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

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
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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RETURNING BOARDS

III.141.1

RETURNING BOARDS (IN U. S. HISTORY). There is an infinite diversity in the laws of the different states which regulate the declaration of the results of popular elections; but they may be very roughly grouped under three classes. 1. The returns of elections for governor and other state officers are generally sent to the secretary of state. In some states they are sent by him to the presiding officers of the legislature, to be opened and canvassed in the presence of the two houses; in others they are canvassed and declared by the persons holding certain designated state offices. These latter are canvassing boards; and their powers are thus summed up by Cooley, as cited below: they "act for the most part ministerially only, and are not vested with judicial powers to correct errors and mistakes that may have occurred with any officer who preceded them in the performance of any duty connected with the election, or to pass upon any disputed fact which may decide the result." Nevertheless, some correction is always done, the extent and importance of it varying in different states, and sometimes according to party necessity. Indeed, much of the difficulty of 1879 in Maine (see that state) arose from the partisan application by the canvassing board of varying state precedents in the correction of errors or the refusal to correct them. 2. In the case of members of the legislature, the returns usually go at first to the secretary of state, though sometimes to a canvassing board or directly to the presiding officers of the two houses. Contests, however, are decided by the houses themselves. 3. In the case of other state and local officers, contested returns are generally settled by the courts, either by statute or by the issue and decision of common law writs in the nature of quo warranto. 4. In the mixed case of presidential electors, appointed "in such manner as the legislature of the state may direct," but acting in a national capacity, the final and absolute decision of contests properly belongs to the state also (see PENNSYLVANIA), with a general power in congress to make rules for the authentication of the state's decision. Congress, however, has never done its duty in the premises, but has reserved to itself a special power to decide arbitrarily upon special cases of contested elections of electors. (See ELECTORS.)

III.141.2

—The circumstances of the reconstructed state governments of the southern states after the rebellion (see RECONSTRUCTION, III.) were peculiar. The voting majority had been made ignorant, timid, poor and debased by a system of hereditary slavery; the minority, whether voting or disfranchised, was embittered by defeat, by a rankling sense of injustice, and by a hatred of negro rule. What was to prevent the minority, by organized or spontaneous fraud or violence, from ousting the majority as soon as the strong hand which had reversed their positions should be withdrawn? The first effort to solve this problem by the interposition of returning boards may be found in the Arkansas constitution of 1868. Hitherto the returns of elections to ratify or reject a state constitution had always been made to one or more of the old state officers, with only ministerial power, that is, power to compile, count and declare the results sent them by election officers. The Arkansas constitution designated three private persons by name as returning officers, with judicial powers. They were to receive returns from the judges of election, to compile and count them, to reject all fraudulent or illegal votes, and in case of fraud, fear, violence, improper influence or restraint, to set aside the whole election and order a new one, or to reject or correct the result in any county or precinct. On the contrary, the constitution of the same state in 1874, while naming three returning officers, gave them no judicial powers.

III.141.3

—In Florida, South Carolina and Louisiana, returning boards with judicial powers were established by the reconstructed state governments by statute. In all three states the power to do so was claimed under very similar clauses in the state constitution: in Florida, that "laws shall be passed regulating elections, and prohibiting undue influence thereon from power, bribery, tumult, or other improper practice"; in Louisiana, that "the privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon from bribery, tumult, or other improper practice"; in South Carolina, that "the right of suffrage shall be protected by laws regulating elections, and prohibiting, under adequate penalties, all undue influences from power, bribery, tumult, or improper conduct." Outside of these clauses there is absolutely no provision by which the powers given to the returning boards can be defended; and the clauses specified seem to be plainly intended for the regulation of the elections themselves, and not to empower the legislative or executive departments to assume judicial functions in counting the results of the elections. And, as one of the members of the electoral commission commented on the Louisiana provision as a novelty in state constitutions, it may be well to note that in Florida since 1838, and in Louisiana since 1812, these same provisions, ipsissimis verbis, had been inserted in all their state constitutions; but no one, until 1868-72, supposed that they authorized the creation of returning boards, with judicial powers, by the state legislatures. Indeed, such assumption is impliedly forbidden by the constitution of every state, and expressly forbidden in most of them, as it is in Florida and South Carolina: "The legislative, executive and judicial powers shall be separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other." In Louisiana, also, it is provided that "no judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title [judges of various grades]." The powers given to a returning board, in state elections, seem to have been absolute usurpations by the legislature: a violent revolution, to be resisted by the individual just so far as he should choose to risk his personal safety. But, in the matter of presidential electors, in which the country at large was most interested in 1876-7, the power of the legislature to constitute returning boards with judicial powers rests on an entirely different basis, distinct from and higher than the state constitution itself. The national constitution directs the appointment of the electors of a state to be "in such manner as the legislature thereof may direct." The power of the legislature over the manner of appointment is thus absolute, and can not be restrained or abridged either by the state constitution or by congress. If the state constitution should expressly prohibit returning boards in the case of presidential electors, the prohibition would have no effect whatever on the legislature. The distinction is essential. It will explain why the Hayes administration in 1877 abandoned the defense of the state governments which were the creatures of the returning boards; and will show the sophistry of the plausible assertion that the administration had thereby impeached its own title.

III.141.4

—The Florida act of Feb. 27, 1872, constituted the secretary of state, the attorney general, and the comptroller, or any two of them with any other member of the state cabinet designated by them, a board to canvass returns of state elections, and elections for presidential electors, and to determine and declare who have been elected. "If any returns are so irregular, false or fraudulent that the board can not determine the true vote, they shall so certify, and shall not include such returns in their determination and declaration." In Louisiana (see that state) there was a continuous difficulty in ascertaining the true returning board; but the final act of Nov. 20, 1872, constituted "five persons, to be elected by the senate from all political parties," a board with power "to make the returns of all elections." A majority of the board was to be a quorum; and in case of any vacancy by death, resignation or otherwise, the vacancy was to be filled by the residue of the board. In case of any violence or bribery in any precinct, the local election commissioners were to certify the facts to the returning board through the secretary of state or the supervisors of registration, annexing their certificate to the returns, which were to be sent within twenty-four hours after the election. Within ten days after the election the returning board was to meet in New Orleans; canvass and compile those returns which had no certificates of bribery or violence annexed; then investigate the certificates which had been annexed, taking evidence thereon, and sending for persons and papers; and finally exclude the returns from any voting place, if satisfied that the commissioners' certificate was correct, and announce the result. Their determination was to be prima facie evidence of the right to hold office, "until set aside after contest according to law." If the constitutionality of the law be granted, its provisions, honestly executed, would seem to be very fair. The twenty-four hours' limitation on the sending of certificates by local commissioners would preclude any general collusion; open trial of evidence would ascertain the truth or falsity of the certificates of violence; and the power of setting aside their decisions, to be exercised by the legislature in the case of its own members and by the courts in the case of other officers, would have been a sufficient safeguard. Unfortunately, we can know little of the possible results of a righteous execution of the law; for the board systematically disobeyed most of its provisions, and perverted the rest. The essential point of the twenty-four hours' limitation was disregarded; the secret sessions of the board made the taking of "evidence" a farce; and by these two perversions it made both the courts and the legislature so entirely its creatures as to practically destroy any right of appeal.

III.141.5

—The South Carolina statute was a combination of both the preceding. Local canvassers sent their returns to the county canvassers, and these to the state returning board, composed of the secretary of state, the treasurer, the comptroller, the attorney general, and the adjutant general. These had judicial powers over the canvass, except as to the returns for governor and lieutenant governor, which they were to transmit to the speaker of the house, to be counted in the presence of both houses.

III.141.6

—Bitter complaints had often been made of the partisan and unfair action of the returning boards, particularly in Louisiana, but little attention was paid to them in northern states, where the boards were generally considered in some sense an antidote to southern lawlessness at elections. Immediately after the presidential election of 1876 it was found that the whole result hinged on the decision of the returning boards. (Oregon is not regarded here, since in that state the canvassing officer, the secretary of state, had been given no judicial powers, either by the constitution or by the legislature.) In Florida the returning board consisted of Samuel B. McLin, secretary of state, Clayton A. Cowgill, comptroller, and Wm. A. Cocke, attorney general in Louisiana, of J. Madison Wells, T. C. Anderson, L. M. Kenner, and G. Casanave, all private citizens except Wells, who was federal naval officer at New Orleans; in South Carolina, of Henry E. Hayne, secretary of state, F. L. Cardozo, treasurer, Thos. C. Dunn, comptroller, Wm. H. Stone, attorney general, and H. W. Purvis, adjutant general, all colored except Dunn and Stone. Nov. 10, a large number of republican and democratic leaders in northern states, on the invitation of President Grant and the democratic national committee respectively, went to the three disputed states to watch the canvass; but they had no concert of action, and can not really be said to have acted at all. The boards met and organized in South Carolina Nov. 10, in Louisiana Nov. 16, and in Florida Nov. 27. In Louisiana the fifth member of the board, Oscar Arroyo, a democrat, had, for some unexplained reason, resigned immediately after the election, and the remaining four, all republicans, refused to fill his place. When the board, by its tenth rule, resolved to decide contests in secret session, the democrats protested, but without success. The board also refused to allow United States supervisors to be present at their secret sessions; to allow counsel for contestants to inspect the counting of the returns; or to count the ballots of four republican parishes, on which the names of five of the eight Hayes electors had been forgotten, only for the three electors specified on them. It is impossible to give the board's defense of its action in these cases, for it assigned no reasons. Dec. 6, it declared elected the republican candidates for state officers, 4 republican and 2 democratic congressmen, 19 republicans and 17 democrats in the state senate, and 71 republicans, 43 democrats, and 3 independents in the state lower house. Its principal changes had been made by counting for all the eight Hayes electors some 1,200 ballots bearing the names of only three; and by throwing out about 13,000 democratic and 2,000 republican votes, mainly in the parishes of East Baton Rouge, De Soto, East and West Feliciana, Grant, Iberia, Lafayette, Lafourche, More-house, and Ouachita. No attempt was made to control the board by the state courts.

III.141.7

—In Florida the state circuit court for Leon county, before the meeting of the board, had ordered it to canvass the votes forthwith. Dec. 5, the board declared the popular vote on presidential electors to be 23,849 republican, and 22,923 democratic, a republican majority of 926; all of Manatee county, and parts of several other counties had been rejected for violation of election laws. Dec. 22, the state supreme court ordered the board to canvass the votes for state officers only from the face of the returns. What the "face of the returns" was, is doubtful. Both parties agree that, taking all the counties but one (Baker), the vote in the state was almost an exact tie. From Baker county two returns had been sent: one, made up Nov. 10, by the county clerk and a justice of the peace, giving the vote as 143 republican, and 238 democratic, a democratic majority of 95; and another, made up Nov. 13, by the county judge, sheriff, and a justice of the peace, excluding two precincts, and giving the vote as 130 republican, and 89 democratic, a republican majority of 41. The gist of the difficulty was thus in the double return from Baker county. Taking the second return from Baker county, and throwing out Clay county (164 democratic majority), the board reported, Dec. 27, a republican majority of 206 for electors, and a democratic majority of 195 for governor. This report the court refused to receive; and, Jan. 1, 1877, the board at last made return in accordance with the democratic claims, and the democratic state officers were inaugurated. But in the case of the electors it was too late. The Hayes electors had received the governor's certificate on the board's first return, had met and voted, Dec. 6, and were now dead in law. The Tilden electors had met and voted the same day, on a certificate given by a single member of the board. Jan. 17, 1877, the new legislature passed an act requiring the new state officers to canvass the returns for 1876. This they did, and declared the Tilden electors successful; but the electoral commission decided this action to be entirely ex post facto, and void.

III.141.8

—In South Carolina the state supreme court ordered the board to exercise no judicial functions in the state count, Nov. 17, and in the presidential count, Nov. 22; but on the same day that the latter action was taken, the board gave certificates to the republican electors and state officers, and adjourned sine die. They were arrested for contempt, but released by the federal circuit court on habeas corpus.

III.141.9

—In Louisiana and South Carolina new election laws were at once passed by the new democratic legislatures, under which the judicial functions of the returning boards were almost entirely cut off. The same result had almost been reached in Florida by the supreme court's construction of the board's powers; but in 1878 the board (now democratic) again threw out two counties for informality. The state supreme court again decided against the board. It may be taken for granted in future that Judge Cooley's definition of the powers of a canvassing board, heretofore cited, will be followed by all American courts; and that any attempt by a state legislature to give such a board judicial functions, without a plain authorization of the act by the state constitution, will be held by the courts to be unconstitutional and void.

III.141.10

—For further proceedings in regard to the votes of the presidential electors, see ELECTORAL COMMISSION; DISPUTED ELECTIONS, IV. See constitutions of the states referred to in Poore's Federal and State Constitutions; summary of provisions for election returns in the various states, 2 Hough's American Constitutions, 758; authorities under ELECTORAL COMMISSION; Cooley's Constitutional Limitations, 3d edit., 734, and law authorities there cited; Louisiana Rev. Stat., 96 (act of Nov. 20, 1872); 25 Louisiana Annual Rep., 14, 263, 267; 16 Florida Reports, 17; and later authorities under LOUISIANA.

ALEXANDER JOHNSTON.

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