Page:History of Woman Suffrage Volume 3.djvu/1063

968 Judge Strong, one of the justices of the Supreme Court of the United States, and a member of the electoral commission, in discussing the subject of this section, says:

I doubt whether they {ire framers of the national constitution] had in mind at all [in adopting this section] the idea of a popular election as a mode of appointing State electors. They used the word appoint, doubtless thinking that the legislatures of the States would themselves select the electors, or empower the governor or some other State officer to select them. The word appoint is not the most appropriate word for describing the result of a popular election. Such a mode of appointment, I submit is allowable, but there is little reason to think it was contemplated. It was not until years afterward that the electors were chosen by vote.—[Electoral Commission, p. 252.

Senator Frelinghuysen, also a member of the Electoral Commission, thus speaks of the practice in the several States:

Under this power [the power given by the section of the national constitution, which we are now considering] the legislature might direct that the electors should be appointed by the legislature, by the executive, by the judiciary, or by the people. In the earliest days of the republic, electors were appointed by the legislatures. In Pennsylvania they were appointed by the judiciary. Now, in all the States except Colorado, they are appointed by the people.—[Electoral Commission, p. 204.

If then it be true that the power to determine how the presidential electors shall be appointed is derived from the national constitution, and that power is a discretionary one, to be exercised in such manner as the legislature may direct, how can it be said that a State constitution can limit or control the legislative discretion? If the State can limit that discretion in one respect it can limit it in another, and in another, and in another, until it may shut up the legislature to but a single mode of appointment, which is to take away, and absolutely destroy all its discretion, and this is nullification, pure and simple. One of the questions before the electoral commission in the case of South Carolina, was whether the electoral vote of that State should not be rejected because the legislature, in providing for the appointment of the electors, had failed to obey a requirement of the State constitution in regard to a registry law. This raised, in principle, the very question we are now considering, and on that question Senator O. P. Morton, who was a member of the commission, and who was an able lawyer as well as a great statesman, thus expressed himself:

They [the presidential electors] are to be appointed in the manner prescribed by the legislature of the State, and not by the constitution of the State. The manner of the appointment of electors has been placed by the Constitution of the United States in the legislature of each State, and cannot be taken from that body by the provisions of a State constitution. The power to appoint electors by a State, is conferred by the Constitution of the United States, and does not spring from a State constitution, and cannot be impaired or controlled by a State constitution.—[Electoral Commission, p. 200.

The distinguished lawyer and statesman [Hon. William Lawrence] who made the principle argument before the commission in favor of admitting the vote of the State, took the same ground (Electoral Commission, p. 186).

The opinion of Justice Story, expressed in the Massachusetts constitutional convention cf 1520, on a very similar question, and one involving the same principle, quoted by Mr. Lawrence in his argument, is very high authority, and I reproduce it here. He (Justice Story) said:

The question then was whether we have a right to insert in our constitution a provision which controls or destroys a discretion which may be, nay must be, exercised by the legislature in virtue of powers confided to it by the Constitution of the United States. The fourth section of the first article of the Constitution of the United States declares that the times, places and manner of holding elections for senators and representatives shall be prescribed by the legislature thereof. Here an express provision was made for the manner of choosing representatives by the State legislatures. They have an unlimited discretion on the subject. They may provide for an election in districts sending more than one, or by general ticket for the whole State. Here is a general discretion, a power of choice. What is the proposition on the table? It is to limit the discretion, to leave no choice to the legislature, to compel representatives to