XXVI

A REPUBLICAN REVIVAL

THE circumstances that attended the election of 1876 led to the introduction in Congress of many propositions intended to render impossible a recurrence of the danger which was then met and overcome, and to forestall other evils which have often been apprehended, but have never happened. Certain difficulties that arose in consequence of the silence of the Constitution might be obviated by law; others must be cured by amendment of the Constitution itself. Although the warning was a serious one, and although many members brought forward measures to meet the case, not one of the bills and resolutions introduced was acted upon finally. Nevertheless, it may be well to notice the suggestions which were made during Mr. Hayes's administration, — during the special session of Congress, October 15, 1877, and the regular session, which followed without an interval.

Mr. Cravens, of Arkansas, offered a resolution of amendment to the Constitution, providing that the people should vote directly for President and Vice-President. Each State was to have a number of presidential votes equal to its electoral votes under the present system, which votes were to be apportioned in each State among the several candidates, in the proportion of the votes given to each; the legislature of each State was to direct the manner in which the presidential vote of that State was to be ascertained; on a day to be fixed by Congress, or, in case of disagreement between the two Houses, on a day to be named by the President, not less than fifteen nor more than thirty days before the 4th of March, a joint meeting of the two Houses was to be held, the President of the Senate was to open the presidential votes certified to by the governor of the State, and one list from each State was then to be counted under the direction of the two Houses; a majority of all the presidential votes was requisite to a choice. In case

no choice had been made by such a majority, then the two Houses, in joint convention, were to elect a President by viva voce vote, each senator and member having one vote, the choice being limited to the two highest on the list, unless two persons should have an equal number of votes next to the highest; one senator and a majority of the representatives from two thirds of the States were to constitute a quorum for the purposes of this election. In case no person should receive a majority of the Congress so voting, the President in office was to continue to be President until a choice was effected. The election of Vice-President was to be made in the same manner and at the same time as that of President. Whenever the office of Vice-President became vacant, there was to be an election by joint convention of Congress, within ten days after the next meeting of Congress, or within twenty days if Congress should be in session at the time the vacancy occurred.

Mr. Springer, of Illinois, made a proposition, of which the leading features were: a presidential term of six years, the President not to be immediately reëligible; each State to have a number of presidential votes equal to its electoral votes according to the present system, except that States having but one representative in Congress were to have but one presidential vote, and States having but two representatives were to have but three votes; a direct vote for President and Vice-President; a canvassing board in each State, with ministerial powers only, consisting of the governor, secretary of state, and chief justice of the highest court, to aggregate the votes, apportion to each candidate his proportional part of the presidential votes of the State, and to make return thereof to the president of the Senate; the two Houses to be in session on the third Monday in January after a presidential election; a joint meeting to be held, to be presided over by the president of the Senate, unless he should be a candidate for the office of President, and in that case by the speaker of the House of Representatives, and, if he were similarly disqualified, then by a presiding officer chosen by the joint convention; a plurality of votes to elect both the President and the Vice-President; the joint convention to be the judge of the returns and qualifications of the persons who shall be President and Vice-President. If no conclusion upon the returns should be reached by the second Monday in February, the convention was to

vote viva voce upon the question who was constitutionally elected President and who Vice-President, a majority of

those present to determine all questions.

Mr. Maish, of Pennsylvania, proposed a popular election of President, without the intervention of electors. The votes were to be returned to the secretary of state of each State and to be by him opened in the presence of the governor and the chief justice of the highest court, and these three officers were to apportion electoral votes to each candidate in accordance with the returns. The proposition did not deal with the matter of a count of the votes.

Mr. Finley, of Ohio, proposed a direct vote of all the people for President and Vice-President, disregarding state lines altogether; a plurality of votes was to elect in each case; but if two persons had an equal and the highest number of votes, then the House of Representatives was to choose the President from those two; or, if the failure was in relation to the vicepresidency, then the Senate was to make the choice. The voting was to be viva voce, and each member was to have one vote; the canvass of returns for President and Vice-President was to be made by Congress in a manner to be determined by joint rules or by law, and, if the two Houses could not agree, the matter in dispute was to be referred to the Supreme Court for final decision.

Mr. Eaton, of Connecticut, proposed in the Senate an amendment constituting a tribunal for the decision of controverted questions arising out of the presidential election. Not less than twelve months before the occurrence of such an election, the governor of each State was to appoint, with the consent of the Senate of the State, five qualified persons, who were to hear and determine all questions of contests in relation to the choice of electors, and to transmit their report, sealed, to the president of the Senate.

A resolution offered by Mr. Riddle, of Tennessee, proposed a direct election by the people, a clear majority being required for a choice. In case such majority should not be obtained, then a second election was to be held within two months of the time of the first vote, when the choice should be limited to the two highest on the list. In case of no choice, by reason of a tie, on the second trial, the two Houses of Congress, in joint convention, each member having one vote, were to elect. Mr. Sampson, of Iowa, proposed that the relative electoral

power of the States should be as it now is; that the people should vote directly for the executive; that the persons having a plurality for the offices of President and Vice-President in any State should receive the full presidential vote of that State, or, in case of a tie, that the votes should be equally divided among those having the highest number; and if no person received a majority of presidential votes, the choice of either President or Vice-President was to be made in the same manner as the Constitution now provides for cases where the electors have not made a choice.

In May, 1878, Mr. Southard, of Ohio, from a committee of the House of Representatives, appointed for the purpose, reported a plan. It dispensed with secondary electors. Each State was to be entitled to as many presidential votes as it would have electors under the present system. The people having voted directly for President and Vice-President, the vote for each candidate in any State was to be ascertained by multiplying the number of votes given for any person by the number of presidential votes assigned to the State, and dividing the product by the whole number of votes cast; and the fractions were to be ascertained to the third place of decimals. The returns were to be made to the secretary of state of each State, who was to open them in the presence of the governor and the state auditor or controller; and the apportionment of presidential votes was to be made by them as a canvassing board. Disputed questions might be passed upon by the highest judicial tribunal in each State, and the decision was to be sent to the president of the Senate at Washington. The votes were to be counted by the two Houses of Congress, assembled under the presidency of the president of the Senate, and all votes were to be counted unless the two Houses concurred in rejecting them; or, if there was a decision by the highest court of the State upon a contest, that decision was to stand unless the two Houses concurred in overruling it. If there were dual returns, or two decisions purporting to be by the highest court, that was to be accepted which the two Houses should decide to be the true return or the true decision. A plurality of votes was to elect the President, and in case of a tie the election was to be made in the manner now provided for the case of a failure to elect by the electors. This proposition was never even debated in the House.

A determined effort was made by the Senate, during the

session of 1878-79, to amend the law relative to the count of votes, by a statute covering the whole subject. The bill was managed by Mr. Edmunds, of Vermont. A brief account of its provisions only can be given. It changed the time for the appointment of electors in the several States to the first Tuesday of October in every fourth year. If a vacancy should

occur in both the offices of President and Vice-President more than two months before the first Tuesday of October in any year other than that in which electors would be regularly appointed, a new election was to be held. The time for the meeting and voting of the electors was to be the second Monday in January following their appointment. The fourth section was as follows:

Each State may provide by law enacted prior to the day in this act named for the appointment of the electors, for the trial and determination of any controversy concerning the appointment of electors, before the time fixed for the meeting of the electors, in any manner it may deem expedient. Every such determination made pursuant to such law so enacted before said day, and made prior to the said time of meeting of the electors, shall be conclusive evidence of the lawful title of the electors who shall have been so determined to have been appointed, and shall govern in the counting of the electoral votes, as provided in the Constitution and as hereinafter regulated.

The provisions of the bill in relation to the count followed in general the custom of Congress under the twenty-second joint rule, with these exceptions: No vote from a State from which there was but one return could be rejected without a concurrent vote of the two Houses. If there were two or more returns, that only should be counted which was decided to be the true return in the manner provided in the section just quoted. If there were no such determination, or if there were two or more decisions purporting to have been made in accordance with a law passed in conformity with that section, that return, or that decision only, could be accepted which the two Houses acting separately should decide by affirmative vote to be in accordance with the Constitution and the laws. When the two Houses separated to consider objections to electoral votes, each member of either House might speak once only, for five minutes, and at the expiration of two hours it would become the duty of the presiding officer to put the main question.

After several days of debate this bill was passed by the