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456. Plans of Appointing Electors. It is left to the State Legislatures to decide the manner in which Electors shall be appointed. In the early years of the Republic, as many as four different methods were used : appointment by the houses of the Legislature voting jointly, by the houses voting concurrently, by the people of the States voting State tickets, and by the people voting in districts. Evidently the last gives the freest scope to public opinion, and is also the farthest removed from the ideas of 1787. In 1842 Congress adopted the district plan for the election of Representatives, but the States have abandoned it as a mode of appointing Electors. In 1891 the Legislature of Michigan passed a law enacting that the Representative Electors of that State should be elected in and by the same districts as the Representatives, and the Senatorial Electors in and by two Senatorial electoral districts, which districts the Legislature also duly constituted ; but two years later the law was repealed.
457. First Mode of Procedure.-Four Presidents were chosen according to the method that the Convention incorporated in clause 3 of this section. It read as follows:
Section 1, Clause 3. --The Electors shall meet in their respective States and vote by balloț for two persons, of whom one, at least, shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each, which list 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 shall be the President, if such number be a majority of the whole number of Electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list, the said House shall, in like manner, choose 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. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.
458. Three First Presidential Elections. — Ten States participated in the election of 1789; there were 69 Electors, and 12 persons voted for. Washington received 69 votes, John Adams 34, and all others 35. In 1792 there were 15 States, 132 Electors, and 5 persons voted for. Washington had 132 votes, Adams 77, and the three other persons 55. In 1796 there were 16 States, 132 Electors, and 13 persons voted for. John Adams had 71 votes, and Thomas Jefferson 68.
459. Election of 1800.-At this election there were 16 States, 138 Electors, and 5 persons voted for. Thomas Jefferson and Aaron Burr, the Democratic-Republican candidates, had each a majority of the Electors appointed, but they also had the same number, 73. The party intended Jefferson for the first place and Burr for the second ; but in their eagerness to elect the Vice-President as well as the President, every Elector who voted for Jefferson had also voted for Burr. Hence there was no election, and the House of Representatives had to choose between the two men. For 35 ballots occupying 7 days, during which the House was in continuous session, the vote stood : Jefferson 8 States, Burr 6, divided 2. This result was brought about by the Federalists voting for Burr. The country was filled with excitement, and threats of disunion were heard. But on the thirty-sixth ballot, one Federalist from Vermont and 4 from Maryland declined to vote, which gave those States to Jefferson, while Delaware and South Carolina cast blank votes; so the final vote stood : Jefferson io, Burr 4, blank 2.
463. Amendment XII.-It was now evident that the electoral plan was not working as its authors expected it to
work. It was plain that it might lead to the election of a President whom no citizen or Elector intended for that office, and so wholly defeat the National will. vent this result, as well as the recurrence of a contest like that of 1800, Amendment XII. of the Constitution was proposed and ratified. It took effect in 1804, and is as follows:
ARTICLE XII. OF AMENDMENTS.
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, aud thcy 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 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 ove 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 Marc next following, then the Vice-President shall act as Presideut, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President shall be the Vice-President, 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. 1
461. Election of 1825.-Only once since 1800 has the election of President gone to the House of Representatives. In 1824 Andrew Jackson received 96 electoral votes, John Quincy Adams 84, W. H. Crawford, 41, and Henry Clay, 37. A majority to each required 130 votes. Mr. Clay was excluded from the further competition by the rule limiting the choice to the three highest candidates on the list, and his following in the House went to Mr. Adams, who was elected. The vote stood: Adams, 13 States; Jackson, 7; Crawford, 4. John C. Calhoun received 182 electoral votes for Vice-President, and was declared elected. This election, like that of 1800, was attended by much excitement. General Jackson had received a large plurality of the popular vote as well as of the electoral vote, and he and his friends charged that there was a bargain and sale between Adams and Clay, especially as Clay was made Secretary of State. At the time there was much talk of amending the Constitution so as to exclude the House from all participation in future elections, but nothing was done in that direction.
462. Election of 1876.–The election of 1876 was, with the exception of that of 1800, the most exciting and dangerous one in our history. Of the 369 Electors, 184 were in favor of Tilden and Hendricks, the Democratic candidates ; 164 in favor of Hayes and Wheeler, the Republican candidates; while from South Carolina, Florida, Louisiana, and Oregon there were plural returns. In all 21 votes were in dispute. Two questions arose : Which are the legal votes for these four States? and, Who shall determine which are legal? The second was the practical question, and nothing in the laws, National or State, or in the practice in counting previous votes, answered it directly. This question filled Congress and the country with heat and tumult throughout the winter of 1876-7.
1 This amendment was not made without difficulty. In one Congress it failed to secure the requisite majority, and it finally passed the House of Representatives, December 12, 1803, three years after the election that led to it, only by the Speaker's casting vote. Nearly a year more passed before the necessary number of ratifications was obtained, and then the vote stood 13 to 4.
463. The Electoral Commission.—The Senate was Republican and the House of Representatives Democratic, and it was well known in advance that the Houses would not agree when the time came to count the votes. Congress accordingly created an Electoral Conimission, for that case only, consisting of 5 Senators, 5 Representatives, and 5 Justices of the Supreme Court, with power to decide which of the disputed votes should be counted. After listening to lengthy arguments pro and con, the Commission decided, 8 to 7, that the Republican votes from all the States in dispute were the legal ones, and the Republican candidates were declared elected, 185 votes to 184.
464. Law of 1887.-Serious difficulties in the election of President had now occurred in 1800, 1824, and 1876. Moreover, such difficulties would have occurred at other times, as in 1865 and 1869, had not the same political party controlled large majorities in both Houses of Congress. Experience had therefore proved that Presidential elections were fraught with serious dangers to the Republic. To meet these points of danger, Congress passed, in 1887, an "Act to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising therein." Section 2 of this act makes the determination of the State authorities, under State laws previously passed, final in all cases of disputed appointments of Electors, thus answering the principal question of 1877. Subsequent sections prescribe the mode of procedure in cases of objection to a single return or of plural returns from any State. This law, which is very minute in its provisions, removes from a Presidential election many of the dangers that had previously attended it.
465. The Vice-President.-If the House of Representatives, when the right of choice devolves upon it, shall not choose a President before the fourth day of March next following, then the Vice-President-elect shall act as Presi