Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Amendment XII: "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as VicePresident, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, but in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disabil ity of the President. The Person having the greatest number of votes as Vice-President, shall be the VicePresident, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." Amendment XIV: Section 1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Amendment XXIII: Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Section 2. The Congress shall have power to enforce this article by appropriate legislation. U.S. CODE PROVISIONS Chapter 28, Section 1251 Original jurisdiction (a) The Supreme Court shall have original and exclusive jurisdiction of: (1) All controversies between two or more States; (2) All actions or proceedings against ambassadors or other public ministers of foreign states or their comestics or domestic servants, not inconsistent with the law of nations. (b) The Supreme Court shall have original but not exclusive jurisdiction of: (1) All actions or proceedings brought by ambassadors or other public ministers of foreign states or to which consuls or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens. June 25, 1948, c. 646, 62 Stat. 927" PROOF OF SERVICE I, David P. Buckson, Attorney General of the State of Delaware, and a member of the Bar of the Supreme Court of the United States, Hereby certify that on July 1966 I served a copy of the foregoing Motion for Leave to File Bill of Complaint, Statement in Support of Motion, Complaint, and Brief, by depositing same in a United States Post Office, with air mail postage prepaid, addressed to the official post office address of each Governor, and each Attorney-General of each of the defendant States named in the Complaint, and to the President of the Board of Commissioners, and the Corporation Counsel, of the District of Columbia. David P. Buckson State of Delaware Dover, Delaware [From the Dickinson Law Review, June 1961] ELECTION CONTESTS AND THE ELECTORAL VOTE (By L. Kinvin Wroth*) The extremely close presidential election of 1960 stirred a problem that has long lain dormant. As the result of a recount of the popular vote in Hawaii, Congress, in its joint meeting to count the electoral vote, was presented with conflicting returns from a state for the first time since the Hayes-Tilden controversy of 1877. Since the outcome of the election was not affected, the joint meeting accepted the result of the recount proceeding, and the votes given by Hawaii's Democratic electors were counted.1 The once fiercely agitated question of the location and nature of the power to decide controversies concerning the electoral vote was thus avoided. This question, arising from an ambiguity in the Constitution, has long been deemed settled by the statutory provisions for the count of the electoral vote made in the aftermath of the Hayes-Tilden controversy. The system for resolving electoral disputes which this legislation embodies has never been tested, however. The events of 1960 raise serious doubts as to whether the present provisions would be effective either in resolving election contests on their merits or in producing a smooth solution to a political crisis on the order of 1877. Moreover, Mr. Kennedy's narrow margin is a reminder that the possibility of controversy is always present. With broad electoral reforms once again under consideration in Congress, it seems appropriate to take a fresh look at the present constitutional and statutory scheme for dealing with disputed electoral votes. The basis of our system of electing a President is laid down in the Constitution, which provides that Each State shall appoint in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States shall be appointed an elector. The 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. The actions of the electors are regulated by the Twelfth Amendment: 5 The Electors shall meet in their respective states and vote by ballot for President and Vice President, one of whom, at least shall not be an inhabitant of the same state with themselves; . . . they shall make distinct lists of all persons voted for as President and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President to the Senate ;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be President, if such number be a majority of the whole number of Electors appointed. Teaching Fellow, Dickinson School of Law; B.A., Yale University; LL.B., Harvard University. 1107 CONG. REC. 281-284 (daily ed., Jan. 6, 1961). For an account of the proceedings in Hawail, see infra, notes 78-81. 2 Act of Feb. 3, 1887, ch. 90, 24 Stat. 373, [hereinafter referred to as the Electoral Count Act]. For subsequent legislative history, see infra, notes 61, 63, and 76. The Act provoked considerable debate following its passage, but recent commentators have treated it only in passing, or have viewed it as solving all problems. See Burgess, The Law of the Electoral Count, 3 POL. SCI. Q. 633 (1888); Carlisle, Dangerous Defects in Our Electoral System, 24 FORUM 257, 264 (1897); DOUGHERTY, THE ELECTORAL SYSTEM OF THE UNITED STATES 214-249 (1906); Tansill, Congressional Control of the Electoral System, 34 YALE L.J. 511, 524 (1925); Mullen, The Electoral College and Presidential Vacancies, 9 MD. L. REV. 28, 41-42 (1948); Dixon, Electoral College Procedure, 3 WEST. POL. SCI. Q. 214, 222-223 (1950); WILMERDING, THE ELECTORAL COLLEGE XI (1958). 3 Infra, note 117. 4U.S. CONST. art. II, § 1. * See infra, notes 18 and 28. |