1. Counts 4

WHO COUNTS THE ELECTORAL VOTE?

THERE have been twenty-one presidential elections under our Federal Constitu-
tion, but until now the methods of canvassing the electoral votes at the seat of
Government have never presented questions of much practical importance, except so
far as they established precedents for the future.*

The main result of the Federal canvass, whenever there has been an election by
the people, has always been known in advance of the meeting of Congress; and,
though questions as to the authenticity or validity of votes have repeatedly arisen,
their solution has in no instance hitherto made any practical difference with the
result.

Now, for the first time, the disputed votes may decide the result of the election.
There are 184 uncontested votes on one side, 165 on the other, and 20 in dispute.
It will be necessary for the constituted authorities, in some instances, to pass upon
the authenticity or validity of duplicate electoral certificates from the same States.
Where the authority lies that is to decide such an issue has thus become a question
of the gravest import, for upon it may depend not merely the control of this Gov-
ernment during the next presidential term, but the perpetuity of our political in-
situtions, and the confidence of our people and of all mankind in the elective system
and in the principle of popular sovereignty.

The provisions of the Constitution furnish a pretext for some diversity of opinion
upon this subject, especially when it is investigated under the glamour of fervid par-
tisanship, and when the choice of candidates may depend upon the interpretation
those provisions receive. The Constitution provides that the certificates of the
votes given by the electors, which are transmitted to the seat of government, shall
be delivered to the President of the Senate, and that the President of the Senate
shall, in the presence of the two Houses of Congress, open all the certificates, and
that "they shall then be counted.”

By whom the votes shall be counted; how far the counting is a simple matter
of enumeration, and how far it involves the additional duty of determining the
authenticity and validity of the certificates presented, are questions in the solution
of which the practice of the Government is our best guide. Attempts have been

* The Congress of the Confederation, on the 28th of September, 1787, directed that the Constitution,
with certain resolutions adopted by the Convention on the 17th of September, 1787, be transmitted to the
legislatures of the several States, to be submitted to conventions of the people thereof. One of those
resolutions is in the following words:

Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine States shall
have ratified this Constitution, the United States in Congress assembled should fix a day on which electors
should be appointed, by the States which shall have ratified the same, and a day on which the electors
should assemble to vote for the President, and the time and place for commencing proceedings under this
Constitution. That after such publication the electors should be appointed, and the Senators and Rep-
resentatives elected. That the electors should meet on the day fixed for the election of the President,
and should transmit their votes, certified, signed, sealed, and directed, as the Constitution requires, to the
Secretary of the United States in Congress assembled; that the Senators and Representatives should con-
vene at the time and place assigned; that the Senators should appoint a president of the Senate, for the
sole purpose of receiving, opening, and counting the votes for President; and that after he shall be
chosen, the Congress, together with the President, should, without delay, proceed to execute the Consti-

X

TEMPORARY EXPEDIENT FOR THE FIRST COUNTING IN 1789.

made at various times to secure supplementary legislation to meet the exigency
which is now presented to the country, but none of these efforts were fortunate
enough to unite a majority of the Federal Legislature in its favor. The difficulty
now has to be met under aggravated disadvantages. The two Houses are divided
in their preferences for the respective candidates; questions will be raised as to
the authenticity or validity of some of the electoral certificates to be presented, upon
the reception or rejection of which the result of the election may finally depend. In
view of the difficulties which our legislators will experience, with two great armies
of more or less heated partisans behind them, in legislating upon this subject with
suitable impartiality, it is the disposition and it will be the manifest duty of every
patriotic member of our Federal Legislature to adhere as closely as possible to the
precedents which have been sanctioned by time and continuous usage. A less aus-
picious moment for engaging in experiments, and for introducing new methods of
canvassing the electoral vote, could scarcely be imagined. The wisest devices which
have not the sanction of precedent would now fall a prey to merited suspicion and
distrust.

It is in deference to this conviction that the following compilation is submitted
to the public. It is intended to embrace a perfect and complete record of the can-
vass in the two Houses of Congress, with all the debates to which they have given
rise, taken from the official reports. Scattered as the originals are, through some forty
or fifty cumbrous and not readily accessible volumes, it would be a task which very
few could or would undertake, to make themselves even tolerably familiar with the
way in which this quadrennial duty of the two Houses of Congress. has been dis-
charged hitherto.

By the aid of this compilation, however, no one interested in the subject will have
a good excuse for remaining in ignorance of the precedents which have been estab-
lished, and in accordance with which it is to be presumed all proceedings at this final
canvass of the electoral vote, cast in 1876, will be conducted.

For the convenience of those who may have occasion to investigate this subject
the more important usages or precedents which the practice of nearly a century
have established in regard to the methods of opening, counting, and announcing
the result of the electoral votes for President and Vice-President of the United
States, will be here recapitulated.

TEMPORARY EXPEDIENT FOR THE FIRST COUNTING IN 1789.

The Constitution provides that the electors of President and Vice-President shall
"transmit "the certificates of their votes to the seat of the Government, "directed
to the President of the Senate ;" and 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.'

At the first organization of the Government in 1789, there being no President of
the Senate, a provisional arrangement was necessary. The votes had been trans-
mitted to the Secretary of the Congress of the old Confederation. The Senators, on
assembling in conformity to the suggestion made by a resolution of the Convention
of 1787, chose a president "for the sole purpose of opening the certificates and
counting the votes" of the electors; appointed one teller, and sent a message inform-
ing the House of their action and their readiness to proceed to the count of the
votes. The House appointed two tellers, and assembled with the Senate. The
resolution of the Senate, while declaring that its special president had been ap-
pointed for the sole purpose of opening the certificates and counting the electoral
votes, did not designate the person or persons by whom the votes should be counted.
It might have been their intention that while the President of the Senate should
open the packages, the two Houses when convened should count the votes them-
selves, or determine by whom they should be counted. This would reflect com-
pletely the sense of the resolution which stated the purposes of the meeting, but
not the agents who were to execute those purposes. The President of the Senate,
however, reported to the two Houses that they had met and that he had opened and

-- ":.

REGULAR MODE OF PROCEDURE ESTABLISHED IN 1793.

xi counted the votes. The election of Washington as President was unanimous; and everything was done rather as a formality, and without debate as without deliberation. The counting involved nothing beyond a mere computation, and even that meagre power, so far as exercised by the special president, was not assumed as an official right, but was derived from an express resolution of the Senate and the assent of the House. The counting was done under a special appointment for that sole purpose before the Senate had elected its president pro tem.

In the nature of the case, what was done on that occasion can have no authority as a precedent.

REGULAR MODE OF PROCEDURE ESTABLISHED IN 1793.

At the second election—in 1793-the two Houses established a regular procedure for the counting of the electoral votes, a procedure which has been substantially followed ever since. They assumed and exercised the power of prescribing by concurrent resolutions of the two Houses a mode of counting.

That mode was devised and reported by a joint committee of the two Houses. The committee was raised under concurrent resolutions charging them, among other things, with this duty:

February, 1793, "to ascertain and report a mode of examining the votes for President and Vice-President," page 2.

February, 1797, "to ascertain and report a mode of examining the votes for President and Vice-President," page 5.

January, 1801, "to ascertain and report a mode of examining the votes for President and Vice-President," page 10.

February, 1805,"to ascertain and report a mode of examining the votes for President and Vice-President," page 19.

February, 1809, "to ascertain and report a mode of examining the votes for President and Vice-President," page 22.

February, 1813, "to ascertain and report a mode of examining the votes for President and Vice-President," page 26.

February, 1817, "to ascertain and report a mode of examining the votes for President and Vice-President," page 29.

February, 1821, "to ascertain and report a mode of examining the votes for President and Vice-President," page 34.

February, 1825, "to ascertain and report a mode of examining the votes for President and Vice-President," page 86.

February, 1829, "to ascertain and report a mode of examining the votes for President and Vice-President," page 89.

February, 1833, "to ascertain and report a mode of examining the votes for President and Vice-President," page 90.

February, 1837, "to ascertain and report a mode of examining the votes for President and Vice-President," page 98.

February, 1841, "to ascertain and report a mode of examining the votes for President and Vice-President," page 98.

February, 1845, “to ascertain and report a mode of examining the votes for President and Vice-President," page 100.

February, 1849, "to ascertain and report a mode of examining the votes for President and Vice-President," page 104.

February, 1853, "to ascertain and report a mode of examining the votes for President and Vice-President," page 107.

February, 1857, "to ascertain and report a mode for examining the votes for President and Vice-President," page 112.

February, 1861, "to ascertain and report a mode for examining the votes for President and Vice-President," page 170.

January, 1865, "to ascertain and report a mode of examining the votes for President and Vice-President," page 257.

On all occasions prior to 1865, the mode reported was for that election only. In

1865, the joint committee reported a permanent standing rule called the 22d joint rule, which has governed the counts in 1865, 1869, and 1873.

The phrase "mode of examining the votes" imports a verification, to some extent, of the votes. The resolutions included some other objects: always the notification of the persons elected, until 1865, when, on the adoption of the 22d joint rule, the notification was by a separate resolution; often the "regulating the time, place, and manner of administering the oath to the President;" sometimes, as in 1857, the question of ineligible electors; or, as in 1821, 1837, 1857, and 1869, the dealing with disputed votes.

Every one of these resolutions asserts the rightful power of the two Houses over. the counting; and that power was asserted in twenty-one successive elections without denial or question. Every one of these resolutions is incompatible with the existence of any power whatever over the subject on the part of the President of the Senate. If he had a constitutional right to govern the count, no one of these resolutions would have been valid.

After the mode of examining the votes was "ascertained and reported" by the committees, the two Houses by concurrent resolution have adopted the mode finally agreed upon. They have not only asserted their power over the counting in the creation of those committees, but in all cases have again asserted it by a formal and authoritative adoption of the work of the committees by concurrent resolution of the two Houses.

The resolution prescribing the mode of counting has always begun by fixing the time and place of the joint meeting of the two Houses for the purpose of counting the electoral votes.

PLACES OF MEETING OF THE TWO HOUSES.

The places of meeting to count the electoral votes have been determined invariably by a joint resolution of the two Houses. At the first two elections of General Washington they met in the Senate Chamber.

At the election of John Adams the Senate joined the House in the Hall of the Representatives.

At the several elections of Thomas Jefferson, in 1801 and 1805, the two Houses met in the Senate Chamber.

Since then they have invariably met in the Hall of Representatives, making four times in the Senate Chamber and seventeen times in the Hall of the Representatives.

APPOINTMENT OF TELLERS BY THE Two HOUSES.

The resolutions prescribing the mode of counting have always contained a provision that one teller on the part of the Senate, and two tellers on the part of the House of Representatives, should be appointed, and, in every counting of the electoral votes since the formation of the Government, two. tellers have acted for the House of Representatives and one teller has acted for the Senate. Even in the anomalous counting of 1789, that was so. At every counting from 1793 to 1873, inclusively, the House by a resolution has appointed two tellers and the Senate has appointed one teller

In the language of Senator Boutwell (March 13, 1876, see "Proposed Changes, p. 11), "the tellers were the organs, the instruments, the hands of the respective Houses; the votes were counted by the tellers, and, being counted by the tellers, they were counted by the two Houses. And, therefore, there never has been any different practice, and no different practice could have arisen under the Constitution. The two Houses in convention have from the first until now counted the votes.' ""

The fact that the tellers have always been appointed by the two Houseshave held these trusts at the pleasure of the two Houses, subject to their orders and instructions, and wholly free from the control of the President of the Senate, is of itself decisive in favor of the right of the Houses to count the votes, and is equally decisive against any pretension on the part of the President of the Senate to govern or in any manner to interfere with the counting.