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8 662. Constitutionality of.

The constitutionality of this section has been questioned upon two opposite grounds. Professor Burgess has criticized it as giving an undue power to the States." “ This language reveals at the outset,” he declares, “an excessively states-rights view of the whole subject.

Regarded from a purely scientific standpoint, one must consider the provision to be an ultra and an unwise concession of power to the States. No determination which a State can produce should be made conclusive against the judgment of both Houses of Congress in the counting of the electoral vote. In matters like this, the concurrent judgment of the two Houses of the Congress is the surest interpretation of justice and right which our political system affords; and the claim that they have no constitutional right to determine the legal genuineness of any electoral vote sent to them under any form of certification by any State, on the ground that the Constitution vests the appointment of the electors wholly in the State, confounds the process of the appointment or election with that of the court, and seeks to rob the power of counting of its most important element, viz., the power of ascertaining what is to be counted."

The second section of the act of 1857 has been criticized also as attempting an unconstitutional limitation upon the powers of the States. By what right, it was asked in Congress at the time of the enactment of the law, may the federal legislature declare that the States must settle controversies with reference to the appointment of electors before a certain date? The States, it was asserted, having absolute control of the appointment of the electors, may settle controrersies, as to this, when and as they please, and, therefore, it does not lie with the Houses of Congress to declare that they will not recognize the determinations of States made after a certain date. The answer made to this was that Congress in this section was not attempting to control the determination of these disputes by the States, but simply to state what evidence it would receive as conclusive of a determinati n.

9 Political Science Quarterly, III, 633, “ The Law of the Electoral Court."

The act goes on in section 3 to provide that the executive of each State shall, under the seal of the State, transmit to the Secretary of State of the United States a certificate showing what electors have been appointed, the votes cast for them, and, where there has been a controversy or contest, the manner in which settled. These certificates the Secretary of State is to publish in some newspaper, and at their first meeting send copies thereof to the two Houses of Congress. Each eiector is also to be supplied with the same certificate, in triplicate, under the seal of the State. As determined by a previous law, one of these copies is to be sent by messenger to the President of the United States Senate at Washington, D. C., one to be forwarded to him by mail, and the third delivered to the judge of the district in which the electors assemble to cast their vote.10

Sections 4, 5 and 6 which regulate the counting by Congress of the electoral votes are given in the footnote below."


10 Critics have pointed out that the act provides no means, if indeed it is constitutionally possible to provide means, for compelling the executives of the States to furnish these certificates. It has also been asked what is the object in providing the electoral returns in those cases in which the certificates are to be accepted as conclusive.

11 * $ 4. That Congress shall be in session on the second Wednesday in February succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of one o'clock in the afternoon of that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A, and said tellers having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted in the manner and according to the rules in this act provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section three of this act from which but one return las been received shall be rejected, hut the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section two of this act to have been appointed, if the deterniination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to till such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section two of this act, is the lawful tribunal of such State, the votes regu. larly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its laws; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the Executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

The final section (7) of the act provides that the joint meeting of the two Houses “ shall not be dissolved until the count of electoral votes shall be completed, and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this act, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House, not beyond the next calendar day, Sunday excepted, at the hour of ten o'clock in the forenoon. But if the counting of the electoral votes and the declaration of the result shall have not been completed before the fifth calendar day next after such meeting of the two Houses, no further or other recess shall be taken by either House."

§ 663. Criticism of the Act of 1887.

This act in many respects embodies prior legislative practice, and is certainly founded upon the same constitutional theory as to the extent of the powers of Congress with reference to the subject. The act as it stands is, however, open not only to serious constitutional objections, but to the criticism that it leaves unsettled a number of points that in the future may easily lead to serious disputes.

The germ of the act of 1887 is to be found in the bill of 1800 which was discussed in Congress but never enacted, the two Houses failing to agree upon certain of its provisions. With reference to the powers of counting therein given to Congress, C. C. Pinckney, of South Carolina, raised the point of unconstitutionality.

“ There is not,” Pinckney said, " a single word in the Constitution, which can by the most tortured construction, be extended to give Congress, or any branch or part of our Federal Government, a right to make or alter the State Legislatures' directions.

"§ 5. That while the two Houses shall be in meeting as provided in this act the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.

"§ 6. That when the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Repre. sentative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate."

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I well remember,” he continued, “it was the object (of the Constitutional Convention) to give to Congress no interference in or control over the election of the President .. It nerer was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention the right to object to any votes, or even to question whether they were constitutionally or properly given.

When the act of 1887 was under discussion, Wilson of Iowa asked:

“ Can we conclude that the framers of our Constitution when they conferred on the respective Houses of Congress these extraordinary powers (as in certain contingencies to elect President and Vice-President), intended to invest them with the still more extraordinary power of rejecting the votes of electors appointed by the several States, and thereby creating, by themselves and for themselves, the contingency which alone gives them the right and power to elect a President and Vice President? The mere statement of such a proposition is its own refutation. And if no such power rests with the two Houses for concurrent action, how much more preposterous does it seem to be to claim that it rests with either House alone, and especially with the House of Repre sentatives, with which body the power to elect a President abides in the event of the failure of the electors to elect."

The theory that the power of counting belongs to the two IIouses in joint meeting has been stated as follows:13

“ The exclusive jurisdiction of the two Houses to count the electoral votes by their own servants and under such instructions as they may deem proper to give on occasions arising during the counting, or by previous concurrent orders, or by standing joint rules, or by the formal enactments of law, has been asserted from the beginning of the government; that exclusive jurisdiction has been exercised at every presidential election from 1793, when a regular procedure was first established, until and including the

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12 Quoted by Dougherty, The Electoral System of the United States, p. 66.

13 The Presidential Counts. D. Appleton & Co., XLI. Quoted by Dougherty, p. 61.

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