brought to a vote in Congress, and since 1880 even the slight promise of success implied in a favorable report by a committee of either House of Congress, has been lacking. Likewise in recent years the general public has exhibited little interest in the matter.2

52. TIME OF ELECTION.

Some of the amendments for changing the method of electing the President contained clauses extending the time for casting the votes to two or three days, making our system more like the English. Three of these are cited by way of example. One amendment for the election of President by a direct vote by districts provided that the first Thursday and succeeding Friday of August of 1828 and every fourth year thereafter should be the election days. This was reported by the select committee of the Senate in 1826.3

A resolution proposing that the election of President should be held uniformly in the several States on the first Monday and succeeding Tuesday and Wednesday in the month of September was received in 1837 from the legislature of Indiana.1

The fourth Monday of October and the two succeeding days was fixed for the election days by the amendment introduced by Mr. Underwood of Kentucky, in 1842, for the nomination of Presidential candidates by the different State legislatures and election by the people."

It is noticeable that these propositions came largely from the frontier States, where the facilities for traveling were poor and more time was needed to reach the voting places.

By the terms of the Constitution, "Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which shall be the same throughout the United States." The original act of Congress, passed March 1, 1792, simply provided that electors were to be appointed thirty-four days preceding the first Wednesday in December.

1 Amendment reported in 1880, App., No. 1508; ante, par. 45. Since the close of the first century of the history of the Constitution there has been one report by the House Committee on Election of President and Vice-President, February 7, 1893, Fifty-second Congress, second session, H. Rep. 2439.

The following articles contain valuable discussions of the merits of one or more of the different plans: Atlantic, vol. 42. 543; vol. 63, 428; Arena, vol. 5, 286; Forum, vol. 12, 702; vol. 18, 532; No. Am. Rev., vol. 117, 383; vol. 124, 1, 161, 341; vol. 125, 68; vol. 140 (February). 3 App., No. 552.

App., No. 668.

5 App., No. 724.

Art. II, sec. 1, cl. 3.

The demand for a uniform day for the choice of electors led to the frequent petition from the legislatures of the States for Congress to fix such a day by law,' and also for the insertion of a clause to this effect in certain of the proposed amendments in regard to the election of President, as the one presented by Mr. Gilmer, in 1835. Ten years later Congress passed a law, which is still in force, fixing upon the Tuesday after the first Monday in November as the day for the choice of electors.3

Some of the proposed amendments, especially those introduced in recent years, make provision for a uniform day for holding the election throughout the States; some retain the present date, others fix upon another, usually somewhat earlier. Three of these in addition prohibit the voting for any other officers, save Representatives to Congress, on the day appointed for the election of Presidential electors. Two of these were presented just after the Presidential election of 1888, and were evidently suggested by a desire to prevent the trading of Presidential votes for votes for State officers between the different political parties, as it was alleged had been done in New York in the election just held.

53. FEDERAL CONTROL OVER THE ELECTION OF PRESIDENT.

8

Although Congress has never gone to the extent of its constitutional powers in regulating elections to Congress, various amendments have been proposed which, if they had been adopted, would have greatly increased that power of Congress over the election of President. One of the first of these, repeatedly introduced by Mr. Dickerson of New Jersey for the election of President by districts, while not directly increasing the power of Congress, yet it limited the power of the legislature to alter the division of the State into districts at any other time than the decennial census.9 In 1823 a resolution was introduced to give Congress power to make or alter the

Especially in the thirties and early forties.

2 App., No. 641.

3 Revised Statutes of the United States, sec. 131.

4 As App. Nos.1437, 1438, 1503, 1508, 1537, 1542, 1589, 1639, 1672, 1697, 1705, 1731.

5 As App., Nos. 1439, 1514, 1569, 1624, 1640, 1735.

As App., No. 813, the first Tuesday in August. App., No. 1078, the second Tuesday

in October. App., No. 1652, the third Tuesday in October.

App., Nos., 1652, 1731, 1733. No. 1514, however, proposed the same day for the election of President and Vice-President, members of Congress, and State and county officers.

See post, par. 84.

See ante, par. 24.

9 Ante, par. 39.

regulation prescribed by the State legislatures for the election of President, and to redistrict any State which was not divided as was directed.1

2

Many of the resolutions for the choice of the Executive aimed to give to Congress the same power in Presidential elections as it already possessed over the Congressional. Since the civil war there has been a marked tendency in this direction. Several amendments have been proposed authorizing Congress to prescribe "the time, place, and manner," and other regulations for conducting Presidential elections. The one reported by the Committee on Privileges and Elections in both Houses in 1874-75, as well as that introduced by Senator Morgan, in 1876, conferred upon Congress the power to provide for the holding and conducting of all elections of President and Vice-President, and while it permitted the States to be divided into districts by the legislatures thereof, such division was subject to the revision of Congress. In 1880 a resolution was introduced proposing that the following section should be added to the twelfth amendment: "The Congress shall have power by legislation to establish rules and regulations for certifying, transmitting, receiving, opening the votes of the electors, etc. Up to the present time the procedure has been regulated by an act of Congress passed in 1792, which, with certain modifications, is still in force, although there is no express provision in the Constitution authorizing such a law. It would seem desirable that the control of the conduct of Presidential elections should be vested in Congress, but it is hardly probable that this reform will be secured.

3

54. SETTLEMENT OF CONTESTED PRESIDENTIAL ELECTIONS.

Not only is the power given to Congress to elect the President and Vice-President in case there is no choice by the electors, and to fix the time for the election, but it has also assumed authority to canvass and count the vote. The only ground for this authority is the ambiguous provision of the Constitution

1 Mr. McDuffie of South Carolina, App., No. 524.

2 As App., Nos. 1058, 1078, 1309, 1317, 1408, 1420, 1464, 1672. No. 1058, introduced by Mr. Jenckes of Rhode Island, was all inclusive, "Congress shall have power to pass laws providing for registration of voters, for ascertaining the qualifications, for the time and manner of conducting such elections and for preventing frauds therein, and for declaring the result." Propositions to confer upon Congress the power to prescribe the method of electing the President by the people have been discussed in ante, par. 49.

3 App., Nos. 1386, 1393, 1400.

4 By Mr. Morgan of Alabama, App., No. 1513.

1

that "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." Three theories or interpretations of this clause have been held by Congress at three different periods in our history. The first theory, which held sway to 1821, was that the President of the Senate should count that is, enumerate the votes. The second theory, which prevailed from 1821 to 1861, held that there was a 66 casus omissus" in the Constitution in this regard, and no one was empowered to "count," counting being interpreted in the sense of "canvassing." The third theory, which appeared in 1861, maintains that the two Houses shall "count," which is interpreted to mean to determine the legality of the votes.2

Acting on this last theory, Congress has determined all questions in regard to the doubtful votes since 1861 to 1887. Such questions have always been decided by party considerations, but in the contested election of 1876 it was impossible for Congress to determine the results of the election, under their existing rules, owing to the deadlock existing between the two Houses in which different political parties were in the majority. To meet this crisis, the "Electoral Commission" was created.

A premonition of the dangers likely to result from this uncertainty seems to have suggested an amendment to the Constitution shortly before each of the bitterly contested elections of 1800, 1824, and 1876. In 1798, while the issue of the contest in Pennsylvania was still in doubt, and the "Ross bill" was being framed,3 Senator Marshall of Kentucky included in his amendment to the Constitution, relative to the election of the President, a clause which provided that in case any contest should arise relative to any vote for President, the same should be determined by the Senate, and for Vice-President, it should be decided by the House of Representatives.*

Twelfth amendment.

2 Abridged from McKnight, chapter 1. Since 1804 in nine of the Presidential elections controversies have arisen on either or both of the following questions: (1) By whom shall the electoral votes be counted? (2) In what manner shall be declared which are proper electoral votes? See reports of the following committees: Senate Report, Fortythird Congress, first session, Vol. II, No. 395 (written by Mr. Morton); House Report, Forty-fifth Congress, second session, Vol. IV, No. 819; House Report, Forty-sixth Congress, first session, Vol. II, No. 6.

* For Ross bill, see O'Neil, pp. 77-83; McKnight, pp. 262-269. The Ross bill was perhaps suggested by the English practice of deciding election petitions. Grenville act of 1770, May, Vol. 1, p. 263.

4 App., No. 329. Consideration of resolution was postponed to the next Congress.

No further attempt was made to remedy this defect by means of an amendment until 1823, when it would seem, in anticipation of the trouble in the coming election, several propositions were introduced. Mr. Holmes, a Senator from Maine, in this year presented a resolution in both the Seventeenth and Eighteenth Congresses, which directed that all questions of the validity of the election of President, or of the proceedings therein should be determined by the members of both Houses in joint ballot. The rules of the proceedings should be determined by law, but no alteration of the rules should have effect until two years after it should have been made. Questions concerning the validity of the election of the Vice-President should be determined by the Senate.'

In the amendment proposed by Mr. Benton, in the same year, for the election of President by the vote of the citizens given directly in districts, a clause provided that in case two or more persons should have an equal number of votes in any such district elections, for the same office, that the returning officers should decide between them and certify accordingly.2 This provision was typical of that contained in several of the other proposed amendments for taking the votes by districts, both those involving a choice by a direct vote and those by electors.3

For more than forty years no amendment bearing directly upon this subject was presented. Finally, in 1865, Congress adopted the "twenty-second joint rule," which was "the first actual assumption by Congress of the power to accept or reject an electoral vote." It provided that "No vote objected to shall be counted, except by the concurrent vote of the two Houses." It was passed to prevent the counting of the vote from the "reconstructed" States before Congress was ready to do so. Before this year closed an amendment had been proposed to confer upon Congress this much disputed power." Dissatisfaction with this rule, as well as the reappearance of the problem in connection with the question of the legality of

App., Nos. 521, 530.

2 App., No. 326.

3 App., No. 537. During the time the Senate passed a bill which provided that no vote could be rejected without the concurrent consent of both Houses. Lost in the House. McKnight, pp. 269–271; O'Neil, pp. 117-119.

Indirectly the question was touched upon in some of the schemes proposing to abolish the electoral system.

5 McKnight, pp. 271-273; see also O'Neil, pp. 171-173, 177-180; Stanwood, pp. 249–252. C App., No. 1058; ante, par. 53, note.