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Elections by the House of Representatives.

Twice an election has been thrown into the House of Representatives: in 1800, when Jefferson was first elected, and in 1824, when John Quincy Adams was elected. In such a case, all the members of the House from a State having but a collective vote, if they are equally divided on the candidates the vote of the State is lost.' In 1824, Jackson had ninety-nine electoral votes, while Adams had only eighty-four. Clay had thirty-seven, and Crawford forty-one. The election went to the House, where, by the influence of Clay, who could not be voted for, being fourth on the list, John Quincy Adams was elected. This was thought to thwart the will of the people, and voting by States, gave rise to the cry that the people had been deprived of their choice.

In 1824.

In 1856, Buchanan had 1,838,000, Fremont 1,341,000, and Fillmore 874,000 of the popular vote. Buchanan thus fell 188,000 votes short of half; or, there were 377,000 more votes cast against him than for him. Yet Buchanan received 174 electoral votes, Fremont 114, Fillmore 8.

In 1860, Lincoln had 1,866,000, Douglas had 1,376,000, Breckinridge had 849,000, Bell had 588,000. Lincoln fell 473,000 short of a majority over all, while there were 949,000 more votes against him than for him. Yet of the electoral vote Lincoln had 180, Douglas had 12, Breckinridge had 72, Bell had 38. See Stanwood's History of the Presidency for cases in point since 1860.

1 In 1801 nine votes in the House were required to elect. The House had to choose between the two Republican candidates, Jefferson and Burr. Jefferson controlled eight votes and Burr six, while two States, Vermont and Maryland, were equally divided. Party spirit was very bitter at the time and some of the Federalists advised that the country be left without a President rather than consent to the election of the hated leader of their opponents, while others were advising the election of Burr in order to bring about the disappointment and discomfiture of the Jeffersonian Democrats. In consideration of pledges from Jefferson, as Bayard testifies, the Federalist member from Vermont and the two Federalist members from Maryland (Baer and Craik), and Bayard, a Federalist of Delaware (who controlled the single vote of that State and led this Federalist group), agreed to withdraw their opposition to Jefferson's election, and these four Federalists voted blank on the thirty-sixth ballot, and thereby permitted their Republican colleagues from Vermont and Maryland to give the votes of these two States to Jefferson, and this elected him by the votes of ten States. (See Isaac Jenkinson's Life of Burr, chapter v.)

it was charged that a corrupt coalition was made between Adams and Clay. Clay was afterwards made Secretary of State by Adams, which gave color to the charge, but there was not a bargain, corrupt or otherwise, between the two men. But Jackson and his friends always felt that the people had been deprived of their choice, and this election tended to increase the democratic movement for a direct popular choice of the electors and for a more popular system of party nominations. By the time of Jackson's second election, in 1832, the representative party convention system was coming into use.



of 1876.

In 1876, there was a still more serious dispute over the presidential election,-a dispute which clearly illustrated an almost fatal weakness in the system of electing a President by the Electoral College. In that election there were 369 electoral votes, 185 being necessary to a choice. The Democratic candidate, Mr. Tilden, carried, without dispute, 184 votes, lacking only one of enough to elect; the Republican candidate, Mr. Hayes, had 163 votes. In four States,—Oregon, Florida, South Carolina, and Louisiana, with twenty-two electoral votes, there were disputed returns. If in any one of these States the Democratic Electors were found to have been chosen, Mr. Tilden would have a majority in the College and would be elected; while the Republicans in order to elect their candidate must have all of the twenty-two. Of course, the Republicans, as loyal party men, laid claim to all these doubtful States, and the Democrats did the same, though the Democrats would have been satisfied with only one. In the disputed States the two sets of electors met, voted, and sent up the certified returns to Washington. In Congress the Republicans had a majority in the Senate, while the Democrats had a majority in the House. As to counting the electoral vote the Constitution says: "The President of the Senate shall, in the presence of the Senate and House of Repre

sentatives, open all the certificates and the votes shall then be counted." Who shall do the counting? The Republicans contended that the Vice-President (Senator Ferry, of Michigan, a Republican) should determine what votes should be counted. But the Democrats insisted that the two Houses, voting separately, had always determined the validity of electoral votes, and as Congress was called upon by the Constitution to witness the count, it was reasonable to conclude that Congress itself was the responsible counting body. This might do, provided the two Houses were in agreement, with the same party in control of both, but in this case they were in disagreement and a deadlock between the two Houses would be the result. For it was understood, and it had always been so, that in such cases the two Houses would vote from party motives and according to party interests.

The Electoral

of 1876.

To break this deadlock between the two Houses in 1876, in order that some election might be made, the leaders on each side agreed to the establishment Commission by law of an Electoral Commission, to which should be referred all the disputed cases. The Commission was made to consist of five Senators, five Representatives, and five members of the Supreme Court. The Republican Senate elected to the Commission three Republicans and two Democrats; the Democratic House appointed three Democrats and two Republicans. So far there was a party tie. From the Supreme Court there were to be appointed, according to the law, two Republicans and two Democrats, and these four were to elect a fifth. Justice Davis, a liberal Republican, much inclined at this time in his party relations toward the Democrats, would probably have been elected as the fifteenth member of the Commission had he not just accepted an election to the United States Senate from the State of Illinois. This allowed the choice as the fifth

member of the Supreme Court to fall upon Justice Bradley, a Republican.

"This choice practically settled the result, for every vote given by the members of the Commission was a strict party vote. All the points in dispute were settled by a vote of eight to seven in favor of the returns transmitted by the Republican Electors in the four disputed States, and Mr. Hayes was accordingly declared elected by a majority of 185 electoral votes against 184."1

Mr. Tilden and the Democrats accepted the result, though there was much dissatisfaction and complaint. Some of the Democrats of the House attempted to prevent acquiescence in the result and the declaration of Hayes's election by a process of filibustering until after March 4th, but they were prevented from accomplishing their purpose by the decisions of the Speaker, Mr. Randall.' There was much excitement and uncertainty throughout the country and not a little danger of civil commotion, if not of civil war, so great was the party stake involved in the decision. The Constitution does not itself expressly provide for the settlement of such a dispute, but it vests in Congress the power to make provision by law. Of the two opposing Presidential contentions at the time, one held that the Constitution itself provided for the counting of the electoral votes, the other that the Constitution merely vests in Congress the power to provide by law for the The latter view is now generally accepted.'



Elections. Act of 1887.

The result of this dispute was the passage of an act,— though tardily passed ten years later, on February 3, 1887,

1 See an article on 66

zine, Nov., 1901.

See page 277.

A Crisis in Our Country's History," Century Maga

3 Burgess, Political Science, vol. ii., pp. 228-229; Congressional Record, vol. xvii.

-providing a process of settling disputed presidential elections. The act is intended to provide against the recurrence of the danger of 1876. The act provides that the President of the Senate, in the presence of the two Houses, shall open the certificates of the electoral votes of the States in alphabetical order; these shall be handed to the tellers to be read; the President of the Senate shall call for objections, if any; these objections shall be in writing without argument, signed by at least one member from each House; when an objection is made, the Houses shall separate to consider and decide upon the objection; no electoral vote from any State may be rejected from which but one return has been received unless the two Houses acting separately so decide, and then the rejection is made by the concurrent resolution of both Houses when they again meet together. The time of casting the electoral vote is changed from the first Wednesday in December to the second Monday in January. This is for the purpose of allowing the excitement following the election to subside, and to give the States more time to settle any disputes which may arise. The electoral votes are to be counted by Congress on the second Wednesday in February. The act provides that tribunals appointed by and in each State shall determine what electoral votes from the State are legal votes, and the determination of the State tribunal shall be considered final. When there are two or more sets of tribunals in a State and they send in conflicting returns, that return shall be counted which the two Houses acting concurrently shall accept; when there is one State government and two returns are sent in, that one shall be counted which is supported by the Executive of the State, unless both Houses, acting separately, shall decide that it is not the lawful vote of the State. If the State has appointed no such tribunal, the two Houses of Congress shall determine which votes are legal, if two sets of returns ap

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