§ 77. “Method of Choosing Senators.”

The method of choosing senators in each State may, in the first instance, be prescribed by the Parliament of each State. The Parliament of the Commonwealth, however, may at any time after the first election of senators pass laws prescribing the “method of choosing senators,” subject to the restriction that such method shall be uniform for all the States. The question which at once presents itself for consideration is the meaning of the expression “method of choosing.”

“Method of choosing” clearly does not include the sub-division of the State into electorates, because sec. 7 gives this power solely to the Federal Parliament. Nor does it include the fixing of the times and places of elections; because sec. 9 reserves this power absolutely to the State Parliaments. The power to prescribe the method of choosing senators is also limited by the constitutional provision that “each elector shall vote only once.”

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Subject to these express constitutional provisions, it would seem that the power to prescribe the method of choosing senators extends to the regulation of the whole process of election, including the mode of nomination, the form of writs and ballot papers, the mode of voting, the mode of counting votes, &c. The section would thus enable the State Parliaments provisionally, and the Federal Parliament ultimately, to prescribe the mode in which an elector should record his vote, e.g., whether he should vote for as many candidates as there are vacancies to be filled at the election, or whether he should have the option of “plumping” for a less number of candidates or of concentrating his vote, or whether he should mark some or all of the candidates in the order of his preference. Provision could thus be made for the introduction of some system of preferential or alternative voting and the representation of minorities.

“Method of choosing” would probably also include general regulations as to the conduct of elections. Under the power conferred on the Congress of the United States to prescribe the “times and manner of holding elections for senators and representatives,” a statute has been passed providing for the holding of federal revision courts and the appointment of “supervisors of elections” to attend and scrutinize the registration of electors and the recording of votes, with power to arrest persons guilty of fraud against the election laws, and if necessary to summon the posse comitatus to their aid. (Burgess, Political Sc. ii. 44.)

In the absence of State or federal laws prescribing the “method of choosing senators,” the senators for a State would be chosen according to the method prescribed by “the law relating to elections for the more numerous House of the Parliament of the State.” (See Notes, § 124, infra.)

“I take it this deals more with the manner in which you carry out your elections, and that the provision in a Constitution that a State shall be one electorate in voting as an entity of the Constitution is not a matter of minor degree as are these summed up in the phrase ‘manner of choosing.’ If these matters come before the courts the courts cannot have any difficulty.” (Mr. Edmund Barton, Conv. Deb., Adel., p. 673.)

“The definition which Mr. Barton has rather implied than given of the word ‘manner’ raises a doubt in my mind as to whether the word ‘manner’ is also wide enough to cover all alteration in the system of voting, if so desired. If ‘manner’ relates rather to the conduct of an election and the general provisions made for taking votes, is it wide enough to cover also, and to a certainty, a variety of systems of voting which might perhaps be indicated by the word ‘method?’ Would it not be desirable to take care that those States which think fit to adopt a system of proportional voting for the representation of minorities shall have power to do so, and that the Parliament of the Federal Commonwealth shall also be able to adopt such a system if it thinks desirable?” (Mr. A. Deakin, id. p. 673.)

“There are only two limitations to the subjects which may come under the head of ‘manner of choosing.’ One is that the member is to be chosen by the people of the States as one electorate. That cannot be altered. The other is that the qualification shall be as stated for the House of Representatives, and one man shall have one vote. Those two things are expressly provided for, and therefore the ‘manner’ cannot touch them. They really put the very basis upon which the Senate is elected. But the manner of conducting elections must embrace everything else, and the manner of choosing, surely, would include the method in which the votes are to be recorded. The method in which votes are recorded must allow for representation of minorities, alternative votes, or any other system.” (Mr. R. E. O'Connor, id. p. 673.)

“It would be perfectly open, for instance, for every Parliament to provide for the Hare system of election. The tenth clause provides that the Parliament may, in the first instance, prescribe an uniform manner applicable to every State, of choosing members for the Senate; but, subject to such provision, the Parliament of each State may decide how to choose members of that body. It reserves such a power to the Parliaments of the States. But there is reserved to the Federal Parliament a power of control, which might well be exercised, in the case of certain difficulties or misdeeds arising, to take the matter into its hand.” (Mr. Edmund Barton, id. p. 673.)