CONGRESS, UNITED STATES. 



213 



to determine under its own laws what persons 

 have l>e. -n n|>|)ointod as electors. 



44 Third. I'liis right the State can enforce 

 fully and conclusively, in reference to all mat- 

 ters that are constitutionally within its juris- 

 diction, if a contest or controversy arises and 

 is curried before the State tribunals for de- 

 cision. 



- Fourth. It asserts the right in Congress to 

 give to the action of a State, so deciding a con- 

 troversy as to who are appointed electors, a 

 conclusive effect as evidence of the lawful title 

 of electors who shall have been so determined to 

 have been appointed ; and that such evidence 

 shall govern in counting the vote, without the 

 necessity of the concurrence of the two Houses 

 in a vote affirming its validity. 



" Fifth. It secures to the States the right to 

 demand the separate and affirmative concur- 

 rent vote of the two Houses in counting the 

 electoral vote, in the following cases: 



"1. In rejecting a vote from a State from 

 which but one return has been received ; 



"2. In deciding which of two tribunals in a 

 State, claiming the right to determine which 

 of the electors have been appointed, is the law- 

 ful tribunal ; and, 



" 3. In deciding which of two or more re- 

 turns from a State shall be counted, where 

 the State tribunals have not determined who 

 are the electors. 



" Sixth. It secures to a Senator and a mem- 

 ber of the House of Representatives the right 

 to join in a demand that the two Houses, met 

 to count the vote, shall consider, separately, 

 any objection in writing that they may submit 

 to the counting of any vote that is offered to be 

 counted. 



44 The bill does not attempt to define what 

 shall be the character of the objection thus to 

 be submitted ; it only provides that in certain 

 named cases or circumstances it shall require 

 the concurrent affirmative vote of the Houses, 

 voting separately, to reject the vote to which ob- 

 jection is made, and in the other cases it requires 

 a vote in like manner concurring and affirma- 

 tive to admit the vote to be counted. The 

 concurrence of the Houses that is thus required 

 does not depend upon the nature of the ob- 

 jection to the vote, but upon the circumstances 

 attending it when it is offered to be counted. 

 If the State authorities have certified the elec- 

 tors in due form, according to State laws, then 

 the vote is to be counted, unless the Houses 

 concur in an affirmative vote to reject it. If it 

 has been passed upon by the State tribunal 

 duly authorized by State laws to determine its 

 validity upon a contest, then it is to be counted. 

 In these instances the vote is supported by 

 either a presumptive or conclusive intendment 

 in favor of its validity, which is imparted to it 

 by the action of the State authorities. In the 

 absence of such presumption, or where it oper- 

 ates alike in reference to two or more persons 

 claiming a right to cast the same vote, this bill 

 requires the Houses by an affirmative vote to 



determine which is the lawful vote. If the 

 Mates neglect or refuse to make final and con- 

 clusive decisions of all matters within their ju- 

 ri -diction (all matters indeed that relate to the 

 validity of the appointment of electors), it 

 seems but reasonable that when the tribunal 

 that is required to count the vote and declare 

 the election acts upon the subject, it should be 

 provided by law that only one branch of that 

 tribunal should not be permitted finally to de- 

 termine the matter. It is the better and safer 

 rule that the Houses should concur, even if in 

 such case their non-concurrence should dis- 

 franchise the State. Every State can save its 

 vote, if it will do so, against the power of any 

 tribunal lawfully to exclude it for any cause 

 except for the constitutional disability of its 

 electors or for fraud in the action of the State 

 tribunal that determines the validity of the ap- 

 pointment. 



44 If this bill becomes a law, the States will 

 see the importance of using their rightful au- 

 thority to provide for the settlement of con- 

 tested elections or the appointment of electors 

 before the electoral vote is cast. It is within 

 the scope of their authority to compel persons 

 to contest the question whether they are the 

 lawful electors before the State tribunals, and 

 to enact laws which shall annul every pretext 

 of lawful authority to represent the State in the 

 electoral colleges that is claimed by persons 

 who refuse to enter such contests. The dis- 

 tinct enunciation of these rights and powers 

 of the State governments will induce them, as 

 I believe, to settle all questions of contested 

 claims by different persons to the lawful au- 

 thority to cast electoral votes of the States, 

 and they will thus be excluded as elements of 

 strife from consideration by the Senate and the 

 House when they are met to count the votes. 



44 1 do not like the words 4 or paper purport- 

 ing to be a return ' found in several connec- 

 tions in the sixth section of the bill, and espe- 

 cially do I mistrust the effect of these words 

 when they occur in line 53 of the sixth section : 



" And in such case of more than one return^ or pa- 

 per purporting to be a return, from a State, if there 

 shall have been no such determination of the question 

 in the State as aforesaid, then those votes ana those 

 shall only be counted which the two Ilouses, acting 

 separately, shall concurrently decide to be the lawful 

 votes of the legally appointed electors of such State. 



" I am afraid that their presence in the text 

 of the law would suggest an inducement to 

 some enterprising persons to send to the V ice- 

 President papers purporting to be returns from 

 States, and by means of such fraud gain the 

 possible advantage of disfranchising a State to 

 get rid of its vote against their favorite. The 

 words signify nothing in the structure of the 

 sentence where they occur beyond a cautions 

 effort to embrace every possible case that could 

 arise upon more than one return from a State, 

 each return having some real ground of good 

 faith to support its claim to recognition. I 

 think this over-caution to prevent the exclusion 



