[Hinds' Precedents, Volume 3]
[Chapter 61 - Objections at the Electoral Count]
[From the U.S. Government Publishing Office, www.gpo.gov]
OBJECTIONS AT THE ELECTORAL COUNT.
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1. Questions as to the votes of Georgia and Louisiana in 1869.
Sections 1964, 1966.
2. Questions as to the votes of Georgia, Louisiana, and
Arkansas in 1873. Sections 1967-1970.
3. Questions settled by the Electoral Commission in 1877.
Sections 1971-1980.
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1964. In the electoral count of 1869 objection was made that there
had been no valid election in Louisiana, but the vote was counted.--On
February 10, 1869,\1\ during the count of the electoral vote, Mr. James
Mullins, of Tennessee, offered this objection:
I object to any count of the votes certified from the State of
Louisiana, and raise the question in regard to them that no valid
election of electors for President and Vice-President of the United
States has been held in said State.
The two Houses separated, and after considering the objection and
acting, returned into joint convention, when the President pro tempore
announced that the two Houses, by concurrent action, had decided that
the vote of Louisiana should be counted.
1965. In 1869 the electoral vote of Georgia was announced in an
alternative way, the objections to it being several in number.--On
February 10, 1869,\2\ during the count of the electoral vote, Mr.
Benjamin F. Butler, of Massachusetts, offered this objection:
I object, under the joint rule, that the vote of the State of Georgia
for President and Vice-President ought not to be counted, and object to
the counting thereof because, among other things, the vote of the
electors in the Electoral College was not given on the first Wednesday
of December, as required by law, and no excuse or justification for the
omission of such legal duty is set forth in the certificate of the
action of the electors.
Secondly, because at the date of the election of said electors the
State of Georgia had not been admitted to representation as a State in
Congress since the rebellion of her people, or become entitled thereto.
Thirdly, that at said date said State of Georgia had not fulfilled in
due form all the requirements of the Constitution and laws of the
United States, known as the reconstruction acts, so as to entitle said
State of Georgia to be represented as a State in the Union in the
electoral vote of the several States in the choice of President and
Vice-President.
Fourthly, that the election pretended to have been held in the State
of Georgia on the first Tuesday of November last past was not a free,
just, equal, and fair election; but the people of the State were
deprived of their just rights therein by force and fraud.
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\1\ Third session Fortieth Congress, Journal, pp. 314, 315; Globe,
pp. 1056, 1057.
\2\ Third session Fortieth Congress, Journal, p. 315; Globe, pp.
1050-1055, 1058, 1059, 1062.
Sec. 1966
The two Houses having separated, the House decided, yeas 41, nays
150, against counting the vote of Georgia.
The Senate decided that under the concurrent resolution governing the
count, the objections should be overruled, and the whole vote should be
stated as it would be, both with and without Georgia.\1\
1966. In 1873 there was objection to the electoral vote of
Mississippi because of alleged informalities and deficiencies in the
certificate, but the vote was counted.--On February 12, 1873,\2\ during
the session of the joint convention for the counting of the electoral
vote, the State of Mississippi was reached, and Mr. Lyman Trumbull, of
Illinois, a Senator, submitted this objection:
Mr. Trumbull objects to counting the votes cast for President and
Vice-President by the electors in the State of Mississippi, for the
reason it does not appear from the certificate of said electors that
they voted by ballot.
Mr. Clarkson N. Potter, of New York, a Representative, also filed
objections as follows:
Mr. Potter objects to one vote of the State of Mississippi, because
the certificate declaring that J. J. Spellman was appointed an elector
in the stead of A. T. Morgan, absent, by the electoral college of that
State, in accordance with the laws of that State, is not signed by the
governor of that State.
And further that the certificate of the secretary of state read does
not certify anything of his own knowledge, but only states he has been
so notified as he certifies.
The Senate having retired, Mr. Henry L. Dawes, of Massachusetts,
submitted in the House the following resolution, which was agreed to by
a vote of 101 ayes to 33 noes:
Resolved, That in the judgment of this House the eight votes reported
by the tellers as cast by electors in and for the State of Mississippi
ought to be counted as reported by them.
Mr. Potter then submitted a resolution providing that the vote cast
by James J. Spellman be rejected, and that only 7 votes be counted for
Mississippi. For that resolution Mr. Nathaniel P. Banks, of
Massachusetts, offered the following substitute, which was agreed to,
ayes 109, noes 33.
Resolved, That the electors of the State of Mississippi, having been
appointed in the manner directed by the legislature of that State, and
in accordance with the provisions of the Constitution of the United
States, were legally elected, and that the vote of the State as cast by
them should be counted, and that the certificate of the governor of
that State of the electoral vote cast, and the certificate of the
secretary of state of that State in regard to the choice of electors is
in compliance with the Constitution and laws of the United States.
This resolution was agreed to by the House.
In the Senate,\3\ after consideration, the Senate agreed to the
following resolutions:
Resolved, That the electoral vote of the State of Mississippi be
counted.
Resolved, That the vote cast by James J. Spellman, one of the
electors for the State of Mississippi, be counted.
The joint convention having reassembled, the votes of Mississippi
were counted under the joint rule, the two Houses concurring.\4\
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\1\ See section 1949 of this volume for explanation of this
proceeding.
\2\ Third session Forty-second Congress, Journal, pp. 376, 377;
Globe, pp. 1297-1299.
\3\ Globe, pp. 1287, 1288.
\4\ Globe, p. 1299.
Sec. 1967
1967. In 1873 objection was made that the electoral vote of Georgia
should not be counted, as it had been cast for Horace Greeley, who was
dead; and the two Houses not agreeing, the vote was not counted.--On
February 12, 1873,\1\ during the session of the joint convention for
the counting of the electoral vote, the State of Georgia was reached,
and Mr. George F. Hoar, of Massachusetts, a Representative, filed the
following objection:
Mr. Hoar objects, the votes reported by the tellers as having been
cast by the electors of the State of Georgia for Horace Greeley, of New
York, can not legally be counted, because said Horace Greeley, for whom
they appear to have been cast, was dead at the time said electors
assembled to cast their votes and was not a person within the meaning
of the Constitution, this being a historical fact of which the two
Houses may take notice.
The Senate having withdrawn, the House, without debate,\2\ and by a
vote of 102 yeas to 98 nays, agreed to this resolution:
Resolved, That the votes reported by the tellers as having been cast
by the electors of the State of Georgia for Horace Greeley, of New
York, for President of the United States, ought not to be counted, the
said Horace Greeley having died before said votes were cast.\3\
In the Senate Mr. George F. Edmunds, of Vermont, offered this
resolution:
Resolved, That the electoral votes of Georgia cast for Horace Greeley
be not counted.
On motion of Mr. Allen G. Thurman, of Ohio, the word ``not'' was
stricken out, yeas 47, nays 18. Then the resolution as amended was
agreed to, yeas 44, nays 19.\4\
The joint convention having assembled, the President of the Senate
announced that as there was a nonconcurrence of the two Houses as to
the votes in question, they could not be counted under the joint
rule.\5\
1968. In 1873 the electoral vote of Louisiana was rejected,
objections having been made because of conflicting certificates, and on
other grounds.--On February 12, 1873,\6\ during the session of the
joint convention for the counting of the electoral vote, various
objections were made to counting the electoral votes of the State of
Louisiana. The Vice-President, in presenting the returns, stated that
from Louisiana there had been received two returns sent by mail and two
by messenger, each of the last having been received by the Secretary of
State in the absence of the Vice-President and the President of the
Senate pro tempore from the seat of Government. The first return, made
by L. C. Roudanez, was received on the 31st of December, within the
time required by the Constitution. The second return was received on
the 2d of January, being one day within the time required by the
Constitution. What appeared to be the duplicates were received by mail
on the 10th and 14th of December.
The Chair first submitted those returns which reached the office of
the Secretary of State, in accordance with law, on December 31.
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\1\ Third session Forty-second Congress, Journal, p. 376; Globe, p.
1297.
\2\ Under the joint rule no debate was in order. The present law
allows a limited debate.
\3\ Journal, p. 376; Globe, p. 1297.
\4\ Globe, pp. 1285-1287.
\5\ Journal, p. 383; Globe, p. 1299.
\6\ Third session Forty-second Congress, Journal, pp. 381, 383;
Globe, pp. 1303-1305.
Sec. 1968
These papers consisted of: The certificate, under seal, of ``George
Bovee, secretary of state,'' that the returning officers had returned
to him as secretary of state, according to law, the following persons
as duly elected electors of President and Vice-President of the United
States for the State of Louisiana [names given]; a certificate signed
by the electors, certifying that they had voted by ballot for Ulysses
S. Grant for President of the United States and for Henry Wilson, of
Massachusetts, for Vice-President; copies of minutes of the proceedings
of these electors at their various meetings.
The Chair then laid before the convention the papers received by
messenger on January 2. These papers consisted of: A certificate, under
seal, signed by H. C. Warmouth and attested as follows: ``By the
governor, Y. A. Woodward, assistant secretary of state,'' which
certified that T. C. Manning, A. S. Herron, and others were duly and
legally elected Presidential electors, etc., and that the signature of
B. P. Blanchard, State registrar of voters for the State of Louisiana,
was genuine; a certificate signed by the electors, Manning, Herron, and
others, giving the record of their proceedings, and that they had cast
8 blank ballots for President of the United States and 8 votes for B.
Gratz Brown, of Missouri, for Vice-President.
The certificates having been read, and objections having been called
for, objections against the Grant and Wilson electors were presented as
follows:
By Senator Matthew H. Carpenter, of Wisconsin, because there was no
proper return of votes cast by the electors; because there was in that
State no State government republican in form, and because no canvass or
counting of the votes cast for electors at the November election had
been made prior to the meeting of the electors.
By Representative Clarkson N. Potter, of New York, that there was no
certificate from the executive authority of that State, as required by
the act of Congress of 1792, certifying that the persons who cast such
votes were appointed electors of said State, but that, on the contrary,
the certificate of the governor showed that the persons appointed
electors were not those voting for Grant and Wilson.
By Senator Lyman Trumbull, of Illinois, that the election of the
electors was not certified by the proper officers; that Bovee was not
secretary of state and not in possession of either the office or the
seal, and that Bovee had admitted before the committee of the Senate
that the certificate was untrue in fact.
To the votes cast by Manning, Herron, and others, objections were
offered as follows:
By Senator J. Rodman West, of Louisiana, on the ground that the
certificate was not made in pursuance of law.
By Representative Lionel A. Sheldon, of Louisiana, on the ground that
the certificate of the governor was not signed by the person who was at
that time assistant secretary of state of Louisiana; that at the time
the certificate was executed there had not been made any count,
canvass, or return of the votes cast by the people of Louisiana for
electors by any lawful authority, and that the testimony taken before
the Senate committee showed that the certificate was made by the
governor without any authentic knowledge of the result of the election
by the people of the State.
Sec. 1969
Objections were also made to counting any of the votes from the
State:
By Mr. Job E. Stevenson, of Ohio, on the ground that it did not
appear sufficiently that the electors were elected according to law.
By Senator Arthur I. Boneman, of West Virginia, for the reasons set
forth in the report of the Senate No. 417, Third session Forty-second
Congress.
The Senate having withdrawn, the House proceeded to consider the
objections, and Mr. James A. Garfield, of Ohio, offered this
resolution:
Resolved, That, in the judgment of this House, none of the returns
reported by the tellers as electoral votes of the State of Louisiana
should be counted.
To this was offered an amendment that the, votes certified by the
secretary of state should be counted; and the amendment was not agreed
to. Then another amendment providing for counting the votes certified
by ``H. C. Warmouth, governor,'' was negatived, yeas 59, nays 85.
The original resolution was then agreed to.
In the Senate \1\ Mr. Matthew H. Carpenter, of Wisconsin, offered
this resolution, which was agreed to, yeas 33, nays 16:
Resolved, That, all objections presented having been considered, no
electoral vote purporting to be that of the State of Louisiana be
counted.
The joint convention having reassembled, and the two Houses
concurring in so ordering, the vote of Louisiana was not counted.
1969. In 1873 objection was made both to the substance and form of
the electoral certificate of Arkansas; and, the two Houses disagreeing,
the vote was not counted.--On February 12, 1873,\2\ during the session
of the joint convention for the counting of the electoral vote, Mr.
Benjamin F. Rice, of Arkansas, a Senator, offered the following
objection:
Mr. Rice objects to counting the vote of the State of Arkansas
because the official returns of the election in said State, made
according to the laws of said State, show that the persons certified to
by the secretary of state as elected were not elected as electors for
President and Vice-President at the election held November 5, 1872;
second, because the returns read by the tellers are not certified
according to law.
In presenting the vote of Arkansas the Vice-President had stated that
the electoral vote of Arkansas was received by him by mail on December
11, 1872, and by messenger at the Department of State, and in the
absence of the Vice-President by the President pro tempore of the
Senate on December 28, 1872. On the 4th or 5th day of February a person
claiming to be a messenger commissioned to bring the electoral votes of
the State of Arkansas presented himself at the Vice-President's room
with a paper not in the form of law, but addressed to him as President
of the Senate. The Vice-President stated that he. opened the paper, as
it was addressed to him, but declined to receive it even informally.
The papers received on the 11th and 28th of December were those now
presented to the convention.
The Senate having withdrawn, and the House having proceeded to the
con-
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\1\ Globe, pp. 1292, 1293.
\2\ Third session Forty-second Congress, Journal, pp. 379-384; Globe,
pp. 1301-1305.
Sec. 1970
sideration of the objections, Mr. Stephen W. Kellogg, of Connecticut,
offered the following resolution, which was agreed to, yeas 103, nays
26:
Resolved, That the electoral vote of Arkansas be counted.
In the Senate Mr. Oliver P. Morton, of Indiana, offered this
resolution:
Resolved, That the electoral vote of Arkansas should be counted.
The papers having been read, it was developed that there was a
statement of the vote signed by the electors and a certificate of the
secretary of state as to who were electors. But there was no
certificate from the governor, and there was doubt about the seal
attached being the great seal of the State.
Mr. George F. Edmunds, of Vermont, moved to amend the resolution so
as to read:
Resolved, That the electoral vote of Arkansas should not be counted.
The amendment was agreed to, yeas 28, nays 25, and then the
resolution in the amended form was agreed to, yeas 28, nays 24.
The joint convention having reassembled, and the nonconcurrence of
the two Houses having been reported, the vote of Arkansas was not
counted, under the terms of the joint rule.
1970. In 1873 objections were made to the electoral vote of Texas on
the ground of a defective certificate and because less than an assumed
quorum of the electors had acted; but the vote was counted.--On
February 12, 1873,\1\ during the session of the joint convention for
counting the electoral vote, the State of Texas was reached, and Mr.
Lyman Trumbull, of Illinois, a Senator, offered the following
objection:
Mr. Trumbull objects to the vote of Texas because there is no
certificate by the executive authority of that State that the persons
who voted for President and Vice-President were appointed as electors
of that State, as required by the act of Congress.
Mr. Oliver J. Dickey, of Pennsylvania, a Representative, offered also
the further objection:
Mr. Dickey objected to the counting of the electoral vote of the
State of Texas because four electors, less than a majority of those
elected, undertook to fill the places of other four electors who had
been elected and were absent.
The Senate having withdrawn, the House considered the first
objection, and on motion of Mr. Henry L. Dawes, of Massachusetts,
agreed to this resolution:
Resolved, That in the judgment of this House the vote of Texas should
be counted as reported by the letters.
As to the second objection, Mr. Dickey offered a resolution that the
votes of Texas should not be counted, for the reasons set forth in his
objection. On motion of Mr. Nathaniel P. Banks, of Massachusetts, the
resolution was amended and adopted in this form:
Resolved, That a quorum is an arbitrary number, which each State has
the right to establish for itself, and as it does not appear that the
choice of electors was in conflict with the law of Texas as to a quorum
for the transaction of business, the vote of the electors for President
and Vice-President be counted.
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\1\ Third session Forty-second Congress, Journal, pp. 378, 379 Globe,
pp. 1300, 1301.
Sec. 1971
The Senate, after consideration,\1\ agreed to this resolution:
Resolved, That the electoral vote of the State of Texas be counted,
notwithstanding the objection raised by Mr. Trumbull.
Resolved, That the objection raised by Mr. Dickey to counting the
electoral vote of the State of Texas be, and the same is, overruled.
So, the two Houses having concurred, the vote of Texas was counted
under the joint rule.\2\
1971. Conflicting electoral certificates being presented from Florida
in 1877, a decision was reached that the regularly signed certificate
from the governor acting at the time the votes were cast should stand.
The allegation that a Florida elector was disqualified was
disregarded by the Electoral Commission in 1877, in the absence of
proof.
On February 1, 1877,\3\ during the session of the joint convention of
the two Houses for counting the electoral vote, the certificates from
the State of Florida were opened by the Presiding Officer, and it
appearing that more than one paper purporting to be a certificate of
electoral votes cast for President and Vice-President in the said State
had been received by the President of the Senate, all of the
certificates were handed to the tellers and were read.
Thereupon Mr. David Dudley Field, of New York, a Representative,
presented objections in writing, duly signed, to the paper purporting
to be a certificate of M. L. Stearns, as governor, that Charles H.
Pearce, Frederick C. Humphries, William H. Holden, and Thomas W. Long
were appointed electors, to the paper purporting to be a list of the
votes cast by said electors for President and Vice-President, to the
votes themselves, and to the counting of the votes. The reasons were
(1.) that the electors were not appointed as the legislature directed,
or in any matter whatever; (2) that Wilkinson Call, James E. Yonge,
Robert B. Hilton, and Robert Bullock were appointed as the legislature
directed; (3) the manner of appointing the electors was by the votes of
the qualified electors, which gave to Messrs. Call, Yonge, Hilton, and
Bullock an irrevocable title, which could not be set aside by any other
person; (4) that the pretended certificate signed by M. L. Stearns, as
governor, was untrue and obtained by fraud and conspiracy, and (5) was
made out and executed in pursuance of the same fraudulent conspiracy;
(6) that the Stearns certificate and lists, if they ever had any
validity, were annulled by a subsequent lawful certificate of the
governor of Florida (successor to Governor Stearns) by act of the
legislature declaring the title of Messrs. Call, Yonge, Hilton, and
Bullock valid, and by judgment of the circuit court of Florida which,
in quo warranto proceedings, had, before the electors had cast their
votes, decided that Messrs. Call, Yonge, Hilton, and Bullock were the
lawful electors. The objections further alleged that the four electors
last named constitutionally, on December 6, 1876, cast their votes for
Tilden and Hendricks, and certified these votes to the President of the
Senate; and also did everything required by Constitution and laws
toward authentication of such votes, except section 136, Revised
Statutes. And in conformity with the judgment of the Florida court the
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\1\ Globe, pp. 1289-1291.
\2\ Globe, p. 1301.
\3\ Second session Forty-fourth Congress, Journal, pp. 354, 357;
Record, pp. 1195-1197.
Sec. 1971
governor of Florida, who had been inducted into office subsequent to
December 6, 1876, did, on January 26, 1877, give to the last-named
electors the duplicate lists prescribed by section 136, Revised
Statutes, which they forwarded as a supplement to their former
certificate in that behalf.
A further objection, filed by Mr. Charles W. Jones, a Senator from
Florida, alleged that Mr. Humphreys was disqualified because he held
the office of United States shipping commissioner at Pensacola at the
time of his alleged election as an elector and at the time of his
casting of his vote as such elector and therefore could not be
constitutionally appointed an elector.
On the other hand, objections were filed to the Call, Yonge, etc.,
certificates and papers by Mr. Aaron A. Sargent, of California, a
Senator, on the grounds that they were not authenticated properly
according to the Constitution and laws and therefore were not entitled
to be received or read; that they were not accompanied by the
certificate of the executive authority of the State, or by any valid or
lawful certification, and that the properly authenticated certificate
and papers showed that Messrs. Humphreys, Pearce, Holden, and Long were
duly appointed electors and duly cast, certified, and transmitted their
votes as such to the President of the Senate. A further objection was
filed by Mr. John A. Kasson, of Iowa, a Representative, alleging (1)
that the Call certificate was not legally certified, the certificate
being by an officer not holding the office of governor or any other
office in said State with authority in the premises either at the time
when the electors were appointed or when their functions were
exercised; (2) because the proceedings certifying the Call electors
were ex post facto, and (3) retroactive.
The certificates and objections were referred to the electoral
commission under the law,\1\ and on February 10 \2\ its report was laid
before the convention.
The decision of the Commission was that the votes certified by M. L.
Stearns, governor, were the votes provided for by the Constitution,
were lawfully to be counted, as therein certified, for Hayes and
Wheeler, and that Messrs. Humphreys, Pearce, Holden, and Long were duly
appointed electors. The report further says:
That it is not competent, under the Constitution and the law as it
existed at the date of the passage of said act, to go into evidence
aliunde the papers opened by the President of the Senate in the
presence of the two Houses to prove that other persons than those
regularly certified to by the governor of the State of Florida on and
according to the determination and declaration of their appointment by
the board of State canvassers of said State, prior to the time required
for the performance of their duties, had been appointed electors, or by
counter proof to show that they had not, and that all proceedings of
the courts or acts of the legislature or of the executive of Florida
subsequent to the casting of the votes of the electors on the
prescribed day are inadmissible for any such purpose.
As to the objection made to the eligibility of Mr. Humphreys, the
Commission is of opinion that, without reference to the question of the
effect of the vote of an ineligible elector, the evidence does not show
that he held the office of shipping commissioner on the day when the
electors were appointed.
As a consequence of this the Commission decided that the other
certificates and papers should not be counted.
The report was signed by the eight Commissioners concurring. The
seven nonconcurring filed no minority views.
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\1\ 19 Stat. L., p. 229.
\2\ Journal, pp. 417, 418; Record, p. 1481.
Sec. 1972
Mr. David Dudley Field, of New York, presented objections to the
report on the ground that the Commissioners had made a wrong report,
had refused to receive competent and material evidence in support of
the allegation that the four electors headed by the name of Mr.
Humphreys had been appointed fraudulently, had refused to recognize the
action of the courts or other departments of government of the State of
Florida tending to show that the Stearns certificates were fraudulent,
and finally had violated the Constitution of the United States in
counting the said certificates.
The two Houses separated to consider the objections, and having met
again, on February 12,\1\ it was announced that the Senate had
sustained the decision of the Commission and the House had not.
Therefore the presiding officer announced that, under the law, the two
Houses not concurring in ordering otherwise, the decision of the
Commission would stand unreversed.\2\
1972. In dealing with objections to the electoral vote of Louisiana
in 1877, the Electoral Commission followed the rule laid down in the
case of Florida.
It was held not to be competent to go behind the official
certificates and papers to prove the alleged disqualifications of
certain Louisiana members of the Electoral College of 1877.
On February 12, 1877,\3\ during the joint convention of the two
Houses for counting the electoral vote, the certificates of the State
of Louisiana were opened by the presiding officer and it appeared that
more than one paper purporting to be a certificate of the electoral
votes had been received. All the papers having been read by the
tellers, Mr. Joseph E. McDonald, of Indiana, a Senator, presented
objections in writing to the certificate of electors and votes
certified by William P. Kellogg, ``claiming to be, but who was not, the
lawful governor,'' for the reasons that (1) on November 7, 1876, there
was no law of Louisiana directing the manner of appointment of
electors; (2) if any law did exist it was an act of the legislature
directing that electors should be appointed in their primary capacity,
and the people of the State, in accordance with the legislative
direction, did, on November 7, 1876, choose the electors certified by
John McEnery, ``who was then the rightful and lawful governor;'' (3)
the Kellogg electors were not duly appointed according to the laws and
constitution of Louisiana and the United States, and that the lists of
names certified by said Kellogg were false in fact and fraudulently
made; (4) the pretended canvass of the returns of the election by J.
Madison Wells and others as returning officers of said election was
without jurisdiction and void because of invalidity of the statutes
under which they claimed to act, because, if the statutes were valid,
the board was improperly constituted, and because the board acted
improperly and fraudulently in making the canvass and return; (5) A. B.
Levissee, one of the electors, was, at the time of his appointment,
disqualified by reason of holding the office of commissioner of the
United States circuit court; (6) O. H.
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\1\ Journal, pp. 421-425; Record, p. 1503.
\2\ The proceedings of the Commission in the Florida case are
included in pages 1 to 57 of volume 24 of Congressional Record, second
session Forty-fourth Congress. The pages relating to the qualification
of Mr. Humphreys are 10, 31, 37-43, 53.
\3\ Second session Forty-fourth Congress, Journal, pp. 425-429;
Record, pp. 1504-1505.
Sec. 1972
Brewster was similarly disqualified by holding the office of surveyor-
general of the United States Land Office; (7) by reason of these
disqualifications the Kellogg certificate was void as to these two and
their votes should not be counted; and the vote of William P. Kellogg
as one of the electors should not be counted because his certificate,
``executed by himself as governor'' to ``himself as elector,'' was
void, and also because under the constitution of Louisiana he was not
entitled to hold both offices; and (8) the Kellogg certificates were
fraudulently issued in pursuance of a conspiracy to pervert the will of
the people of Louisiana.
Mr. Randall L. Gibson, of Louisiana, a Representative, offered
further objections, that (1) the government of Louisiana as
administered at and prior to November 7, 1876, was not Republican in
form; (2) there was no canvass of votes made on which the Kellogg
certificates were issued; (3) any alleged canvass was an act of
usurpation, fraudulent and void; (4) the votes of Messrs. Kellogg,
Burch, Marks, and Jeffrion were invalid, because the said alleged
electors, on November 7, 1876, held other State offices--of governor,
senator, district attorney, and supervisor of registration,
respectively--although the constitution of Louisiana prohibited such
holding of plural offices; (5) and the said Jeffrion, by reason of
being supervisor of registration, was disqualified by statute of
Louisiana from being eligible for election to any office at that time
when he officiated as such supervisor.
Mr. Fernando Wood, of New York, a Representative, filed an objection
that the Kellogg electors were not appointed in the manner directed by
the legislature of Louisiana.
Mr. Timothy O. Howe, of Wisconsin, a Senator, filed objection to the
certificate of electors certified by John McEnery, as governor of
Louisiana, for the reason that there was no evidence that said McEnery
was at any time during 1876 governor, while conclusive evidence showed
that William P. Kellogg was during that time recognized as governor by
the judicial and legislative departments of the State and by every
department of the United States Government; and objection was also made
to the counting of the votes of John McEnery or R. C. Wickliffe for the
reason that there was no evidence that either had been appointed as
elector as directed by the legislature, but that there was evidence to
the contrary.
On February 19, 1877,\1\ the report of the Commission was laid before
the joint convention of the two Houses. It was signed by the eight
concurring Commissioners, and no minority views were filed by the seven
nonconcurring. The report declares the decision of the Commission that
the votes of the Kellogg electors were the votes provided for by the
Constitution and were lawfully to be counted for Hayes and Wheeler;
that the above-mentioned electors appeared to have been lawfully
appointed and that they voted in the time and manner provided by the
Constitution of the United States and the law. The report continues:
And the Commission has by a majority of votes decided, and does
hereby decide, that it is not competent under the Constitution and the
law as it existed at the date of the passage of said act to go into
evidence aliunde the papers opened by the President of the Senate in
the presence of the two Houses to prove that other persons than those
regularly certified to by the governor of the State of Louisiana on and
according to the determination and declaration of their appointment by
the returning officers for elections in the said State prior to the
time required for the performance of their duties had been
-----------------------------------------------------------------------
\1\ Journal, p. 469; Record, pp. 1666-1670.
Sec. 1973
appointed electors, or by counter proof to show that they had not; or
that the determination of the said returning officers was not in
accordance with the truth and the fact; the Commission by a majority of
votes being of opinion that it is not within the jurisdiction of the
two Houses of Congress assembled to count the votes for President and
Vice-President to enter upon a trial of such questions.
The Commission by a majority of votes is also of opinion that it is
not competent to prove that any of said persons so appointed as
electors aforesaid held an office of trust or profit under the United
States at the time when they were appointed, or that they were
ineligible under the laws of the State, or any other matter offered to
be produced aliunde the said certificates and papers.
The Commission is also of opinion by a majority of votes that the
returning officers of elections who canvassed the votes at the election
for electors in Louisiana were a legally constituted body, by virtue of
a constitutional law, and that a vacancy in said body did not vitiate
its proceedings.
The Presiding Officer having asked for objections to this decision,
Mr. Randall L. Gibson, of Louisiana, submitted objections \1\ to the
action taken by the Commission in excluding evidence offered in support
of the original objections to the counting of the votes of the Kellogg
electors. Objections of a similar tenor were also offered by Mr.
William A. Wallace, of Pennsylvania, a Senator, and Mr. Alexander G.
Cochrane, of Pennsylvania, a Representative.
The two Houses separated to consider and determine the objections to
the report of the Commission; and the two Houses not concurring, the
Presiding Officer announced that the decision of the Electoral
Commission would stand unreversed, when the joint convention
reassembled on February 20.\2\ The decision of the House was that the
votes of the Kellogg electors be not counted.
1973. In 1877 an objection was made to one elector of Michigan on the
ground that he had been improperly chosen in place of an elector
alleged to be disqualified; but the two Houses decided to count the
vote.--On February 20, 1877,\3\ during the session of the joint
convention of the two Houses for the counting of the electoral vote,
the certificate from the State of Michigan was opened and read, and the
presiding officer, having asked for objection thereto, Mr. J. Randolph
Tucker, of Virginia, a Representative, filed objections to the vote of
Daniel L. Crossman as an elector on the ground that: (1) A certain
Benton Hanchett was voted for and certified to have been elected and
appointed an elector of Michigan, and that on November 7, 1876, the day
of the Presidential election, was and for a long period prior thereto
had been, and up to and after December 6, 1876, when the electors voted
according to law, continued to be a United States commissioner, and
therefore could not be appointed an elector under the Constitution of
the United States; (2) that the laws of Michigan give power to fill
vacancies occasioned only ``by death, refusal to act, neglect to
attend,'' and therefore that the choice of Crossman in place of
Hanchett was not legal. Evidence accompanying the objections showed
that Mr. Hanchett neglected to attend the meeting of the electors,
because of his disqualification.
There being no further objections to the vote of Michigan, the Senate
withdrew in order that the two Houses might consider the objections
separately.
-----------------------------------------------------------------------
\1\ Journal, pp. 470-482; Record, pp. 1671-1675.
\2\ Journal, p. 489. For proceedings of the Electoral Commission on
this case see Record, second session, Forty-fourth Congress, vol. 24,
pp. 57-119.
\3\ Second session Forty-fourth Congress, Journal, pp. 489-491.
Sec. 1974
On the same day \1\ the House considered the objections; and Mr.
Tucker submitted the following resolution:
Resolved by the House of Representatives, That Daniel L. Crossman was
not appointed an elector by the State of Michigan as its legislature
directed, and that the vote of said Daniel L. Crossman as an elector of
said State be not counted.
After debate Mr. George A. Jenks, of Pennsylvania, offered the
following substitute, which was agreed to:
Whereas, the fact being established that it is about twelve years
since the alleged ineligible elector exercised any of the functions of
a United States Commissioner, it is not sufficiently proven that at the
time of his appointment he was an officer of the United States;
therefore,
Resolved, That the vote objected to be counted.
When the two Houses reassembled in joint convention, the Secretary
read the determination of the Senate:
Resolved, That the objection made to the vote of Daniel L. Crossman,
one of the electors of Michigan is not good in law and is not sustained
by any lawful evidence.
Resolved, That said vote be counted with the other votes of the
electors of said States, notwithstanding the objections made thereto.
The determination of the House having been read, the Presiding
Officer announced that, the two Houses not concurring in ordering
otherwise, the full electoral vote of Michigan would be cast for Hayes
and Wheeler.\2\
1974. In 1877 an elector of Nevada was objected to as disqualified,
but because of an error in the objection it was not pressed, and the
vote was counted.--On February 20, 1877,\3\ the certificates from the
State of Nevada were opened in the joint convention for counting the
electoral vote, and objections having been called for, Mr. William M.
Springer, of Illinois, filed objections to the vote of R. M. Daggett,
an elector, on the ground that on the 7th of November, 1876, and for a
long period prior thereto, as well as after that date, the said Daggett
was a United States commissioner and, therefore, might not under the
Constitution of the United States be appointed an elector. As a part of
the objection was filed evidence tending to show that Daggett was clerk
of the district and circuit courts of Nevada, and not a commissioner.
He had resigned by telegraph just preceding election.
The two Houses having separated to consider the objections, on
February 21 \4\ in the House, Mr. Springer announced that there was an
error in the objection in stating the office held by the elector.
Therefore, as the Senate had acted on the objection, and as the House
could not amend it, he offered this resolution:
Resolved, That the vote of R. M. Daggett, one of the electors of the
State of Nevada, be counted, the objections to the contrary
notwithstanding.
The joint convention having reassembled,\5\ and the action of the
Senate having been reported in identical terms with that of the House,
the presiding officer announced that the full vote of Nevada would be
counted for Hayes and Wheeler.\6\
-----------------------------------------------------------------------
\1\ Journal, pp. 492, 493; Record, pp. 1705-1716.
\2\ These proceedings took place according to the provision of law.
19 Stat. L., p. 229.
\3\ Second session Forty-fourth Congress, Journal, pp. 495-500;
Record, p. 1720.
\4\ Journal, p. 502; Record, pp. 1726-1728.
\5\ Journal, p. 502; Record, p. 1728.
\6\ The action of the convention was under the terms of a law. 19
Stat. L., p. 229.
Sec. 1975
1975. There being conflicting electoral certificates from Oregon in
1877, the Electoral Commission decided in favor of the electors whom
the Secretary of State legally certified as having the highest number
of votes, although the governor had issued a certificate to others.
An elector disqualified by reason of holding another office, resigned
both offices, whereupon he was made eligible to fill the vacancy thus
caused among the electors.
On February 21, 1877,\1\ during the session of the two Houses in
joint convention for the counting of the electoral vote, the
certificates from the State of Oregon were presented. From these
certificates and accompanying papers the following facts appeared:
That at the election on November 7, 1876, J. C. Cartwright, W. H.
Odell, and J. W. Watts had received, respectively, 15,214 and 15,206
and 15,206 votes as electors, and that E. A. Cronin received 14,157
votes, W. B. Laswell 14,149 votes, and Henry Kippel 14,136 votes.
That J. W. Watts, by reason of being postmaster at the time of his
election, did on the day of the assembling of the electors to cast
their votes, December 6, 1876, resign as an elector, and was by the
votes of the other electors chosen to fill the vacancy caused by his
own resignation. It also appears by other testimony \2\ that said Watts
had, previous to December 6, 1876, resigned as postmaster.
That both the governor and secretary of state of Oregon refused, upon
demand, to deliver to said Cartwright, Odell, and Watts certified lists
of electors, but that he did deliver such lists to E. A. Cronin.
That the governor delivered a duly executed certificate of the
election of Odell, Cartwright, and Cronin, giving the votes for each,
which, he certified, were ``the highest number cast at said election
for persons eligible.'' That is, he had declined a certificate to Watts
on account of his alleged disqualification, and had certified the
opponent having the highest number of votes, namely, Cronin.
That when the electors met Cartwright and Odell refused to act with
Cronin, whereupon the latter appointed J. N. T. Miller and John Parker
to fill the vacancies.
That Odell, Cartwright, and Watts certified their votes for Hayes and
Wheeler, accompanying it by a tabulated vote of the vote of Oregon for
electors, certified by the secretary of state.
That Cronin, Miller, and Parker certified that they cast two votes
for Hayes and Wheeler and one vote for Tilden and Hendricks, and their
certificate accompanied the duly executed certificate of the governor,
setting forth that Odell, Cartwright, and Cronin had been elected.
The certificates having been read by the tellers, and objections
having been called for, Mr. John H. Mitchell, of Oregon, a Senator,
offered objections that: (1) Neither Cronin, Miller, nor Parker were
appointed electors in the manner directed by the legislature of Oregon
or in any other manner; (2) Odell, Cartwright, and Watts were duly and
legally appointed electors, as appeared from the certificates; (3) it
did not appear from the face of the governor's certificate that it was
issued to the three persons having the highest number of votes, and
duly and legally chosen, but was issued by the governor to the persons
deemed eligible, although one of such persons was not appointed
according to the laws of the State; (4) it appeared from the
certificate of the secretary of state, attached to and made a part of
the returns of Odell, Cartwright, and Watts, that these received the
highest number of votes, and the same also appeared from the official
declaration of the secretary of state on December 4, following the
election, and, therefore, the certificate of the governor in certifying
Cronin, instead of Watts, failed to conform to the laws of Congress and
of Oregon;
-----------------------------------------------------------------------
\1\ Second session Forty-fourth Congress, Journal, p. 503; Record,
pp. 1729-1731.
\2\ Record, vol. 24, pp. 167, 168.
Sec. 1975
(5) Odell and Cartwright, a majority of the electoral college and duly
appointed, filled the vacancy, as shown by the record, by the election
of Watts.
Mr. William Lawrence, of Ohio, a Representative, filed further
objections, that: (1) Messrs. Cronin, Miller, and Parker, or any one of
them, were not appointed electors; (2) Odell, Cartwright, and Watts
were duly appointed, cast their votes legally for Hayes and Wheeler,
and their certificates were the only true and lawful lists; (3) these
latter received the highest number of votes cast in Oregon for
electors, and such fact was duly canvassed and certified by the
secretary of state.
Mr. James K. Kelly, of Oregon, a Senator, filed objections to the
Odell, Cartwright, and Watts certificates for reason that: (1) No
certificate of the governor was annexed as required by sections 136 and
138, Revised Statutes; (2) they had not annexed to them a list of names
of the said persons as electors with the seal of Oregon affixed by the
secretary of state and signed by the governor and secretary as required
by section 60, chapter 14, title 9, of the general laws of Oregon; (3)
Watts was ineligible as an elector because he was a postmaster on the
date of the election, November 7, 1876; (4) when the governor caused
the lists of names of electors to be certified the name of Watts was
not included; (5) it was the right and duty of the governor to certify
as he did ``the three persons capable of being appointed Presidential
electors who received the highest number of votes; (6) Cartwright and
Odell had no right to appoint Watts an elector on December 6, 1876, as
there was no vacancy on that date; and (7) as they did not compose any
part of the electoral college of Oregon as on that day constituted; and
also (8) because Watts was still a postmaster.
On February 24, 1877,\1\ the Presiding Officer laid before the joint
convention the report of the Electoral Commission signed by the eight
concurring Commissioners. They found that the votes of Odell,
Cartwright, and Watts were those provided for by the Constitution of
the United States, and as therein certified were to be counted for
Hayes and Wheeler; and that the three persons above named were duly
appointed electors in Oregon. The report continues:
The brief ground of this decision is that it appears, upon such
evidence as by the Constitution and the law named in said act of
Congress is competent and pertinent to the consideration of the
subject, that the before-mentioned electors appear to have been
lawfully appointed such electors of President and Vice-President of the
United States for the term beginning March 4, A. D. 1977, of the State
of Oregon, and that they voted as such at the time and in the manner
provided for by the Constitution of the United States and the law.
And we are further of opinion that by the laws of the State of Oregon
the duty of canvassing the returns of all the votes given at an
election for electors of President and Vice-President was imposed upon
the secretary of state and upon no one else; that the secretary of
state did canvass the returns in the case before us and thereby
ascertained that J. C. Cartwright, W. H. Odell, and J. W. Watts had a
majority of all the votes given for electors and had the highest number
of votes for that office, and by the express language of the statute
those persons are deemed elected; that in obedience to his duty the
secretary made a canvass and a tabulated statement of the votes,
showing this result, which, according to law, he placed on file in his
office on the 4th day of December, A. D. 1876. All this appears by an
official certificate under the seal of the State and signed by him and
delivered by him to the electors and forwarded by them to the President
of the Senate with their vote.
-----------------------------------------------------------------------
\1\ Journal, pp. 527, 528; Record, p. 1887.
Sec. 1976
That the refusal or failure of the governor of Oregon to sign the
certificate of the election of the persons so elected does not have the
effect of defeating their appointment of such electors; that the act of
the governor of Oregon in giving to E. A. Cronin a certificate of his
election, though he received a thousand votes less than Watts, on the
ground that the latter was ineligible was without authority of law and
is therefore void.
That although the evidence shows that Watts was a postmaster at the
time of his election, that fact is rendered immaterial by his
resignation both as postmaster and elector and his subsequent
appointment to fill the vacancy so made by the electoral college.
Mr. James K. Kelly, of Oregon, a Senator, having filed objections to
this decision, the Senate withdrew to their Chamber that the two Houses
might separately consider and determine the said objections.
The joint convention having reassembled,\1\ the Presiding Officer
announced that as the two Houses did not concur otherwise the decision
would stand unreversed. The Senate had determined that the decision
should stand and the House that the vote given by J. W. Watts should
not be counted.\2\
1976. In 1877 an objection was made that one of the electors of
Pennsylvania was illegally appointed; but the vote was counted.--On
February 24, 1877,\3\ during the session of the joint convention for
counting the electoral vote, the certificates from the State of
Pennsylvania were read, when Mr. William S. Stenger, of that State, a
Representative, submitted objections to the counting of the vote of
Henry A. Boggs as an elector on the grounds that: (1) A certain Daniel
J. Morrill was a candidate for elector and was declared by the governor
to have been duly elected; (2) said Morrill was not duly elected
because for a long time before, and on November 7, 1876, and for a long
period subsequent thereto, he held the office of Centennial
Commissioner under the act of March 3, 1871; (3) said Morrill could not
be constitutionally appointed an elector; (4) he did not attend the
meeting of the electors and had no right to attend; (5) the law of
Pennsylvania provides in regard to filling vacancies: ``If any such
elector shall die, or from any cause fail to attend at the seat of
government at the time appointed by law, the electors present shall
proceed to choose viva voce a person to fill the vacancy occasioned
thereby, and immediately after such choice the name of the person so
chosen shall be transmitted by the presiding officer of the college to
the governor, whose duty it shall be forthwith to cause notice in
writing to be given to such person of his election, and the person so
elected [and not the person in whose place he shall have been chosen]
shall be an elector, and shall, with the other electors, perform the
duties enjoined on them as aforesaid; '' (6) the electors present had
no authority to appoint the said Boggs, and such action was without
authority of law, null and void; (7) and said Boggs was therefore not
appointed in the manner directed by the legislature, and his vote as
such elector could not constitutionally be counted.
With the objection, and as a part of it, certain testimony was filed.
On February 26,\4\ the House and Senate having separated to consider
the objec-
-----------------------------------------------------------------------
\1\ Journal, p. 533; Record, p. 1916.
\2\ Journal, p. 531; Record, pp. 1907-1916. The effect of
disagreement of the two Houses was provided for bylaw. (19 Stat, L., p.
229.) For proceedings of the Electoral Commission in this case see
Congressional Record, second session Forty-fourth Congress, vol. 24,
pp. 119-179.
\3\ Second session Forty-fourth Congress, Journal, pp. 533-538;
Record, pp. 1917-1919.
\4\ Journal, pp. 540-544; Record, pp. 1919-1922, 1927-1938.
Sec. 1977
tions, they were considered in the House, and Mr. William D. Kelley, of
Pennsylvania, submitted the following:
Resolved, That the vote of Henry A. Boggs be counted as an elector
for the State of Pennsylvania, the objections to the contrary
notwithstanding.
Mr. William S. Stenger, of Pennsylvania, submitted the following as a
substitute therefor:
Resolved, That the vote of Henry A. Boggs as an elector for the State
of Pennsylvania should not be counted, because the said Boggs was not
appointed an elector for aid State in such manner as the legislature
directed.
After debate the substitute was agreed to, yeas 135, nays 119, and
the original resolution as amended by the substitute was then agreed
to.
The same day \1\ the joint convention reconvened, and the action of
the Senate was reported as follows:
Resolved, That the vote of Henry A. Boggs be counted with the other
votes of the electors of Pennsylvania, notwithstanding the objection
thereto.
The action of the House having been reported, the Presiding Officer
announced that as the two Houses did not concur in ordering otherwise,
the full electoral vote of the State of Pennsylvania would be cast for
Hayes and Wheeler. \2\
1977. In 1877 objection was made to one of the conflicting electoral
certificates from South Carolina on the ground that the election was
not legal for want of proper law, that there was no republican form of
government in the State, etc.; but the certificate was admitted.
The Houses of Congress do not have, in counting the electoral vote,
the power to inquire into the circumstances under which the primary
vote for Presidential electors is given.
On February 26, 1877,\3\ during the joint convention for the counting
of the electoral vote the certificates from the State of South Carolina
were read. There were found to be two sets of certificates. Mr.
Alexander G. Cochrane, of Pennsylvania, a Representative, submitted
objections to the certificates of the electoral votes of C. C. Bowen,
John Winsmith, T. B. Johnson, Timothy Hurley, W. B. Nash, Wilson Cook,
and W. B. Meyers on the grounds that: (1) No legal election was held in
the State, no registration law having been provided by the legislature,
as required by the constitution of the State; (2) a republican form of
government did not exist in the State on January 1, 1876, nor at any
time thereafter up to and including December 10, 1876; (3) a legal and
free election was prevented by the presence of soldiers of the United
States near the polling places; (4) deputy marshals of the United
States, acting under illegal instructions, prevented a fair election;
(5) there was from January 1, 1876, to December 10, 1876, at no time a
State government, except a pretended government set up in violation of
law and the Constitution of the United States, and sustained by Federal
troops.
These objections having been presented, Mr. John J. Patterson, of
South Carolina, a Senator, submitted objections to the electoral votes
cast by Theodore
-----------------------------------------------------------------------
\1\ Journal, p. 546; Record, p. 1938.
\2\ 19 Stat. L., p. 228.
\3\ Second session Forty-fourth Congress, Journal, pp. 550-552;
Record, pp. 1945, 1946.
Sec. 1977
G. Barker, Samuel McGowan, John W. Harrington, John I. Ingram, William
Wallace, John B. Erwin, and Robert Aldrich, on the grounds that: (1)
They were not appointed electors; (2) the papers have not annexed to
them a certificate of the governor of South Carolina as required by
sections 136 and 138 of the Revised Statutes of the United States; (3)
the papers have not annexed to them a list of the names of the said
alleged electors, to which the seal of the State was affixed by the
secretary of state, and signed by the governor and secretary as
required by the State laws; (4) C. C. Bowen, John Winsmith, and their
associates were appointed electors at the time and place prescribed by
law, cast their votes for Hayes and Wheeler, and the lists of votes
signed, certified, and transmitted by such electors are the only true
and lawful lists of votes for President and Vice-President; (5) C. C.
Bowen, John Winsmith, and their associates received the highest number
of all the votes cast for electors on November 7, 1876; the proper
State officers duly canvassed the votes, made and certified under seal
and delivered to the said Bowen, Winsmith, etc., lists of the electors,
showing that they had the highest number of votes and were elected; (6)
the lists of votes cast by Bowen, Winsmith, and their associates have
annexed the certificate of the governor of the State as required by
sections 136 and 138 of the Revised Statutes of the United States; and
(7) the said lists of votes have a list of the names of the said
electors, to which the seal of the State of South Carolina was affixed
by the secretary of state and signed by the governor and secretary as
required by the laws of the State.
The certificates and objections were referred to the Electoral
Commission, and the Senate withdrew.
On February 28, 1877,\1\ the report of the Commission was received in
the joint convention. It was signed by the eight concurring
commissioners, and found that the votes of Bowen, Winsmith, and their
associates, named in the certificate of D. H. Chamberlain, governor,
were the votes provided for by the Constitution of the United States
and were lawfully to be counted, as certified, for Hayes and Wheeler;
and that the seven persons above named, Messrs. Bowen, Winsmith, and
their associates, were duly appointed electors in and by the State of
South Carolina. The report continues:
The brief ground of this decision is that it appears, upon such
evidence as by the Constitution and the law named in said act of
Congress is competent and pertinent to the consideration of the
subject, that the before-mentioned electors appear to have been
lawfully appointed such electors of President and Vice-President of the
United States for the term beginning March 4, A. D. 1877, of the State
of South Carolina, and that they voted as such at the time and in the
manner provided for by the Constitution of the United States and the
law.
And the Commission, as further ground for their decision, are of the
opinion that the failure of the legislature to provide a system for the
registration of persons entitled to vote does not render nugatory all
elections held under laws otherwise sufficient, though it may be the
duty of the legislature to enact such a law. If it were otherwise, all
government in that State is a usurpation, its officers without
authority, and the social compact in that State is at an end.
That this Commission must take notice that there is a government in
South Carolina republican in form, since its constitution provides for
such a government, and it is and was on the day of appointing electors
so recognized by the Executive and by both branches of the legislative
department of the Government of the United States.
-----------------------------------------------------------------------
\1\ Journal, pp. 570-573; Record, p. 2006.
Sec. 1978
That so far as this Commission can take notice of the presence of the
soldiers of the United States in the State of South Carolina during the
election, it appears that they were placed there by the President of
the United States to suppress insurrection, at the request of the
proper authorities of the State.
And we are also of the opinion that, from the papers before us, it
appears that the governor and secretary of state have certified under
the seal of the State that the electors whose vote we have decided to
be the lawful electoral vote of the State were duly appointed electors,
which certificate, both by presumption by law and by the certificate of
the rival claimants of the electoral office, was based upon the action
of the State canvassers. There exists no power in this Commission, and
there exists none in the two Houses of Congress in counting the
electoral vote, to inquire into the circumstances under which the
primary vote for electors was given. The power of the Congress of the
United States in its legislative capacity to inquire into the matters
alleged, and to act upon the information so obtained, is a very
different one from its power in the matter of counting the electoral
vote. The votes to be counted are those presented by the State, and
when ascertained and presented by the proper authorities of the State
they must be counted.
The Presiding Officer having asked for objections to the decision,
Mr. John F. Phillips, of Missouri, a Representative, presented
objections, as did also Mr. Milton I. Southard, of Ohio, a
Representative. The objections, besides restating some of the original
objections to counting the vote, alleged that the Electoral Commission
had neglected or refused to inquire into facts and allegations
presented to it, and that certificate number 1 was void because of
irregularity in the swearing of the electors, because it did not state
that the electors voted by ballot, and because the certificate was not
that required by the laws of the United States.
The Senate then withdrew, and the House and Senate proceeded to
consideration of the objections to the report of the Commission. The
Senate, after debate, decided that the decision of the Commission
should stand as the judgment of the Senate, while the House decided
that the objections to the decision be sustained by the House.
These decisions being reported in the joint convention,\1\ the
Presiding Officer, under the law,\2\ announced that the two Houses not
concurring otherwise, the decision of the Commission would stand
unreversed.\3\
1978. Objection was made to the manner of appointment of one of the
electors of Rhode Island in 1877, but the two Houses decided to count
the vote.--On February 26, 1877 \4\ during the session of the joint
convention for the counting of the electoral vote, the certificates
from the State of Rhode Island had been read, when Mr. William J.
O'Brien, of Maryland, a Representative, presented objections to
counting the vote of William S. Slater as an elector for the reasons
that (1) the said Slater was not duly appointed an elector at the
election on November 7, 1876; (2) George H. Corliss, according to the
decision of the Electoral Commission rendered in the counting of the
vote of John W. Watts, as elector of the State of Oregon, if said
decision be law, was duly appointed elector by the State of Rhode
Island, and the substitution for him of the said Slater was illegal and
unconstitutional; (3) if in any event it was competent to complete the
electoral college of Rhode Island by adding another elector thereto, it
could only have been
-----------------------------------------------------------------------
\1\ Journal p. .581; Record p. 2021.
\2\ 19 Stat. L., p. 229.
\3\ For proceedings of the Electoral Commission see Congressional
Record, second session forty-fourth Congress, vol. 24, pp. 179-193.
\4\ Second session Forty-fourth Congress, Journal p. 546; Record p.
1938.
Sec. 1979
done under the law as announced by the said Electoral Commission, and
pursuant to the laws of said State by act of the majority of the
members of said college, and not by the legislature of said State.
The Senate having withdrawn and the House having proceeded to the
consideration of the objections, Mr. O'Brien offered this resolution:
Resolved, That the vote of William S. Slater, as elector for the
State of Rhode Island should not be counted because said Slater was not
appointed or elected elector for said State in such manner as its
legislature had directed.
Mr. Benjamin T. Eames, of Rhode Island, offered as a substitute
therefor the following:
Resolved, That the vote of William S. Slater as an elector for the
State of Rhode Island be counted, the objections thereto to the
contrary notwithstanding.
After debate, Mr. Eames's substitute was agreed to.
The two Houses having reassembled \1\ in joint convention, and the
action of the Senate, which was the same as that of the House, was
reported; then the action of the House. The Presiding Officer then
announced that the two Houses concurred in ordering the full electoral
vote of the State of Rhode Island to be cast for Hayes and Wheeler.\2\
1979. In 1877 objection was made that a Wisconsin elector was
disqualified by reason of holding another office; but the vote was
counted.--On March 1, 1877,\3\ during the session of the joint
convention for counting the electoral vote, the Presiding Officer
opened the certificates from the State of Wisconsin, and the same
having been read Mr. William P. Lynde, of Wisconsin, a Representative,
presented objections upon the grounds that (1) Daniel L. Downs, who had
voted as an elector, held the office of pension examining surgeon prior
to November 7, 1876, the date of the Presidential election, and upon
said day, and upon December 6, 1876, at the time he assumed to cast his
vote as an elector. An abstract of testimony accompanied this
objection.
The Senate withdrew, and the two Houses considered the objections
separately. In the House Mr. Lynde offered this resolution:
Resolved, That the vote of Daniel L. Downs as an elector of the State
of Wisconsin should not be counted, because he held an office of trust
and profit under the United States, and therefore was not
constitutionally appointed an elector by the said State of Wisconsin.
Mr. Lucien B. Caswell, of Wisconsin, offered the following as a
substitute:
Resolved, That the vote of D. L. Downs be counted with the other
votes of the electors of the State of Wisconsin, the objections thereto
notwithstanding.
After debate, the substitute was rejected, yeas 778, nays 136. The
original resolution of Mr. Lynde was then agreed to.\4\
The joint convention having reassembled,\5\ the action of the Senate
was read in the form of a resolution declaring that the vote of Daniel
L. Downs should be counted.
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\1\ Journal, p. 550; Record, p. 1945.
\2\ 19 Stat. L., p. 229.
\3\ Second session Forty-fourth Congress, Journal, pp. 605-607;
Record, p. 2055.
\4\ Journal, pp. 608-611; Record, pp. 2055-2067.
\5\ Journal, pp. 611, 612; Record, p. 2068.
Sec. 1980
The Presiding Officer then announced that, the two Houses not
concurring otherwise, the full electoral vote of Wisconsin would be
cast for Hayes and Wheeler.\1\
1980. Objection was made to the manner of appointment of one of the
electors of Vermont in 1877; but the vote was counted.--On February 28,
1877,\2\ during the joint convention for counting the electoral vote,
the Presiding Officer opened the certificate from the State of Vermont,
and the same having been read Mr. William M. Springer, of Illinois, a
Representative, presented objections to the counting of the vote for
the reason that two returns, or papers purporting to be returns, of the
electoral vote were forwarded to the President of the Senate and that
only one of said returns had been laid before the two Houses, the
President of the Senate having stated that but one return had been
received by him from said State. As a part of this objection a
duplicate copy of one of said returns was submitted for the
consideration of the Senate and House.\3\
Further objections were presented by Mr. Earley F. Poppleton, of
Ohio, a Representative, on the grounds that (1) Henry S. Sollace,
certified to have been elected November 7, 1876, was on that day and
for a long time before had been a postmaster; (2) the law of Vermont
did not authorize the election of said Sollace to fill the vacancy
alleged to have been the result of the absence of said Sollace from the
college of electors; (3) it did not appear that said Sollace had
resigned the office of postmaster at the date of his appointment to the
college of electors, which fact was proper to be inquired of by the
Commission; (4) it was proper for the Commission to inquire whether
Amos Aldrich, who received the highest number of votes next to those
cast for Sollace, and who was certified as an elector by certificate
No. 2, was not duly appointed an elector.
The Presiding Officer did not recognize the existence of double
returns from Vermont \4\ and accordingly did not submit the case to the
Electoral Commission.
The Senate then withdrew and the House proceeded to the consideration
of the objections. After debate, on March 1,\5\ by a vote of 207 yeas
to 26 nays, the House decided that--
the vote of Henry S. Sollace, claiming to be an elector from the State
of Vermont, be not counted.
The joint convention having reassembled \6\ the action of the Senate
was announced as favorable to counting the vote of Henry S. Sollace.
Thereupon the Presiding Officer announced that, as the two Houses did
not concur in ordering otherwise, the whole vote of Vermont would be
counted.\1\
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\1\ 19 Stat. L., p. 229.
\2\ Second session Forty-fourth Congress, Journal, p. 581; Record,
pp. 2021, 2022.
\3\ The Record (p. 2021) shows that this return had been offered by
Mr. Abram S. Hewitt, of New York, a Representative, and the Presiding
Officer had declined to recognize it.
\4\ Record, pp. 2022, 2023.
\5\ Journal, pp. 587-603; Record, pp. 2030-2054.
\6\ Journal, p. 604; Record, p. 2054.