vice-President, chosen by the Senate, would then fill the office. But, even here, the possibility of failure would be very serious. A majority of the entire Senate, vacancies included, is necessary to the choice of a Vice-President. Vacancies and absentees sufficient in number to prevent a majority would be very possible. Then the fourth of March would arrive without a constitutional President.

The simplest way of guarding against this danger is by providing that a plurality of what we now call the electoral vote shall determine the choice of President and Vice-President. The obVOL. CLXXX.-No. 578.

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jections to this course have greatly diminished since the date of the adoption of the Constitution. It is a wholesome rule that, if a sufficient number of the minority cannot agree upon a candidate, the majority should rule. In any case, the evil of plurality rule is less to be dreaded than the danger of a non-election, which the majority rule might lead to.

It is undeniable that we are continuing an antiquated system of electing a President and Vice-President, fraught with wholly unnecessary and cumbrous formalities which may lead at any time to the defeat of the popular will or, worse yet, to a contest over the validity of an election. We have, up to the present time, been blind to all our narrow escapes from the danger. There is no real difficulty in devising and adopting a better system. Our hesitation only arises from a supposed sentiment against amending our Constitution. In view of the fact that the Constitution itself makes provision for amendments, there can be no rational ground for this sentiment. It is the spirit, not the letter, of our Constitution which has made it so successful in solving the greatest political problems with which our race ever had to deal, and in showing the world how civilized peoples may be governed. We only weaken this spirit, and do no honor to the Constitution or its founders, when we refuse to amend it in the way the document itself provides. To make the case against amendments weaker we have, during the present generation, strained the elasticity of the document to a degree which it would never have borne, were it not for the broad good sense of our Supreme Court in recognizing the fact that new conditions demand new constructions of law. Far from amending the Constitution being a source of danger, our willingness to do it will afford the surest guarantee of the perpetuity of the instrument, as well as show to the world that, in our national proceedings, we are not tied down by a blind and irrational adherence to antiquated forms of procedure.

SIMON NEWCOMB.