The only other constitutional limitations on the election of a President are those which establish the age and citizenship requirements for eligibility to the office." Pursuant to the constitutional plan the electors are "appointed"-now uniformly by popular vote—on the Tuesday after the first Monday in November.' The procedure for counting the vote and ascertaining the results varies from state to state," but in general it is something like this: The ballots, or the contents of the voting machines, are tabulated at the polls by precinct election judges, who send their tally sheets forward to a county canvassing board. This board makes an abstract of the votes shown for each candidate in the precinct returns, which it sends to a state canvassing or returning board. The state board tallies all the county returns and determines who have been appointed electors. This result is then relayed to the governor of the state, who under federal law is required to make a certificate of the result based on this ascertainment and forward it to Washington." The electors, who have also received the governor's certificate meet on the Monday after the second Wednesday in December to cast their votes, which they certify and send to the President of the Senate.10 On January 6th, at a joint meeting of Congress, these votes are opened and tabulated and the result declared."

At a number of points in this process, controversies may arise which could affect the validity of a state's electoral vote. (1) There may be fraud or error at the polls on the part of voters or election officials. (2) There may be fraud or error in the initial count of the ballots at the precinct level. (3) There may be fraud or error on the part of the county or state canvassing board, or one of these agencies may abuse whatever powers are given to it by state law. (4) The governor may act fraudulently or erroneously in certifying the electors. (5) An elector may be appointed who is constitutionally ineligible for the office. (6) The electors may act erroneously in the signing and sealing of their certificates of the vote. (7) The electors may cast their votes for an ineligible person. (8) The electors may vote on a day other than that ordained by Congress. (9) The electors may be influenced by fraud or a third party may somehow tamper with their deliberations. (10) The right of a state to participate in an election, or of a particular government to attest to the acts of a state may be called in question.

This group of controversies may be divided into those concerning the recognition of state governments and the status of states; those concerning the qualifications and acts of the electors in giving their votes; and those concerning the manner in which the popular vote is given, counted, canvassed and communicated to Congress. The problems of greatest importance are those of the last class. Questions of statehood and the recognition of state governments are unlikely to arise short of another Civil War. When they do come up, Congress has sole jurisdiction. 12 Questions concerning the electors would be important in a great crisis such as that of 1877,13 but they involve technicalities which are no longer of the essence of our electoral system. We view our presidential elections as popular elections. If the President is to take office free of uncertainty or scandal that might weaken his authority, controversies concerning the popular vote in a close election must be promptly resolved by a method that leaves no doubt of its fairness on the merits.

Problems of all three classes arose during the stormy century of legislative history which culminated in the Electoral Count Act of 1887." Controversy

U.S. CONST. art. II, § 1.

73 U.S.C. § 1 (1958). As to state methods of appointment, see Wilkinson, The Electoral Process and the Power of the States, 47 A.B.A.J. 251, 253-4 (1961).

8 See HARRIS, ELECTION ADMINISTRATION IN THE UNITED STATES, 236-307 (1934). 3 U.S.C. § 6 (1958). See infra, note 63.

10 3 U.S.C. §§ 7-11. To insure safe arrival of the electors' certificates, five duplicates are deposited with various other officers. Id., § 11. Provision is made for the President of the Senate to send for these duplicates if necessary. Id., §§ 12-14. See 20 OPS. ATT'Y GEN. 522 (1893).

11 Id., §§ 15-18.

12 See infra, note 30.

13 See infra, note 53.

14 Supra, note 2. The history of the electoral system can be only sketched here. For fuller treatment, see MCKNIGHT, THE ELECTORAL SYSTEM OF THE UNITED STATES (1878): DOUGHERTY, op. cit. supra, note 2; STANWOOD, A HISTORY OF THE PRESIDENCY FROM 1788 TO 1897 (Bolton ed. 1926); Tansill, supra, note 2. A complete compilation of all congressional proceedings on the subject from 1789 until 1876 may be found in House Special Committee on Counting Electoral Votes, H.R. MISC. Doc. No. 13, 44th Cong., 2d Sess. (1877) [Hereinafter cited as Counting Electoral Votes]. When appropriate, reference will be made to this work, rather than to the original sources in the congressional debates. Dates will be given, however, so that the referenced matter may be found in the original.

focused on the congressional counting sessions, where three great questions were continually agitated. First, does the Constitution give the President of the Senate sole power to exercise whatever discretion the count involves, or are the two Houses of Congress the final judge of the validity of votes? Secondly, is the power to count merely the power to enumerate votes given by electors declared by state authority to have been appointed, or is there power to determine the correctness of the state authority's declaration and to examine the validity of the acts of the electors? Thirdly, whatever the scope of the power, how is the evidence necessary to a decision to be presented, and by what means is the decision to be made?

Close scrutiny of the debates of the Constitutional Convention reveals no direct discussion of these problems. The possibility that a dispute might arise with which Congress would have to deal does not seem to have been considered. In fact, the machinery of the Electoral College, a compromise between popular election and election by Congress, was designed to provide a means for the election of a President free from any hint of the evils of Congressional influence.15 The plain implication of the original scheme is that the states in their control of the manner of appointment were to provide for the settlement of whatever controversies might arise. Only local interests would be at stake in the appointment process, because the electors were to be independent of any presidential candidate 16 and would thus be chosen solely on their own merits. Local authorities would naturally resolve any contest.

While state control guarded state interests, other features of the plan protected the national interest. If certain states failed to appoint electors, the President was still elected by a majority of those who were appointed.17 If no state had appointed electors, the provisions for failure of a majority would come into play, and the election would devolve upon the House.18 The method for electing a President may be contrasted with the provisions for congressional elections. In the latter instance, as Hamilton pointed out in the Federalist," Congress must have ultimate control over the manner of election of its own members, lest the states, by refusing to elect Congressmen, cause the whole structure to fall. In the case of the presidency, since the House was ready to carry out the election if the states failed, congressional control was not only undesirable but unnecessary.

The absence of two elements in the original plan made it impossible to determine when a state had failed in its obligations. No provision was made for the states to validate their choice of electors to Congress, and the power to determine what were valid votes was neither defined nor expressly granted. The former gap was filled in 1792 by a statute providing that the “executive authority" of each state was to give to the electors a certificate of their appointment which they were to forward to the President of the Senate with their votes.20 That this provision did not solve the problem, however, became apparent as the result of a development unforeseen in the Convention. After a very few elections the

15 See 2 RECORDS OF THE FEDERAL CONVENTION OF 1787 109, 501 (Farrand ed., 1911). The Convention wavered between election by Congress and a number of other methods. The Congressional plan was actually approved and then reconsidered. Id. 101, 171.

16 U.S. CONST., art. II, § 1; 2 RECORDS OF THE FEDERAL CONVENTION, supra, note 15, at 500-501. THE FEDERALIST No. 68, at 452 (Ford ed. 1898) (Hamilton).

17 Before the present language was adopted in the Convention, a motion that the provision read "who shall have balloted," intended to prevent the number needed for a majority from being increased by non-voting electors, was lost. 2 RECORDS OF THE FEDERAL CONVENTION, supra, note 15 at 515.

18 U.S. CONST., art. II, § 1; cf. id., amend. XII. In the original provision, if the electoral vote ended in a tie, or if no candidate had a majority, the House, balloting by states, was to choose the President from the tied pair. If there were no majority, the choice was to be from among the five highest candidates. In any case the Vice President was to be the man who placed second. The Twelfth Amendment, in providing for the separate election of the Vice President, preserved the power of the House over the Presidential election and gave the Senate similar powers in the case of the Vice President. See infra, note 28.

19 The Federalist, supra, note 16, No. 59, at 392 393, Hamilton did not discuss the elec toral count or contests over the electoral vote. Id.. No. 68.

20 The Act of March 1, 1792, ch. 8, 1 Stat. 239, also established the times at which the electors were to be appointed and were to vote, as well as the date on which Congress was to meet for the count of the vote.

29-018 - 6951

electors virtually lost their independence." Their election thus took on a national interest, requiring that the electoral votes counted be those given by electors who were actually chosen, whatever the executive certificate might say. In the absence of provision as to the second missing element, it was considered that the President of the Senate had the power to "count," and thus to determine what votes were to be counted." The dangers in such a system, especially when that officer was a presidential candidate soon appeared, however, and it was urged that Congress could by legislation provide a more satisfactory procedure."

These problems were first faced after the good will surrounding Washington's administrations had been dissipated by strife over John Adam's efforts to deal with the foreign and domestic consequences of the French Revolution. In the spring of 1800 both Houses of the Federalist Congress, in a last ditch effort to stem the tide of Jeffersonian Republicanism," passed different versions of a measure under which a joint committee was to meet prior to the count of the vote, with "power to examine into all disputes relative to the election of President and Vice President of the United States, other than such as might relate to the number of votes by which the electors may have been appointed." All petitions for the contest of electoral votes were to be referred to the Committee, which was to take any necessary additional evidence, and make a report of its entire proceedings, without opinion, to both Houses. Congress was then to meet in joint session, for the count of the vote. If objection was made to the vote of any state, the Houses were to decide it without debate in separate session. As passed by the House the bill provided that a disputed vote was to be counted unless the Houses concurred in rejecting it.25 The Senate, agreeing in every provision of the bill but this one, passed an amendment providing that a disputed vote was to be rejected unless the Houses concurred in counting it. The House, less the Houses concurred in rejecting it." The Senate, agreeing in every pro would permit rejection by vote of the Senate alone. The bill failed when neither House would yield."

The bill of 1800 was a measure designed to achieve partisan ends. While it prohibited Congress from questioning a state's popular vote, it did not bind Congress to accept a particular determination of the popular result. Since the facts reported by the Committee were in no way made the basis of the ultimate deci

The rise of party feeling was apparent enough by 1796 to cause outspoken comment when a Federalist elector voted for Jefferson, STANWOOD, op. cit. supra, note 14, at 51. While the electors retain their independence as a theoretical matter, in practice virtually every elector ever appointed has voted at his party's call. DAVID, GOLDMAN & BAIN, THE POLITICS OF NATIONAL PARTY CONVENTIONS 222n (1960); cf. CORWIN, THE PRESIDENTOFFICE AND POWERS, 1787-1957 40-41 (4th rev. ed. 1957). One court has gone so far as to suggest that mandamus would lie to compel an elector to vote as the party directed. Thomas v. Cohen, 146 Misc. 836, 262 N.Y. Supp. 320, 326 (Sup. Ct. 1933) (dictum), and the statutes of at least five states require a pledge. Wilkinson, supra, note 7 at 254. The Supreme Court has indicated, however, that while a political party may exact a pledge from a primary candidate, its enforceability is constitutionally dubious. Ray v. Blair, 343 U.S. 214, 230 (1952) (dictum). Recent legislation in the southern states seems to embody express recognition of the principal of independence. CORWIN, supra, at 41; Wilkinson, supra.

22 Resolution of September 17, 1787, 2 RECORDS OF THE FEDERAL CONVENTION, supra, note 15, at 665-666; Counting Electoral Votes 7-8 (April 6, 1789); 1 KENT, COMMEN TARIES ON AMERICAN LAW 258-259 (1826); MCKNIGHT, op. cit. supra, note 14 at 140-147, 157-167, 179-181.

23 In 1797 John Adams did not hesitate to count for himself the four votes of Vermont, which apparently had been improperly cast by the state legislature. STANWOOD, op. cit. supra, note 14, at 52. Although this act gave Adams the presidency, no objection was raised in the counting session. Counting Electoral Votes 13, 15 (Feb. 8, 1797). In the tied election of 1800, Jefferson, also without opposition, counted_dubious votes that gave a majority to himself and Burr. 2 DAVIS, MEMOIRS OF AARON BURR, 71-73 (1837); STANWOOD, op. cit. supra, at 69-73; Counting Electoral Votes 30 (Feb. 12, 1801). As to the idea that Congress could by legislation provide another agent for the count, see Counting Electoral Votes 16 (Senate, Jan. 23, 1800); KENT, op. cit. supra, note 22; H.R. REP. No. 31, 40th Cong., 3d Sess. 84-88 (1869). cf. 2 STORY, COMMENTARIES ON THE CONSTI TUTION 1470 (3d ed. 1858).

24 Their purpose was to prevent the appointment of Republican electors by the Pennsylvania legislature. BEVERIDGE, THE LIFE OF JOHN MARSHALL 452-458 (1916); McKNIGHT, op. cit. supra, note 14, at 262-269; DOUGHERTY, op. cit. supra, note 2, at 62-63. 25 Counting Electoral Votes 23, 27 (April 25. May 2, 1800). The original version of the bill in the Senate had provided for a "Grand Committee" with a majority of its members drawn from the Senate, having power to arrive at a binding final determination of all disputes except those over the popular vote. Id., 21 (March 27, 1800). The milder House version reflected the efforts of John Marshall, a somewhat more moderate Federalist than his New England colleagues, to prevent the passage of a measure that would have excited even greater popular ill will against his party. BEVERIDGE, op. cit. supra, note 24. 28 Counting Electoral Votes, 28, 29 (May 8, 9, 1800).

sion, there was not even a procedural guarantee that the result reached by the two Houses would be based on a fair assessment of the facts. If the bill did not provide a satisfactory means of validating a state's votes, however, it left no doubt as to where the power to validate lay. Even the Republican members of both Houses seemed to concede that Congress had full power to deal with the matters over which the bill gave it jurisdiction." In light of this understanding it can be argued that the Twelfth Amendment, the remedy for other defects appearing in the election of 1800, embodied the view that the power to count the vote lay in Congress, rather than in the President of the Senate.28

30

No measure materially affecting the electoral count was passed in the years prior to the Civil War," but on three occasions, Congress assumed the power to reject the votes of a state which had not completed the formalities necessary for admission to the Union. The only other question concerning the electoral vote during this period arose in 1857, when the votes of Wisconsin, unavoidably given on the wrong day, were counted after an inconclusive debate. In all four of these cases, the disputed votes had no effect on the outcome of the election. The only consistent pattern in the debates is the call for legislation to deal with the problem of the count.

Congress asserted total power over the electoral vote with the adoption of the Twenty-second Joint Rule in 1865. Even more than the bill of 1800, the Rule was a political measure, passed and used by Republican majorities of both Houses to assure control over the votes of the recently rebellious southern states. It thus contained no machinery at all for solution of disputes on the facts. The Rule first provided for the joint meeting of the two Houses, at which the certificates were to be opened by the President of the Senate and read out by tellers. The critical portion was as follows:

If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the Presiding Officer, the Senate shall thereupon withdraw, and the question shall be submitted to that body for its decision; and the Speaker of the House of Representatives shall in like manner state the question to the House of Representatives for its decision; and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurring vote of the two Houses, which being obtained, the Houses shall immediately reassemble, and the Presiding Office shall then announce the decision of the question submitted; and upon any such question there shall be no debate in either House. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner.33

In both Houses they had urged substitute measures that gave the power to decide disputes to a majority of the joint convention. Id. 19 (Senate, March 25, 1800); id. 26 (House, April 30, 1800).

28 The amendment did not alter the language of the original instrument regarding the count of the vote. Cf. U.S. CONST. art. II, § 1. As to the changes actually made, see supra, note 18. The amendment was passed by the Republican 8th Congress on December 8, 1803, in a strict party line vote. 2 Stat. 306; STANWOOD, op. cit. supra, note 14, at 77-82. The language of the act which implemented it suggests that someone other than the President of the Senate was to count the vote. Act of March 26, 1804, ch. 50. 2 Stat. 295. The language used in the count of 1805 indicates an understanding that Congress was the counting authority. Counting Electoral Votes, 36. 37 (Feb. 13. 1805). In 1824, another year of impending crisis, the Senate passed a bill providing that the Houses should separate to decide disputed votes, with votes to be rejected only if the Houses concurred. The bill died in the House without being considered. Id. 57-60 (March 4April 21, 1824). The Act of January 23, 1845, ch. 1. 5 Stat. 721. established the present election day and permitted the states to remedy minor defects in the electoral process. See 3 U.S.C. §§ 1, 2, 4 (1958).

30 In 1817 the votes of Indiana were counted after a debate in which it was assumed that if Indiana were not a state her vote would not be counted. Counting Electoral Votes 44-47 (Feb. 10-11, 1817). In 1821, Missouri not having complied with the anti-slave conditions to its admission, Henry Clay put through a compromise resolution which provided that the result should be announced in alternative form, both as though the vote of Missouri had been counted and as though it had not. Id. 48-56 (Feb. 6-14, 1821). Michigan's vote was counted in similar fashion in 1837, and the ineligibility of certain electors was pointed out. Id. 70-76 (Jan. 26-Feb. 8, 1837). The power of Congress to make such decisions is derived directly from its power to provide for the admission of new states. U.S. CONST., art. IV, § 3. If the two Houses cannot agree as to whether a certain entity is a state, or whether certain acts are the acts of the lawful government of a state, no other authority can resolve the question. See Luther v. Borden, 48 U.S. (7 How.) 1 (1849). For the treatment of similar problems in 1865 and 1869, see infra, notes 34, 35. 31 Counting Electoral Votes 87-144 (Feb. 11-12, 1857).

Id. 47 (House, Feb. 11, 1871), 52 (House, Feb. 14, 1821), 71 (Senate,, Feb. 4, 1837), 129-132 (Senate, Feb. 12, 1857).

88 Id 224 (Senate, Feb. 6, 1865). The rule was hastily passed in sparsely attended sessions of both houses. Id. 223-226. Of. id. 536 (March 13, 1876) (Remarks of Senator Whyte).

Since concurrence was required to count a disputed vote, either House, by its negative, could cause rejection. This procedure created no problem, because in the post Civil War political climate there was little prospect of disagreement over which votes to reject.

35

The Twenty-second Joint Rule was not applied in the count of 1865. In 1869, although serious questions arose, no votes were rejected under the Rule. The count of 1873, in which the Rule was applied to the votes of five states, is the first case in which a dispute over the popular vote was presented to Congress." In four cases objection was made to the acts of the electors and to alleged technical faults in the certification." When the votes of Louisiana came up, Congress for the first time dealt with a "double return," the device with which all subsequent legislation has been designed to deal. Two bodies in the state claimed to be the final canvassing authority. One had certified the state's Grant electors, while the other had validated a slate of Democrats, who also had the certificate of the governor. After a debate in which members of both parties said that Congress could look to the facts of a disputed election, in order to prevent the acceptance of a corrupt return, the Senate Committee on Privileges and Elections was empowered to investigate the situation. The Committee found that neither canvass was valid, and held that Congress itself could not canvass the votes without usurping the state's constitutional powers. The Committee's report suggested, however, that it would be proper for Congress to go behind the governor's certificate to determine whether a legal canvass had been made. In the count proceedings this report was not mentioned, but objections based on its facts were made and both sets of votes were rejected by concurrent vote."

Under the Twenty-second Joint Rule Congress not only claimed the power to count, but defined that power as permitting it to reject an invalid state canvass. As in 1800, however, Congress would not undertake to decide for itself which electors had actually been appointed. Moreover, the make-shift fact-finding provisions relied upon were effective only because the state contest was not material to the outcome of the national election. The solution that was reached may have been just, as far it went, but it left unresolved the question of who actually carried Louisiana.

Between 1873 and 1876 Congress tried vainly to pass permanent legislation to regulate the electoral count. A bill drafted by Senator Oliver P. Morton of

The Twenty-second Joint Rule was only an alternative to the chief measure upon which the Radical Republicans relied to block the votes of lately reconstructed Louisiana and Tennessee. The Houses had previously resolved that no votes from those two states should be counted. Id. 147-149 (House, Jan. 30, 1865); id. 149-223 (Senate, Feb. 1-4, 1865; House, Feb. 4, 1865). In the count of the vote this resolution, reluctantly approved by Lincoln at the last minute, was relied on by the President of the Senate to keep the votes of Louisiana and Tennessee from the floor. Id. 227-228 (Feb. 8. 1865). In a message received two days after the count Lincoln made it clear that he deemed his approval of the measure unnecessary, if not improper, since Congress had "complete power to exclude from counting all electoral votes deemed by them to be illegal." Id. 229-230 (Senate,, Feb. 10. 1865).

35 The vote of Louisiana was objected to under the Twenty-second Joint Rule on the ground that no valid election had been held there. During the debate it appeared that there was no evidence of any misconduct, and the Houses concurred in accepting the questioned votes. Id. 237-244 (Feb. 10, 1869). The votes of Georgia, whose statehood was then pending before Congress, were counted under an alternative measure similar to those used in the pre-war crises, supra, note 30. The radicals of the House had sought to have Georgia's vote rejected altogether under the Twenty-second Joint Rule. Outraged, they debated a censure proposal for two days after the count. Id. 231-236 (Senate, Feb. 8, 1869; House.. Feb. 8, 1869); id. 246–266 267-320 (House. Feb. 11, 12, 1869). After the election an intensive and enthusiastically partisan investigation in New York City by a House Committee produced evidence of fraud which Republican members claimed would have given the state's electoral votes to Grant. H.R. REP. No. 31, supra, note 23.

20 In several instances between 1836 and 1872. the returns of isolated counties had been thrown out in the state canvass for various irregularities, but no protest was made in the count. BURNHAM. PRESIDENTIAL BALLOTS, 1836-1892 895-949 (1955).

37 Three votes from Georgia cast for Greeley, the Democratic candidate who had died after the election were rejected on the vote of the House, the Senate voting to accept them. Id. 368, 377 (Feb. 12. 1873). Objections on various technical grounds to the votes of Texas and Mississippi were denied by both Houses. Id. 369-371, 380, 383, 386-389. Arkansas's votes for Grant were rejected by the Senate for lack of a seal, suggesting that the Republicans were seeking to create an impression of fairness. Id. 402. It later appeared that Arkansas had no seal at the time of the election. Cf. id. 510 (Feb. 25, 1875) (Remarks of Senator Logan).

Counting Electoral Votes 336-345 (Senate, Jan. 7, 1873).

Id. 358-363 (Senate, Feb. 10. 1873). The Republican returning board had been upheld by the state supreme court, but the majority voted to ignore this fact, since the decision came after the meeting of the electors. Id. 362. See State ex rel. Attorney General v. Wharton, 25 La. Ann. 2 (1873).

40 Counting Electoral Votes 399, 406 (Feb. 10, 1873).