Where it is entirely optional with a party, whether or not to nominate by primaries, having decided affirmatively the party must conduct such election strictly in accordance with the statutes. The first primary laws made past acts the test of qualification to take part in a party primary election. But later laws incline to accept future intentions instead, while New Jersey, at least, requires both faith and works. Kentucky’s court has held that the Constitutional provisions relating to elections, do not apply to primary elections, but most courts that have considered the subject, take the opposite view. Massachusetts holds that a primary law is not unconstitutional in authorizing printing on the ballots, the names of candidates presented by a certain number of voters, if blanks are left for the insertion of the names of other candidates not so presented. But Minnesota denies this poor boon to voter and candidate, and says that no blanks need be left in which to write a name.
In many instances, only parties casting a certain percentage of the total vote are privileged to avail themselves of the mandatory laws, and such limitation has been upheld where ample provision is made for nominations in other ways, by the minor parties. In some of the laws, the procedure is minutely detailed; others are very brief and general. Some leave much to the party rules and machinery already in existence, or that may be provided, and even expressly declare that the party’s rules shall govern in matters not provided for in the law. While the provisions of a primary law may apply only to general elections, seemingly to the exclusion of special elections, it is not therefore a special law, within the Constitutional meaning of the term, and in all elections to which the act does not apply, the old statutes will govern as before the passing of a primary law. Nor is a law rendered special by requiring direct choice of the candidates in a single ward or township, while for larger divisions, delegates are selected to hold nominating conventions. A New York statute distinguishes between municipal and other elections in determining party affiliations, so that a man may claim party regularity, though voting differently at will in city affairs. The inalienable right of the people to call Cincinnatus and Putnam from their plows, when the office seeks the man has been vindicated by the Supreme Court of Michigan.
(4) Ever since man first espoused the doctrine of majority rule in popular Government, students have been perplexed by the problems presented when three or more candidates for one office, or three or more solutions of one question, have been before the people. Likewise, the utter elimination of the minority from a voice in affairs, and its treatment as a wholly negligible factor, has troubled philosophers and statesmen who desire justice and truly representative government. In the early history of this nation, five or more of the original commonwealths chose their representatives in Congress on a general ticket; five chose by districts, and this system gradually spread, until in 1842 it was made mandatory. Numerous constitutional amendments were offered, especially in the early days, to elect Presidential Electors by districts, and Representatives by districts. In 1877 and again in 1888, Maish of Pennsylvania presented resolutions of amendment dividing the electoral votes of each State in proportion to the popular vote for the several candidates. Many States provide for the distribution of election boards, and some few other offices among political parties, usually between the two leading parties. In 1870 Illinois adopted a constitution with a section to secure proportional representation, or more properly, minority representation, in the legislature. Quite a number of proportional measures have been passed in the different States, but most of them have been pronounced to be unconstitutional. In March 1889, the Michigan Legislature enacted a law embodying the “cumulative” plan to represent the minority. It was held unconstitutional. In the opinion, Chief Justice Champlin discusses the matter philosophically and historically, and describes the four plans known as the “restrictive” or “limited vote,” the “Cumulative,” the “Geneva,” “free vote,” or “Gilpin” plan, and the “Hare” or “single vote” system. To this there has since been added perhaps as, fifth—the “Gove” plan.
The “restrictive” or “limited vote” plan has been used in American elections more than any other method designed to assure representation of a minority. The Pennsylvania Constitution prescribed the limited vote for Judges of the Supreme Court, County Commissioners and some other officers. The principle has been extended by simple statutory enactment, in the Keystone State, and upheld there. But similar laws in Ohio, New Jersey and Rhode Island, have been repeatedly pronounced unconstitutional. In foreign countries, the system is much used. The “cumulative” plan is much used in corporations, and some attempt has been made to apply it in general elections, the Illinois selection of its lower house, being the most prominent example. Beginning in 1874, Ohio, too, used this method for a while in selecting Legislators. In 1889 it was applied in Boston to choosing Aldermen. In Michigan the attempt so to elect the lower house was held void, as has been stated. The “free vote” has gained no foothold in our land, but is much used in Europe. The Hare-Spence plan has been in use in some parts of Denmark since 1856, also in Tasmania, parts of Australia and New Zealand.
The “preferential ballot,” which is a prominent feature of the Hare-Spence method of securing proportional representation, has also been used where single candidates are to be chosen to office, in order to assure a majority choice among three or more candidates.
Even this simple survey of events shows strongly the steady advance of the electorate in taking power into their own hands. If any mistrust the people, if any have any misgivings lest the masses be incapable of using wisely the powers they have assumed, he may find relief in the thought that whereas the average mature American of the year 1800 had enjoyed but 82 days of schooling in his life, his descendant of today receives 1,034 days’ public instruction. The trend toward democracy may be the result of men’s conscious deliberate design; it may be unconscious destiny.
States are not great,
Except as men may make them.
Men are not great, except they do and dare;
But States, like men,