James Madison Papers

James Madison to George McDuffie, 3 January 1824

Montpellier Jany. 3. 1824


I have recd your letter of Decr. 26. inclosing a copy of "A joint Resolution" for amending the Constitution, in the case of chusing a President & V.Presidt, accompanied by an Able "Report" thereon, and on the expediency of introducing a fixed uniformity in the modes of chusing members of the H. of Representatives, and, Electors of President & V. Presidt.

You ask my opinion and my suggestions on these points. I should give them with more cheerfulness, if I were less aware how much you appear disposed to overvalue them.

I agree entirely with the Committee in thinking an election of Representatives, and of Electors, by districts, preferable to that by general tickets, and in the case of electors, preferable to that also by State Legislatures. I agree equally with them in preferring an eventual choice of Presidt. & V. Presidt. by a joint ballot of the two Houses of Congress, to the existing provision for such a choice by the H. of Reps. voting by States. The Committee appear to me to be very right also in linking the amendments together, as a compromise between States who may mutually regard them as concessions.

In the amendment relating to District elections of Representatives it is provided that the Districts shall not be alterable previous to another Census and the "Joint Resolution" extends the prohibition to the Electoral Districts. As the return of a Census may not be within less than ten years, the regulation may become very inconvenient & dissatisfactory, especially in new States, within different parts of which the population will increase at such unequal rates. It would be a better provision that no change of Districts should take place within a period of   preceding elections next in view; and to apply the rule to cases where Congress may, have a right to interpose, as well as to the ordinary exercise of the power by the States.

The power given by the "Joint Resolution" to the Electors of P. & V. P. to fill up their own vacancies, & to appoint the two additional Electors, is liable to the Remark, that where there may be but a single Elector, casualties to him might deprive his State of its two additional Electors; and that a single Elector with a right to appoint two others, would have in effect three votes, a situation exposing him in a particular manner, to temptations of which the Constitution is jealous. The objection to such an augmented power applies, generally, with a force proportioned to the fewness of Electors allotted to a State. There may be some difficulty in finding a satisfactory remedy for the case. In States entitled to but one Representative, the single district might chuse three Electors. In States having two Reps, each of its two Districts, by chusing two Electors, would furnish the quota of four. In all other States the difficulty would occur. And as uniformity is so justly an object, it would seem best to let the State Legislatures appoint or provide for the appointment of the two additional Electors, and for filling the Electoral vacancies; limiting the time within which the appointment must be made.

Would it not be better to retain the word "immediately" in requiring the two Houses to proceed to the choice of P. & V. P., than to change it into "without separating". If the change could quicken & ensure a final ballot, it would certainly be a good one. But as it might give rise to disputes as to the validity of an Election, after an adjournment and separation forced by a repetition of abortive ballotings, the existing term might perhaps as well remain & take its chance of answering its purpose. The distinction between a regulation which is directory only, and one a departure from which would have a viciating effect, is not always obvious; and in the delicate affair of electing a Chief Magistrate it will be best to hazard as little as possible a discussion of it.

In the appeal to the second meeting of Electors, their choice is limited to the two names having the highest number of votes given at the first meeting. As there may be an equality of votes among several highest on the list, the option ought to be enlarged accordingly, as well with a view to obviate uncertainty, as to deal equally with equal pretensions.

The expedient of resorting to a second meeting of the Presidential Electors, in order to diminish the risk of a final resort to Congress, has certainly much to recommend it. But the evil to be guarded agst. would lose not a little of its formidable aspect, by the substitution of a joint ballot of the members of Congress, for a vote by States in the Representative branch: Whilst the prolonged period during which the Electors must be in appoin<tment> before their final votes would be given, relinquishes the contemplated advantage of functions to be so quickly commenced and closed as to preclude extraneous management & intrigue. The increased trouble and expence, are of minor consideration, tho’ not to be entirely disregarded. It may be more important to remark, that in cases where from an equality of votes in the Electoral List more than two names might be sent back to the Electors, very serious embarrassments & delays might happen from miscalculations or perverse dispositions in some of so many distinct meetings; and that after all, no perfect security would exist agst. an ultimate devolution of the choice on Congress. Still it may be a fair question whether a second meeting of Electors, with its prospect of preventing an election by the members of the Legislature, would not be preferable to a Single Meeting with the greater probability of a resort to them.

As your request extends to suggestions, as well as opinions, I shall more fully comply with it by sketching for consideration a process which omits a second Meeting of Electors, and aims at an improved chance of a decisive vote in the first

"Each Elector to give two votes, one naming his first choice, the other his next choice. If there be a majority for the first name, the choice is made. If there be not a majority for the first, and one for the next, the next to be President. If there be not a majority for either, then a choice to be made by joint ballot of the H. of Reps. and Senate out of the two or more names having the two highest number of votes on the two lists taken together. A. V. President to be chosen in a similar manner."

If there be no objections to such a process not yet occurring to me, it may be entitled to a comparative examination, by its avoiding the inconveniences of a second meeting of Electors, and its doubling the chance of a decisive ballot at a single one. In contested elections, especially where there may be a number of Candidates, the name second in preference, might well unite a majority of votes: those for the first being so scattered as to fail of it.

Should a provision for a second meeting of Electors be deemed indispensable, and any value be attached to the suggested mode of voting at the first, there is no incompatibility between the two arrangements.

It may be proper for me to observe that in a late answer to a letter from a gentleman of distinguished ability who had turned his thoughts to an improvement of the Election provisions for Presidt. & V. Presidt. I was led to a sketch similar to the above, with an intimation that it would be agreeable to me not to be brought into any public discussion of the subject.

Your letter reached me on Monday evening, but I was for several days under an indisposition, which prevented a due attention to it. Nor am I sure that with the present remains of it I <h>ave even done justice to my own ideas. I am very sure that I have been far from doing it to the subject itself. With great respects

James Madison

RC (South Caroliniana Library, University of South Carolina); draft (DLC).

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