New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-01-13
CONGRESS AND THE VOTE.
,rrrPR IRON Ex-spEAKER GROW.

fhf EdtfOr OF Iht
ep. With not little hesitation | comply with |
,oues!s for my views 10 the power of tho PreSi-
Amt Of the Senate and of either or both Houses of
Congress on counting and aScertanng the result of |
- c,,ction for President of the United States. l |
;, any consideration of the question as 10 the |
orrer Of Congress To define and fix the mode of |
ountrng the electoral votes after the returns are
nened by the President of the Senate. For take .
= there can be no question 10 the power of the
t,yo houses TO lcgslate i'll aid of provision of the
constitution. But i'll this case, should there be no
LEGISLATION or concurrent action by the two houses
ubot is 10 be done, and, if anything who ~
to do i'll Article 2. Section l, and the Twelfth
,nopdmcn;of the Constitution provides that
Each state shall appoint. in such manner as the LagS
,,,ir thereof may direct. numsr Of electors equal to
thr Whole number OF Senators and tscntati!es to
1sLicb m, STATE may h. entitled in the Congress
The electors shall meet Ia their respective states ana
,te nv ballot foV President and Vce-rresiicnt.
s tbcy shall make distinct lists Of all persons vnte
.r as President and OF all persons voted Tor as vice
President, and OF the number OF votes for each, winch
lists they shall sign ard certify and transmit scaled 10
Tie seat Of the Govcrunen of tue United states ars"ed
IN hr President OF the Senate. The Pccsdcnt or the
,ste shall. the presence OF the senate and Iiousc of
FenrscnatvcS open all The certificates, and toe votes
Shall teen he counted TIE person havlns the greatest
no he Of President sha be the President ii such
nnn,ner I've a majority Of the whole number of electors
aT,oirtAd: ana II person have majority. then
from the persons having the highest nnnh19 ugs exceed
House Of Representatives shall choose irhrdiaieH by
ballot the President And II the Ii1'ise OF Key
night OF choice shall deveye upon them, before the
fourth day of Marh next iolowing then the NieePlcs-
Sen shall act IS sdenf, in the of the death or
Othcr constitutional disability of the President.
Az OFFICER FOR SPECIFIC rUEr0sr.
'-7Ipderhs pruyisicn of the Constitution The power
n ascertain who if any one, has 4 majority Of the
whole number of electors appointed, evidently must
b. in either the President of the Senate in the
two Houses of Congress, or both. For the mandate
of the Constitution imperative that, after the
1 I.,,t 10 L., e fi,..G 10 fbn
votes shall then be counted aud person or body
ofmea is mentioned or referred to in that counec-
tion ether than the President Of the Senate and the
two tousca of Congress. 1t is one OF those pGoyi-
soas of the Constitution not specifically demanding
legislation yet put in such phrseology not to eX-
clnde LEGISLATION in aid of IT, So that should the
lawmakiuc power act IN aid aud furth"rance of the
declared object, it's acts would De Of binding force
and effect.
But in case there is no action by tfe, Jaw making
power. what Is 10 be done under this express and
mandatory provision of the Constitutions >IIc re-
turn, are 70 bc opened in the presence of the Senate
and House of Representatives, not in joint con-
yention If the members of tie Senate and House,
hut in the presence of the bodies known the Sem
ate and tile House. Tie Senate and the lionse hav-
ing coequal powers, unless restricted by constltu-
toual provision, give effect 10 their acts upon
any subject only i'll JOINT resolution Oh positive law
IT, therefore they Ia count the votes aud asceT-
tam the result, IL he done only by concurrent
action la ease there is concurrent action after
m, returns are opened as provided, what is to be
done
The President of the Senate. as the custodian of
the returns and in the receiving and opening land III
everything that he has to do with them) is an
Official created by the Constitution itself for Il
specific duty, aud in it, performance he is clearly
not the presiding officer such of eitlrE house or
of tho two houses 10 he subject 10 their drec-
tons any way, except under joint rule OF positive
law For he could perform the duty thus assigned
him just rs well at the clerks desk az i'll the pre-
siding iyers chair The Senate, if The above view
is correct. cannot by itself give any specific direc-
tons or instructions to the person who receives and
opens the returns because it happens to pc their pre-
siding officer that the Constitution designaes for
that duty Much less can the House. by itself give
any instructions, for the person designated has
connection whatever with their body.
The President of the Senate then when he comes
with the returns to be opened and the votes TO be
counted, comes not presiding officer over either
or both houses. but he comes as an independent
officer of the Government to perform duty fixed
and defined by the Constitution. In the absence OF
any legislation or concurrent action of the two
houses, what is he to do II Under such circumstance
would it be q discharge of his duty to open all the
certificates and lay them the desk in tic presence
of the two houses and then depart I Certainly it
would be If he is only to place them in the posses
sion of the two houses and then they 10 dispose
of them by motion and simple resolution.
In the absence of any legislation or concurrent
action of the two houses how is the mandate of the
Constitution to count the votes to he executed un-
less il is done by the person whom tue Constitution
has selected to receive and open them '-espeelaly
when no else is specifically directed To do 1t and
1t is neither perversOn of language nor forced con-
struction for him to do it, The requirement that
the certificates shall be opened in the presence OF
the Senate and House no more confers the power to
count the votes on either house than does law
that requires an election board to conduct pre-
cnct election in the presence OF s,peryisors APP
pointed by the courts to be present confer power on
said supervisors count the votes and declare the
result. Yet the board must perform that duty IN
the presence of the supervisors, who, however, have
nothing to do with ascertainmg and declaring the
vote.
POWER OF THE vICE-PRzsIDRNT NOT ARBITRARY
What votes under this constitutional provision
are to be countedf The votes cast by the electors
duly authorized to cast the same by the laws OF
their respective States. If the powerful count rests
In the President of the Senate, i'll the absence OF
legislation how is he TO ascertain who are the cleo
tors duly authorized under the laws of the respective
Staesi The same way that the President OF the
United States would ascertain who is the Only elected
Governor of State in granting the military aid
that he is required furnish in certain cases on the
application of the Executive of State. 1t may be
sand that if the President of the Senate is to ascer-
tain whether any person has received majority OF
the votes OF the whole number Of electors appointed
1t would be clothing HIM with absolute power. Ii