https://www.govinfo.gov/content/pkg/GPO-CRECB-1879-pt1-v8/pdf/GPO-CRECB-1879-pt1-v8.pdf
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Congressional Record Volume 8, Part 1, pp. 51-54 (9 Dec 1878)
The first thing, Mr. President, that ought to be considered, undoubtedly, is the state of the Constitution upon this subject, and that is to be found in only two or three places, and in very few and simple words. Article 2, section 1, provides, first, that—The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows:
Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
The electors shall meet in their respective States, &c.
That is in section 1 of article 2; but the existing provision of the Constitution as to the mode of election is in the twelfth amendment, which I will read in lieu of that:
The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as Presdent, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate; the President of the Senate shall, in the 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; and if no person have such majority then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, but in choosing the President, the votes shall be taken by State, the representation from each State having one vote.
It is unnecessary to read the rest of that provision as this bill does not bear upon it. Article 1, section 8, of the Constitution, clause 18, provides this in defining and declaring the powers of Congress:
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.
These provisions of the Constitution I believe are all that bear directly upon the question we now have under consideration, the first being in the natural and logical order of the consideration of this question the one that I first read, the first section of the second article to which I now invite the careful scrutiny and consideration of the honorable members of the Senate who do me the honor to listen to me. The very first statement is after the declaration that the executive power shall be vested in the President, “that each State shall appoint” its electors. This, then, it will be seen, is a duty that is imposed upon the State in language that it appears to me does not admit of doubt or misconstruction. It is the duty of the State in its political and coequal character, with every one of its sisters, to appoint the number of electors to which it is entitled under the Constitution. It is the act of the State, and as Mr. Madison, one of the fathers and constructors of the Constitution, stated in the Federalist, in the time of it and before the Constitution was adopted and as an exposition of the true character of the Constitution in respect of the election of the President, “it is the political act of each one of the States in its definite and independent character,” which it was to exercise freely for itself in selecting the persons who were to express its voice in the election of President. He says in the thirty-eighth number of the Federalist:
The next relation is, to the sources from which the ordinary powers of government are to te derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national Representatives; but in this particular act, they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies-politic. From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features.
The particular declaration to which I wish to call the attention of the Senate, although it is hardly necessary, the language of the Constitution is so plain, is that—
The immediate election of the President is to be made by the States in their political characters.
That is to say, it is the political right of the State as a State to select for itself and without the intervention or decision of any other power, the persons to the number to which it is entitled who are to express its choice in the electoral college for the Chief Magistrate of the Union.
Then it goes on to provide in this same clause:
In such manner as the Legislature thereof may direct.
So that taking the whole clause together it reads:
Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators aud Representatives to which the State may be entitled.
That not only fortifies, but to my mind clinches conclusively the doctrine that the ultimate selection, the actual, the effectual, selection which is to count in the final expression in this Chamber or in that of the other House where the votes are counted as the voice of the State, is to be made by the State, and it is to be made in the manner that the Legislature of that State may direct. In other words, it is wholly, exclusively, absolutely a matter which the Constitution has remitted to the State and to its authority.
Now, what does “manner” include, Mr. President, in respect of what the Legislature is to do? The language is that the State is to appoint its electors who are to give their votes and whose votes are to be counted here as the voice of the State for President. The Constitution says that the manner of doing that, of this selection, shall be such as the legislative power of the State shall direct. Is it not within the manner of this selection for the Legislature of the State to provide that he aud he only shall be an elector of that State who in case of a dispute shall have submitted to a certain test of ascertaining whether he is the genuine man the State has appointed or not? If it is not, then there is no value in the delegation to the Legislature of the State of the power to prescribe the manner in which this choice shall be made.
Can you say that above the State or behind it or somewhere there is still a Federal power to enter that State and say (in spite of the declaration of its constituted authorities that those persons and those only who have conformed to certain requisites of the law shall be the electors) that somebody else shall? The Legislature may say that they themselves will appoint the electors. Would it do for the counting power, wherever it may be, in such a case to say, “Well, this is a provision that is within the Constitution, as everybody knows it is, but we are satisfied that this particular Legislature acted under a mistake; they thought that these electors were goiug to vote for the other candidate for President, and we therefore will exercise the full power that belongs to a court of appeal or review to open the whole record and decide for ourselves what that Legislature intended to have done and ought to have done under the circumstances.” That will not do, Mr. President. The two Houses have no power to say that. The form of the action of the State, its most solemn and authentic procedure, which the Constitution says shall be the act of the State, and then in the other clause that the act of the State shall be respected and its votes counted, you will have to change for a decision of Congress, or a Vice President, or a President of the Senate, or whatever committee or tribunal the law may select or determine upon as the true one to count the votes.
This fourth section, then, which provides for the conclusiveness of this State determination, is merely saying that the counting authority will recognize as the true act of the State, and give effect to it as such, that body of people that the State itself has finally through its own action determined to be the persons it has chosen. That is all. Can anything be more just if you are to respect the rights of the States under this clause of the Constitution? The very thing, without any law, without any provision, without any rule, that the two Houses meet to do, if it belongs to them to do it, or the very thing that the President of the Senate is to do if it belongs to him to do it, is to count and declare the result of the vote of the State; that is, to ascertain the will of the State, not according to his notion of what he thinks that will ought to have been, but according to his intellectual and judicial or administrative perception of the fact of what that State has done. Therefore this section simply provides that what this bill assumes to be, or confers as, the counting and declaring power shall respect and follow the choice of the State of her electors, and that the evidence of that choice shall be the action of the very machinery that the State itself has provided to determine whom she has chosen.
This action of the State, Mr. President, you will observe, is not an action of a sovereign and independent body in its original and natural right as a separate and independent body, as between foreign nations such acts of intercourse might take place, because without the Constitution of the United States there would be no such officer as President to be elected; without the Constitution of the United States there would be no such means of the selection of such an officer, if we had one, to be found. The duty of the State, and therefore its power, is one that did not pre-exist in itself, to elect a President for itself and for all the others of its sisters; but it is a right and a duty that is imposed upon it by the Federal Constitution, and the Federal Constitution has therefore measured and defined precisely the power that that State shall exert, and precisely the manner in which it shall be exerted. Then this law comes in under the Constitution to declare that when we have this authentic declaration of this exertion by the State of the power that the Constitution has reposed in it and the duty of exercising that power that it has imposed upon it the national authority will respect the exercise of that power just as it is bound to respect the exercise of every other power the State may possess.
So it appeared to the committee that this provision that that body of men shall be taken to be the electors whom the State has appointed in the manner that the Legislature shall have determined that their appointment shall be ascertained, is an inherent part of the right which the State acquires under the Constitution to select its electors for itself and an inherent part of the duty that the Constitution has imposed upon the counting power, let it rest wherever it may, of recognizing and respecting this determination of the State as to the choice and identity of its electors. When you take the next step and have ascertained the body of persons who are to give their votes, then this clause of the Constitution has exhausted itself, the State has no further legal and legitimate concern in the way of control over the action of the electors. The duty and the power that is confided to the State is the duty of choosing a body of men and of choosing them finally, so that that choice shall have its effect in the final aggregate of the votes which are to be counted. That duty being done, then the electors so chosen and determined are officers, under the Constitution, of the United States, whose duties are pointed out by the Constitution, and of course it follows that they in the course of their conduct are subject to the Constitution and the constitutional laws of the United States and to nothing else.
There is a difference that will be immediately observed in respect of this power of the States, between this clause as to the choice of electors of President and Vice-President, and the clauses in relation to the election of Senators and Representatives. You will notice, sir, that in respect of Senators and Representatives, the same language is used, but the source of power to which it refers is quite a different one. It provides that each State in respect of the choice of members of Congress may determine the manner in which those elections shall be held: but it does not stop there as it does as to the electors of President. It adds that Congress may at any time take jurisdiction of that subject and provide by its own laws for the manner in which congressional elections shall be carried on, which of course involves the decision of every dispute that arises under them. In regard to the election of Senators, the Constitution declares that, it is within the power of Congress to provide everything in respect of the manner of electing Senators to this body except the place for choosing them. In respect of the appointment of electors of President and Vice-President the Constitution confers no such power upon the Federal authority in any form, but it declares that the sole judge of the manner, the sole regulator of the manner, the sole provider of the means shall be the legislative authority of the State that the Constitution declares shall appoint its electors.
This bill, then, in this respect of which I am speaking, simply provides—you may measure and discuss it in what way you will—that the solemn and determinate voice of the State in the selection of the persons whom the Constitution says it shall select and whose votes shall be counted, shall be left where the Constitution leaves it, with the State, and that the counting authority shall respect that act of the State and not undertake upon any notions of its own to overturn it.
There is something still left; and I say this to those Senators who have sometimes appeared to suppose that if the two Houses of Congress, as this scheme is, have the counting power, the two Houses exercise revisory and judicial powers over whatever questions may legitimately arise. Suppose they do, what then is the true interpretation and the true effect of this bill? It only acts upon that revising and quasi-judicial power, if you call it such—and I assume it for the purpose of this aspect of the argument—in exactly the same way that from the foundation of the Government it has in all sorts of aspects acted upon the judicial power that the Constitution creates. That is to say, it regulates the mode of procedure, it defines the rules of evidence, and calls upon the court, if you call it a court, to respect the act and deed of the State which is authenticated in a certain way. That is all.
The Constitution says that the Supreme Court of the United States shall have jurisdiction of all cases that affect public ambassadors. Now suppose the Congress of the United States immediately after the formation of the Government had decided that the only and conclusive evidence as to who is an ambassador over whom that jurisdiction is to be exercised shall be an appointment of a sovereign under the great seal of state of the foreign country from which he purports to come, and that it should not be competent as a consequence for the Supreme Court to take up either upon public opinion or upon its own private notions, separate affidavits or what not, to prove the character of the person entitled to appeal to its jurisdiction or upon whom its jurisdiction might rightfully be exercised. Does anybody question that the court would have bowed in obedience to that law and said “it is within the legitimate province of the legislative power to provide laws by which this court is to be governed in ascertaining who are and what class are the persons who are entitled to its protection?” Nobody would question it. Other Instances as to citizenship, as to the public character of officers, as to the authentication of records from the Departments fill your statutes with regulations that it shall be the duty of the judicial power to receive as authentic and give effect to them accordingly copies certified ami formalized in a certain way; and when in some instances the courts have been appealed to to disregard these regulations of law and to say that it is a part of the judicial power to make its own regulations for the government of itself and that it is by Congress an invasion of the judicial power and a limitation of it to prescribe rules, the court with unanimous voice and for almost a century whenever the question has arisen has said “No, we cannot take that view of it, we cannot make regulations for the administration of the very powers that the Constitution has conferred upon us,” not conferred by law, “against an act of Congress; but it falls within the legislative power to give effect to the jurisdiction that is imposed upon us and to regulate its administration,” just as in all civilized nations it has always been regulated by the national statutes. So that if it were to be established (which I do not at all agree to, but I do not wish to go into that matter now) that the power of the two Houses recognized in this bill, or conferred by it, as the case may be, of exercising a certain canvassing scrutiny over these votes is a plenary and judicial power, there would still be the rightful jurisdiction of the legislative authority of the United States to declare that that jurisdiction and that plenary revising and canvassing power should be exercised in conformity with certain rules in order to give effect to what the Constitution declares to be the root and substance of the whole matter—the independent and untrammeled voice of the State selecting for itself and by its own instrumentalities the persons whom it has chosen and there is still left in that view of the case, as with the courts in the other cases I have referred to, the revising power of determining in the case that I have named, first, whether the Legislature of the given State has provided by law for a determination of the dispute; second, whether that dispute has been determined in conformity with the regulations and by the steps that that law prescribes; that is, whether the jurisdiction thus invoked has been followed. Then there only follows the consequence as in the other cases I have named, to illustrate—and I might spend a day in instances, enough certainly to convince the mind of any man. I think—there only follows the consequence that this court, (if you call it such,) of the two Houses, when it finds that the Legislature of the State has made this provision, when it finds that the provision has been followed, is bound upon the principles and declarations of this act, as it would be without it indeed, on the principles of law, to respect and to follow the determination of the State. I say, then, that we have not taken away the jurisdiction of the two Houses if it exists; we have not cramped it; we have only provided that in the exercise of that jurisdiction the test of what is the voice of the State shall be found in the declaration of the State itself. That is all.
I now come, sir, because I wish to be very brief and will take an opportunity hereafter, if it be necessary, to refer to authorities and decisions and precedents for what I have undertaken to uphold—I come to what this function is of counting the votes; and on that I do not wish to provoke a discussion, because it is apparently immaterial, with any gentleman who may differ with me. I know, as I believe I have said, that some have been, and no doubt now are, of the opinion that the function of counting and as involved in that of determining the identity and validity of a vote to a certain degree, is with the presiding officer of the senate, whether he happens to be the Vice-President of the United States, or the President pro tempore of the body. That has been so thoroughly discussed hitherto, and so emphatically decided in an instance where it was largely according to the political wishes of a majority of this body at any rate—and that is the only body I am speaking to—to hold to the authority of the President of the Senate, that I do not think it necessary (certainly it is not on this occasion) to go into any discussion. The Senate held by a very large majority that no such power existed.
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