Mr. Trumbull believed that on November 8 about three fourths of the area of Louisiana was in possession of the Confederates. No person could have voted within that jurisdiction. Eleven or twelve thousand was the largest vote ever cast under these organizations; while the vote of the State, when all her legal voters had the privilege of going to the polls, was more than 60,000.
Mr. Ten Eyck stated that 51,000 was the highest vote ever cast, and that the average was but 34,000. Trumbull believed the Senate should concur in the House resolution and that it need not commit itself one way or the other on the Louisiana organization. The counting of the electoral vote, which pressed for settlement, should soon be determined.[[371]]
Mr. Harris thought the question of counting the votes could be disposed of without committing the Senate or deciding the matter of admitting Senators, as was done in the case of Wisconsin in 1856. “If we count the votes of these States,” said he, “the number of votes for Mr. Lincoln and Mr. Johnson will be so many; if we reject these votes the number of votes will be so many; and in either case these candidates are elected.” By this or a similar declaration, the phraseology of which was suggested by the precedent of 1856, the question could be passed over. He asked the chairman of the Committee on the Judiciary why Congress had not the power to declare that New York should not vote. He opposed the preamble because he did not believe it true, and he denied that the local authorities in Louisiana, Arkansas and Tennessee were in rebellion on the 8th of November preceding.
When, on February 2, Senator Harris resumed his remarks he observed that the question as to the power of Congress to legislate in relation to the counting of votes for President and Vice-President was not considered by the committee. Reflection had led him to doubt the competence of Congress to legislate on the subject. That body could fix the time for choosing electors and specify the time when they should perform the functions of their office. That, he contended, was the extent of the power of Congress over the subject. He could find no authority in the Constitution, however, which empowered Congress to pass a law, for the resolution amounted to that, excluding any votes returned to the Vice-President. Even if Congress had the authority it was inexpedient to exercise it. Why should such extreme power be exercised when the necessity did not exist? The result, it was conceded, would be the same whether Congress counted the votes of Louisiana, Tennessee and Arkansas or not. The power was not contained in the Constitution. Those States specified in the preamble did certainly rebel, but that Louisiana, Arkansas and Tennessee were in that condition on November 8 was at least open to question.[[372]]
Senator Doolittle believed that Congress by legislation could provide in advance for the manner of counting electoral votes; but that, he insisted, was very different from passing a law which declared certain votes null and void after they had been cast. That would be retroactive legislation. He doubted the power of Congress over the subject of counting the electoral votes, beyond that contained in the Constitution.
“The Congress,” he continued, quoting the fourth clause of section one of the second article, “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.” Pursuant to this provision Congress passed the act of January 23, 1845. It was not for the president of the Senate to open such as Congress told him to open, but he should “open all the certificates” which were sent to him, “and the votes shall then be counted.” Here, said the Senator, arose the grave question whether the president of the joint convention was made the sole judge as to what votes should be counted. The question practically came up in 1856, but it was not then necessary to decide it, and it was waived as not being essential to the result. On the present occasion, 1865, it was the same, the result of the election would not be affected by the matter of counting or not counting the votes of Tennessee and Louisiana; but it was not necessary for Congress to assert a doctrine which in some future time might be the very destruction of the Government, namely, “That a political party in Congress can decide that certain votes of certain States shall be canceled and others shall be received. It will never do to set that precedent.” It would be time enough, he said in conclusion, to meet the question when it came up in the joint convention.[[373]]
Mr. Hale said that he had foreseen the difficulty and at the preceding session had introduced a joint resolution directing in advance what should be done; but the pressure of other business, certainly not more important, prevented action thereon. If the result of the Presidential election had depended upon the votes of Louisiana, Tennessee and Arkansas would the party have submitted against which their votes had been cast? The rebellion then existing was caused, he believed, by nothing at all in comparison with such a question.
He denied the assertion of Senator Doolittle that Congress had no power over the counting of the electoral votes. Suppose, he argued, that, contrary to the constitutional provision, a member of Congress or any officer of the Federal Government holding an office of profit or trust happened to be an elector, would not Congress have power to say that such vote of Federal officer should not be counted?
The framers of the Constitution, he declared, made the most ample provision for just such a case. That instrument confers on Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States.” Was not the power to choose a President one vested in the Government of the United States?
Mr. Hale contended that then, when action by Congress would not affect the result of the election, was the time to settle the principle, and the precedent could be pointed to showing the action and sentiment of Congress at a time when there was no inducement to anything but an honest and straightforward decision of the case.