It preserves intact the prerogatives, under the Constitution, of each house.
It excludes any possibility of judicial determination by the presiding officer of the Senate upon the reception and exclusion of a vote.
The certificates of the electoral colleges will be placed in the possession and subject to the disposition of both houses of Congress in joint session.
The two houses are co-ordinate and separate and distinct. Neither can dominate the other. They are to ascertain whether the electors have been validly appointed, and whether they have validly performed their duties as electors. The two houses must, under the act of 1792, "ascertain and declare" whether there has been a valid election, according to the Constitution and laws of the United States. The votes of the electors and the declaration of the result by the two houses give a valid title, and nothing else can, unless no majority has been disclosed by the count; in which case the duty of the House is to be performed by electing a President, and of the Senate by electing a Vice-President.
If it be the duty of the two houses "to ascertain" whether the action of the electors has been in accordance with the Constitution, they must inquire. They exercise supervisory power over every branch of public administration and over the electors. The methods they choose to employ in coming to a decision are such as the two houses, acting separately or together, may lawfully employ. Sir, the grant of power to the commission is in just that measure, no more and no less. The decision they render can be overruled by the concurrent votes of the two houses. Is it not competent for the two houses of Congress to agree that a concurrent majority of the two houses is necessary to reject the electoral vote of a State? If so, may they not adopt means which they believe will tend to produce a concurrence? Finally, sir, this bill secures the great object for which the two houses were brought together: the counting of the votes of the electoral college; not to elect a President by the two houses, but to determine who has been elected agreeably to the Constitution and the laws. It provides against the failure to count the electoral vote of a State in event of disagreement between the two houses, in case of single returns, and, in cases of contest and double returns, furnishes a tribunal whose composition secures a decision of the question in disagreement, and whose perfect justice and impartiality cannot be gainsaid or doubted.
The tribunal is carved out of the body of the Senate and out of the body of the House by their vote viva voce. No man can sit upon it from either branch without the choice, openly made, by a majority of the body of which he is a member, that he shall go there. The five judges who are chosen are from the court of last resort in this country, men eminent for learning, selected for their places because of the virtues and the capacities that fit them for this high station. … Mr. President, objection has been made to the employment of the commission at all, to the creation of this committee of five senators, five representatives, and five judges of the Supreme Court, and the reasons for the objection have not been distinctly stated. The reasons for the appointment I will dwell upon briefly.
Sir, how has the count of the vote of every President and Vice-President, from the time of George Washington and John Adams, in 1789, to the present day, been made? Always and without exception by tellers appointed by the two houses. This is without exception, even in the much commented case of Mr. John Langdon, who, before the government was in operation, upon the recommendation of the constitutional convention, was appointed by the Senate its President, for the sole purpose of opening and counting these votes. He did it, as did every successor to him, under the motion and authority of the two houses of Congress, who appointed their own agents, called tellers to conduct the count, and whose count, being reported to him, was by him declared.
From 1793 to 1865 the count of votes was conducted under concurrent resolutions of the two houses, appointing their respective committees to join "in ascertaining and reporting a mode of examining the votes for President and Vice-President."
The respective committees reported resolutions fixing the time and place for the assembling of the two houses, and appointing tellers to conduct the examination on the part of each house respectively.
Mr. President, the office of teller, or the word "teller," is unknown to the Constitution, and yet each house has appointed tellers, and has acted upon their report, as I have said, from the very foundation of the government. The present commission is more elaborate, but its objects and its purposes are the same, the information and instruction of the two houses who have a precisely equal share in its creation and organization; they are the instrumentalities of the two houses for performing the high constitutional duty of ascertaining whom the electors in the several States have duly chosen President and Vice-President of the United States. Whatever is the jurisdiction and power of the two houses of Congress over the votes, and the judgment of either reception or rejection, is by this law wholly conferred upon this commission of fifteen. The bill presented does not define what that jurisdiction and power is, but it leaves it all as it is, adding nothing, subtracting nothing. Just what power the Senate by itself, or the House by itself, or the Senate and the House acting together, have over the subject of counting, admitting, or rejecting an electoral vote, in case of double returns from the same State, that power is by this act, no more and no less, vested in the commission of fifteen men; reserving, however, to the two houses the power of overruling the decision of the commission by their concurrent action.