Page:History of Woman Suffrage Volume 3.djvu/1062

Rh electors appointed by the several States, declares in the following words how said electors shall be appointed:

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 said State may be entitled in the congress, etc., etc.

Now, in the absence of any provision in the State constitution, limiting or attempting to limit the discretion of the legislature as to the manner in which the presidential electors shall be chosen, there can be no doubt but that the legislature could empower female, as well as male, citizens to participate in the choice of presidential electors.

Section 2, article 2 of our State constitution is as follows: In all elections, not otherwise provided for by this constitution, every white male citizen of the Woited States, of the age of twenty-one years, and upwards, who shall have resided in the State during the six months immediately preceding such election shall be entitled to vote in the township or precinct where he may reside.

Two questions at once suggest themselves upon the reading of this section: First— Does the section apply to elections of presidential electors, and thus become a limitation upon the discretion of the legislature in case it shall direct the appointment of the electors by a popular vote? Second—If so, can a State constitution thus limit the discretion which the Constitution of the United States directs shall be exercised by the legislature? I shall consider the last question first.

While the legislature is created by the State, all its powers are not derived from nor are all its duties enjoined by the State. The moment the State brings the legislature into being, that moment certain duties enjoined, and certain powers conferred, by the nation, attach to it. Among the powers and duties of the legislature, which spring from the national constitution, is the power and duty of determining how the State shall appoint presidential electors. The Constitution of the United States declares in the most explicit terms that the State shall do this "in such manner as the legislature may direct." In the case of Ex-Parte Henry E. Hayne, et al., reported in volume 9, at page 106, of the Chicago Legal News, the Circuit Court of the United States for the district of South Carolina, in speaking of the authority upon which a State legislature acts in providing for the appointment of presidential electors, says:

Section 1, article 2 of the constitution provides that electors shall be appointed in such manner as the legislature of each State may direct. When the legislature of a State, in obedience to that provision, has, by law, directed the manner of appointment of the electors, that law has its authorities solely from the Constitution of the United States. It is a law passed in pursuance of the constitution.

Hon, James A. Garfield, who was a member of the Electoral Commission, in discussing before that body the source of the power to appoint electors, said:

The constitution prescribes that States only shall choose electors, To speak more accurately, I should say that the power is placed in the legislatures of the States; for if the constitution of any State were silent upon the subject, its legislature is none the less armed with plenary authority conferred upon it directly by the national constitution.—[Electoral Commission, p. 242.

That this section of the national constitution has always been understood to lodge an absolute discretion in the legislature, is proved by the practice in the different States. Chief Justice Story, in his 'Commentaries on the Constitution of the United States," in speaking of this section of the constitution and the practice under it, says:

Under this authority, the appointment of electors has been variously provided for by the State legislatures. In some States the legislatures have directly chosen the electors by themselves; in others they have been chosen by the people by a general ticket throughout the whole State, and in others by the people in electoral districts fixed by the legislature, a certain number of electors being apportioned to each district. No question has ever arisen as to the constitutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenious minds, has been firmly established in practice ever since the adoption of the constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it.—[2 Story on Constitution, section 1, 472.