The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-12-13
COUNTING THE VOTEs.
A PubIie Letter 10 the senators from New
York.

GENTLEMEN: | address this letter % you oe-
cause believe th tin the present critical condi-
tion Of our country you will auk' de.ire TO dts
charge YOUR public duty without heiug in
Il enced by the political result & which your
action may lead.
Do not understand me. however, sirs. pray
you. IA pre-uming to ins ruct you In the moral
/ sentiments whirh should govern the disch rae
Of your duty ~ Scnlt' r.. Blt lnnf study ot the
PRINCIPLES aud structure OF our system Of Gov
/ crnment has led me, hope without any In
fuence from party feelings. to form opinions
upon questions that have now, unfortunately.
become Of great practical consequence. somc
+ Of these views 1 desire respectfully to Law be-
fore YOU.
There can hardly he any great difference Of
opinion among constitutional lawyers. concern
| ing tho general nature Of the function OF the
two Houses ofCongreas 10 counting the cleo oral
votes. That this Ia junction to be performed
nv the Houses hemselyes, in the presence OF
each other, and not hy the presiding on ,er Of
the senate. IA settled bya practice Of such
duration that II must be considered as an au-
thornative and IN u construction OF the Con-
sttution. But the dlfficulty that IA now to be
encountered consists IN determining VIII It the
function Of "countlnz the electoral votes en-
braces; for whe sher the twenty -seoond joint rule
l. or Ia not no " IN operation as binding method
| of procedure, or II Only to be reg ,rded ~ n
method thar Ia both convenient and consistent
with the object that Il to be ACCOMPLISHED In
! the execution Of tni, part of the Constitution,
there Ia still the same necessity for determining
what the duty OF counting the electoral votes
authorizes the two Houses. or either OF them,
| to do.
There ia great force in the argument which re-
CARDS the certihc ties NJ the electoral votes. duly
attested IN the m,nner contempl1ted bv the
! Cons tuition as conclusive evidence for some
| purposes. That such expected by the
/ trainers Of tho Constitution 10 be the general
effect u the certin 'ates Is Apparent from the
dire .ton that the persons acting ~ ell ,ct'rs lrs
! 20 sign these uatrunent3. that thew are 70 seal
| them NJ, and that they are to transmit them. so
SO led, to the President OF the Senate, who
/ il TO open them In thu presence Of the
two Houses. MT giving to these direc-
tons an the weight that should DO as
signed 70 them, they amount to this, that the
certificates are conclusive evidence that the per-
sons VINO haze signed the Ger incates a. electors
acted In that 10 icity. aud gave the votes winch
the ccrtncltes import.
As this is obviously the effect that was intend
ed to he given t. the certificates, II IL not diff
Rcult 70 discover the reasons why the Constitu
ton did NOT provide expressly for some mode OF
| determining. IN DOUBTFUL and dis iuted clses,
the tile Of the persons Assuming - act - cleo
|
siruments would reach the two Houses OF Con-
gress under some ofnsil attsstaton 81 the
states from which they wore To come. which
would upon the ordinary principles and urac-
tice by which the pIolir acts u a State are
verified, ON tally inform the two Houses Of
Congress that the persons who signed thu GER
tiGcatss hld acted ~ electors and had gwen the
votes whicn they certify Asit was not anti
cipated that questions would arise an ting lac
rgns 81 the perSons signing the crrtiAclte- ~
electors to ac, In that clpAci,y, no express pro-
vision was male 10 meet an deter nine such
q ic.tcns. The only express provision is ina.
certificates are t, be made AMI sisn i by the
electors, ami that these instruments are
~ he seled up and forwarded % the Sc ,t
or Government. LoOking. therefore. to the ex-
pres, provisions ~ the Cunstituiio the legal
char ,cter OF these Instruments would seem 10 be
that they show cllclusiysy tina, the persons
Who have sisnel th'n acted as el'c'1r'. and
have given tne votes which they certify thev I'D
Civ. In ala ordin'ry clses. mi, prc-unp' ,n "a
en.u-h. BIt th-q l.~tion That tls now au-tn
| IL whether the function ~ cnIutins the Gee
toral votes. cert 4 "A "a such. usca-saril9 or oy
reasontoie impuc tuon Involve, some auth Ititv
80 Judge % the tifls II the uerl,n9 q tnlnc the
crr 10 'ntes - act as cleo rs; or wh-ther ...lr
rightfui capacity t. 30 act /, Incll-,yelf deter.
I mined hy tHa yerilcIuon OF TINT clpi' Ity
! gwen v INC proper H.ifNNFItY or tIl' r .tt ,
that no inquiry can he made. and nothing our
an antnmciicll cnuncr tim Of the votes 'ru-
1si O. II take place. The clements tAAt ough, q
decide tlis qle'ton nr' various. w are e. IN
q ire. nr-t. what aAs the Constitution commit
tel 10 the States. in tins mattnrof appointing the
electors, AMI why an u iuterlo4e sicn an in
termedilte body t. maze choice ofth, EIsrI-
tive of the United ~t3t.sY Secondly. ssum.l-
thattte states a. 1ney h-h fuzzy may. allow
their electorate 30 appointed by ths votes OF
the people az l.rIe, what means are there II
preventing the cfrct Of frapds IN the counrnr
ofthe pop llArvote. oy the state cinyl- ,ers. II
T no inquiry can be made into the validity
u the appointment Of electors. when the
; electoral votes come to bs counted by
the two Houses Of Congress With re
rd to tho n.st OF these inquiries, there
/ Is little diihrulty, because We have iudifputaD
history to = aide Us. We know from the process
, Of forming the Constitution precisely what wer
} the reasons that finally governed its provision
with regard TO llng the Executive Ode; ans
, | tho elcAs lns re ist measure ~ the tXteu
. ana operation Of The proyl-ilns themselves. W
h know that I'm tho pr cess OF framing the Consti
tuition the plans Of having the Executive ap
e. pointed by the national Lesl- liture, bY the sen
% ate 10y the people OF th' Uni.ed States actin
n ~ one comm unity, were successivelY re- iecte |
q for various rea5ous connected more or les
Il with the structure which Il WAS necrs
% AIRY 10 give % tho Government IN othc
e respects; and that the pl N Of yesting th
- choice 0f the President IN q body u electors, L
n he appointed in each state In such manner %
It's Legislature might determine, was ilnali
:, adopted, upon the idea that 10y removing Tia
choice Of President from the direct action @
ID the people ana vesting II IA an intermedi 4
, body, not bcirOd permanent ostdblishmem in IN
< STATE Governments, a wiser choice Of tho Execu
., tive would lie effected. and corruption md in
=" trtgue would be avoided. We are rather too niue
N Disposed in our generation, T. lose sight
Al the great purposes Tor which the Elector
Colleges were instituted, In consequence Of III
practice which has crown up u cho Jsnp ia
electors IA parisans u particular candidate
a practice that - comics sedy wide departni
from the purpose Of the Constitution. Bur Tn
', practice should not be allowed 10 obscure m
g. real meaning and intent OF the power tha, vi
conferred by the Constitution or the l.cg,-l
r. lures OF the State in reg lrl t. the mode II Al
80 pointing the electors That grant IA grant
power to each state to determine how its Pre-
- dental electors SHALL DO appointed. Hut q