Studies in Civics

by J. T. McCleary

HOW THE ELECTORAL VOTE IS COUNTED.

"The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the vote shall then be counted."—Constitution, Amendment XII.

The constitution gives no directions as to the manner of counting. No trouble was experienced, however, until the Hayes-Tilden election. The result of this election depended upon the votes of three states, each of which sent in two conflicting sets of certificates. There being no legal provision for the settlement of such disputes, the famous electoral commission was created to determine which certificates should be counted. It consisted of five senators, five representatives, and five justices of the supreme court.

The gravity of the danger thus revealed made it obviously necessary that some general plan be devised whereby such disputes might be obviated. Though consideration of the subject began at once, and various measures were from time to time proposed, no satisfactory solution was presented until February 3, 1887, when the Electoral Count Bill was passed and received the signature of the president.

An outline of the bill is here given, the principal provisions being the second and sixth as here numbered.

1. The electors shall meet and vote on the second Monday in January following their election. [Footnote: The time of meeting had been the first Wednesday in December. The change was made to give time for the settlement of any disputes, as provided in the second section.]

2. If there be any disputes as to the choice of the electors, they are to be settled in the respective states in the way that each state shall determine, provided that the laws governing the matter shall have been passed before the election, and that disputes shall have been settled at least six days before the time fixed for the meeting of the electors. A report of the contest and its mode of settlement shall be made by the governor, and forwarded under seal to the secretary of state of the United States.

3. As soon as practicable after it shall have been ascertained who have been chosen electors, the executive of the state shall transmit under the seal of the state to the secretary of state of the United States the names of the electors, with an abstract of the popular vote for each candidate for elector. The executive shall also deliver to the electors, on or before the day of meeting, three copies of said certificate, one of which the electors shall enclose with each "list of persons voted for as president and vice-president."

4. As soon as practicable after receiving the certificates as aforesaid, the secretary of state shall publish them in full in such newspaper as he shall designate; and at the first meeting of congress thereafter he shall transmit to each house a copy in full of each certificate received.

5. The counting of the vote will take place, as heretofore, on the second Wednesday in February following the meeting of the electors. At one o'clock in the afternoon the senate and house of representatives meet in the hall of the house of representatives, and the president of the senate takes the chair.

"Two tellers shall be previously appointed on the part of the senate and two on the part of the house of representatives, to whom shall be handed, as they are opened by the president of the senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the states, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted in the manner and according to the rules in this act provided the result of the same shall be delivered to the president of the senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected president and vice-president of the United States, and, together with a list of the votes, be entered on the journals of the two houses."

6. Upon the reading of each certificate the president of the senate asks whether there be any objections to it. Objection must be made in writing, and must "state clearly and concisely, and without argument, the ground thereof." To entitle it to consideration, the objection must be signed by at least one senator and one representative.

When all the objections to any paper have been received and read, the senate withdraws, and the two houses proceed separately to consider them.

If from any state but one set of electors are certified, and the certification has been done as prescribed in section three, the certificate cannot be rejected. But if not properly certified, the two houses acting concurrently "may reject the vote or votes when they agree that such vote or votes have not been so regularly given by those whose appointment has been so certified."

If more than one return has been received from any state, those votes only shall be counted which have been determined as provided in section two.

If two or more returns appear, each certified by authorities claiming to be the lawful tribunal of the state, the vote shall be counted which the two houses, acting separately, "concurrently decide is supported by the decision of such state so authorized by its laws."

If more than one return comes in from any state, no determination such as is prescribed in section two having been made, the two houses concurrently decide which, if any, of the votes shall be counted. If in such a case the houses disagree, the votes of those electors shall be counted whose appointment shall have been certified by the executive of the state.

When the case in question has been disposed of, the joint session is resumed and the counting continued.

7. In the joint meeting, the president of the senate has authority to preserve order. No debate is allowed, and no question can be put, "except to either house on a motion to withdraw."

8. When discussing an objection, in separate session, no member can speak more than once, and then for not longer than five minutes. The entire time for discussion is limited to two hours.

9. Provision is made for the seating of every one entitled to a seat on the floor of the house; and the act declares that "such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared."

Some time after the passage of the law, it was discovered that a strange omission had been made. By the old law, the electors in each state were required to appoint a messenger to take one of the certificates of votes cast, and deliver it to the president of the senate on or before the first Wednesday in January. By the new law the electors do not meet until the second Monday in January. The inconsitency was remedied, however, by a supplementary act, providing that certificates shall be forwarded "as soon as possible," and authorizing the president of the senate to send for missing certificates on the fourth Monday in January.