Suppose, he went on, that Nevada while in the territorial condition had grown restless under her provincial state and had sent certificates signed by her electors, would Congress have no authority to say whether they should be counted? In Washington’s first election the vote of New York State was not counted. Now her Senator, Mr. Harris, doubted the competence of Congress either to exclude, or refuse to count, the votes of a State.[[374]]
Mr. Doolittle objected to being quoted quite so strongly as to say that Congress had no power over this subject. Congress had power over the subject, but that power was limited. When the Constitution says that the States shall do certain things, such as directing the appointment of electors, that is a limitation on the power of Congress over the matter. What he maintained was that after the ballots had been cast there was no power in Congress as a legislative body to declare certain votes valid or invalid. The tribunal to which the question was referred was the president of the Senate presiding over the joint convention of both Houses. The power in the first instance was with that officer to count or not to count the votes. He was to decide whether they were from States or from Territories.[[375]]
Senator Trumbull maintained that so far from being empowered to decide disputes, the president of the joint convention was not authorized to even count the votes. In the practice of the Government the Vice-President had never since the days of Washington counted the votes. The Constitution says that he shall “open all the certificates and the votes shall then be counted.” It does not state by whom, but it does state that Congress has power to pass all laws necessary to carry the instrument into effect. Congress, he said, had exercised such power from the beginning.
There was no legal difference, he asserted, between South Carolina and Louisiana. An individual trading in the latter State, except under a particular license, could be taken up and tried as a felon, and yet “we are told that we cannot determine by act of Congress that they cannot elect a President for us!”
Mr. Trumbull contended that if a question arose upon the counting of the vote of any State, the joint convention could not decide upon it. The bodies would have to separate and, by passing a concurrent resolution, each act independently. There was no popular election, he said, in the State of Louisiana, but a body assuming to be its Legislature had appointed electors of President and Vice-President. He did not know whether the new constitution of Louisiana authorized that method.
The purpose of the Senate, he continued, in amending the joint resolution of the House was to avoid declaring that the people of Louisiana were on the 8th of November in a state of armed insurrection. The preamble, even as it was amended, did not wholly satisfy him; he believed that he would be better pleased if it was altogether omitted. He was informed that Tennessee had sent a vote as well as Louisiana. The object of the committee was to settle the question before the meeting of the joint convention.[[376]]
Senator Collamer thought that any law honestly intended to carry into effect the provisions of the Constitution could not be objected to. It could if it opposed or was inconsistent with that instrument. There had been legislation on the subject and additional action by Congress might be necessary. For the resolution he offered the following substitute:
That the people of no State, the inhabitants whereof have been declared in a state of insurrection by virtue of the fifth section of the act entitled “An act further to provide for the collection of duties on imports, and for other purposes,” approved July 13, 1861, shall be regarded as empowered to elect electors of President and Vice-President of the United States until said condition of insurrection shall cease and be so declared by virtue of a law of the United States.[[377]]
By Mr. Howard the question was regarded as of very great importance not only as a precedent for the future, but “as indicating the opinion of Congress on the subject, to use a familiar term, of ‘reconstruction,’ or rather the rights of the States in rebellion.” He believed it clear that the Vice-President was to open the certificates and that the duty of counting devolved upon the two Houses thus assembled. The act of 1792 seemed so to construe the Constitution.
“The power of counting the votes,” he asserted, “and of rejecting votes which are void for fraud or illegality, is, under the Constitution, in the joint convention thus assembled.” There was no doubt about it, he declared, because the Houses convened for a great and protective purpose; they were exercising the tutelary authority of the people, in protecting the nation from the imposition of false and fraudulent ballots and certificates. The inhabitants of the States mentioned in the proclamation of the President were public enemies; therefore they had no political rights under the United States.