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 never 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.'

12

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 Houses 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

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.

last count of electoral votes in 1873. It was exercised by concurrent orders of the two Houses from 1793 to 1865, and by a standing joint rule in 1865, 1869, and 1873. Every counting at these twenty-one successive presidential elections has been conducted under and governed by the regulations thus imposed. These regulations have prescribed every step in the procedure; have defined and regulated the powers of every person who has participated in any ministerial service in the transaction. They have controlled every act of the president of the Senate in respect to the counting, except the single act of opening the packages of the electoral votes transmitted to him by the colleges, which is a special duty imposed on him by the Constitution. During all this long period, the exclusive jurisdiction of the two Houses, exercised upon numerous successive occasions, has never, in a single instance, been the subject of denial, dispute, or question.

The president of the Senate, although he has regularly, in person or by some substitute appointed by the Senate, performed the constitutional duty of opening the electoral votes, has never, on any occasion, or in any single instance, attempted to go a step beyond that narrow and limited function. The two Houses have also asserted the right to prescribe a permanent method of counting the electoral votes."

With reference to those cases in which there has been received by Congress but one return of the votes of electors whose appointment has been lawfully certified according to Section 3 of the act, Section 4 provides that no vote or votes so cast "shall be rejected, but 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 so certified."

As to this Senator Sherman objected. "That," he declared, "is a dangerous power. It allows the two Houses of Congress, which are not armed with any constitutional power whatever over the electoral system, to reject the vote of every elector from every State, with or without cause, provided they are in harmony in that matter."

"The language," comments Dougherty, "is none too strong. If a Congress, protected by an adequate vote in each chamber, wished to destroy the government, this provision would enable it to do so. It permits a majority, upon technical grounds, to defeat the popular will, to nullify constitutional government and prevent the inauguration of a new President." "The Section (4)," continues Dougherty, "clearly means that in case of such prior determination in the State (of controversies as to appointment of its electors) only the regularity of the votes given shall be questioned in the two Houses. But what shall happen to the vote of the State, if the two Houses do not separately agree that it has been regularly given? Is it to be lost? If so, the vote of a State is sure to be counted only when both Houses agree that

it has been regularly given."

The subject of multiple returns is so well discussed by Dougherty that quotation is again justified.

must

"The subject of multiple returns," says Dougherty, be treated under several aspects. In the first place, if there has been a determination in a State of a contest over the appointment of electors, the votes regularly given by electors declared appointed by this determination are to be accepted by Congress, and the others discarded from consideration. In this single instance Congress renounces all right of inquiry into the state vote except to ascertain what votes have been regularly given, a field of inquiry that may cover electoral disqualifications and votes by eligible electors for unconstitutional candidates. If the two Houses do not separately concur that the votes are regular, state disfranchisement ensues. In the second case, if conflicting state authorities or tribunals, two executives, for example, certify to different sets of electors, the votes regularly given of those electors, and those only, of such State shall be counted

14

14" It is not expressly stated in this period of the section that if the two Houses in separate assembly decide that such electors have not given their votes regularly, they may, by concurrent action, reject these votes, though it is to be presumed that such is the meaning of the law. The language of this paragraph is very confused, almost unintelligible; and since we have, as yet, had no actual precedents of interpretation, there are certain points concerning which our predictions cannot claim the attribute of certainty." Burgess, III, Pol. Sci. Quar. 643.

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.' In this class of cases the two Houses acting separately are given the power concurrently to decide upon the title of electors, as well as upon the regularity of their votes. And if they should fail to agree that a set of electors represents the State, there is no provision as to what shall happen, but presumably the vote of the State is to be sacrificed. Or, in the case under examination, after having agreed upon the title of the electors, the Houses may disagree as to whether the votes have been regularly given, in which event the State loses its vote. In questioning the title of electors, how far is the inquiry to go? The act does not fix limitations. Thus in this class of cases the State has two chances of disfranchisement. Here Congress arrogates a power of review of the decision of the state tribunal, and if the two Houses do not concur (which they would not, if of opposite political complexion) the vote of the State is lost. In this particular case, as Sherman pointed out in the Senate, Congress is given the power to exclude the vote of New York or any other State in the Union, not by the will of the two Houses, but by the veto of either House;' and, as he forcibly added, "If the Senate should reject the vote of a State and thus secure a party advantage, the House could reject the vote of another State to secure a like advantage.'

"In the third case, where there has been more than one return but no decision by a state tribunal upon the appointment of electors, the State may be disfranchised through the failure of the two Houses to agree. The language is:

"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 the State. But if the two Houses shall disagree in respect to 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.'

"The two Houses may in this class of cases inquire whether the electors have been legally appointed and also whether their votes are lawful votes. If the two Houses disagree upon either proposition, the votes (the word 'lawful' is omitted before 'votes ') of the electors who are fortified in their appointment by the certificate of the state executive are to be counted. In this one case of a double return, the difference of opinion between the two Houses will not lead to the rejection of the State's vote, if there is a certificate of the state executive as to the appointment of the electors. In the fourth case, the same broad powers are conferred upon the two Houses. Where there is more than one return from a State, in which there has been no determination of the question who are its electors, and neither of the rival sets of electors is furnished with the certificate of the executive, the two Houses may determine who are the lawful electors of the State, and the votes of such electors shall be counted, unless the two Houses by concurrent resolution decide that such electors have not given their votes regularly or lawfully.'

" 15

Among other questions left unsettled by the act are the following:

In case a constitutionally ineligible elector is voted for and elected, is he simply to be disregarded, and thus the State deprived of one of its electoral votes; or is the person receiving the next highest popular vote to be held elected?

The act does not provide how and under what circumstances the certificate of a governor may be impeached: Nor does it decide what shall be done if electors are by act of God prevented from voting on the date fixed, as happened in Wisconsin in 1857.

No provision is made for a chief executive in case neither President nor Vice-President is chosen by March 4. It has been suggested, however, that in case such an eventuality is foreseen the then President and Vice-President may resign, in which case, by the law of 1886, the Secretary of State would act as President until an election is had.16

15 Op. cit. 237ff.

16 See Woodburn, The American Republic, 119.