178 



CONGRESS, UNITED STATES. 



peal any day the law by which the electors are 

 elected by the people. The Legislature may 

 elect these electors by joint ballot of the two 

 Houses; it may authorize the Governor to ap- 

 point them; it may authorize the Supreme 

 Court of the State to appoint them ; and this 

 power has been exercised in various ways in 

 various States. In some States the electors 

 were once elected by separate districts, like 

 members of Congress ; in all the States now by 

 general ticket. In some States in times past 

 they were chosen by the different Houses of 

 the Legislature, and where the Houses were 

 divided in politics, the Senate, for instance, 

 being Federal, and the House Republican, they 

 divided the electors by contract, the Senate to 

 choose so many and the House to choose so 

 many. They have been elected by double and 

 treble districts, by dividing the State into a 

 number of districts less than the number of 

 members of Congress, so that one district 

 would elect two or three electors. In other 

 words, various expedients and various methods 

 have been adopted by the States at different 

 times in the choice of electors, and this power 

 to choose electors being placed absolutely with 

 the Legislature of each State by the Constitu- 

 tion, it is in the power of any Legislature, at 

 the next or before the next election, to with- 

 draw the election from the people and choose 

 electors in some other way that may seem good 

 to the Legislature of the State, and Congress 

 has no power to control it ; it has no power to 

 determine whether the election has been prop- 

 erly held or not. In other words, no contested 

 election of electors can be determined by the 

 Congress of the United States, because the 

 Constitution has placed that election abso- 

 lutely and entirely with the States. All the 

 power that Congress has over the electors is 

 contained in the third clause of that section, 

 which is in these words : 



The Congress may determine the time of choosing 

 the electors, and the day on which they shall give 

 their votes ; which day shall be the same throughout 

 the United States. 



" With these two exceptions every thing is 

 left to the States through their Legislatures. 



" This brings me to the consideration of the 

 next proposition. Congress has no power to 

 provide for contesting the election of electors. 

 That power is devolved entirely upon the State 

 Legislatures ; and if they make no provision 

 for cases of contested elections of electors Con- 

 gress cannot do it, because it was the policy 

 of the framers of the Constitution to make the 

 election of President entirely independent of 

 Congress, so that the Executive should be en- 

 tirely independent of the Legislative; and 

 therefore, if there is to be any provision made 

 under the present Constitution for determining 

 a contested election of electors, it must be 

 made by the several States and cannot be made 

 by Congress. All the power that Congress 

 has is to fix the time when the electors shall 

 be chosen by the States, and to determine the 



day when they shall come together as electors 

 to cast their votes, which shall be the same 

 day in all the States. 



" The next proposition that I call the atten- 

 tion of the Senate to is that the States have 

 made no provision for contesting the election 

 of electors. All the States have now provided 

 for electing electors by general ticket by the 

 vote of the people ; but this is of recent origin. 

 Up to 1824 eight States chose electors by the 

 Legislature, and up to the beginning of the 

 war in 1860 South Carolina chose her electors 

 by the Legislature, just as she did her Senators. 

 Now all the States, however, have agreed that 

 they shall be elected by the people upon gene- 

 ral ticket, so that whatever set of electors get 

 the most votes in a State, if it is only a majority 

 of five, cast the whole vote of the State. 



" But no State has provided any method of 

 contesting the election of electors. Though 

 this election may be distinguished by fraud, 

 notorious fraud, by violence, by tumult, yet 

 there is no method for contesting it ; no State 

 has passed a law for that purpose. Every 

 State has passed laws for contesting the elec- 

 tion of Governor, of Lieutenant-Governor, of 

 members of the Legislature, and of all State 

 officers; but no State has made any provision 

 for determining a contested election as to elect- 

 ors ; so that whatever electors are certified to 

 by the State authorities have the right to cast 

 the vote, and there is no power in Congress or 

 anywhere else to prevent them from doing it, 

 although it may be known to the whole world 

 that they were not honestly elected and have 

 no right to cast the vote of that State. 



" Not only that, but the law passed by Con- 

 gress in 1792 to carry out the provision of the 

 Constitution prohibited any contest in effect 

 either by the State or by Congress. That law 

 provides that the electors shall assemble in 

 the several States on the first "Wednesday in 

 December and cast their votes. It further 

 provides that the electors shall be chosen, 

 whether by the people or by the Legislatures, 

 within thirty-four days of the time when they 

 are required to cast their votes, so that no 

 time is left between the selection and the vote 

 for any contest ; nor can there be any contest 

 afterward.. When the electors have cast their 

 votes, they arefunctits cfficio; they can never 

 meet again; their office has expired. When 

 they meet and vote on the first Wednesday in 

 December, their functions have expired ; they 

 can never be called together again. 



"And then the Constitution goes on to pro- 

 vide that they shall vote by ballot. Why? 

 That it may not be known to each other how 

 they voted ; that it may never be known to 

 the people how they voted ; and then that the 

 vote shall be sealed up and sent to the Presi- 

 dent of the Senate and that he shall not open 

 that vote until the day it is counted ; that the 

 vote is to be opened in the presence of the two 

 Houses and at the very moment it is to be 

 counted ; so that, if there is any informality in 



