The unscripted evolution of presidential nominations: from founding-era idealism to the dominance of party primaries.

• Author: Bluestone, Zachary M.

The field of election law enjoyed something of a renaissance over the first ten years of this young century (1)--perhaps unsurprising given that the decade was bookended by historic rulings in Bush v. Gore (2) and Citizens United v. FEC. (3) In addition to reawakening the legal academy's dormant interest in the subject, (4) these divisive cases permeated public consciousness to an extent that is rare for even the most prominent of legal controversies. (5) What's more, the Supreme Court seems intent on sustaining this reinvigorated focus on election law. Just this Term, for example, the justices expounded on the practical meaning of the "one person, one vote" standard, (6) and this is only one of a number of important election law decisions in the past few years. (7)

While applauding this revival of interest in election law and acknowledging the unquestionable significance of the issues at stake in recent cases--which range from campaign finance and political speech to vote-counting procedures and apportionment--it is imperative to illuminate other areas of the field that have been woefully neglected by the public and the legal academy alike. For no subject has the disparity between relative importance and attention received been more acute than for the law applicable to the presidential nomination process, and caucuses in particular. (8) Regrettably, this gap exists despite the literature's clear emphasis on how much the rules of the nomination game matter in shaping ultimate electoral outcomes. (9) In fact, Professor James Davis goes so far as to suggest that candidate selection might have more impact on the country's future than presidential elections themselves. (10)

Given its peculiarities, the 2016 election season has engendered a rare focus on America's presidential-nomination process, with numerous calls for change to the mechanics of candidate selection coming from both the right and the left. (11) However, would-be reformers generally have underestimated the complexity of their crusade due to various misapprehensions of the current system. And this is hardly surprising. As American political scientist Austin Ranney once observed, "[I]n America, the presidential nominating game is played under by far the most elaborate, variegated, and complex set of rules in the world. They include national party rules, state statutes (especially those governing presidential primaries), and a wide variety of rulings by national and state courts." (12) To fully appreciate the current nomination process--and before attempting to transform it--reformers would be wise to consider how the system became what it is today. Although there are some wonderful resources on specific aspects of nomination history and several brief overarching chronicles, extensive research has uncovered no comprehensive investigation of the evolution of America's approach to candidate selection. Thus, this Note seeks to address the current dearth of understanding of the nomination process by examining the manner in which the complex web of nomination rules and regulations was woven over the course of American history, from the Founding Era to the modern day.

The following sections proceed chronologically, beginning with the Framers' designs for presidential elections and the nomination process. As many readers will know, what little guidance the Constitution provides on presidential elections presumes the absence of political parties. The second section thus discusses how the young Republic grappled with the emergence of factions and the resulting rise of partisan nominations. The Note then explores three eras of nomination reform--the birth of the caucus-convention system, the Progressive push for primaries, and the McGovern-Fraser revolution of the late 1960s--before concluding with "goalposts" for reform based on insights from the past two presidential election cycles.

1. EARLY IDEALISM: ANTI-FACTIONAL DOGMA AND THE CONSTITUTION'S SILENCE ON NOMINATIONS

   The architects of the Constitution devoted considerable time and energy to the issue of presidential selection. Indeed, according to political historian Richard McCormick, "No problem caused more perplexity for the delegates [of the Constitutional Convention] than that of determining how the President should be elected." (13) If the means were uncertain, however, the goal was clear from the outset; the Framers endeavored to devise a method "that would be impervious to faction, intrigue, or any unwholesome form of manipulation... a method of presidential selection that would defy politicization." (14)

   After initially resolving that the President would be chosen by Congress, (15) the Convention rejected this parliamentary scheme as "radically and incurably wrong." (16) Summarizing the prevailing objections, James Madison observed that a successful bid for president under such a system would require "intrigue with the Legislature," meaning that the Chief Executive "would derive his appointment from the predominant faction [in Congress], and [thus] be apt to render his administration subservient to its views." (17) To inhibit both legislative capture and partisan influence, (18) the Framers went on to devise the more diffuse and state-centric procedure of the Electoral College.

   Under the final version of Article II, Section 1, electors representing the total number of Representatives and Senators from each state would cast two ballots for president, with the top vote-getter winning the presidency and the runner-up securing the second office. (19) Several aspects of this novel electoral mechanism served to safeguard the Republic from the evil of faction. First, the Framers specified that the electors were to "meet in their respective States" and cast votes on the same day. (20) Given the sluggish postal system of the day, this physical dispersion virtually precluded factional collaboration (21)--a practical restraint of which the Constitution's proponents were keenly aware. (22) Second, the Constitution granted state legislatures the power to prescribe their own methods for selecting presidential electors. Thus, in addition to innate home-state biases, the diversity of state electoral laws would give rise to divergent incentives among the members of the College and make cooperation more difficult. (23) Additionally, in the event that the final tally of electoral votes yielded a tie or fell short of the required majority, the House of Representatives was to "immediately" break the deadlock. (24) With no time to cobble together a coalition, the House presumably would be forced to select among the candidates based on individual merits rather than factional interests. (25)

   In retrospect, it may seem obvious that the emergence of organized political parties would soon unravel these carefully laid plans, but the delegates in Philadelphia believed they had created a "Constitution against parties." (26) As such, there was no apparent need to formulate a process for partisan nominations. (27) The Framers simply assumed that presidential elections would be limited to a handful of obviously qualified candidates who naturally would rise like cream to the surface based on personal aptitude and previous civil service (28)--a misjudgment only reinforced by a conception of the presidential office based on its presumptive inaugural occupant, George Washington. (29) Unfortunately, these expectations prevailed for only the nation's first election cycle, (30) after which the "disease" of faction afflicted the presidential game and made conspicuous the absence of a constitutional mechanism for nominations.

2. A SYSTEM TAINTED: FACTIONAL FAULT LINES AND THE DAWN OF PARTY NOMINATIONS

   Although President Washington remained devoted to antipartisan dogma throughout his presidency, (31) Congress quickly descended into factional politics, thanks largely to the competing policies and personalities of the General's top lieutenants: Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson. At first, the emerging "parties of notables" (32) were little more than temporary alliances between ideological allies; (33) these incipient coalitions neither exhibited party structure nor represented defined constituencies. (34) Nevertheless, over the course of Washington's first term, once-ephemeral battle lines hardened into something more enduring, (35) cemented by schisms over issues ranging from the National Bank to competing affections for Britain and France. (36) Federalist and Democratic Republican caucuses emerged in Congress; (37) contemporary observers took note of American "parties" for the first time; (38) and partisan activities like the Philadelphia newspaper war (39) and the subsequent emergence of anti-Federalist "societies" (40) united each faction while cementing the divisions between them.

   By the fall of 1792, about the only issue on which the rival camps could agree was that the young nation desperately needed its first President at the helm for another term to weather the growing partisan storm. (41) Having prevailed upon Washington to forego his planned retirement, (42) however, the party chieftains could not help but engage in a lower-stakes skirmish over the vice presidency. For the Jeffersonian Republicans, this contest bore particular significance, as a challenge against incumbent Vice President John Adams would represent something of a referendum on Federalist policies. (43) In this first experiment with partisan nominations, (44) however, the fledgling Republican coalition struggled to unite behind a single candidate. (45) Only two months before the election, an informal assembly of the party's "principal movers" convened in Philadelphia to "finally and definitively" break the impasse, (46) tapping New York Governor George Clinton over the rapscallion Aaron Burr. (47) The Federalists, on the other hand, coalesced around Adams with little fanfare. (48) In the end, the...