THE

HE typical state-wide direct primary law in this country provides

for plurality nominations. Under such a law the candidate who receives the highest number of votes, whether this number is a majority or not, secures the nomination. The operation of the primary law so far has shown that this plurality is an actual majority in by far the greater number of cases. But there is always the possibility that in a divided field a candidate who represents the views of a minority of the voters may be successful. An example of this may be taken from the primary elections of 1922. In a congressional district in a western state the congressman seeking renomination was confronted with strong opposition because he had voted against the soldier's bonus in the House of Representatives a short time before the primary election. His opponents could not, however, confine their opposition to one candidate. Two ex-soldiers and pro-bonus men entered the lists. The results were as follows:

types, which may be described as the second primary, the preferential vote and the resort to a convention where no candidate in the primary has received a majority or a certain high percentage of the vote.

THE SECOND PRIMARY

The second primary election resembles the system which was generally tries, where, with the multiplicity of used some years ago in European counparties, it was found wise to guard against minority control by holding a second election, in case no candidate received a majority. In this country the second election has been adopted in the primary laws of several southern states. In those states the domination of the Democratic Party has made nomination equivalent to election, and it has been considered vital that no organized minority should gain control of that Party. This type of law provides that where no candidate receives a majority of votes, a second primary shall be held in which the names of the two highest shall be placed on the ballot. The winner of the second primary election becomes the party candidate. Provision is usually made that when one of the two highest candidates in the first primary does not desire to continue his candidacy, the other shall be declared to be the nominee. The second primary is found in Mississippi, North Carolina, South Carolina, Texas and Louisiana. In the case of the latter state the second election system was in force for several years and was abolished for a system of preferential vote.

This was in turn abolished and the state came back in 1921 to the second election method with the provision, however, that the second primary is to be held only in case no candidate for the office of governor receives a majority in the first primary. In Tennessee it is provided that in case no candidate receives a majority in the first primary, a second one may be held if the committee or other governing authority of the party shall see fit.

The advantage of this method lies in the opportunity it gives for a clear-cut contest between the two leading factions in the party, a contest which can be devoted to state issues. It presents a simple task to the voter. The results, so far as the avoiding of minority nominations is concerned, are quite satisfactory. But the holding of an additional primary is open to obvious objections. The nomination and election system is already costly, both to the candidates and to the state. The large expenses incurred in a few recent primaries have been brought dramatically before the public, and have shown that men of wealth possess a distinct advantage in seeking nominations at the hands of the voters. The drain on the state treasury is a much-used argument in the movement for the repeal of the primary. The burden upon the public of time and effort spent during the campaign has also been great. It is not likely that in this era of retrenchment, a system which necessitates three public campaigns and three trips to the polls by busy voters to select one set of officers, will find much favor. It will probably not spread beyond the southern states where it is believed to be a necessity.

A modification of the second election system exists in the state of Georgia, where it is combined with the county unit system of voting. The candidate for the nomination who receives the

highest number of votes in any county, is entitled to the entire vote of that county, on the basis of two votes for every representative to which the county is entitled in the lower house of the General Assembly. In nominations for governor and United States senator, a candidate must receive an absolute majority of county unit votes to be successful. If no candidate receives a majority, a second election on the county unit basis is held between the highest two. As may be seen, it is quite possible for a minority candidate to be successful under such a system, just as it is possible for a presidential candidate to receive a majority vote of the presidential electors without receiving a majority of the popular vote. This is, however, extremely unlikely, and under the Georgia law there has been only one case in which the successful candidate has not received a majority of the popular vote, and in that case he had received more popular votes than any other candidate.

THE PREFERENTIAL VOTE The second device for preventing minority nominations is the preferential vote. By this method, where there are three or more candidates for one nomination, the voter is given an opportunity to express his first and second choices. Should no candidate receive a majority of first choices, all but the two highest candidates are eliminated, and the second choices expressed for these two are added to their first choices. The one with the greater number of first and second choices combined receives the nomination. This method is provided for in Alabama and Florida with one difference. In Alabama, in the optional primary law the second choices are counted from all of the ballots, while in Florida, the second choices on the ballots of the eliminated candidates only are counted.

The chief advantage of the preferential system over the second election plan is in the saving of expense and campaign effort. Viewed from a theoretical standpoint, this method has an unquestionably strong appeal. A number of close students of the subject have seen in it a satisfactory solution to the problem of minority nominations. But when put to the test of actual experience it has been found to be unworkable. The American voter has not been willing to make the effort necessary to use this more complicated method of expressing his choice, and confusion has resulted. In some cases the voter, when confronted by the two choice ballot, has marked his first choice for two candidates and in others his first and second choice for the same candidate. In the great majority of cases, however, he has not taken the trouble to register his second choice. Out of 664,559 opportunities to express a second choice in the Indiana primaries of 1916, the voter took advantage of this privilege in only 155,123 instances, or 23 per cent of the whole number. Although there were thirtyfive contests in which second choices could have been expressed, and of these there were twenty-four instances in which no candidate received a majority, yet the distribution of secondchoice votes did not affect the result in a single case.1 When the voters are indifferent in marking their second choices, minority nominations are by no means prevented. Under the brief Louisiana experience with this form, it was found that in every case where there was not a majority of first choices for one candidate, the system resulted in nomination by minorities. The list of states which have tried it and found it lacking is impressive. Idaho, Indi1" The Direct Primary in Indiana" by Charles Kettleborough, National Municipal Review, Vol. 10, p. 166,

ana, North Dakota, Louisiana, Washington and Wisconsin have all used this method and thrown it into the discard. It can hardly be recommended as a satisfactory solution to the problem.

A modification of the preferential vote with the county unit and convention system is found in Maryland. Here the voters in each county express their first and second choices for party nominees for state offices. At the same time they elect delegates to the state convention. These delegates are instructed to support in the convention the first choice, and, failing in that, the second choice of the voters of the county for each state office. These first and second choices of the county voters are determined by a complicated system of transferring ballots, somewhat akin to the Hare system of proportional representation. The method is too elaborate to describe here. It is sufficient to say that it guards against the domination of a minority in each county; but for the same reason as expressed in the Georgia case, it does not prevent the nomination of candidates who represent only minorities in the state at large. On the contrary, the system gives the city of Baltimore such inadequate representation in the convention that it directly encourages minority nomination. It was evidently intended to give the other counties of the state a method of offsetting the popular majorities that might be rolled up in Baltimore.

RESORT TO THE CONVENTION

The third system of throwing the nomination into a convention if no candidate receives a majority in the primaries, likewise does not prevent the success of candidates who may represent only a minority of voters. An examination of several instances in which candidates have been both before the primary and before the convention,

shows that a convention is likely to select a candidate who represents only a minority of the popular votes of the party, and sometimes a very small minority at that. In Indiana, the law provides that in nominations for governor and United States senator, the convention shall make the selection where no candidate receives a majority in the primary election.

In Iowa, unless some one candidate receives 35 per cent of the total vote cast for candidates for that particular nomination, the convention is called upon to make the choice. The Iowa experience under this law shows that in by far the greater number of cases the leading candidate has secured an actual majority; and even where he has not obtained a majority he has been generally able to obtain the required 35 per cent. The convention has had but few nominations to make and in only three of those instances has it set aside the plurality candidate for another. These three cases were in the nomination for the less important state offices. It may thus be seen that the Iowa law has had but little effect upon the results in that state.

The 1922 nominations in Iowa showed that under this law a popular candidate, who does not stand in well with the organization and who could not hope to succeed in the convention, may find himself confronted in the primary by a large number of opponents sent into the field to cut into his strength and thereby keep him under the 35 per cent quota. Thus Mr. Brookhart, who was popular with the rank and file of the Republican Party in that state, but who was out of sympathy with the party organization, was opposed by five rivals in the race for the senatorial nomination. Not one of these five had a chance for success. They were put into the race for the purpose of dividing Brookhart's

Brookhart's vote amounted to 41 per cent of the total, which was sufficient to nominate. Although he received a plurality which was tremendous in its proportions, his margin of success was not great. Had the provisions of the Indiana law requiring a majority been in effect, the nomination would have been thrown into a convention, where Brookhart's chances of success would have been at least greatly diminished, if indeed he would have had any chance at all.

The Iowa provision has accomplished practically nothing of a beneficial character. Moreover, the last election has shown the possibilities of political manipulation to defeat the popular will. To this extent it is contrary to the spirit of the direct primary. The Indiana law embodies this objectionable feature to even a greater degree.

In North Dakota should no candidate for a party nomination receive as much as 25 per cent of the average total vote cast for the candidate for governor, secretary of state and attorney general of that party at the last general election, the law provides that no nomination shall be made for that office.

AN EXTRA-LEGAL REMEDY: BI-FACTIONALISM IN STATE PARTIES A review of the provisions of the primary laws which attempt to obviate minority nominations shows that thus far no type of law, which is likely to be