Choice of Vice-President by the Senate.—The Senate is called on to select the Vice-President in case no candidate has received a majority of the electoral votes. The two candidates having the highest number of votes are considered. The only instance of the election of a Vice-President in this way occurred in 1837.
Disputed Returns, Election of 1876.—Disputes have arisen, from time to time, over some of the returns of the electoral votes. The most notable contest was that over the returns from Florida, Louisiana, South Carolina, and Oregon, in 1877. If the twenty-one electoral votes from these States should be counted for the Republican candidates, they would be elected. Should just one of those votes be given to the Democratic nominees, the Republicans would lose the election. Now the Senate at this time was Republican, and the House Democratic, and therefore no satisfactory adjustment could be reached, because of party prejudices. The excitement throughout the country was finally relieved by the agreement on the part of both houses to refer the decision to an "Electoral Commission."
This commission consisted of five judges of the Supreme Court, five representatives, and five senators. After examining the returns, the commission decided, March 2, 1877, by a vote of eight to seven, that Hayes and Wheeler, the Republican candidates, had received the twenty-one votes in dispute, thus giving them one hundred and eighty-five electoral votes, and that Tilden and Hendricks, the Democratic candidates, had received one hundred and eighty-four electoral votes.
In consequence of the grave problem which arose in 1877, Congress passed an act February 3, 1887, which provides that any contest in the choice of electors in a State must be decided by the State authorities under the laws of the State.
The Original Method of Choosing the President.—Because Presidents Washington, Adams, and Jefferson for his first term, were chosen by the plan given in the original clause, let us notice, briefly, the method used at that time, and especially the reasons for the change to the present plan.
Section 1, Clause 2. The electors shall meet in their respective States, and vote by ballot for two persons, one of whom, 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 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 then having the greatest number of votes shall be President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such a 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 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.
According to this clause, we note that the electors voted for two persons without stating which was to be President and which Vice-President. In the official count, the candidate receiving the highest number of votes, provided it was a majority of the whole number of the electoral votes, became President, and the one receiving the next highest became Vice-President.
Election of 1796.—In the election of 1796, John Adams, who received the highest number, seventy-one, out of one hundred and thirty-two electoral votes, was elected President. Thomas Jefferson, his opponent, became Vice-President, having received sixty-eight votes, or the next highest number. Thus there were elected a President of one party and a Vice-President of the opposing party.
Election of 1800.—The election of 1800 also showed the plan to be impracticable. At this time, the Democratic-Republican party was determined to have Mr. Jefferson for President and Aaron Burr for Vice-President. They both received seventy-three votes, a majority of all the votes. But since the number was equal, it devolved upon the House of Representatives to determine whether Jefferson or Burr should be President. For seven days the House was in continuous session, and civil war threatened. On the thirty-sixth ballot, however, Jefferson received the votes of ten States out of sixteen, and was elected.
In order to prevent a recurrence of the conditions which obtained in 1796, or of the dangers incident to a contest like that of 1800, the Twelfth Amendment was proposed by Congress, and, after ratification, was declared in force September 25, 1804. This provides, as we have seen, that the electoral votes must be cast separately for President and Vice-President.