pointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to see why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket and not by districts. In other words, the act of appointment is none the less the act of the State in its entirety because arrived at by districts, for the act is the act of political agencies duly authorized to speak for the State, and the combined result is the expression of the voice of the State, a result reached by direction of the legislature, to whom the whole subject is committed."

66

As to the objection that the word "appoint" is not the most appropriate word to describe the result of a popular election, the court say: 'Perhaps not; but it is sufficiently comprehensive to cover that mode, and was manifestly used as conveying the broadest power of determination."

"In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States. They are, as remarked by Mr. Justice Gray in Re Green (134 U. S. 377, 10 Sup. Ct. Rep. 586, 33 L. ed. 951), no more officers or agents of the United States than are the members of the state legislatures, when acting as electors of federal senators, or the people of the states when acting as the electors of representatives in Congress.' Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power and jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and federal influence might be excluded."

§ 657. Vacancies.

The States having plenary power over the appointment of electors may make provision by law for the contingency of an elector dying between the date of his appointment and the time for the casting of his vote, or by sickness or accident being prevented from voting. By an act passed March 1, 1792, Congress

provided that the States should appoint the electors each four years within thirty days of the first Wednesday in December. The date for the meeting and voting of the electors was fixed, and the mode of transmitting the result to Washington. Section 5 then declared: "That Congress shall be in session on the second Wednesday in February, 1793, and on the second Wednesday in February succeeding every meeting of the electors, and the said certificates, or so many of them as shall have been received, shall then be opened, the votes counted and the persons who shall fill the offices of President and Vice-President ascertained and declared, agreeably to the Constitution."

§ 658. Original Provisions of Constitution as to Election of President and Vice-President; Inadequacy of.

According to the original provisions of the Constitution the electors might vote for two persons without indicating which was their choice for President, and which for Vice-President. The person having the greatest number of votes was to be President, if such number were a majority of the whole number of electors appointed; and if there were more than one person having such majority, and having an equal number of votes, the House of Representatives was authorized to choose by ballot one of them for President. If no person had a majority, the House was to choose the President from the five highest in the list.

When so choosing the House was to vote by States, the representation from each State having one vote. In every case, after the choice of the President, the person having the greatest number of votes was to be declared Vice-President; and if there should remain two or more having equal votes, the Senate was to choose them by ballot."

6 Art. II, Sec. I, Cl. 2. Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

Clause 3. The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of

659. Twelfth Amendment.

The inadequacy of the original constitutional provisions for the election of the President and Vice-President early became manifest. John Adams became Vice-President in 1796 though he did not receive half the votes. In 1800 Jefferson and Burr received the same number of votes, and each a majority. There was no question, however, but that the electors desired that Jefferson should be President and Burr Vice-President; but, had it not been for the patriotism of Hamilton and a few other Federalists, Burr would have been selected President though he had not been the choice of probably a single elector for that office. This experience was sufficient to lead in 1804 to the adoption of the Twelfth Amendment, in substitution for clause 3 of Section I, of Article II.'

the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the president of the Senate. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the clectors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.

7 Art. XII. The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of government of the United States,

§ 660. Counting the Votes.

With reference to the action of the Houses of Congress, after the selection of electors has been certified to them, the Twelfth Amendment, copying the language of the original provision of the Constitution, declares that "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.”

The meaning of the last four words has been shrouded in doubt, and this doubt came very near to leading to serious consequences in 1876-1877. No declaration, it is to be observed, is made as to who shall do the counting, and, therefore, who shall determine what votes shall be counted in case there is question as to their regularity or correctness. In 1876, as is well known, there were enough votes, the validity of which was contested, to determine the election. Upon the part of the Republicans it was claimed that the Vice-President (a Republican) should do the counting. The Democrats, however, asserted that the two Houses voting separately should perform this duty. As the Democrats were then in control of the lower House, and the directed to the president of the Senate;- The president of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the vote shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Republicans of the Senate, this would have meant a deadlock. The impasse was finally broken, as is well known, by the very doubtfully constitutional expedient of a special electoral commission to which all disputed cases should be submitted, the Congress being pledged to be guided by its decisions.

§ 661. Law of 1887.

By a law of February 3, 1887,8 the whole matter of the election of the President is attempted to be regulated. By the first section the second Monday in the January succeeding their appointment is fixed for the meeting of the electors and the giving of their votes. The postponement from the date, formerly in force, namely, the first Wednesday in December, is to give the States full opportunity to determine any questions that may arise with reference to the appointment of their respective electors.

The second section of the act declares:

"If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for the final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determinations shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to the said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereafter regulated, so far as the ascertainment of the electors appointed by such State is concerned."

The effect of this section is, it will be seen, not to delegate to the States the counting of the electoral votes, but to determine what the two Houses of Congress, acting concurrently, will, under certain circumstances, consider conclusive evidence as to the regularity of the selection of the electors whose votes they are

to count.

8 Stat. at L. 24. Chap. 90, p. 393.