IT is now two years since the country was suddenly plunged, after one of the most exciting presidential campaigns in its history, into a dispute over the result of the election quite without precedent. It lasted from the day of voting, in November, until the day of inauguration, in March. It threatened, in the opinion of many people, to involve the country in a civil war, and it excited passions which even yet have been by no means allayed, but which, on the contrary, promise in the next contest, only two years hence, to produce much trouble. The masses of the democratic party still insist that they fairly carried the election of 1876, and the masses of the republican party still insist that, but for the intimidation and frauds resorted to by their opponents, the election would have been in their favor “ on the face of the returns.” With this persistence of an old quarrel staring us in the face, it might have been presumed that the dangers of popular tumult and commotion revealed by the election of 1876, which it is nobody’s interest to perpetuate, would by this time have been thoroughly traced to their causes, and that efficient legislative measures would have been devised to guard against them in the future. The matter has indeed engaged the attention of both houses of Congress, and committees have been appointed to draw up bills; but as yet nothing final has been accomplished. If at the next meeting of Congress no act is passed, it is quite safe to predict that none will be before 1880, and that we shall in that year be confronted again by precisely the same perils which we so narrowly escaped in 1876. It is not too early, then, to consider what the main features of any measure to be adopted by Congress ought to be.
It is important to observe at the outset that there has been a good deal of confusion in the popular mind and in the public press on the subject of what the dangers revealed by the campaign of 1876 actually were. This is in part due to the great complexity of the presidential electoral machinery, and in part to the protracted duration of the canvas of the returns, which gave ample time for numerous questions to arise calculated to distract and distort the popular judgment. It is difficult, too, even now for any one to approach the subject except from the position of a partisan with preconceived views as to the facts of the election. The question is indeed an extremely simple one from a partisan point of view. To any one who believes Tilden was elected, the return of Hayes by the States of Louisiana and Florida was a mere fraud; it was not a question of machinery, but of honesty. To any one who believes that it was right to go “behind the returns ” to see who was really elected, the whole difficulty arose from the fact that large numbers of voters were excluded from the polls by intimidation and violence. It is proper therefore to say that the writer of the present article adopts neither one nor other of these views, but endeavors to look at the facts in the light in which they might present themselves (if there be such a character) to an impartial historian.
Fifty years hence, then, it may be imagined that the disputes of 1876 will appear to our descendants in somewhat this light: The campaign was remarkable as being the first since the war in which the democrats and the republicans were pitted against each other on nearly equal terms. The republicans had held possession of the government for sixteen years, had carried it through a bloody civil war, and were in full possession of all its branches. The democrats, on the other hand, after having been almost destroyed as a party in 1872, had recovered a great part of the strength they possessed before the war, and this mainly through a second time obtaining political control of the South, by means of the negro vote, placed within their grasp by the enfranchisement of the freedmen. This enfranchisement had in fact given them more power than before, inasmuch as it had enlarged the basis of representation. The curious spectacle was therefore presented, twelve years after the close of a war which was supposed to have killed “ sectional ” politics at the root, of a division on the old party lines of North and South. More strange still, it was seen from the first that the election might very likely turn on the vote of one or two of these very Southern States, in which the majority of the voters were black, and therefore according to the democratic theory probably conservative, according to the republican theory necessarily republican. For there has been nothing more curious about the politics of the South since the war than the manner in which the whites, in State after State, although originally disfranchised and excluded from all participation in politics, have gradually, as they have from time to time again gained political rights, renewed control of their former slaves, even in States in which the latter greatly outnumbered them. That this reassertion of the political supremacy of the white race was natural and inevitable under the circumstances of the South seems clear from the fact that it was the result of a movement extending over the whole South, fiercely opposed at first whenever it showed its head, and carried on in the teeth of constitutional amendments, statutes, the civil service, and even the army and navy. Every external force which can be brought to bear upon the machinery of government the republicans had tried, and tried in vain. The forces by which, in the long run, the superior race leads and controls the inferior race it was too far off to use. It is not necessary to defend or to attack the means adopted by the Southern whites to recover possession of their States. The important thing to be borne in mind is that by the use of these means the black had already ceased, in most of the Southern States, to count as a political force, except in the hands of his former master; while in the two or three States on which the election turned the process of reducing him to a political nonentity had proceeded just far enough to make each party confident that a majority of the voters was on its side. In Louisiana, Florida, and South Carolina, the whole machinery of government was still in republican hands, and recent elections showed republican majorities; while at the same time the process called by the republicans “ intimidation,” and by the democrats “ conciliation,” had reached that point at which the latter felt confident that the negroes had changed sides, and were prepared to change their votes.
It would be difficult to imagine soil better fitted to produce a contested election than this, and to increase the danger the campaign was conducted on both sides with great bitterness, which the revival of a sectional division did not tend to mitigate. The campaign ended, as many people feared it would, in a dispute over the result turning on the election in three Southern States. The quarrel lasted until the middle of the winter, when, by a compromise between the two parties in Congress, a tribunal of final and conclusive jurisdiction was erected which did indeed determine the questions at issue, but unfortunately by such strict party votes as to rob its decision of a great deal of the weight which was hoped for it. For, without expressing any opinion as to the merits of the decisions of the electoral tribunal, it cannot be disputed that the great good which was hoped for from it — the cessation of all discussion about the title to the presidency — was not attained. The decisions of the tribunal were not accepted as conclusive by those for whose persuasion it was contrived,—the defeated party.
That such a result should have at first suggested much severe criticism of an electoral system under which it was possible was only natural. It was particularly so where, as in the case of this country, the electoral machinery is peculiar and anomalous in character, and the provisions of the law with regard to ascertaining the result of a presidential election scanty, if not obscure. At the same time it by no means follows from this that the criticisms were just, or that we should be any better off under any other system. It is a disagreeable thing for us to have to face, but it is possible that the troubles of 1876 had much deeper causes than any to be found in the electoral system or the provisions of law relating to the count. It will be the duty of the historian to analyze these causes: to decide how far the electoral dispute of 1876 was due to the corruption and partisanship prevalent throughout the country; to the debased condition of the political class; to the failure of both political parties to supply the public with issues formed upon new questions of vital importance which had arisen since the war; to the disappearance from the political stage of statesmanlike capacity and leadership, and the appearance in their room of low jobbery and intrigue; to the loss among the people themselves of their interest in political principles, and the spread among them in its stead of a keen appetite for the excitement of elections and place-hunting; to a deterioration, in fact, of those political qualities of the masses which have hitherto made self-government possible. Speculations of this nature must, however, be left to others. What we have to do with now are the practical questions suggested by the electoral troubles of 1876; and of these the first is whether we have any reason to be dissatisfied with the electoral system considered simply as a piece of political machinery.
At the first blush the answer to this seems obvious. There is nothing in our political system so antiquated and absurd as our electoral machinery. It is admitted on all hands that it does not work as it was intended to by the framers of the government. In fact, nothing can be more ludicrous than the difference between the idea and the reality. The electoral college was to be a college of notables. It is for the most part a college of nobodies. It was intended deliberately to select the president of the United States. It does not either deliberate or select. It was intended that the people should, in the first instance, have nothing to do with the actual choice of president. As a matter of fact they decide it . The only points at which the electoral body or its proceedings correspond with the original scheme are that the voting is by States, and that the electors do actually meet and go through the form of voting.
It is easy to trace numerous evils to this anomalous condition of affairs. The fact that the electoral voting is by States, whose electors formally decide, while the primary balloting is by popular constituencies, who merely choose the electors, makes it a matter of not infrequent occurrence that the majority of the whole people vote for a candidate who fails of his election through the secondary vote of the electors. Again, the insignificance and irresponsible character of most of the persons who compose the electoral colleges make the danger of fraud and corruption very great. The evidence taken recently by the Potter committee shows this very strikingly. Although there has been no proof of actual bribery, witness after witness, on one side and the other, has appeared with stories of attempted corruption which failed through no lack of appetite for bribes; if there was no actual bribery by either party, it must apparently have been due to the fierce glare of publicity which beat upon the electoral colleges at that time rather than to the purity of the persons approached. In another way the danger of having important political duties devolved upon boards of insignificant and for the most part unknown clerks has been made clear. It appears from the evidence of Mr. Ferry (president of the senate at the time of the count) that in a large number of the States the duties of the electoral colleges were so badly performed that there were irregularities in the certificate of the result of the vote on the outside of the package containing it. The form of this certificate is prescribed by law, and nothing but the grossest carelessness and incompetency could possibly account for such irregularities. But the errors go far below the surface. In Louisiana it is clearly proved that the Hayes electors were so ignorant of their duties that they voted in the first instance for president and vice-president on single instead of separate ballots, in plain violation of the constitution itself. There is no doubt that they intended that their certificate should conform to the requirements of law, but they did not even examine the law to see what it was. It may be said that mistakes of this sort may be made by any board of politicians, and so they may; but it would certainly seem as if bodies charged with a political duty as important as the election of a president should be composed of better and more intelligent material than ordinary political boards. If the possibility of a presidential election being decided by a popular minority is distasteful to large numbers of people, how would they take the determination of a presidential election by a technical error in the returns made by the electors ? This question was suggested, though not settled, by the electoral troubles of 1876.
In examining the electoral system, the first question which occurs is, Why was it ever introduced ? It is difficult for us to conceive why, a hundred years ago, a device the hollowness of which is so apparent now should have recommended itself to the able men who drew up the constitution. Their debates in convenvention, however, leave little room for doubt that the plan of electoral colleges was adopted because, first, every other plan seemed to present insuperable obstacles; second, because this plan had never been tried, and, like many another theoretical scheme, worked well on paper; and, third, because the jealousy of the States made it a sine qua non of any plan that it should not let state influence be swamped in the selection of an executive. In the convention there was no plan without its advocates. It was proposed to try election of the executive by Congress; by the people; by the senate; by electors chosen by the state executives; by electors chosen by the state legislatures; by state legislatures in a certain ratio; by electors taken by lot from Congress. It may be worth while to glance at some of the reasons, pro and con, that were advanced in the debates.
On June 2, 1787, in committee of the whole, the election of president came up, and was discussed by several members of the convention. Mr. Elbridge Gerry, of Massachusetts, criticised and opposed the plan of election by the Congress. “There would be,” he urged, “a constant intrigue kept up for the appointment. The legislature and the candidates would bargain and play into one another’s hands. Votes would be given by the former under promises or expectations from the latter of recompensing them by services to members of the legislature or their friends.” Referring to the plan of James Wilson, of Pennsylvania, of having the States divided into districts which should choose electors who should meet and ballot for president (what is now known as the district plan), he said that he liked the principle put forward, but “feared it would alarm and give a handle to the state partisans, as tending to supersede altogether the state authorities. He thought the community not yet ripe for stripping the States of their powers, even such as might not be requisite for local purposes. He was for waiting till the people should feel more the necessity of it. He seemed,” the report continues, “ to prefer the taking the suffrages of the States instead of electors; or letting the legislatures nominate, and the electors appoint. He was not clear that the people ought to act directly, even in the choice of electors, being too little informed of personal characters in large districts, and liable to deceptions.” Mr. Williamson, of North Carolina, “ could see no advantage in the introduction of electors chosen by the people, who would stand in the same relation to them as the state legislatures.”
The question came up again in convention on July 17th. Mr. Gouverneur Morris, of Pennsylvania, urged further objections against electing the president by Congress. “He will,” Mr. Morris said, “ be the mere creature of the legislature, if appointed and impeachable by that body. He ought to be elected by the people at large, by the freeholders of the country.” 1 He admitted that difficulties attended this method, but he pointed out that they had been found surmountable in New York and Connecticut, and would, he thought, be found so in the case of an executive of the United States. “If the people should elect, they will never fail to prefer some man of distinguished character or services; some man, if he might so speak, of continental reputation. If the legislature elect, it will be the work of intrigue, of cabal, and of faction ; it will be like the election of a Pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” Roger Sherman brought forward what appears now like a very odd argument on the other side. He objected to election by the people, or the freeholders of the country, on the ground that they would “ never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.” Mr. Wilson spoke in favor of election by the people. It appears from the report of his remarks that the example of Poland had been brought up as an argument on the other side ; but the cases he considered totally dissimilar. “ The Polish nobles have resources and dependents which enable them to appear in force, and to threaten the republic as well as each other. In the next place, the electors all assemble at one place, which would not be the case with us. The second argument is that a majority of the people would never concur. It might be answered that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Massachusetts, where the legislature, by a majority of voices, decide in case a majority of the people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent a great deal of intrigue and cabal.” Mr. Wilson added that a particular objection with him against an absolute election by the legislature was that the executive, in that case, would be too dependent “ to stand the mediator between the intrigues and sinister views of the representatives and the general liberties and interests of the people.” 2 Mr. Pinckney followed Mr. Wilson against an election by the people, insisting that Congress “ being most immediately interested with laws made by themselves will be most attentive to the choice of a fit man to carry them properly into execution; ” and mentioning among the “ obvious and striking objections ” to a popular election the danger that the people would be led “ by a few active and designing men,” and that " the most populous States, by combining in favor of the same individual, will be able to carry their points.”The zeal of the debate on this point is very curious.
Mr. Gouverneur Morris: “ It is said that in case of an election by the people the populous States will combine and elect, whom they please. Just the reverse. The people of such States cannot combine. If there be any combination, it must be among their representatives in the legislature. It is said the people will be led by a few designing men. This might happen in a small district. It can never happen throughout the continent. In the election of a governor of New York, it sometimes is the case, in particular spots, that the activity and intrigues of little partisans are successful; but the general voice of the State is never influenced by such artifices. It is said the multitude will be uninformed. It is true, they would be uninformed of what passed in the legislative conclave if the election were to be made there; but they will not be uninformed of those great and illustrious characters which have merited their esteem and confidence. If the executive be chosen by the national legislature he will not be independent of it; and if not independent, usurpation and tyranny on the part of the legislature will be the consequence. This was the case in England in the last century. It has been the case in Holland, where their senates have engrossed all power. It has been the case everywhere. He was surprised that an election by the people at large should ever have been likened to the Polish election of the first magistrate. An election by the legislature will bear a real likeness to the election by the Diet of Poland. The great must be the electors in both cases, and the corruption and cabal which are known to characterize the one would soon find their way into the other. Appointments made by numerous bodies are always worse than those made by single responsible individuals, or by the people at large.”
Colonel Mason: “It is curious to remark the different language held at different times. At one moment we are told that the legislature is entitled to thorough confidence and to indefinite power. At another, that it will be governed by intrigue and corruption, and cannot be trusted at all. But, not to dwell on this inconsistency, he would observe that a government which is to last ought at least to be practicable. Would this be the case if the proposed election should be left to the people at large? He conceived it would be as unnatural to refer the choice of a proper character for chief magistrate to the people as it would to refer a trial of colors to a blind man. The extent of the country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the candidates.”
Mr. Wilson “could not see the contrariety stated by Colonel Mason. The legislature might deserve confidence in some respects, and distrust in others : in acts which were to affect them and their constituents precisely alike, confidence was due; in others, jealousy was warranted. In the appointments to great offices, where the legislature might feel many motives not common to the public, confidence was surely misplaced. This branch of business, it was notorious, was the most corruptly managed of any that had been committed to legislative bodies.”
Mr. Williamson “ conceived that there was the same difference between an election, in this case, by the people and by the legislature as between an appointment by lot and by choice. There are at present distinguished characters who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State; and the largest State will be sure to succeed.”
A vote was now taken on the question of a popular as against a legislative election, and it was lost by the votes of nine States against one (Pennsylvania). On a motion that the executive be chosen by electors appointed by the state legislatures, the vote was again in the negative, and the question of the choice by Congress recurring, the vote was unanimous in the affirmative.
But the arguments against putting the election in the hands of Congress had been urged with so much force, and were so strong in themselves, that the question was brought up later (July 24th), in convention, for reconsideration, when two new suggestions were offered. Mr. Williamson said that " he did not like the unity in the executive. He had wished the executive power to be lodged in three men, taken from three districts, into which the States should be divided. As the executive is to have a kind of veto on the laws, and there is an essential difference of interests between the Northern and Southern States, particularly in the carrying trade, the power will be dangerous, if the executive is to be taken from part of the Union, to the part from which he is not taken. . . . Another objection against a single magistrate is that he will be an elective king, and will feel the spirit of one. He will spare no pains to keep himself in for life, and will then lay a train for the succession of his children. It was pretty certain, he thought, that we should at some time or other have a king; but he wished no precaution to be omitted that might postpone the event as long as possible.” Mr. Gerry moved that the legislatures of the States should vote by ballot for the executive, “ in the same proportions as it had been proposed that they should choose electors.” On a vote being taken, the appointment by the national legislature was again adopted, but by a diminished vote. On the next day the clause relating to the executive again came under consideration, but no new arguments or plans of importance were advanced, except by Mr. Gerry, who, reverting to the dangers of popular election, suggested that the ignorance of the people would put it in the power of any one powerful set of men, “ dispersed through the Union, and acting in concert, to delude them into any appointment.” He observed that “such a society of men existed in the order of the Cincinnati. They are respectable, united, and influential. They will, in fact, elect the chief magistrate in every instance, if the election be referred to the people. His respect for the characters composing this society could not blind him to the danger and impropriety of throwing such a power into their hands.”
It is not necessary to give any further extracts to show the general drift of the debate. Repeated voting in favor of appointment by Congress left the question still unsettled, and the matter was finally referred to a committee of eleven, which reported the electoral system substantially as it was adopted by the convention, and as it has remained, with slight alterations, down to the present time.
It will be noticed that the convention, after determining originally upon appointment by the national legislature, changed suddenly to the present system. The change was effected through the report of a committee; and nothing is more remarkable in the proceedings of the convention than the slightness of the reasons advanced in favor of the report, compared with the great weight and elaboration of the arguments against every other plan. It devolved upon Mr. Gouverneur Morris to explain (in convention, September 4th) the reasons of the committee and his own, and he did so in a speech which in the Madison papers takes up less than twenty lines. It is plain throughout that the great difficulty was to unite on any plan, and that the great recommendation of that adopted was that it did not arouse state jealousy, and no one really knew how it would work.
No one can examine these early debates on the subject without being convinced that no plan for the choice of an executive which could be devised failed at that time to receive the careful consideration of the convention, and that it is highly improbable that any plan of those which are now talked of has even as much chance of adoption as any one plan had then. After all, there are only a certain limited number of ways in which a president can be elected. He must be chosen, as was pointed out in one of the speeches in the convention which we have not space to quote, either by some political body now in existence, or by some body to be called into existence for the purpose. That any such body can be created which could do the work much better than the electoral colleges is very doubtful; and it is rendered more doubtful by the fact that, while the election of 1876 produced a general feeling that something was wrong, no strong indications of what the change introduced should be have made their appearance.
But assuming that change is desirable, there is one reason why any hope that the electoral system will be changed by constitutional amendment must be very moderate. The old state jealousy may perhaps be said to have died out. It was founded on state sovereignty and independence, which have been on the decline ever since the constitution was adopted. But there has arisen in place of that feeling a sentiment of political jealousy, which, so far as the presidential elections are concerned, has a force quite as great. The large States have, under the present system, an enormous power, in determining not merely the result of the election, but of the nominations. It is very evident from the extracts from the debates in convention that the framers of the constitution never foresaw the operation of the nominating convention. In this body the effect of the electoral system is to give to one or two States a chance of gaining complete control. And this is inevitable, for in a close contest the control of one or two of the largest States will, in the electoral vote, determine the result. In such a case the leaders of the dominant party virtually say to the nominating body, We can, if such and such a man is nominated, give you a sufficient number of votes completely to neutralize any probable majority against us. Such an appeal is very powerful. It dictated the democratic nomination two years ago, and in the opinion of a good many people is likely to do so again in 1880. The possibility of making this appeal the large States must entirely abandon, if any system of election were introduced which should be based on districts, or in fact on anything but States. They are therefore likely to take but little interest in any proposed change; and when we consider that any change must be introduced by constitutional amendment, and that in practice the constitution has not in this century been amended except as a consequence of a devastating war, it is not risking a great deal to predict that we shall not see the system modified during the life-time of the present generation.
It should be observed, too, that nothing would completely popularize presidential elections (if that is what is desired) short of an entire destruction of the secondary electoral machinery, and a remission of the whole matter to a popular vote extending over the whole country. The district system, so called, would not do away with the electors, and it would still be possible under it for a popular majority to be represented in the electoral colleges by a minority. There is one particular, too, in which the state system is much less likely to be productive of discontent and disturbance than the other. States can never be gerrymandered; districts can. It is beyond question that if any district system were introduced, the dominant party would attempt to perpetuate itself in power by the simple device of “fixing” the districts, and would probably in the end succeed. Those who have followed the operations of professional politicians in redistricting States best know how serious a danger this is. At constitutional provisions they snap their fingers, because there is no penalty attached to an infraction of them. In New York the republicans have for two or three years now persistently neglected to carry out the provisions of the constitution of that State relating to apportionment, because to do so would throw the legislature into the hands of the democrats; while the democrats have squared accounts with them by redistricting a couple of Western States, so as to increase their congressional majority. Into the electoral college as it at present exists, however, the gerrymander cannot be introduced.
The units are States, and their boundaries cannot be enlarged or diminished. There is no way of stretching New York so as to make it a republican State by taking in part of Massachusetts, nor vice versa. This impossibility of gerrymandering is a solid advantage of the present system which ought not to be overlooked.
To what conclusions do these considerations lead us? They show that objections, either of principle or practicability, quite as serious as any that can be brought against the present system may be urged against any system that can be devised. The transfer of the election to Congress would find now few friends; direct election by the people, without regard to state lines, is a change too vast to be thought of at all; election by districts is open to the very grave objection that it makes gerrymandering possible; while the use of the lot, which was seriously considered in the convention (though it would perhaps result in giving us often quite as good presidents as we get now from nominating bodies), is looked upon generally with disfavor, as at once an aleatory proceeding and a confession of impotence in selection. But more fatal than all these objections is the impossibility of getting a sufficient number of States to consent to any change. There is therefore little probability that any alteration will be brought about in our mode of electing presidents.
On the whole, may we not be very well content with this result? The present system has the great advantage of being thoroughly understood; the public have been long accustomed to its operation; and, besides this, the fact that it is based on state action has some strong recommendations in its favor. Without adopting at all the “ state sovereignty ” theory of the government, it will probably be admitted by dispassionate men of both parties that the opposite view, for a government which is federal in character, has been pushed to an extreme. The war, and the centralization it brought about, produced for the time being a feeling that the States were mere obstacles in the way of good government; that everything they did could be more effectually accomplished by the general government. But as the war gets farther and farther away we see that this was a mistake, and that it is much more for the public interest that these great corporations should be looked upon and treated as the political units of our system; that their citizens should be taught to regard them at the same time with pride and a sense of responsibility. For this reason, an election by States, in which those States have the greatest influence which by good government and natural advantages have attracted the largest population within their borders, is by no means an unmixed evil, if an evil at all.
But the electoral system is one thing, and the electoral count is another. In 1876 we were brought face to face with the startling fact that no machinery existed for deciding contested presidential elections. This was a singular hiatus, for with regard to every other office, state or national, the most ample provision existed. Not only was there in all such cases a board of canvassers appointed by law, but after the count the courts had still the ancient jurisdiction of quo warranto by which to try the title. But for the presidency, to say nothing of the very doubtful applicability of quo warranto, there was no board of canvassers. The provisions of the constitution on the subject seem singularly scanty. It is provided (XIIth Amendment) that: “ The president of the senate shall, in presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes for president shall be the president, if such number be a majority of the whole number of electors appointed. . . . The person having the greatest number of votes as vice-president shall be the vice-president, if such number be a majority of the whole number of electors appointed.”
This (leaving out the contingency of no election by the colleges) is all. It is not to be wondered at that these clauses of the constitution gave rise at the last election to much trouble. On one side, it was contended that the president of the senate had, under them, complete control of the returns, and practically could declare anybody he pleased elected. On the other, it was contended (and this view in the end was sustained) that Congress had complete control.
The cause of this scantiness of provision is probably not difficult to arrive at. The reason why Congress was not made a canvassing board by the framers of the government was that it was not expected to canvass. Looking forward to the operation of the electoral system they had introduced, they naturally expected the voting in the electoral colleges to be a finality. A number of the most eminent and competent men in the various States were to come together and ballot for a president. After they had balloted, there could be nothing remaining to do but to “count” the votes; if any one had a majority, he became president. The States selected their own electors, and it was hardly conceivable in advance that Congress should have anything to do afterwards but to ascertain what the States had done. It may be observed, too, that any plan looking to a canvass of the returns by Congress laid its advocates open to a suspicion of desiring to throw the election into the hands of Congress under the pretense of leaving it to the States. And it must be confessed that this is a real danger. The election of 1876 was decided not by the States, nor, as is frequently incorrectly said, by the electoral commission. It was decided by the two houses of Congress. The count was really an elaborate canvass of the returns, in which Congress had agreed beforehand to be governed by certain definite rules. The decisions of the commission were binding on the two houses, only because Congress had seen fit to make them so; it might, had it pleased, have decided the Florida case or the Louisiana case by the flight of birds or an examination of the entrails of beasts, just as well as by referring it to the commission. If having, under the constitution, solely the right to count the votes gave Congress authority to delegate the determination of the particular votes to be counted to a commission, it certainly gave Congress authority to arrive at the result in any way it pleased.
This magnification of the office of Congress from that of counting to that of canvassing is a curious and instructive instance of the way in which some one part of any government always tends to absorb power, no matter how carefully the danger may be guarded against.
But the magnification has now taken place. The duty of counting has been enlarged into the duty of canvassing, and it is to the last degree important that the new function of Congress should not be left in its present unsettled condition. The country could ill afford to go through another presidential campaign and canvass like that of 1876, and so long as party divisions remain what they are now the danger cannot be said to be a remote one. The electoral system may be beyond the reach of amendment, but this is not true of the count.
The count of the electoral votes has been for years the subject of discussion in Congress. At the close of the war, eleven States were practically out of the Union, and only gradually returned. As they slowly came back, it grew evident that they would bring with them a Pandora’s box of intrigue and faction, and we believe it is to one of these seceded States that we are indebted for the remarkable invention, “double returns.” In the congressional count, or in the canvass into which the count has grown, these returns had begun to play a part before the election of 1876. It is a curious proof, too, of the rapidity with which any assumption of authority extends itself that in the discussions which have taken place on the subject Congress has shown a very decided disposition to take complete jurisdiction over single as well as double returns. There is a much more plausible ground in the latter case for the exercise of authority than in the former. If two sets of returns are sent from a State to the president of the senate, both showing a formal compliance with the law in all respects, it would seem to be the necessary duty of Congress to determine which one of the two sets contains the constitutional “ votes ” which it is to proceed to count. The principle is easily extended to the case of single returns. By the XIIth Amendment, already quoted, the electors are directed to perform certain specified acts. They must “meet in their respective States; ” vote “ by ballot; ” name in “ distinct ballots ” the persons voted for as president and vice-president; make “ distinct lists ” of all persons voted for for both offices, and the number of votes for each. By the revised statutes the electors are required to make out triplicate returns of their voting, to deposit one in the archives of the State, and to send one by mail and one by messenger to Washington, certifying their contents on the outside of the packages. It is possible, as suggested above, that some of these formalities, in the case of States in which there is only one set of returns, may not have been complied with; and the question at once arises whether votes tainted with such informalities are constitutional votes which can be counted. It is but one step further to ask whether, in the case of single returns which are formally regular, but behind which there are charges of fraud, or corruption, or intimidation, the votes can be counted. Suppose, for instance, that in the election of 1876, in Louisiana, republican electors had, after meeting, been prevented from getting their certificates to Washington; there would in that case have been only one set of returns in the hands of the vicepresident, and those democratic. But can it be imagined for a moment that this would have made any difference? It would without doubt have been charged by the republicans that the republican electors had been prevented from getting their returns in by violence, or some other illegal way, and that the certificates ought to be considered as having been sent. There is, in fact, no difference in principle between “ single ” and “double” returns, the latter only presenting a glaring instance of irregularity or illegality, which in the former may be quite as serious, though not so obvious. For example, suppose the case of double returns in which one set is concocted by a knot of politicians for the mere sake of making trouble, — a knot of politicians without any popular vote behind them, or any justification for their action. They might easily, in a State tormented by internal dissensions, like Louisiana, do this in any presidential election, and it would of course be impossible to know which of the two sets contained the votes to be counted without an examination into facts not disclosed on their face. On the other hand, single returns might be sent in based on nothing at all (for instance, if no election had really taken place within the State), whose validity might be as questionable as any conceivable sort of double returns. Moreover, behind these questions there is another of equal importance: whether the titles and acts of the electors are to be gone into by Congress at all, or whether the States are to determine questions of this sort. It appears to be the popular notion that this was settled in favor of the latter view by the electoral tribunal in 1876, — a notion probably derived from its frequent refusal to examine evidence “ aliunde the returns.” But apart from the fact that the decisions of the commission are not binding on any one, there is no such principle to be extracted from its published opinions. Each case was decided separately and independently, and the principles which governed the exclusion or inclusion of evidence are nowhere stated.
So far as the count is concerned we are exactly where we were in 1876, and unless some machinery is adopted by Congress we shall in 1880 again find as our only guide the simple constitutional provision that the votes are to be opened and counted. The matter has been referred to committees of the present Congress, and just before the adjournment in June Mr. Edmunds, of Vermont, from the select senate committee, reported an elaborately drawn bill. One of the great difficulties experienced in 1876 was the want of time between the appointment of electors (in November) and their meeting (in December) for a compromise or settlement of differences as to the result in the State itself. Accordingly, Mr. Edmunds’s bill fixes the first Tuesday of October as the day for the popular election, thus gaining a month for this purpose. Another very serious difficulty which arose in 1876 was the frequent election to the electoral colleges of federal office holders, in plain violation of the constitutional provision (art. ii., sec. i.), “ No senator, or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.” This is inserted in a statutory form in the committee’s bill. The electors are next directed to meet and cast their votes on the second Monday of the following January. The most important provision of the bill, however, is that permitting each State to provide by laws (which must be enacted in advance) for “ the trial and determination of any controversies concerning the appointment of electors before the time fixed for the meeting of the electors in any manner it shall deem expedient; ” the determination by the State in this way to be “ conclusive evidence ” of the lawful title of the electors, and to “ govern in the counting of the electoral votes” by Congress. This provision would of course remove many difficulties. The trial of the title to elective offices, judicially or otherwise, is a process familiar and common in all the States. There is no reason, in the nature of things, why it should not be applied to presidential electors. The other sections of the proposed act closely follow the electoral compromise of 1876. Congress is to be in joint session on the second Monday in February following every meeting of the electors, the president of the senate presiding, and he is to count the votes by tellers. Objections to the counting of any votes may be made by members, in writing, duly authenticated. They are to be submitted to each house separately, and in the case of single returns no vote is to be rejected except by an affirmative decision of both houses. In the case of double returns, the decision of the state tribunals of adjudication, erected as provided in the bill, are to govern; and in case of a conflict between state tribunals, only those electoral votes are to be received which are decided by a concurrent vote of both houses to have the support of the lawful and regular tribunals. If the State has made no determination, then also a concurrent vote is required to make any counting possible. In the case of double returns, when the State has failed to adjudicate the question through its local tribunals, the bill would practically prevent any counting at all; and this could hardly be considered a hardship, as the case would really amount to a failure on the part of the State to appoint electors.
If any legislation is to be passed by Congress, it is hard to see how this bill can be improved upon. It does not dispose in advance of all possible questions; but it disposes of all those which have been suggested by experience, and it would effectually prevent any tumult or confusion.
Nevertheless we confess to feeling very skeptical as to the chances of any such measure. Senator Thurman has given notice that he desires to debate Senator Edmunds’s measure, and this of itself shows that weighty opposition may be expected. There are many obstacles in the way of any legislation. Politicians who expect to take part in the campaign of 1880 feel that it may be more convenient for them to be governed by circumstances as they arise in the count of that year than to bind themselves in advance by statutory enactment. Counting votes is felt by shrewd politicians to be anxious work, the object of which is certain definite practical advantages rather than the advancement of the cause of justice and fair dealing. The important point in the count is not to settle beforehand what ought to be done with single or double returns, but to count the returns, whether single or double, when they come in, in such a way as to give the election to the party candidate. Besides this, to bind themselves in advance, in the case of an authority so vague and general as that of counting votes, is to surrender arbitrary power, which is to expect more than it is ordinarily fair to expect of Congress. Moreover, it is not too much to say that each side, in considering any such measure as Mr. Edmunds’s, is very suspicious of the other; and as the campaign draws near this suspicion increases in geometrical ratio, as is only natural. For this reason it would probably be easier to pass a measure to take effect twenty years hence, than one to come into play at the time of the next
count. The next Congress meets in December of next year, with a presidential campaign only six months away; and therefore it is almost certain that a measure, if it is to pass at all, must be passed by the present Congress, between December and March. If there is to be opposition to Mr. Edmunds’s measure, it is unlikely to pass; and in that case, with the count as with the electoral system itself, we shall enter what promises to be the bitter campaign of 1880 just as we entered that of 1876.
- It will be noticed that Mr. Morris’s “ people” is a much more limited body than that which the term now implies. He cannot fairly be quoted as in favor of what is now known as the plan of " election by the people.”↩
- Throughout these debates the prevailing conception of the executive which the convention was to call into being was derived from England, where the struggles between king and Parliament struck them as the most probable type of the relations between the executive and legislature in all free countries. And it is quite clear that they were right. We have seen within the last few years a cabal in the senate gain such complete control of a president as to rob him of all desire to stand as a mediator for “ the general liberties and interests of the people ; ” so that his successor felt it necessary to take the position of mediator at the outset of his administration, and to notify Congress of his intention to keep the executive free from its interference. To be sure, the framers of the government did not see that it was through a perverted civil service that the dangers they dreaded were to come; they had no knowledge of any such civil service as ours.↩