Year: 1877

Nothing can well be more foreign to
| the theory of the Constitution than the
claim that Congress, in respect to count
ing the electoral votes and declaring the


result, is invested with the powers Of a
Returning Board, and, hence, has full


power to count or reject these votes ac-


cording to its pleasure. This claim as


sumes that Congress may 60 behind the


electoral certificates and inquire into the


legality Of the appointment of electors,


and then judge and determine with ref


erence to all the proceedings relating


thereto. The certificates are only prima
faeie evidence, and may be rejected or ac-
cepted according to the judgment Of
Congress, just as each house of Congress
decides upon the elections, returns, and
qualifications of its own members"


This view entirely subverts the funda-
mental ideas of the electoral system, as
stated in the Constitution, and assumes
for Congress a power for which there is
no warrant in that instrument. The doc
trine of the Constitution is that the
States appoint the electors. in such man
ner as the Legislatures thereof may di-
rect; that State officers exercise all the
functions connected with the appoint
ment that the electors, being appointed
and furnished with the legal evidence of
the fact under State authority, cast the
votes for President and Vice President
that they canvass their own votes and
certify the same to the President Of the
Senate; that Congress may by law desig-
nate the time when the electors shall be
appointed and the day on which they
shall give their votes; that the two hous-
es of Congress must be present when the
votes are counted; and that the electoral
certificates being identified at the time
of the counting and regular upon their
face are conclusive evidence as to the
votes to be counted. The States, hence,
settle all questions Of both law and fact
in respect to the appointment Of cleo
tors; the electors themselves settle all
questions Of fact in respect to their own
votes and the counting authority, whe-
ther vested in the President of the Sen
ate or in Congress, simply identifies the
genuine certificates, aggregates the votes,
and declares the result. This may be a
very defective system-we think that it
is so in some respects; yet it is the sys-
tenn which the Constitution has estab-
lished, and it gives not the slightest
countenance to the idea that Congress
can exercise the usual powers of a Return
ing Board. rejecting or counting votes in
its discretion.


IL Congress were invested with these
powers as is not the fact, il would then
be the sovereign judge Of the occasions
and causes demanding their exercise,
without a word in the Constitution recit-
ing such occasions and causes and with
out any restraint upon the exercise Its
discretion would be absolutely uncon-
trolled. 1t might reject votes for any
cause or upon any pretext. This would
be practically equivalent to giving the
power of choosing the President to Con-
gress. The two houses, if representing
the same political party, might so man
age the counting as to count in their
own candidate, whether actually chosen
by the electors or not. There would be
no difficulty, especially in a close cleo
tion, in finding pretexts enough for this
course. If both houses of the present
Congress were Democratic, there would
not be the slightest doubt as to the re.
suit of the counting; and the same would
be true if both houses were Republican.
The counting power in either case would
have no trouble in determining who has
been elected to the Presidency-and
that. too. even il the question were much
less doubtful.


Congress, moreover, consists Of two
houses that are separate and distinct,
having equal dignity and authority, and
neither subject to the authority OF the
other. The theory would, hence, give
us two separate, coordinate, and indie.
pendent Returning Boards. Assuming
the counting authority to be joint au-
thority, equally shared by both boards,
what rule shall we adopt as to its exer
cise2 Shall difference Of judgment as
to whether the votes of a given State
shall be counted secure the counting or
rejection OF these votes2 If we adopt the
rule that all votes shall be counted ex
cept such as the two Returning Boards
may concur in rejecting. then either
board may compel the counting OF all
the votes. If we adopt the rule that no
votes shall be counted except such as
the two boards shall concur in accepting.
then either board may reject all the
votes The latter rule being adopted,
then the two houses of Congress, il polit-
ically opposed to each other, may play
this game OF rejecting votes to an indefi-
mite extent. The work Of exclusion, in
the heat of party strife, might wholly de
feat the will OF the people; and either