The daily gazette., 1876-11-27
The v.rmens Ps.sm.sssr.

CLEAR, CONCLUSIVE OPINION FROM A
| LEADING VERMONT LAwYER-vEH-
| MONT HAS ONE DEMOCRATIC ELgCTOR
Or NO ELECTORAL COLLEGE.
Mr.. +. J. Phelps, distinguished prac-
ticing lawyer in New York and Burling-
ton, has returned from Vermont. He
gave the following opinion of the recent
election in that State and its bearing upon
the Presidency:
''Mr. Sollace's election was in my opin-
ion absolutely void. 1t was the same as
if the vote for him had been blank votes,
or had been cast for person not in exist
ence.
"The person receiving the next highest
number of votes was Mr.. Amos Aldrich,
one of the electors on the Democratic tick
ct, who received six more votes than his
associates on that ticket. Whether in
this case Mr.. Aldrich was elected may un-
der the American decisions, be open to
question. A distinction has been taken
between an election where the successful
candidate must receive majority of the
votes cast and one where he need only
have the highest number of votes. Under
the provision Of the Constitution OF the
United States Presidential elector need
not receive majority of the votes. He
who receives the highest number is de-
clared to be elected. 1t may, therefore,
be claimed with greater force that Mr.. Aid
rich, being one of the five who have re-
ceived the highest number of legal votes,
comes within the constitutional require
ment that Of the ten persons voted
for, only four of the five receiving the
highest number of votes are elected. On
principle, this would seem to be sound. l
have not examined the decisions thorough
ly enough to express an opinion of their
effect.
''But it is certain that Mr.. SOlace was
not elected; and therefore, if Mr.. Aldrich
was not elected, but four electors have
been chosen in Vermont.
cater the discovery of the ineligibility
of Mr.. Sollace the Vermont Legislature
passed an act authorizing the other elec-
tors to fill any vacancy causen by the
ccith, resignation. or disqualification OF
an elector but if the vacancy caused by
the ineligibility of Mr.. Sollace is not such
a vacancy as the electors may constitution
ally fill, clearly this statute would be of
no effect.
"A protest against this action was filed
on the part of Mr.. Aldrich, and protest
was likewise sent to the Governor of Yer
mont, on the part of Mr.. Aldrich and 9TH
ers. against his issuing commission to
Mr.. Sollace.
"The Board of Canvassers committed,
in my opinion, a grave error. The stat
ute expressly charged them with the duty
of certifying in their report all votes that
they found to be illegal. If votes cast for
candidate ineligible to be elected were
not illegal, no votes could be illegal. And
if the action of the board was correct, this
absurdity results-that a person prohibit
ed by the Constitution of the United
States from being chosen an elector may
yet be chosen, and no power anywhere
exists to raise or determine the question
of his eligibility or to prevent his holding
the office, No Court in Vermont having
jurisdiction of the subject was accessible
by any proceeding under the law of that
, State before the meeting of the electors TO
cast their votes would be held and there
| fore no legal remedy could be invoked.
| Mr.. Aldrich will undoubtedly attend the
meeting of the electors in December and
claim his right to vote, which will, of
course, be refused him.
| 'The whole matter must then be re-
mitted to Congress, which will have to de
| eide whether an elector who is constitu-
tionally ineligible to be chosen can be
made eligible by the refusal of the Board
of County Clerks of Vermont to certify
the fact on the ground that they have no
power to inquire into it, especially when
it is not claimed that the power to inquire
into or find the fact resides in any other
State authority