The Electoral Votes of 1876

It is impossible, without deranging our system of election, either to reject votes actually cast, out of consideration for the motives with which they were cast, or to add to them the supposed votes which might have been cast. The ballot itself is a standing protest against inquiry into motives. It enjoins and protects the secret of the hand; much more should it enjoin and protect the secret of the heart. And as for adding votes, on the supposition that they might or would have been cast but for untoward circumstances, no plausible reason can be given for it which would not apply to any case of disappointment in the fullness of the vote. A rainy day of election costs one of the parties thousands of ballots. If it happen to rain on that day, why not order a new election in better weather; or, to save that formality, make an estimate of the number who would have attended under a cloudless sky, and add their ballots to one side or the other? The rejection of the votes of a parish can be justified, if justifiable at all, only on the ground that the votes cast do not give the voice of the parish, either because they did not express the real wishes of the voters, or because they would have been overborne by other votes if they could have been cast.

Does not the foregoing reasoning lead to this conclusion, that whether the charges of intimidation in certain counties or parishes of a State be founded in fact or in error, they do not warrant the rejection of the votes actually cast in those counties or parishes; and, furthermore, that they who insist upon such rejection must accept, as a logical conclusion, the rejection, for a like reason, of the votes of the whole State? I submit that such are the inevitable conclusions.

It is insisted, however, that this is an inquiry which cannot be gone into in the present state of the canvass. Certificates have been sent to Washington, purporting to give the result of the election. The question will probably arise, at the meeting of the two Houses, in this manner: Two certificates are required, one signed by the electors, pursuant to the Constitution, certifying their own votes; and the other signed by or under the direction of the Governor of the State, pursuant to act of Congress, certifying the appointment of the electors. Both certificates are sent to the President of the Senate, in one envelope. It may indeed happen that two envelopes come from the same State, each containing two certificates of rival governors, and rival electors. If there is but one envelope, one of the certificates which should be there may be omitted, or may be imperfect. In all these cases, it is manifestly incumbent upon the two Houses to receive or reject, in the exercise of their judgment. But if one envelope only is presented, containing the two certificates, both in due form, and objection is nevertheless made that the certificate of the appointment of electors is false, can the objection be entertained? There are those who affirm that it cannot. They reason in this wise: The States are to appoint the electors, and may therefore certify such as they please. But is not that a non sequitur? The States may appoint whom they please, in such manner as their Legislatures have directed, but an appointment and a certificate are different things. The latter is, at the very best, only evidence of the former. The fact to be determined is the appointment; the certificate is produced as evidence; it may be controvertible or incontrovertible, as the law may have provided, but there is nothing in the nature of a certificate which forbids inquiry into its verity; it is not a revelation from above; it is a paper made by men, fallible always, and sometimes dishonest as well as fallible; and, if honest, often deceived. It is made generally in secret and ex parte, without hearing both sides, without oral testimony, without cross-examination. Of such evidence it may be safely affirmed, that it is never made final and conclusive without positive law to that express effect.

Now, it may be competent for the Legislature of a State, under its own constitution, to determine how far one of its own records shall be conclusive between its own citizens. It may enact, that the certificate of a judge of a court of record, of a sheriff, a county commissioner, a board of tax assessors, or aboard of State canvassers, shall or shall not be open to investigation. There is, however, no act of Congress on the subject of the present inquiry, and we are left to the Constitution itself, with such guides to its true interpretation as are furnished by just analogy and by history. If it can be shown that the certificate was corruptly made, by the perpetration of gross frauds in tampering with the returns, must it nevertheless flaunt its falsehood in the faces of us all, without the possibility of contradiction? A President is to be declared elected for thirty-eight States and forty-two millions of people; the declaration depends upon the voice, we will suppose, of a single State; that voice is uttered by her votes; to learn what those votes are, we are referred to a certificate, and told that we cannot go behind it. In such case, to assert that the remaining thirty-seven States are powerless to inquire into the getting up of this certificate, on the demand of those who offer to prove the fraud of the whole process, is to assert that we are the slaves of fraud, and cannot take our necks from the yoke. I do not believe that such is the law of this land, and I give these reasons for my belief.

In the absence of express enactments to the contrary, any judge may inquire into any fact necessary to his judgment. The point to be adjudged and declared in the present case is, who has received a majority of the electoral votes, that is, of valid electoral votes, not who has received a majority of certificates. A President is to be elected, not by a preponderance of certification, but by a preponderance of voting. The certificate is not the fact to be proved, but evidence of the fact, and one kind of evidence may be overcome by other and stronger evidence, unless some positive law declares that the weaker shall prevail over the stronger, the false over the true. There may, as I have said, be cases where, for the quieting of titles, or the ending of controversies, a record or a certificate is made unanswerable; that is, though it might be truthfully answered, the law will not allow it to be answered. Such cases are exceptional, and the burden of establishing them rests upon him who propounds them. Let him, therefore, who asserts that the certificate of a returning board cannot be answered by any number of living witnesses to the contrary, show that positive law which makes it thus unanswerable. There is certainly nothing in the Constitution of the United States which makes it so, as there is no act of Congress to that effect.

A certificate of a board of returning officers has nothing to liken it to a judicial record of contentions between parties. The proceeding is ex parte; or, if there be parties, the other States of the Union are not represented, however much their rights may be affected; the evidence is in part at least by one-sided affidavits; the judges may be interested and partial. What such a board has about it to inspire confidence or command respect, it is hard to perceive. If there be any presumption in its favor, or in favor of the justice of its judgments, the presumption is as far from indisputable as a disputable presumption can ever be.

To recapitulate, we may formulate the question in this manner: Whom has the State appointed to vote in its behalf for President? The manner of appointment is the vote of the people, for the Legislature has so directed. Who, then, are appointed by the people? To state the question is nearly equivalent to stating what evidence is admissible; for the question is not, who received the certificate, but who received the votes; and any evidence showing what votes were cast and for whom is pertinent and must therefore be admissible, unless excluded by positive law. The law by which this question is to be decided is not State, but Federal. If it were otherwise, the State officers might evade the Constitution altogether, for this ordains that the appointment shall be by the State, and in such manner as its Legislature directs; but if the State certificate is conclusive of the fact, the State authorities may altogether refuse obedience to the constitution and laws, and save themselves from the consequences by certifying that they have obeyed them. And they may in like manner defraud us of our rights, making resistance impossible, by certifying that they have not defrauded. Indeed, they might make shorter work of it, and omit the election altogether, writing the certificate in its stead.

If the Governor of Massachusetts were to certify the election of the Tilden electors, and their votes were to be sent to Washington, instead of those which the Hayes electors have just given in the face of the world, must the Tilden votes be counted? Must this nation bow down before a falsehood? To ask the question is to answer it. There is no law to require it; there can be none until American citizens become slaves. The nature of the question to be determined, the absence of any positive law to shut out pertinent evidence, the impolicy of such an exclusion, its injustice, and the impossibility of maintaining it, if by any fatality it were for a time established – all these considerations go to make and fortify the position, that whatever body has authority to decide how a State has voted, has authority to draw information from all the sources of knowledge. The superstitious veneration of a certificate, which would implicitly believe it, and shut the eye to other evidence, is as revolting as that of the poor negro in the swamps of Congo, who bows down before his fetich. The idolaters, mentioned in Scripture, who took a tree out of the wood, burned one part of it, hewed the other, and then worshiped it, were only prototypes of the men of our day, who bow down before a piece of paper, signed in secret fourteen hundred miles away, asserting as true what they know or believe to be false.

It were useless, therefore, to inquire how far the laws of a State make the certificate of a board of canvassers or of returns conclusive evidence of the result of an election held in the State. It maybe admitted that the Supreme Court of Louisiana, for example, has denied its own competency to go behind the certificate of the board; but even that decision is entitled to no respect, being made in contravention of an express provision of the State statute, as the dissenting opinion of one of the judges clearly shows. Every other State of the Union, save perhaps one, has decided that the certificate is impeachable, even in a case where the statute declares that the canvassers shall "determine what persons have been elected." The opinion of the Supreme Court of Wisconsin, an extract from which is given in the Appendix, states and decides the point with clearness and unanswerable force.

If what has been said be founded in sound reason, the two Houses of Congress, when inquiring what votes are to be counted, have the right to go behind the certificate of any officers of a State, to ascertain who have and who have not been appointed electors. The evidence which these Houses will receive upon such inquiry it is for them and them only to prescribe, in the performance of their highest functions and the exercise of their sincerest judgment.

The Remedy for a Wrong Count

is the remaining question. Hitherto, I have endeavored to state in a popular manner the existing law, as I understand it. I will now ask a consideration of the needs of future legislation. If there be anything obscure in the present law, Congress has the power to make it clear; if there be danger in our present condition, Congress can remove the danger. There are various ways of doing it.

One is to provide for a judicial committee of the two Houses, to sit in judgment, as if they were judges, and pronounce upon the result of the evidence. The English House of Commons used to reject or admit members, from considerations of party. Englishmen have thought that they had at last succeeded in establishing a tribunal which would decide with impartiality and justice. We should be able to devise means equally sure of arriving at a result just in itself, and satisfactory to all. The considerations in favor of a judicial committee of the two Houses are cogent, though they may not be conclusive. They are, the necessity of a speedy decision, and the desirableness of keeping, if possible, the ordinary courts out of contact with questions of the greatest political significance.

But if it be found impossible to agree upon the formation of such a committee, then a resort to the courts should certainly be had. The public conscience must be satisfied that the person sitting in our highest seat of magistracy is there by a just title; and it can be satisfied of that, in doubtful cases, only by a judicial inquiry.

An act of Congress might provide either for the case of a double declaration of the votes, one by each House of Congress, or of a single declaration by the two Houses acting in concert. In either case the Supreme Court could be reached only by appeal, and the court of first instance might be either the Supreme Court of the District of Columbia or any of the Circuit Courts. The Court of the District should seem to be the most convenient, the most speedy, and the most appropriate, as being at the seat of Government.

For the case of a double declaration it might be provided, that if, upon the counting of the votes the Senate should find one person elected and the House another, an information should be immediately filed in the Supreme Court of the District, in the name of United States, against both the persons thus designated, alleging the fact, and calling upon each to sustain his title. The difficulty of this process would be how to expedite the proceedings so that a decision should be had before the 4th of March, in order to avoid an interregnum. But I think this difficulty could be overcome. To this end, the time of the courts engaged in the case should be set apart for it. The rival claimants would naturally be in Washington, prepared for the investigation. The evidence previously taken by the two Houses – for they would assuredly have taken it – could be used, with the proper guards against hearsay testimony, and any additional evidence necessary would probably be ready, if the claimants or their friends knew beforehand that a trial was likely to be had. It might indeed happen that the questions to be decided would involve little dispute about facts; as, for example, the present Oregon case. It should be provided that the trial must be concluded and judgment pronounced within a certain number of days, either party being at liberty to appeal, within twenty-four hours after the judgment, to the Supreme Court of the United States, by which the appeal should be heard and decided before the 4th day of March.

In case of a single declaration, and consequent induction into office, an information might be filed in the Supreme Court of the District in the names of the United States and the claimant, against the incumbent, and proceedings carried on in the ordinary manner of proceedings in the nature of quo warranto.

Any lawyer could readily frame a bill to embrace these several provisions. An amendment of the Constitution would not be necessary. The provisions would operate as a check upon fraud. They would furnish a more certain means of establishing the right. The objection that the courts would thus be brought into connection with politics is the only objection. But the questions which they would be called upon to decide, would be questions of law and fact, judicial in their character, and kindred to those which the courts are every day called upon to adjudge. The greatness of the station is only a greater reason for judicial investigation. The dignity of the presidential office is not accepted as a reason why the incumbent should not be impeached and tried. It can be no more a reason why a usurper should not be ousted and a rightful claimant admitted. The President is undoubtedly higher in dignity and greater in power than the Governor of a State, but the reasons why the title of a Governor should be subjected to judicial scrutiny are of the same kind as those which go to show that the title of a President of the United States should be subjected, upon occasion, to a like scrutiny. The process was tried and found useful in the Capitol of Wisconsin, and, for similar reasons, it may be tried and found useful in the Capitol of the Union. So far from degrading the office, or offending the people to whom the office belongs, it can but help to make fraud less defiant and right more safe, and add a new crown to the majesty of law. That triumph of peace and justice in Wisconsin has, to the eye of reason, given an added glory to her prairies and hills, and a brighter light to the waters of her shining lakes.

APPENDIX

Observations of the Chief Justice Whiton, of Wisconsin, respecting the force of a certificate of canvassers:

"Before proceeding to state our views in regard to the law regulating the canvass of votes by the State canvassers, we propose to consider how far the right of a person to an office is affected by the determination of the canvassers of the votes cast at the election held to choose the officer. Under our constitution, almost all our officers are elected by the people. Thus the Governor is chosen, the constitution providing that the person having the highest number of votes for that office shall be elected. But the constitution is silent as to the mode in which the election shall be conducted, and the votes cast for Governor shall be canvassed and the result of the election ascertained. The duty of prescribing the mode of conducting the election, and of canvassing the votes was, therefore, devolved upon the Legislature. They have accordingly made provision for both, and the question is, whether the canvass, or the election, establishes the right of a person to an office. It seems clear that it cannot be the former, because by our constitution and laws it is expressly provided that the election by the qualified voters shall determine the question. To hold that the canvass shall control, would subvert the foundations upon which our government rests. But it has been repeatedly contended in the course of this proceeding that, although the election by the electors determines the right to the office, yet the decision of the persons appointed to canvass the votes cast at the election, settles finally and completely the question as to the persons elected, and that, therefore, no court can have jurisdiction to inquire into the matter. It will be seen that this view of the question, while it recognizes the principle that the election is the foundation of the right to the office, assumes that the canvassers have authority to decide the matter finally and conclusively. We do not deem it necessary to say anything on the present occasion upon the subject of the jurisdiction of this court, as that question has already been decided, and the reasons for the decision given. Bearing it in mind, then, that under our constitution and laws, it is the election to an office, and not the canvass of the votes, which determines the right to the office, we will proceed to inquire into the proceedings of the State canvassers, by which they determined that the respondent was duly elected." – (4 Wis., 792.)