by Jim Riley

I didn't do a very complete job of explaining my proposal, and thus your response was off-track as well. Since my proposal was for a direct nomination primary, I was trying to keep the initial part about Congress's role in determining the manner of appointment for the DC electors brief and prefatory. You misread this as giving some national authority to the Congress, even though 2 of the first 3 paragraphs explicitly mentioned the District of Columbia.

So I'd like a second try.

This is a proposal for a direct nominating primary that could replace the current national nominating conventions, along with the circus of presidential preference and delegate selection primaries and caucuses that precede them. It uses Congress and its role governing the appointment of electors for the District of Columbia to provide a model for the country as a whole.

This is not because Congress has any legal authority over the national election other than setting the date of the election and counting the electoral votes, but rather because of the national stature and visibility of Congress and the nation's capital. Congress would not merely be acting as the legislature-equivalent of a small jurisdiction with a population similar to Wyoming or Vermont, with but 3 electoral votes, but rather as a highly visible model for the United States as a whole.

Nonetheless, Congress derives its capability to act as role model because of the terms of the 23rd Amendment to the Constitution which provides that Congress is a legislature-equivalent with respect to directing the manner by which the District of Columbia's 3 presidential electors are appointed, so we begin there.

The Current Process

Under terms of the 23rd Amendment, Congress has the authority to direct the manner in which the 3 presidential electors for the District of Columbia are appointed. That is, Congress fulfills the equivalent role to a State legislature as far as defining the manner in which the presidential electors for the District of Columbia are appointed.

Congress has by law (in the DC Code) determined that the DC electors are to be appointed on the basis of popular vote cast for slates of elector candidates running under the banner of their party and its Presidential and Vice Presidential nominee. That is, they are chosen in a manner analogous to that used by the 48 States (all but Maine and Nebraska) that choose their electors as a slate running under the banner of their party and its Presidential and its Vice Presidential candidates.

Congress also has the authority to determine the manner in which Presidential and Vice Presidential candidates secure a place on the election ballot for the District of Columbia, and also how the DC elector candidates are chosen. Again, Congress is acting as the equivalent of a State legislature.

Congress (in the DC Code) has provided that a DC party body recognized by a national party committee determines the names of the Presidential and Vice Presidential candidates whose name will appear on the ballot. The DC party also chooses the elector candidates for the party, whose name will not appear on the ballot, but who will be appointed based on the results of the election.

In practice, this means the Democratic (or other party) national committee recognizes its DC affiliate, which in turn names the candidates chosen at the national convention, whose name will then appear on the DC election ballot in November. The DC affiliate also chooses the 3 presidential elector candidates for the party, who will presumably loyally vote for the Presidential and Vice Presidential candidates of the party (though in 2000, one Democratic presidential elector from DC abstained). Again, this is not dissimilar to the system used in the 50 States.

A Direct Nominating Primary

But Congress could just as easily legislate a different method of determining which Presidential and Vice Presidential candidates names appeared on the November ballot in the District of Columbia, along with a method of choosing the presidential elector candidates who will be elected if the Presidential ticket receives the most votes.

In a direct nominating primary, voters choose among the candidates who are seeking their party's nomination for a particular office. The candidate that receives the most votes in each party's primary gains a place on the general election ballot. Most States use this system to choose the general election candidates for Congress, State executive offices, state legislatures, and so on.

If Congress directed this manner of appointing (electing) presidential electors for the District of Columbia, candidates seeking the presidential nomination would file for a place on their party's primary ballot, they would also include the names of 3 presidential elector candidates. This is not dissimilar to the system used for presidential preference primaries in many States.

But instead of the primary determining delegates to a national convention, it would determine which candidate's name is placed on the actual general election ballot, as well as the associate president elector candidates associated with the Presidential ticket.

To give a more concrete example, if this system were in place for 2008, candidates Biden, Clinton, Dodd, Edwards, Gravel, Kucinich, Obama, Richardson, and perhaps others would file for a place on the DC Democratic presidential primary ballot. They would include the names of 3 presidential elector candidates. Similarly, candidates Brownback, Giuliani, Huckabee, Hunter, Keyes, McCain, Paul, Romney, Tancredo, Thompson, and others would file for a place on the DC Republican presidential primary ballot.

On primary election day, Democrat voters would select their presidential candidate for the general election; and Republican voters would select their presidential candidate for the general election. The presidential elector candidates named in the filing of the presidential candidates would become their party's nominees for presidential elector.

In November, the primary winners will be listed on the ballot in the District of Columbia. Voters in the district will vote for one of the presidential candidates, the presidential electors of the winning candidate will be appointed the 3 presidential electors for the District of Columbia. This part of the process would remain unchanged. The only difference would be how the candidates on the general election ballot are chosen.

Direct Nominating Primary in Other States and a National Direct Nominating Primary

Legislatures in the 50 States, following the lead established by Congress with respect to the District of Columbia, could also institute direct nominating primaries in their respective States. The risk here is that different States might choose different dates for their primary, or worse nominate different Presidential candidates. You could have a repeat of 1824, where different factions of the Democratic party chose presidential electors pledged to 4 candidates.

But the legislatures and Congress (acting as a legislature-equivalent for the District of Columbia) could coordinate their legislation. They could not only hold their primaries on the same day, they could use the total votes cast in other States and the District of Columbia to determine the nominees whose name appears on the presidential ballot in their respective States. If enough States adopt direct nominating primaries, the national conventions will be supplanted, at least as far as nominating candidates.

While it might seem unusual for a State to use the results in other States to determine which candidates appear on its ballot, it is not unprecedented. For example, all States provide a mechanism by which the candidates nominated by the national convention are placed on the respective State ballot, even though any particular State had a small influence in the outcome. In 2008, the national Democratic Party has even barred participation of Florida and Michigan delegates in its national convention, and will ignore the results of those two states primaries. And yet it is likely that Florida and Michigan will place the candidates nominated by the convention from which they were excluded on the general election ballot in November.

Congress may also play an indirect role in encouraging the adoption of a direct nominating primary. Currently, Congress provides funding for the nation party conventions, as well as matching funds for candidates running in presidential preference primaries. Congress could redirect that funding towards financing the direct nominating primaries, and providing for candidates running in the direct nominating primaries to receive the matching funds.

Jim Riley

Mr. Berg-Andersson responds:

Mr. Riley gets his "second try".

I had actually gleaned that this was, in effect, Mr. Riley's proposal originally and, therefore, my comments towards the end of my response to his original 'vox Populi' were directed towards this very thing. Thus, what I have already written in the latter 6 or 7 paragraphs of that response still applies to what he has written above.

While, as I've said, "a most worthy proposal" for purposes of discussion, it faces the same pitfalls I have already outlined (Mr. Riley has himself acknowledged this- for instance, where he writes above that "[t]he risk here is that different States might choose different dates for their primary, or worse nominate different Presidential candidates"; this is why I continue to hold that a proposal such as his- to quote from my previous response to Mr. Riley- "would not be at all effective until and unless adopted by all 50 States").

Again, what Mr. Riley is proposing is- more or less- a Uniform Presidential Nominations Act and it matters not whether Congress re: DC be the impetus for this or the States themselves (not all States have to adopt so-called "uniform" legislation in order to have such a law effective within their own States, of course; Uniformity [that is, harmonizing legislation throughout all 50 States] is ever the goal of the Uniform Act movement, whether actually achieved or not [the Uniform Commercial Code I used as an example in my previous response to Mr. Riley is one of the few "uniform" laws to have gained, more or less, nationwide acceptance; but there are plenty of so-called "Uniform Acts" dealing with various and sundry legal subjects that have not been made effective in all States]).

One of the major pitfalls is in Mr. Riley's own admission above that States (and DC) putting differing Party candidates on the General Election ballot could lead to a repeat of the 1824 Presidential Election, ultimately thrown into the U.S. House of Representatives because three candidates of the so-called "old" Republican Party other than the one nominated by the Congressional Caucus of that Party emerged as a result of endorsements by Jeffersonian Republicans in several State Legislatures and, thus, no candidate of that at the time predominant Party could win a majority of the Electoral Vote.

Would such a thing be even desirable now in the early 21st Century? (Although it has to be fairly noted that:

1. Such a result would, indeed, come the closest, given the vagaries of the modern Presidential Election system, to what the Framers of the U.S. Constitution themselves had originally intended for what we now call the "Electoral College"-- basically, a "spitting out" of several presidential candidates, from which the U.S. House (voting as States and not as individuals) would choose one to be President by a majority of States. [And what might the "Intent of the Framers" crowd think of just such a thing? They would, certainly, be forced to put their proverbial "money where their mouths are", I suppose!]
2. When it comes to American Political Reform, out of Chaos usually comes Order: that is, only once something has gone horribly wrong [1824 being just such an example] is there strong impetus to thereafter do something about it. After all, the 1824 Presidential Election led to, by 1828, the "old" Republicans splitting into (said factions originally based on support for the top two 1824 contenders for the Presidency) pro-J.Q. Adams 'National Republicans' (later, the Whigs) and pro-Andy Jackson 'Democratic Republicans' (later, the Democrats). In other words: out of the sturm und drang of 1824 emerged the beginnings of the modern American so-called "Two-Party System" [like it or not!])

In any event, Mr. Riley's proposal is herein posted the way Mr. Riley himself wished it to be explained and the reader of his proposal can now look over it and judge its merits on its own terms. And I, once again, thank Mr. Riley very much for his interesting contribution to the discussion of Presidential Nomination/Election Reform.