Why not a National Primary?
Friday, November 21, 2003
by Jeffrey Wetmore
I am someone who used to take a look at your website from time to time back in 2000 and I am so glad to have recently discovered that your site is still online and appears to also be preparing to cover the upcoming Presidential Election in much the way you did four years ago. I'm even more pleased to see that you are, once again, using plain English to explain the National Convention delegate counts, along with how the delegates are selected, in each of the Major Parties. Keep up the good work!
Seeing your website once again has just reminded me to ask you about an issue I don't think I have ever seen addressed on 'The Green Papers' before and I would like to know what you-all might think about it:
What if the U.S. Congress could somehow be persuaded to pass a law providing for a National Presidential Nominating Primary in place of this upcoming circus we are now once again going to have to witness in a few months, one in which we have weeks and months of these State-by-State Primaries and/or Caucuses as the method of determining each Party's Presidential Nominee? Surely this idea of a National Primary must have been discussed in the past; I can't possibly be the only one who has ever thought about this!
My own idea would be to have something similar to what we have here in Kentucky, where there is provision for a Runoff after a Primary, if such Runoff should be necessary to finally determine nominees for Governor and Lieutenant Governor. I think such a system would work very well in any such National Presidential Nominating Primary, for which I would suggest that, if no candidate gets at least 40 percent of the vote in that Primary, a Runoff should then held a short time later between the top two candidates in order to produce a final presidential nominee.
I'd be very interested to read what you-all have to say about this.
Mr. Berg-Andersson responds on behalf of 'The Green Papers':
First off, let me- on behalf of TheGreenPapers.com- thank Mr. Wetmore very much for his kind comments about our site. Now, and quickly, on to the proverbial "brass tacks":
The main problem with instituting a National Primary is the fact that Congress cannot simply "pass a law providing for a National Presidential Nominating Primary" as Mr. Wetmore suggests, for the U.S. Constitution grants Congress the following powers only over Federal elections:
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 choosing Senators. (Article I, Section 4. clause 1-- NOTE: this last phrase "except as to the Places of choosing Senators" is actually a "holdover" from the time, prior to the adoption of the 17th Amendment in 1913, when State Legislatures- and not the voters of the State- elected Senators. It would probably not have been a very good idea to allow Congress to dictate where a State Legislature should meet!)
When it comes to Presidential elections, however, Congress' role is restricted by the following constitutional provisions:
The Congress may determine the Time of choosing the [Presidential] Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. (Article II, Section 1, clause 4)
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates [containing the number of Electoral Votes already cast in each State for President and Vice-President] and the votes shall then be counted;... [if no candidate for President receives at least a majority of the Electoral Vote] then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote... and a majority of all the States shall be necessary to a choice... [if no candidate for Vice-President receives at least a majority of the Electoral Vote] then from the two highest numbers on the list, the Senate shall choose the Vice-President... and a majority of the whole number [of Senators] shall be necessary to a choice. (from the 12th Amendment, as it modified the original provisions of Article II, Section 1, clause 3)
Therefore, while Congress is given ultimate plenary power- should it wish to exercise same- over the conduct of elections to both houses of Congress, it can only determine the date on which the Presidential Electors must be "appointed" (in modern practice, allocated according to the results of the voting for President/Vice-President in each State and the District of Columbia) and the date these Electors subsequently meet in separate "Electoral Colleges" in each of the 50 States and D.C., after which its sole role in relation to a given Presidential Election is to merely count and tabulate the Electoral Vote once cast (though, as I myself noted in my response to a recent 'vox Populi', as part of this counting and tabulating, Congress does have the power to determine if a Vote cast by an Elector is, indeed, valid and, thereby, becomes the "umpire" as to final determination of a Presidential Election). But please note that Congress has no power over the "Times, Places and Manner of holding" Presidential elections and certainly has no say whatsoever in the process of nominating the Presidential (and Vice-Presidential) candidates who will square off in said contest for the votes of Presidential Electors!
Now, this might very well be something of a glaring oversight- where not also a significant weakness- within the framework of the United States Constitution as it currently stands but the historical reason for this is rather simple: the Framers honestly believed that the Presidential Electors, despite their name, would only end up nominating Presidential candidates to be considered by the House of Representatives (at least once the then-national consensus choice for President, George Washington, either finally retired or passed on); they truly felt that no one after Washington was likely to command the allegiance of the then-three Sections of the new "more perfect Union" they were crafting (New England, Mid-Atlantic and the South) and they clearly feared what might happen if a regional candidate from a section obnoxious to the States of another section came to be elected President of the United States (given the Southern reaction to the election of Abraham Lincoln in 1860- one which fomented open civil war- this fear seems, by the lessons of American History, entirely justified in retrospect).
Thus, in the original scheme as laid out in Article II, Section 1, clause 3 of their document, did the Framers set up a device by which (or so they apparently- and, in the end, so vainly- hoped) a President (and Vice-President) would be chosen rather mechanically (as befitted men who were very much products of the so-called "Age of Reason"):
first, each Elector would vote for two men (and, of course, back in that day, it was always to be men voting for other men) for President, only one of whom could be from the same State as a given Elector. Since the Electors were all required to meet on the same day, and in an era of such limited communications and transportation technology, there would be no way for an Elector to know how those in any of the other States might, on that same day, be voting- thus, there was absolutely no way for an Elector to know how his second vote (assuming his first vote were for someone from his home State) might eventually come to affect the ultimate outcome of the presidential election ahead of time...
assuming (as the Framers themselves appear to have done) that no one person (again, post-George Washington) could actually win a majority of the Electoral Vote thus cast, the House of Representatives would then choose the President from among the top five candidates (based on the number of Electoral Votes received by each)- but the Congressmen would be voting by State and not as individuals, with a candidate having to win a majority of the States represented in the House in order to then be elected President; the person with the highest number of Electoral Votes not chosen President would automatically become Vice-President (so that coming in first, yet short of a majority in the Electoral College, won that person something; note that it was entirely possible that the person who came in first would not necessarily come to be elected President by the House!)... note also that no vote of a Representative in Congress for President was to be counted individually (with the exception of those few States entitled to only one Congressman): the process of nominating and electing a President was, therefore, largely "untouched by human hands"- more or less an accident of the application of mathematics, as close as one could humanly get to an electoral process based on pure Reason...
and, of course, it never ever worked as designed!:
primarily because the already existent political "factions" on the State level rather quickly coalesced into national Parties, Parties that could- well before the Electors would be meeting to cast their two votes each for President- collude by post and/or by riding to political meetings on horseback, or even by meeting within the halls of Congress, to pre-determine exactly how "their" Electors, assuming that a Party's Electors in a given State were actually "appoint[ed], in such Manner as the Legislature thereof may direct" (to quote Article II, Section 1, clause 2 of the Federal Constitution), would vote should they come to be elevated to that State's Electoral College. Thus, the nominating of Presidential candidates was, already as early as that first post-George Washington election of 1796, taken out of the hands of the Electoral College by political developments the Framers had somehow failed to foresee; and, as a result there was no (as there still isn't any!) method provided in the U.S. Constitution to ever correct this.
so, if Mr. Wetmore really wants his National Presidential Nominating Primary, I'm afraid it's going to take a Constitutional Amendment to implement it.
two words, though, if I might:
"Ain't happenin' "!!
For, despite the circus atmosphere surrounding the process of pre-National Convention primaries and caucuses/conventions in each State, there does not appear to be all that much of a public outcry across the length and breadth of the Nation to actually do something about this; thus, the politicians of either Major Party are under no significant pressure whatsoever to at all abandon the current methodology. I don't see 2/3 of each house of Congress- later, if not sooner- sending such an Amendment out to the States for ratification and I also don't see 3/4 of the States ratifying said Amendment if one were to actually be laid before them!
The Major Parties are not going to so willingly abandon their National Conventions as formal presidential/vice-presidential nominating vehicles (regardless of the fact that the Primaries and Caucuses are purposely front-loaded schedule-wise so as we can likely know who the eventual nominee will be months before his/her Party's Convention). Even in an age where only C-SPAN provides the "gavel-to-gavel" coverage of these gatherings once provided by the major over-the-air national television networks a generation or so ago, these major networks- nevertheless- still cover the happenings at each Convention in Prime Time (and the Parties, naturally, schedule speeches before their respective Conventions by their "heavyweight"s accordingly). Neither Major Party (along with its members in either house of Congress or the several State Legislatures) is going to so willingly pass on such free- and nationwide, to boot!- "face time" for its candidates and its/their "spin" on the issues of the day!!
But there is much more to it than the politicos not giving up something that is altogether to their own benefit:
Yes, Mr. Wetmore is right-- he is not the first person to come up with this National Presidential Primary idea and, indeed, the most common proposal I have seen over the years and decades is the very one he suggests: each Party holding a National Presidential Nominating Primary Election on the same date across the country with 40 percent necessary to nominate in order to avoid a subsequent Runoff Election between the top two candidates for a given Party's presidential nomination.
First off are problems involving the logistics of said Primary: for, to start with, voter eligibility re: a Primary is determined solely by State law (this all goes back to the requirement of Article I, Section 2, clause 1 that the voters of members of the U.S. House of Representatives in each State shall have the Qualifications requisite for [voters] of the most numerous branch of the State Legislature, a provision carried over to the election of the U.S. Senate in the 17th Amendment). Some States have "Open" primaries which allow any voter- regardless of Party affiliation- to participate in either Party's Primary re: a given election cycle without losing their registration with another Party or as an Independent; other States have "Closed" primaries- those that restrict the voting in a Party's Primary to only those who are registered "members" of that Party. Which is it to be re: this National Primary? And, if one chooses not to define who would be eligible to participate in a National Primary via any Constitutional Amendment authorizing a National Presidential Nominating Primary and continue to leave it up to the individual States to determine this, you might very likely be inviting the legal testing of some rather interesting- yet altogether problematic- Federal Voting Rights issues (if Oregon, say, allows someone to vote in the National Primary that, for instance, my New Jersey does not permit to vote in that same National Primary, is that fair? more to the point, would it even be constitutional??-- for example, U.S. Supreme Court decisions [most notably, that in Smith v. Allwright (321 U.S. 649 )] have already determined that, at the State level, a Primary- even for Federal office from a State (U.S. Senator or Congressman) is just as much part of the electoral process as a whole as the General Election itself-- it would be no great stretch of the legal imagination to then argue the same might very well apply to a National Primary!).
Putting this aside, when would this National Primary actually be held? One school of thought I have seen would have the National Primary take place sometime late in the Spring (mid-to-late May into early-to-mid June)- the Winter and Spring of a presidential election year currently filled with individual State primaries and caucuses/conventions would, in such a case, contain much of what we are seeing now- in the late November of the year preceding: contenders for the presidential nomination of a Major Party "jockeying for position", attending campaign rallies, making speeches, participating in televised debates, etc. Once the presidential nominee is so chosen, the Parties could then still hold their National Conventions that Summer to hammer out a platform, etc. and even have the presidential nominee of a Party formally name his running mate and make an acceptance speech before his or her Party's respective Convention (still carried "live" in Prime Time by the major TV networks), etc. The Fall campaign for the Presidency would, as is the case now, begin in earnest come Labor Day weekend. But another school of thought, perhaps emulating the concept- in Parliamentary Democracies- of the short, "matter of weeks", campaign would have a National Primary occur after the National Conventions (at which, presumably, the contenders for a Party's nomination could get requisite "face time" on national television)- that is, sometime in or around mid-September.
Then there is the problem of the Runoff: putting aside the issue of how long a time should elapse between the original National Primary and said Runoff, should it be necessary (two weeks? three weeks? four? five? six? seven?-- and how would such a Runoff at all be reconciled with those who advocate a "late" [September] National Primary??), the whole concept of a national Runoff is controversial to begin with: as part of his unsuccessful 1984 candidacy for the Presidency on the Democrat side, Rev. Jesse Jackson- equally unsuccessfully- campaigned against the Runoff used in the States of the South on grounds that it harmed the chances of African-Americans to be elected (since, being a smaller proportion of the total electorate than Whites, Blacks would much less frequently gain a majority in a Runoff into which a Black candidate was but one of the two survivors). But the other side of this coin is the question of: just how democratic is it, really, to allow someone to hold office whom some two-thirds (or even three-fifths) of the voters for that office did not even want to have serve in that office?
The point of all this is to illustrate that, even if- somehow- a popular consensus were to emerge that a National Presidential Nominating Primary be far more desirable than the current method of nominating Presidential (and Vice-Presidential) candidates (and, again, it would have to a supermajority consensus, enough to ram a Constitutional Amendment authorizing a National Primary through both a reluctant Congress and just as reluctant State Legislatures), that consensus could quite easily break apart over such issues as the date(s) for holding this National Primary as well as whether or not there should even be a Runoff should no one contender for the presidential nomination reach a particular threshold (as Mr. Wetmore has suggested, 40 percent of the Primary vote), thereby preventing the adoption of a particular National Primary Constitutional Amendment even if there were a more general consensus in favor of the concept (once again- as in many things in Politics: the devil is, indeed, in the details!)