Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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ELECTORAL COMMISSION

II.12.1

ELECTORAL COMMISSION, The (IN U. S. HISTORY). The act which created this body, which had hitherto been unknown to the laws of the United States, but whose idea seems to have been borrowed from the extra-legislative commissions of Great Britain, was approved Jan. 29, 1877. It is only necessary here to give the first three paragraphs of section second, the rest being matter of detail. Section first provides for the joint meeting of the two houses, the opening of the electoral votes, the entrance upon the journals of the votes to which no objection should be made, and the separate vote by each house on single returns from any state to which objection should be made, with the proviso that no such single return should be rejected except by concurrent vote of both houses. For double or multiple returns the electoral commission was provided, as follows: "§2. That if more than one return, or paper purporting to be a return, from a state shall have been received by the president of the senate, purporting to be the certificates of electoral votes given at the last preceding election for president and vice-president in such state (unless they shall be duplicates of the same return), all such returns and papers shall be opened by him in the presence of the two houses, when met as aforesaid, and read by the tellers, and all such returns and papers shall thereupon be submitted to the judgment and decision, as to which is the true and lawful electoral vote of such state, of a commission constituted as follows, namely During the session of each house on the Tuesday next preceding the first Thursday in February, 1877, each house shall, by viva voce vote, appoint five of its members, who with the five associate justices of the supreme court of the United States, to be ascertained as hereinafter provided, shall constitute a commission for the decision of all questions upon or in respect of such double returns named in this section."

II.12.2

—The section proceeds to specify, though without directly naming them, four justices, those assigned to the 1st. 3d. 8th and 9th circuits, and directs them to select a fifth justice to complete the commission, which should proceed to consider the returns "with the same powers, if any, now possessed for that purpose by the two houses acting separately or together." It is concluded elsewhere (see ELECTORS) that the houses had no such powers, separately or together, and could delegate no such powers to a commission. The question of the legality of the commission itself will therefore not be revived in this article. The commission was to decide by a majority of votes, and its decisions were only to be reversed by concurrent action of both houses. As the senators appointed on the commission were three republicans to two democrats, the representatives three democrats to two republicans, and the justices were so selected as to be two democrats to two republicans, it is evident that the fifth justice was to be the decisive factor of the commission. The radically evil feature of the act was, therefore, that it shifted upon the shoulders of one man a burden which the two houses together were confessedly incompetent to dispose of. The fifth justice selected was Joseph P Bradley, of the fifth circuit, and the commission, when it met for the first time, Jan. 31, 1877, was constituted as follows (republicans in Roman, democrats in italics): JUSTICES, Nathan Clifford, 1st circuit, president; William Strong, 3d circuit; Samuel F. Miller, 8th circuit; Stephen J. Field, 9th circuit; Joseph P. Bradley, 5th circuit. SENATORS, George F. Edmunds, Vt.; Oliver P. Morton, Ind., Fred. T. Frelinghuysen, N. J.: Thos. F. Bayard, Del.; Allen G. Thurman, O REPRESENTATIVES, Henry B. Payne, O.; Eppa Hunton, Va; Josiah G. Abbott, Mass.; Jas. A Garfield, O; Geo. F. Hoar, Mass. Francis Kernan, N. Y., was substituted, Feb. 26, for senator Thurman, who had become ill. The bar, besides the ablest lawyers of both parties in both houses, who appeared as objectors to various returns, was composed of O'Conor, of New York, Black, of Pennsylvania; Trumbull, of Illinois; Merrick, of the District of Columbia; Green, of New Jersey; Carpenter, of Wisconsin; Hoadley, of Ohio; and Whitney, of New York, on the democratic side; and Evarts and Stoughton, of New York, and Matthews and Shellabarger, of Ohio, on the republican side. As the double returns from the four disputed states came to the commission, they were necessarily decided in alphabetical order: Florida, Louisiana, Oregon, and South Carolina: but the principle settled in the case of Florida practically decided all the cases, and longer space will be given to it.

II.12.3

—I. FLORIDA. (For the laws of the United States governing the voting of electoral colleges, and the certification of the result by the state governor, see ELECTORS. IV.) Three returns from Florida were sent to the commission, Feb. 2, by the joint meeting of the two houses: 1, the return of the votes of the Hayes electors, with the certificate of the governor. Stearns, annexed, under the decision of the state returning board, which had cast out the vote of certain polling places; 2, the return of the Tilden electors, with the certificate of the state attorney general, who was one of the returning board, annexed, given according to the popular vote as cast and filed in the office of the secretary of state: 3, the same return as the second, fortified by the certificate of the new democratic governor, Drew, according to a state law of Jan. 17, 1877, directing a recanvass of the votes.

II.12.4

—The line of attack of the democratic counsel upon the validity of the first (republican) return was twofold. 1. They offered to prove that the state returning board, on its own confession, had cast out the votes of rejected precincts without any pretense of proof of fraud or intimidation: that it had thus been itself guilty of conspiracy and fraud, which fraud and conspiracy they had a right to prove on the broad principle that fraud can always be inquired into by any court, with the exception of two specified cases, neither of which applied here, and that the supreme court of Florida had decided the action of the returning board to be ultra vires, illegal, and void. 2. They offered to prove that Humphreys, one of the Hayes electors, was a United States officer when elected, and therefore ineligible. The republican counsel argued that the first return was in due form according to the constitution and laws of the United States and the laws of Florida, that the second return, having been certified only by the electors and by an officer unknown to the laws as a certifying officer, was a certificate of unauthorized and uncertified persons, which could not be recognized or considered; and that the third return was entirely ex post facto, having been made and certified after the date on which the laws directed the votes of the electors to be cast, and when the electoral college was functus officio (see ELECTORAL COLLEGE). Holding that, it the first return was valid, it excluded the other two, they confined their argument to the capacity of the commission to invalidate it. This was denied on the ground that the question was not which set of Florida electors received a majority of the votes cast, for that was a matter which the state itself controlled, and its action could not be examined or reversed by any other state, or by all the other states together; but that the question was, which set of electors, by the actual declaration of the final authority of the state charged with that duty, had become clothed by the forms of law with actual possession of the office: in short, that the commission's only duty was to count the electoral vote, not the vote by which the electors had been chosen. To the general offer of evidence they replied that the consideration of such evidence was, 1, physically impossible, since the commission "could not stop at the first stage of the descent, but must go clean to the bottom," and investigate every charge of fraud and intimidation in all the disputed states, which would be a labor of years; 2, legally impossible, since the law (of 1792) itself prescribed the evidence (the governor's certificate) which was competent, and, when the commission had ascertained its correctness, its work was concluded; and 3, constitutionally impossible, since the commission was not a court and could not exercise judicial powers, which by the constitution were vested in the supreme court and in inferior courts to be established; that the commission was not one of these inferior courts, since an appeal lay to congress, not to the supreme court; and that its functions were ministerial, and confined to ascertaining the regularity of the certificates sent. To the special offer in Humphreys' case they asserted, as the general rule of American law, that votes for disqualified persons were not void unless the disqualification were public and notorious, that voters would never be presumed guilty of an intention to disfranchise themselves, and that the de facto acts of even a disqualified elector were valid. Feb. 7, the commission voted, 1, to reject the general offer of evidence aliunde the certificates, and 2, to receive evidence in the case of Humphreys. Both votes were 8 to 7, Justice Bradley, the "odd man," voting on the first issue with the republicans, and on the second with the democrats. Evidence was then submitted to prove that Humphreys was a shipping commissioner, and that he resigned in October, 1876, by letter to the judge who had appointed him, but who was then absent from Florida on a visit to Ohio. The democratic counsel argued that this was no resignation, since the judge, while absent in Ohio, was not a court capable of receiving a resignation in Florida. To this it was replied that the resignation depended on the will of the incumbent, and took effect from its offer without regard to its acceptance. Feb. 9, by the usual vote of 8 to 7, the commission sustained the validity of the Hayes electoral ticket entire, on the grounds, 1, that the commission was not competent to consider evidence aliunde the certificates, and 2, that Humphreys had properly, resigned his office when elected.

II.12.5

—II. LOUISLANA. Feb. 12, three certificates from Louisiana were submitted to the commission. The first and third returns were identical, and were those of the Hayes electors, with the certificate of Gov. W. P. Kellogg, claiming under the count of the vote as finally made by the returning board. The second return was that of the Tilden electors, with the certificate of John McEnery, who claimed to be governor; they claimed under the popular vote as cast. The democratic counsel offered to prove that the average popular majority for the Tilden electors was 7,639; that the returning board had fraudulently, corruptly, and without evidence of intimidation, cast out 13,236 democratic and 2,173 republican votes, in order to make an apparent majority for the Hayes electors; that two of the Hayes electors held United States offices, and three others state offices, which disqualified them under state laws; that the returning board had violated the state law by refusing to select one of its members from the democratic party, and by holding its sessions in secret and not allowing the presence of any democrat, or even of United States supervisors; that McEnery, and not Kellogg, was legally governor; and they argued that the state law creating the returning board was void, as it conflicted with the constitution by erecting a government which was anti-republican and oligarchical, since the returning board was perpetual and filled its own vacancies. The arguments of the republican counsel were practically the same as on the Florida case, and the commission, by 8 to 7, upheld their view, Feb. 16. Nine successive motions by democratic commissioners to admit various parts of the evidence had been first rejected, each by a vote of 8 to 7.

II.12.6

—III. ORECON. The facts in the case of this state were as follows: The three Hayes electors undoubtedly had a popular majority; one of them (Watts) was, when elected, a postmaster, and the democratic governor (Grover) declaring Watts ineligible, gave his certificate of election to the two eligible Hayes electors, and to Cronin, the highest Tilden elector. The two Hayes electors refused to recognize Cronin, accepted Watts' resignation, and at once appointed Watts to fill the resulting vacancy. Cronin therefore appointed two electors to fill the vacancies caused by the refusals to serve with him: these cast Hayes ballots, and Cronin a Tilden ballot. The result was two certificates from Oregon, submitted to the commission Feb. 21. The first return was that of the Hayes electors, with the tabulated vote of the state, and a certificate from the secretary of state. The second return was that of the Cronin electoral college, with the certificate of the governor, and the attest of the secretary of state. The democratic counsel held that the second return, with the governor's certificate, was legally the voice of Oregon, as the commission had decided in the case of Louisiana, and more exactly in the case of Florida; that it was strengthened by the attest of the secretary of state, who was the canvassing officer by the laws of Oregon; and that it necessarily excluded the first return. The reply of the republican counsel showed that, while they had avoided the Scylla of Florida, they had been equally successful in steering clear of the Charybdis of Oregon. They held that the Florida case did not apply; that there the basis of the decision was, that the commission could only inquire whether the governor had correctly certified the action of the canvassing board appointed by the state; that in Florida and Louisiana the governor had so correctly certified, while in Oregon he had not so certified, but should have done so; and that the commission was competent to make his action conform to the laws of his state. Feb. 23, the commission, by votes of 8 to 7 in each instance, rejected five successive, but various, resolutions to reject the vote of Watts; by a vote of 15 to 0, rejected the second return entirely; and, by a vote of 8 to 7, accepted the first return.

II.12.7

—IV. SOUTH CAROLINA. Feb. 26, two certificates from South Carolina were laid before the commission. The first return was that of the Hayes electors, with the certificate of Gov. Chamberlain. The second return was a certificate of the Tilden electors, claiming simply to have been chosen by the popular vote, to have been counted out by the returning board in contempt of the orders of the state supreme court, and to have met and voted for Tilden and Hendricks. The democratic counsel held that government by a returning board was not republican, and that under Pres. Grant's proclamation of Oct. 17, 1876, declaring part of the state to be in insurrection, military interference had made the election a nullity. No serious effort was made to establish the validity of the second return. Feb. 27, the commission, by a vote of 8 to 7, rejected the offer to prove military interference; by a vote of 15 to 0, rejected return No. 2; and, by a vote of 8 to 7, accepted return No. 1. March 2, 1877, the commission adjourned sine die. (For the successive actions taken by the joint meeting on the commission's decisions, see DISPUTED ELECTIONS, III)

II.12.8

—It would seem no more difficult to impeach the constitutionality of the commission than that of the "twenty-second joint rule," under which so many former counts were made (see ELECTORS); and in that case the legal title given to the new president, through the mediation of the commission, would seem to be on an exact equality with that of Lincoln, Johnson or Grant. The cruelly vicious feature in the scheme was the fact that fourteen members of the commission were practically irresponsible, while the fifteenth was secure in advance of a monopoly of the anger of one party or of the other. In the case of Mr. Justice Bradley the censure was totally undeserved. If the constitutionality of the commission be granted, as it was by both parties, the weight of law, in spite of the brilliant arguments of Messrs, Merrick, Carpenter, Green, and others of the democratic counsel, lay in the republican scale; and even in Louisiana, where the proceedings of the returning board were shamefully, or rather shamelessly, defenseless, the censure should fall not on the commission but on the laws of Louisiana.

II.12.9

—The Proceedings of the Electoral Commission, being Part IV., vol. V., of the Congressional Record, 1877, have been published in a single volume. It contains the arguments of counsel in full, the opinions of the commissioners, the journal of the commission, and all the certificates and objections.

ALEXANDER JOHNSTON.

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