Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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ELECTORS AND THE ELECTORAL SYSTEM

II.14.1

ELECTORS AND THE ELECTORAL SYSTEM (IN U. S. HISTORY). I. ORIGIN OF THE SYSTEM. On no subject was there such diversity of individual opinion and of action in the convention of 1787 as on that of the mode of election of the president, for the office of vice-president was never thought of until nearly the close of the convention's labors. The two plans, the "Virginia plan" and the "Jersey plan," submitted by the nationalizing and particularist elements of the convention at the opening of its work, agreed in giving the choice of the president to congress; and Chas. Pinckney's plan, which takes the medium between them, made no provisions as to the manner of the president's election. The debate had hardly opened when the diversity of opinion became apparent. Wilson, of Pennsylvania, wished to have a popular election by districts. Sherman, of Connecticut, wished to retain the choice by congress. Gerry, of Massachusetts, apparently at first wished to have electors chosen by the states in proportion to population, with the unit rule; but he afterward settled on a choice of the President by the governors of the states. Hamilton wished to have the president chosen by secondary electors, chosen by primary electors, chosen by the people. Gouverneur Morris wished to have the president chosen by general popular vote en masse. The Virginia plan, as amended and agreed to in committee of the whole, June 19, retained the election by congress. July 17, popular election and choice by electors were voted down, and the choice by congress was again approved, this time unanimously. Two days afterward, July 19, the choice by congress was reconsidered, and a choice by electors chosen by the state legislatures was adopted. Five days afterward, July 24, the choice by electors was reconsidered and lost, and the choice by congress revived. In this form it went to the committee of detail, was reported favourably by them Aug. 6, and again referred to them unchanged Aug. 31. In their report of Sept. 4, less than two weeks before the final adjournment of the convention, this committee reported the electoral system very nearly as it was finally adopted, Sept. 6. In this report of Sept. 4 the office of vice-president was first introduced; indeed, the creation of this office was an integral part of the electoral system. Several amendments offered on the last two days of the convention were rejected, as too late, and the electoral system was a part of the constitution as offered to the state conventions and ratified by them. It will appear from a reconsideration that a choice by congress was the steady determination of the convention for all but the last two weeks of its existence, excepting the five days during which it inclined toward a direct choice of electors by state legislatures; but that its final decision gave the choice of president and vice-president to electors, appointed "in such manner as the legislatures of the states might direct."

II.14.2

—II. DESIGN OF THE SYSTEM. In the inquiry as to what the system was designed to be by its framers, no more is necessary than to take the plain sense of the words used in the constitution, as cited under the fourth head of this article, supplemented in practice by the language of the Federalist, its authoritative exponent at the time, and by the action of the first two congresses, in which the framers of the constitution were numerously represented, fifteen of the thirty-eight signers being members of the first congress, and fourteen of the second.

II.14.3

—1. If any one thing is plain from the constitutional provisions on the subject, it is that the people, in adopting the constitution, voluntarily debarred themselves from the privilege of a popular election of president and vice-president, and all arguments from the aristocratic tendencies of the system are utterly irrelevant, so long as the people do not see fit to alter essentially the language of the constitution. The object was to avoid the very "heats and ferments" which their descendants to their sorrow experience every four years: and to this end the electors were even to meet and vote in their respective states, and not in any central location.

II.14.4

—2. It is also plain that absolute control of the "appointment" of the electors, with the exceptions hereafter noted, was given to the state legislatures. The people refused to exercise it themselves, either in their national or in their state capacity. The words "in such manner as the legislature thereof may direct," are as plenary as the English language could well make them. In whatever manner the legislature may direct the appointment to be made, by its own election, by a popular vote of the whole state, by a popular vote in districts, by a popular vote scrutinized by canvassing officers or returning boards, or even by appointment of a returning board or a governor without any popular vote whatever, common sense shows that there is no other power than an amendment of the constitution's express language which can lawfully take away the control of the legislature over the manner of appointment. Any interference with the appointment by congress, in particular, either directly or under the subterfuge of an "electoral commission" is evidently a sheer impertinence and usurpation, however it may be condoned by popular acquiescence in the inevitable. Even the state court of last resort can only interfere so far as to compel obedience by state officers to the will of the legislature.

II.14.5

—3. One exception to the legislature's power, inserted to guard against executive influence, only makes the absoluteness of the rest of the grant more emphatic. The legislature is not to appoint any "senator or representative, or person holding an office of trust or profit under the United States" an elector. Where the legislature directs the "appointment" to be made by popular vote, it must be evident that votes cast for the appointment of a person whom the constitution expressly bars from appointment have no existence in law: and the person for whom they were cast can not "appoint" himself anew by resigning his office after the election and thus reviving invalid votes. How the vacancy, if any, is to be filled, must be regulated by the legislature, for the electors themselves have no such power by virtue either of their office or of the constitution.

II.14.6

—4. In one respect congress could legitimately interfere for the purpose of preventing "intrigue and corruption," by naming the day on which the electors should meet and vote. Accordingly the 2d congress, by the act of March 1, 1792, fixed the day for their voting on the first Wednesday in December, and the day of their election "within thirty-four days" preceding it; and the act of Jan. 23, 1845, hereafter given, fixed the day for the appointment of electors. When congress had done this, it was functus officio, and had no more right than a private person to violate the constitution and its own laws, by forcing the admission of votes cast by electors on an unlawful day.

II.14.7

—5. Congress was further given, but for more caution indirectly (in Art. IV, §1, the power to declare the manner in which the action of the state appointing power should be authenticated, and for further caution this was only to be done "by general law". The act of 1792 provided that the votes of the electors should be authenticated by the certificate of the governor of the state. Evidently the courts of the state are the final tribunal to decide who is the governor of the state, and it would have been competent to the power of congress to require from the state court, "by general law", an authentication of the governor's certificate. This has never been done. For congress to omit this portion of its duty, and leave special cases to its own special law and arbitrary, partisan decision, is evidently in flat violation of the supreme law.

II.14.8

—6. The act of 1792 provides that the electors shall make three certificates of all their votes, two of which shall be sent to the president of the senate, one by mail and one by special messenger, and the third shall be deposited with the [federal] judge of the district in which they vote; that if neither of the first two shall reach its destination by the first Wednesday in January, the secretary of state shall send a special messenger for the third to the district judge; and that, if there be no president of the senate at the seat of government, the secretary of state shall receive and keep the certificates for the president of the senate. The transmission of the votes is thus very well provided for.

II.14.9

—7. The president of the senate is to open all the certificates in the presence of the senate and the house of representatives, and the act of 1792 specifies the second Wednesday of February succeeding the election as the day for the performance of this duty. In pursuance of its power to provide for the authentication of state acts and records, it would be perfectly competent for congress to so distinctly specify the necessary authentication of the electors' action and title that there could be no doubt in the mind of the president of the senate as to which papers were certificates, and which were not. In the absence of any such general law, the president of the senate is evidently left without any guide whatever, excepting that which must be the guide of every officer in like circumstances, his own best judgment. It was for this reason, because of the evident impossibility of the passage of a general law to meet the case in 1789, that the convention of 1787 passed the following resolution: "That the senators and representatives should convene at the time and place assigned [New York, March 4, 1789], and that the senators should appoint a president of the senate for the sole purpose of receiving, opening and counting the votes for president". This resolution was ratified with the constitution by the state conventions, and must be taken as expressing the contemporary intention to cover the real "casus omissus," viz, the neglect, refusal or inability of congress to pass a general law for the final authentication of certificates. The intention of the system was that the president of the senate should canvass the votes; in accordance with a general authenticating law, if congress would or could pass such a law; otherwise, according to his own best judgment. The members of the convention were not such bungling workmen as the modern idea of the "electoral count" would make them. They were not so foolish as to entrust the canvass to two independent agents, equal in rank, and without an arbiter in case of disagreement. They had a legislative power in congress and the president, capable of making "general laws" to govern the canvass; they had a single ministerial power, in the president of the senate, capable of carrying the general laws into effect; and they gave to each power its appropriate office. The system never contemplated the refusal of congress to pass a general law with the purpose of using its own laches to gain partisan control over special cases as they arose.

II.14.10

—8. Had congress done its plain duty in the premises, and carried out the system in its letter and spirit, as the convention of 1787 did, it is evident that that honorable body would have been reduced to its proper constitutional position as the official witness and register of the votes which have been declared by the president of the senate in accordance with general law. The constitution says, and need say, nothing of who shall count—only "and the votes shall then be counted"; for, if the orderly succession of steps has taken place according to the design of the system, the "count", in its legitimate and plain meaning, can be done by tellers appointed by the house, by individual members, by the newspaper reporters, or by any one who is able to do simple addition, though the journal of the official witnesses is the authoritative and permanent record of it. It is possible to imagine an unfair and illegal decision by the president of the senate, though no such case occurred while that officer (until 1821) maintained his proper place; and it is easy to see how hard it would be to punish him for such an offense. But it is absolutely impossible to punish congress for a partisan use of its usurped jurisdiction; and yet that body, since it has seized control of the canvass of the votes, has hardly ever, even in appearance, made any other than a partisan use of the power, no matter what party was in the majority. The constitution, by concentrating responsibility, found the safest place for the canvass of the votes, and if left the "count" unassigned and unguarded because there was no need of any other guard than the laws of arithmetic. All the abstruse debate as to the meaning of the simple word "count" has its origin in the determination of congress to give it the meaning of "canvass" and then to seize control of it. For this purpose, the extra-constitutional term "electoral count" has been coined.

II.14.11

—In the endeavor to ascertain the design of the system no attention has been paid to later congressional precedents or to the opinions of political leaders in and out of congress in the past. These may be found in great abundance in the volume called "Presidential Counts", cited below. They are misleading, for 1. congress has manufactured or been led into its own precedents for the purpose of overthrowing the position of the president of the senate, and 2. leaders of all parties have been interested in giving an illegitimate control of the system to congress, which they could influence, rather than to the proper official. But the safe guides, the plain words of the constitution itself, and the precedents of the convention of 1787 and the earlier congresses and presidents of the senate, are very easy of access, and no human ingenuity can extract from any of them a ground for any "objections", "withdrawal to consider objections", or final "voting upon disputed electoral votes" by the congress of the United States. The design of the system was to debar congress from all control over the electoral system, excepting its powers to provide for uniformity of voting, and, always by "general law," for the authentication of the state's appointment of electors for the guidance of the official canvasser; to place upon one man the responsibility which the convention well knew would be divided up and disregarded by congress; and for further safeguard, to allow congress to witness officially the execution of its own general law by the president of the senate. It was unfortunate that the constitution did not debar congress even from this last privilege, from which alone it has gained any foothold in the canvass, and have the count conducted in the presence of the supreme court; for the history of the system is only a long record of gradual usurpation of ungranted powers by congress, until at last the witness has climbed into the judge's seat, suspended the executive officer, and not only tries the law and the facts, but executes judgment as well.

II.14.12

—III. PERVERSION OF THE SYSTEM. (1. 1789-1821.) In this first period there is no instance of a declaration of the electoral canvass by any other power than the president of the senate, and the only open attempt to pervert the system was the federalist "bill of 1800". referred to hereafter. As the certificates which the president of the senate, in the absence of an authenticating law, decided to be valid were opened he passed them to the tellers appointed by the two houses, who "counted" them, in the proper meaning of the word. The certificates of election, which were made out by order of congress from 1797 until 1821, all contained the distinct affirmation that "the president of the senate did, in the presence of the said senate and house of representatives, open all the certificates and count all the votes of the electors" The idea had not yet been taken up that congress, in its capacity as a witness had the right to "object" to the reception of particular certificates. Indeed congress was formally petitioned to do so in 1809(in the case of Massachusetts), and refused. No case of double or contested returns occurred, but a number of informalities are noted in the record by the tellers, which the canvassing officer seems to have considered unimportant. Even when (in 1809) he saw fit to condone so important a defect as the absence of the governor's certificate, the witnesses had or took no power to interfere. In 1797 the legislature of Vermont had failed to pass any law prescribing the "manner of election" of the electors, and the rejection of Vermont's vote would have elected Jefferson and defeated Adams for the presidency. Nevertheless, Adams accepted Vermont's votes as equity demanded, and thus committed the "enormity" of counting himself in, without any apparent thought of objection from any quarter. Had this case of Vermont happened under the modern system of congressional control, only an "electoral commission" could have decided it, for the senate was federalist, and the house republican(democratic). In 1801 Jefferson, though in a case not so vital as that of Vermont, imitated Adams' example. An amendment to the constitution was introduced in congress in January and February. 1798, for the purpose, among others, of giving congress the very power of decision upon "contests" which it now exercises without such an amendment, but this was not adopted nor was it inserted in the 12th amendment.

II.14.13

—But although the forms of the exercise of canvassing power were kept up during this period, its spirit was growing weaker at every count. Its first, last and persistent foe has been the congress of the United States, which the convention strove so hard to shut out from any influence over the electors. The first principal inroad upon its essence came from the innocent and proper appointment of "tellers" by the two houses "to examine the votes". Though these tellers had only the arithmetical powers common to any or all examiners, their quadrennial appointment gradually brought into existence the idea that the "count" at least, whatever its nature might be, was an exclusive prerogative of congress; and the claim of power to "canvass" was only one step further. The second attack was the organization of congressmen of both parties into nominating bodies, whose decisions bound in advance the action of the electors, annulled their right of private judgment, and reduced them to ciphers. (SeeCAUCUS, CONGRESSIONAL.) When this had brought about, in 1801, its natural result of a tie between the two leading candidates (see DISPUTED ELECTIONS. I.), the 12th amendment was adopted requiring the electors to vote separately for president and vice-president, but not altering the system otherwise. This constitutional recognition of the existence of parties fixed the future nullity of the electors and their nullity gradually obscured the position of the president of the senate. Before 1801 no one knew positively what the vote of any elector was until the certificate was opened; after that year the votes of the electors were really known before they were cast, and several months before they were formally counted by the president of the senate. He, therefore, while he continued to follow precedents, did so in a careless and perfunctory way. In 1805 Burr merely broke the seals of the certificates, and handed them to the tellers to be read aloud by them. In 1809 the idea was first suggested openly, though not acted upon, that the houses were met "for a special purpose, to count out the votes", instead of "to witness the canvass of the votes". In 1817 the first "objection" to an electoral vote was offered. Indiana had been admitted as a state after the day fixed for the voting of the electors. John W. Taylor, of New York, objected to the counting of Indiana's votes, and the houses separated to discuss the objection, as they could not do while sitting in the same room. In both houses resolutions were offered, in the senate that Indiana "had a right to vote in December last", and in the house that Indiana's votes "ought to be counted;" but neither house adopted them, and the votes of Indiana were counted without any further interference by congress. But the precedent was remembered. The announcement of Indiana's vote, following the debate upon it by congress, was accepted as propter hoc, as well as post hoc; and from that time it was evident that the last vestige, even pro forma, of the constitutional function of the president of the senate was at the mercy of the first keen-witted or ignorant politician who should suggest that congress, having successfully established its exclusive power to "count" the votes, possessed thereby the power "to decide what were votes." The progressive changes of language in the messages from the two houses announcing their readiness to attend the count, are worthy of notice. They are as follows: (1793-1805) that they are ready to meet one another "to attend at the opening and counting of the votes"; (1809 and 1813) to attend in the opening and counting of the votes"; (1817) "to proceed in opening the certificates and counting the votes," or "to proceed to open and count the votes," the former being that of the senate, and the latter that of the house. These changes are landmarks.—(2. 1821-61.) In 1821 Missouri's votes were disputed (see MISSOURI), and for the first time in our history the power to canvass the votes was claimed for congress. Said Henry Clay in the house: "The two houses were called on to enumerate the votes, and of course they were called on to decide what are votes"; and again: "Would this house allow that officer [the president of the senate], singly and alone, to decide the question of the legality of the votes?" John Randolph, indeed, denounced the new idea of congressional control, and proclaimed the electors to be "as independent of this house as this house was of them"; but his voice was unheeded. Congress had found its opportunity, and seized it, to doubly violate the constitution, first, by usurping the control of the canvass, and second, by refusing to fulfill the charge that "the votes shall then be counted." The votes were not really counted. The houses ordered the president of the senate to declare that "if the vote of Missouri were to be counted, the result would be for A. B.———votes; if not counted, for A. B.———votes; but in either event A. B. was elected." This, with a fine irony, might be called "counting in the alternative" and this was the name which was thenceforward given to the process.

II.14.14

—Congress forgets no precedents in its own favour. It had now discovered that the president of the senate was entrusted with no higher or more responsible duty than that of "opening" the certificates; that its own duty was to count the votes; but that the canvass was under no one's constitutional care. At first congress contented itself with calling attention to the "casus omissus" which its own ingenuity had conjured up. But during all the rest of this period, while considering the various methods of providing for the casus omissus which are given hereafter, congress took care to practically cover the case by asserting and enforcing its control over the canvass.

II.14.15

—In 1837 the vote of Michigan was announced "in the alternative." (See MICHIGAN.) Objections were also made to the votes of six deputy postmasters who had been chosen electors, but congress agreed to receive them. In 1857 the vote of Wisconsin was objected to, (see WISCONSIN), but was counted. It is often asserted that the president of the senate counted it of his own constitutional authority. This is a mistake; his own statement is that he "disclaimed having assumed on himself any authority to determine whether that vote or any other vote was a good or a bad vote." He simply cut off debate while the two houses were together, as he was bound to do; the members of both houses lost their heads; no one moved for a separation of the houses; and the vote of Wisconsin was counted irrevocably in the midst of great disorder.

II.14.16

—At every election after 1821 the tellers assume more and more of the functions of the president of the senate. In 1829 he abandons to them the declaration of the result; in 1845 he transfers to them the breaking of the seals; and the climax, for this period, was reached in 1861, when the house actually appointed a committed to report a mode of "canvassing" the votes, inserting a new word instead of "examining," which had been used since 1793.—(3. 1861-81.) With the canvass of 1865 begins the period when congress, without pausing to debate, began the exercise of an absolute control over the votes of the electors. It did so by refusing to pass the general law which it was empowered to pass the general law which it was empowered to pass, leaving individual cases to be dealt with as party needs might demand. Feb. 6, 1865, the two houses, both under republican control, passed the twenty-second joint rule, which provided that any vote to which objection should be made should be rejected, unless accepted by concurrent vote of both houses. This did not require the president's signature, and seems to have been put into this shape for that reason. No previous American congress has ever been guilty of a more open and unnecessary usurpation than this. The act of Feb. 8 more fairly covered the case by providing that the seceding states named were in such condition on Nov. 8, 1864, that no valid election was held therein, and that no votes from them should be received. Even here the vicious propensity of congress to special legislation was apparent. Senator Collamer's substitute, giving no names of states, but referring in proper and general terms to "any state declared to be in insurrection by virtue of the act of July 13, 1861," was rejected.

II.14.17

—Under the continuing twenty-second joint rule the votes of Louisiana were counted in 1869, and by a further concurrent resolution the votes of Georgia were counted "in the alternative" In 1873, under the twenty-second rule, the vote of Louisiana was rejected by a concurrent vote, the vote of Arkansas and three votes of Georgia for Horace Greeley(dead) were rejected by a non-concurrence, and the votes of Texas and Mississippi were accepted. Jan. 20, 1876, the house having become democratic, the senate repealed the twenty second joint rule. The two houses were therefore left to meet the election of 1876 (see DISPUTED ELECTIONS, IV.) without any law on the subject.

II.14.18

—A very brief consideration of the facts under which the dispute as to the election of 1876 arose, will show that no such dispute could have arisen if the congress had fulfilled its plain duty under the constitution, 1, by passing a "general law," for the full authentication of the electoral votes from the state to the president of the senate, and 2, by keeping its own hands off the canvass. The "count," in its strict and proper meaning, might then have been left safely to the operations of the first rule of arithmetic. But this was not the time for a great constitutional reform; the fifty years' usurpation by congress of power to decide each case arbitrarily as it arose, had left the country with no law to rely upon; the passage of a general law by congress was then an impossibility; and it is matter for congratulation that the lottery which finally decided the presidential election was at least decently clothed in the forms of law. (See ELECTORAL COMMISION.) Of the utter illegality of the electoral commission, of the lack of power in congress to take the appointment of the electors away from the states, there can be no doubt; but there can be no more doubt, on the other hand, that congress committed no greater illegality in passing the electoral commission act that in assuming to "canvass" the votes in 1865, 1869 and 1873, under the twenty-second joint rule. President Hayes was just as illegally "counted in" as presidents Lincoln and Grant, and no more so than they.

II.14.19

—In 1880 congress again counted the vote of Georgia "in the alternative." It had not yet, nor has it yet in 1882, passed any general law to govern the president of the senate in his canvass of the votes and apparently intends still to persist in its traditional policy of waiting for disputed electoral votes, then claiming that there is no general law to cover the case and finally usurping the power to decide.

II.14.20

—IV. LEGAL LIMITATIONS. The constitutional provisions in regard to the electors will be found (see CONSTITUTION) under article II, §1, article IV., §1, and amendment XII. In pursuance of its powers to secure uniformity of voting and to provide for authentication of state records, congress has enacted various provisions to govern the action of the electors. The act of March 1, 1792, provided, 1, that the electors should be appointed in each state in 1792, and every four years thereafter, within thirty-four days preceding the first Wednesday in December; 2, that they should meet and vote on the first Wednesday in December and transmit their votes as heretofore described; 3, that the "executive authority" of each state should certify three lists of the electors, to be annexed by them to their certificates; 4, that the secretary of the state should send for the third list, if the first two were not received before the first Wednesday in January; 5, that congress should be in session on the second Wednesday in February, "that the certificates shall then be opened, the vote counted, and the persons who shall fill the offices of president and vice-president ascertained and declared agreeably to the constitution;" 6, that the certificates shall be delivered to the secretary of state in case there is no president of the senate at the capital. 7, that the electoral messengers shall receive twenty-five cents per mile by the most usual road; 8, that a fine of $1,000 shall be inflicted for neglect to deliver the lists; the remaining sections (9-12) relate to the succession to the presidency. The act of Jan. 23, 1845, fixed the day for the appointment of the electors as the Tuesday after the first Monday of November, and empowered each state to provide for filling vacancies in its "college" of electors, and to appoint a subsequent day for choice of electors when the first election has not resulted in a choice.

II.14.21

—V. SPECIAL ENACTMENTS 1. The act of March 26, 1804, was passed because of the doubt whether the proposed 12th amendment would be ratified in time to control the approaching presidential election. It permitted electors who, at their time of meeting, had not been notified of the ratification of the amendment, to vote twice, once according to the original mode of the constitution, and once according to the amendment, with the proviso that only those certificates should be finally valid which should be in accordance with the constitution as it should be in force on the day of voting. This, though it seems to have been legitimate, as a "general law," was made obsolete by the ratification of the amendment before the election.

II.14.22

—2. It has always been difficult for the upholders of congressional control over the canvass to give a name to their manner of action. They do not act as a legislative body, for the president's veto power is absent; nor as a joint meeting, for the separate existence and organization of the two houses is carefully preserved; and yet, if their independence is maintained, their control of the canvass is manifestly and absolutely dependent on the single chance of the political agreement of the two houses, for if they are controlled by different parties they can not agree in the canvass of disputed votes. No man can say, therefore, whether the two houses are to "agree" in accepting or in rejecting a disputed vote; and this one consideration is enough to stamp a congressional "canvass" as a hopeless absurdity. The strong probability (see RECONSTRUCTION, LOUISIANA, TENNESSEE) that two of the late seceding states would attempt to reorganize themselves without congressional control, caused the introduction and passage, Feb. 6, 1865, of a "joint rule," the twenty-second, which described the manner in which the two houses intended to canvass the votes. It provided, out side of the directions for organization, that "no vote objected to shall be counted except by the concurrent votes of the two houses," thus practically giving the power to reject a state's vote not even to "congress," but to either house—an absurdity which is only one of the least in the idea of a congressional canvass. Under this twenty-second joint rule the electoral votes were canvassed in 1869 and 1873, but it was abolished in 1876, as above stated, when the two houses had fallen to opposite parties.

II.14.23

—3. The act of Feb. 8, 1865, enacted that no electoral votes should be received or counted from the states of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas and Tennessee. The reason assigned in the preamble was, that these states had rebelled against the government and were in such condition on Nov. 8, 1864, that no valid election was held therein. President Lincoln signed it "in deference to the views of congress," disclaiming "any opinion on the recitals of the preamble."

II.14.24

—4. The count of 1877 brought the touchstone which, when applied, will always expose the inherent fallacy of a canvass by two independent bodies. The senate was republican and the house was democratic. The difficulty was evaded in this case by the passage of the electoral commission act. It passed the senate, Jan. 25, 1877, by a vote of 47 (26 dem., 21 rep.) to 17 (1 dem., 16 rep.); the house, Jan. 26, by a vote of 191 (159 dem., 32 rep.) to 86 (18 dem., 68 rep.); and was approved Jan. 29. The germ of its idea will be found in the "bill of 1800," hereafter referred to. Both laws are open to the same fatal objection. They are not the "general laws" which congress is empowered to pass touching the authentication of state records, including electoral appointments; they do not come directly or indirectly, under any power which congress is authorized to exercise; and they are simply refusals by congress to give up permanently its usurpation of the power to canvass, even under circumstances which show that the exercise of the power may at any moment become impossible. The fiction that congress was more trustworthy canvassing agent than the president of the senate was long ago exploded; the experience of 1877 shows that extra-congressional agents are no better than congress; and the lesson of experience would seem to be that the canvass should be restored to the only agent from whom a decision, and a prompt decision, is always certain—the president of the senate. Nevertheless, all the remedies now (1882) under consideration retain the the vice of permitting "objections" to electoral votes and decision, in one form or other, by congress. (For the important features of the act see ELECTORAL COMMISSION; for the action of congress under it, see DISPUTED ELECTIONS, IV.)

II.14.25

—VI. PROPOSED LEGISLATION. 1. The Bill of 1800. Jan. 23, 1800, while the federalists controlled both houses of congress senator James Ross, of Pennsylvania, introduced a bill to regulate the electoral count. It provided, in brief for the formation of a "grand committee" of six senators, six representatives, and the chief justice, with power to examine and decide finally, in secret session, all disputes and objections as to electoral votes. Of the four members of the convention which framed the constitution who were then senators, the bill was voted for by only one, Jonathan Dayton, who had taken no real part in the deliberations of the convention itself. The other three, Charles Pinckney, Langdon and Baldwin, denounced and opposed the bill to the end. Pinckney, in his very able speech of March 28, 1800, distinctly declared the design of the constitution to have been that "congress shall not themselves, even when in convention, have the smallest power to decide on a single vote." The bill passed the senate the same day, by a vote of 16 to 12. In the house, John Marshall, Bayard and other federalists united with the democrats in emasculating the bill by giving the "grand committee" power only to take testimony and report it to the two houses without expressing any opinion on it, the return was still to be accepted, unless both houses concurred in rejecting it; and no provision was made for double returns. May 8, the senate amended by providing that a return objected to should be rejected unless both houses concurred in admitting it. Both houses refused to recede the bill was lost.

II.14.26

—2. The Benton Amendment. Dec. 11, 1823, senator Thomas H. Benton introduced an amendment to the constitution providing that each legislature should divide its state into electoral districts; that the voters of each district should vote "in their own proper persons" for president and vice-president; that a majority in an electoral district should give a candidate the electoral vote of the district; that the returning officers should decide in case of a tie vote in any district; and that, if no candidate should have a majority of all the electoral votes, the house should choose the president, and the senate the vice-president, as at present. The amendment at this session was not acted upon.

II.14.27

—Benton subsequently changed it by providing for a second popular election in case of a tie, and in case of a further tie, for the choice of the person having the greatest number of votes in the greatest number of states. It was introduced in this form, June 15, 1844, but was not acted upon.

II.14.28

—3. The Van Buren and Dickerson Amendments. These were introduced in the senate, the latter Dec. 16, by Mahlon Dickerson, of New Jersey, and the former Dec. 24, 1823, by Martin Van Buren, of New York. Both aimed to change the 12th amendment mainly by requiring the electors to be chosen by districts, instead of by general ticket. In the case of a tie vote the Dickerson amendment left the choice of president to the two houses in joint meeting, and of vice-president to the senate; the Van Buren amendment required the electors to be immediately convened by proclamation of the president, and to choose between the candidates having an equal number of votes, the final choice, in case of another tie, being left as at present. Neither amendment provided for disputed or double returns; and neither was acted upon.

II.14.29

—4. The McDuffie Amendment. This was introduced in the house, Dec. 22, 1823, by George McDuffie, of South Carolina, as chairman of a select committee on the subject. It provided that electors should be chosen by districts assigned by the legislatures, or by congress in default of action by any legislature; that the votes should be opened and counted as at present; that in case of a tie the president of the senate by proclamation should reconvene the electors, that the electors should then choose between the tie candidates; that, in the event of another tie, the two houses of congress, voting individually and not by states, should choose the president; that, if no choice was made on the first ballot, the lowest candidate on the electoral list should be dropped at each ballot until but two remained; that, in case of a final tie, the candidate who had the highest vote at the first, or, if not at the first, at the second meeting of the electors, should be chosen; that, if neither of these provisions applied, the two houses should continue balloting until a president was chosen; and that the vice-president should be chosen by the senate, in case of a tie vote for that office. This amendment was debated during the session, but was not acted upon. April 1, 1826, in the house, McDuffie obtained a vote on his resolutions. The first, that the constitution ought to be so amended as to keep the election of president and vice-president from congress, was carried by a vote of 138 to 52; the second, in favor of the "district system" was lost by a vote of 90 to 102; and the subject was dropped.

II.14.30

—5. The Van Buren Bill. April 19, 1824, the senate passed Van Buren's bill, providing that, if objection were made to a return, the return should be counted unless the houses, voting separately, concurred in rejecting it. The bill was not acted on by the house.

II.14.31

—6. The Gilmer Amendment. In each of his messages Pres. Jackson recommended to congress the passage of an amendment giving the choice of president and vice-president to the people. Jan. 31, 1835, in the house, George R. Gilmer, of Georgia, chairman of a select committee on the subject, reported an amendment. It combined the direct choice by the people, and the second popular election in case of a tie, of the Benton amendment, with a provision that, in case of the death of the successful candidate at the second popular election, the vice-president "then in office" should be president. In case of a tie at the second popular election the president was to be chosen by the house and the vice-president by the senate as at present. This amendment was not acted upon.

II.14.32

—7. The Morton Amendment May 28, 1874, senator Oliver P. Morton, of Indiana, chairman of the committee on elections, reported an amendment in seven sections. It provided that the states should be divided into electoral districts, and that a majority of the popular vote of a district should give a candidate one "presidential vote"; that the highest number of presidential votes in a state should give a candidate two votes at large; that the highest number of presidential votes in the country should elect a candidate; that an equal division of the popular vote in a district should nullify the presidential vote of the district, an equal division of the presidential votes in a state should divide the two votes at large, or should nullify them, if there was an equal division between three candidates; that the vice-president should be chosen in the same manner; that congress should provide rules for the election, and tribunals for the decision of contests; and that districting should be done by state legislatures, but that congress might "make or alter the same." In debate it was understood that congress could either adopt the existing courts as tribunals, or create new ones for the purpose of deciding contests. The amendment was debated through the winter of 1875, but was not finally acted upon.

II.14.33

—8. The Morton Bill. Feb. 25, 1875, senator Morton introduced a bill to govern the electoral count. It followed the twenty-second joint rule, except that it provided that, if objection were made to any return, that return should be counted, unless rejected by a concurrent vote of both houses, and that, in case of a double return, that return should be counted which the two houses, acting separately, should decide to be the true one. This was the first provision in our history for double returns. In debate it was agreed that the vote of the state would be lost in case of a disagreement of the houses on a double return. The bill was passed by the senate, and not acted upon by the house. At the next session it was brought up again, Dec. 8, 1875, debated, until March 24, 1876, and then passed by a party vote of 32 to 26 democrats in the negative. The same day a motion to reconsider was entered by a democratic senator and carried April 19. It was then debated until Aug. 5, and dropped. Had it become a law it would have seated the democratic candidates at the following election.

II.14.34

—9. The Buckalew Amendment. This, drawn up by ex-senator Charles R. Buckalew, of Pennsylvania, was introduced in the house Feb. 7, 1877, by Levi Malsh, of the same state. It provides for direct popular vote by electoral districts, and assigns to each candidate a proportion of the state's electoral vote corresponding to his proportion of the state's popular vote. It has never been acted upon.

II.14.35

—10. The McMillan System. This system contemplates the nomination of presidential candidates by state legislatures, each nomination to specify whether it shall be classed in "the first presidential canvass," or in "the second presidential canvass"; an election by a majority of the general popular vote; and, in default of a popular majority, a second general election, to be confined to the highest candidate in each "presidential canvass". This last term is another phrase for political party, and its introduction is intended to prevent the possible second election from being confined to two candidates of the same party. The system has only been unofficially proposed in Mr. McMillan's work cited below.

II.14.36

—11. The Edmunds Bill. This bill to regulate the electoral count, introduced in 1878 by senator George F. Edmunds, of Vermont, provided that the electors should be appointed on the first Tuesday of October and should meet and vote on the second Monday of the following January: that each state "may provide" by law for the trial of contests, and the decision shall be conclusive of the lawful title of the electors, that, if there is any dispute as to the lawfulness of the state tribunal, only that return shall be counted which the two houses, acting separately, shall concur in deciding to be supported by the lawful tribunal; that, if there are double returns from a state which has not decided the title of the electors, only that return shall be counted which the two houses, acting separately, shall decide to be legal; and that, if any objections are made to any single return, it shall not be rejected except by the affirmative vote of both houses. The bill was not passed. It was introduced again, Dec. 19, 1881, by senator George F. Hoar, of Massachusetts, but has not yet (1882) been passed. The bill would be perfectly in accord with the design of the electoral system if its code of rules had been still more carefully drawn and made obligatory upon the president of the senate alone; but, by reserving to the two houses, even concurrently, the power at their own partisan pleasure to adjudicate special cases, and even over-ride their own previous enactments, it retains the vicious principle which has been the source of all our difficulties. The difficulty lies, not in the electoral system, but in the determination of congressmen of both houses, and of all parties, to meddle with a duty which the constitution distinctly intended to free from their control.

II.14.37

—VII. INCIDENTAL FEATURES. In 1789 no electoral votes were cast by New York, Rhode Island or North Carolina. The two latter states had not yet ratified the constitution. In New York the anti-federalists of the assembly wished to choose electors by joint ballot; the federalists of the senate insisted upon having half the electors, and no electoral law was passed. Electors were generally chosen by the legislatures in all the states until about 1820-24. In Maryland, North Carolina and Virginia they were chosen by popular vote in electoral districts. In Massachusetts the people of each congressional district nominated three electors, of whom the legislature chose one, and the two electors at large. Occasionally the district system was adopted for a time by other states, but was altered as party interest demanded, as in 1812, when the democratic legislatures of Vermont and North Carolina and the federalist legislature of New Jersey repealed the law for the choice of electors by popular vote just before the day fixed for the election, and assumed the choice themselves. The following legislature of North Carolina re established the district system, and recommended the adoption of the amendment subsequently known as the "Benton Amendment."

II.14.38

—In 1800 the democratic assembly of Pennsylvania wished to choose electors by joint ballot, in order to secure the whole number, while the federalist senate insisted on having seven of the fifteen electors. A bill to that effect was passed, Dec. 1, 1800, just in time to enable the electors to vote, Dec. 3. The "bill of 1800," heretofore mentioned, was aimed at Pennsylvania's vote. In South Carolina, in 1800, the legislature which was to choose the electors was extremely doubtful, even after its meeting. The democrats offered to compromise on Jefferson and Pinckney, which would, as it proved, have made Pinckney vice-president; but the federalists stood to their whole ticket and lost it, 83 to 68. At the count of the votes in February, 1801, Jefferson, the president of the senate, counted the votes of Georgia for himself and Burr, as equity demanded, although the tellers called his attention to the absence of any certificate that the electors had voted for them. The votes of Georgia, however, were not essential to the result. (For the tie vote and its results see DISPUTED ELECTIONS, I.)

II.14.39

—In 1816 three electors in Maryland and one in Delaware, belonging to the almost extinct federal party, neglected to vote, and in 1820 Pennsylvania, Tennessee and Mississippi each lost an elector by death. (See ELECTORAL COLLEGE) One elector in New Hampshire voted for John Quincy Adams for president, so that Monroe did not have a unanimous vote. Missouri, whose final admission only dated from Aug. 10, 1821 (see MISSOURI), chose presidential electors in November, 1820, and their votes were "counted in the alternative," as before mentioned.

II.14.40

—In 1824 the electors made no choice. (See DISPUTED ELECTIONS, II.) The electors were now chosen by poplar vote in all the states excepting Delaware, Georgia, Louisiana, New York, South Carolina and Vermont, where they were still chosen by the legislatures. In 1828 and subsequent years electors were chosen by popular vote in all the states excepting South Carolina, where the legislature chose them until 1868.

II.14.41

—Michigan, which was not admitted until Jan. 26, 1837, chose presidential electors in November, 1836, and their votes were "counted in the alternative." No choice of a vice-president was made by the electors. (See DISPUTED ELECTIONS, III) In 1856 the Wisconsin electors were prevented by a violent snow storm from meeting and voting on the day fixed by law (Dec. 3), and met and voted Dec. 4. In counting the votes, Feb. 11, 1857, objection was made to Wisconsin's vote. The president of the senate, senator Mason, of Virginia, decided debate to be out of order; no motion to separate was made; and the vote of Wisconsin was counted. In 1865 the president of the senate, "in obedience to the law of the land" (the act of 1865), refused, when requested, to open the certificates sent by Louisiana and Tennessee.

II.14.42

—In 1869 the votes of Mississippi, Texas and Virginia, which had not been reconstructed, were not received, and the votes of Louisiana were counted. The votes of Nevada were objected to, but the president of the senate refused to entertain the objection, on the ground that it was too late. Georgia, which had been reconstructed, had proceeded to deny the eligibility of negroes to the legislature. Her electors had voted on the second Wednesday in December, as required by state law passed under the confederacy, instead of the first Wednesday, as required by law, and on this ground it was known that objections would be made to their votes. It was therefore arranged by joint resolution to "count them in the alternative." Nevertheless, objection was made to Georgia's vote. It was sustained by the house, and overruled by the senate, and the president of the senate decided that they must be counted in the alternative, decided debate out of order, and refused to allow an appeal from his decision. The vote was finally made up in the midst of disgraceful disorder.

II.14.43

—In 1873 double returns appeared for the first time, from Louisiana and Arkansas. The two houses concurred in counting the votes of Texas (objected to for want of the governor's certificate), and of Mississippi (objected to for want of a certificate that the electors had voted by ballot), and in rejecting the vote of Arkansas, for want of the governor's certificate. By disagreement of the two houses three votes of Georgia for Greeley (dead), and the entire vote of Louisiana were rejected.

II.14.44

—In 1877 the result of the electoral vote was disputed. The facts and mode of settlement are elsewhere given. (See ELECTORAL COMMISSION; DISPUTED ELECTIONS, IV.) In 1881 the electoral votes of Georgia, which were still cast on the wrong day, were "counted in the alternative."

II.14.45

—See (1.) 1 Elliot's Debates, 182, 208, 211, 222, 228, 283, 290, 302; 5 Elliot's Debates, 128, 131, 141, 192, 322, 334, 363, 507, 520, 586. (II.) McKnight's Electoral System; The Federalist, Ixviii,; Story's Commentaries, §1449; 2 Bancroft's History of the Constitution, 169; Rawle's Commentaries, 58, 2 Wilson's Law Lectures, 187; 1 Kent's Commentaries, 262; Phocion's Letters (in 1824, copied in 24 Niles' Register, 373, 411); 5 Elliot's Debates, 541; the arguments and precedents in favor of the power of congress to canvass the votes will be found in Appleton's Presidential Counts, pp. xliv.-liv. (III.) See Annals of Congress for the year required; these are collected in a more easily accessible form in Appleton's Presidential Counts, and the volume entitled Counting the Electoral Votes, (H. of R Misc. Doc., 1877, No. 13). (IV.) 1 Stat at Large, 239 (act of March 1. 1792); 5 Stat. at Large, 721 (act of Jan. 23, 1845); U.S. Rev. Stat. §§ 131-142. (V.) 2 Stat. at Large, 295 (act of March 26, 1804; Counting the Electoral Votes, 224, 786 (the twenty-second joint rule); 13 Stat. at Large, 490 (act of Feb. 8, 1865); 19 Stat. at Large, 227 (electoral commission act). (VI.) Counting the Electoral Votes. 16 (bill of 1800); Annals of Congress (6th Cong.), 126 (Pinckney's speech); Appleton's Presidential Counts, 419 (Ibid.); 7 Benton's Debates of Congress. 472, 473, 480 (the Benton, Dickerson and Van Buren amendments respectively), Counting the Electoral Votes, 711 (the McDuffie amendment); 7 Benton's Debates, 603, (purports to give the amendment, but omits the amendment proper, as to the election of president, and gives only the provisions relating to the elections of vice-president); 12 Benton's Debates of Congress, 639 (the Gilmer amendment); Counting the Electoral Votes, 422 (the Morton amendment); Congressional Record, Feb. 25, 1875 (the Morton bill); North American Review, January, 1877 (the Buckalew amendment); McMillan's Elective Franchise; Congressional Record, Dec. 19, 1881 (the Edmunds-Hoar bill). (VII) Counting the Electoral Votes, and Appleton's Presidential Counts; for Jefferson and the Georgia votes in 1801 see, on the one side, 2 Davis' Life of Burr, 71, and on the other, 1 Democratic Review, 236.

ALEXANDER JOHNSTON.

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