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The electors must prepare separate lists of all persons who receive any votes for either office, must subscribe and certify the lists, and having sealed them must send them, addressed to the president of the senate, to the seat of the federal government. “The president of the senate shall, in the presence of the senate and the house of representatives, open all the certificates and the votes shall then be counted.” A majority of the votes of all the electors is necessary to an election. If none of the candidates for the presidency has received such a majority, then the house of representatives must elect one of the three candidates who received the greatest number of votes. In this case the house of representatives votes by states, and each state casts one vote. The ballot holds good if one or more members from two-thirds of the states be present. A majority of all the states is necessary to an election. If no vice-president has been elected, the senate may choose one of the two candidates who received the greatest number of votes. Each senator casts one vote. To make a ballot valid, the presence of two-thirds of the senators is required. For an election the majority of all the senators is necessary.
It is an undisputed fact that the twelfth amendment, which contains the provisions noted above, has become a mere empty form. The parties nominate their candidates in so-called national conventions, which have no legal ex
highest number was to be vice-president, provided, in each case, that the candidate received a majority of all the votes cast. For the events of the election of 1800-1801, which led to the adoption of the twelfth amendment, see my Constitutional History, I., 168.
1 See my Constitutional History (II., 4) as to the one presidential election (that of J. Q. Adams) which took place under this constitu-. tional provision.
2 Under this constitutional provision, R. M. Johnson was elected in 1837.
istence whatever, and the members of which are chosen without any legal control whatever. It has long been a subject of constant and loud complaint that not the mass of the people, but only the professional politicians, are represented in these conventions. In the interest of the managers, public opinion is often defied. The electors are mere ornamental figure-heads, without any will of their own. The people take not the least interest as to who are made electors, for the personis designated are held to be in honor bound to vote for the party candidates nominated by the national convention. Since the introduction of these conventions, no elector has ever ventured to act as the constitution intended, in accordance with his own judgment. Not only in regard to the question as to which party shall carry the day, but also as to the persons chosen, the election of electors is the presidential election, and in ordinary conversation it is so called. The assembling and voting of the electoral college on the first Wednesday in December is an empty formality, for the decision was made in the preceding November. The development of actual facts has made the constitution a dead letter on this point. The history of the presidential election of 1876–77 shows that even empty forms may become of great significance. The after effects of the civil war came into play in a manner that threatened to be fatal. In some of the former slave states (Florida, South Carolina and Louisiana), both parties claimed the victory. If the electoral votes of all these states were given to the republicans, their candidate would be elected by a majority of one vote. But to whom did the constitution give the right to decide, if the legality of electoral votes was contested? — or if in one state two sets of electors should each claim to be legally chosen? The clause of the constitution already cited offered no such unquestionable solution of the problem that the most different doctrines might not have been advanced from the general standpoint of principle and of party interests. There were no precedents to indicate so precisely any particular path that congress would have been obliged to proceed therein. The position which congress took in regard to the electoral vote of Missouri in 1821, and of Michigan in 1837, had been generally understood hitherto as involving a claim on its part to the right to decide the validity of an electoral vote sent into it; and the twenty-second joint rule, concerning the counting of electoral votes (which was, however, no longer in force in 1876), was also based on this assumption. In 1857 the president of the senate declared, after he had announced the election of Buchanan, that he did not feel authorized to decide whether Wisconsin had voted for Fremont. And in 1873 congress refused to count the electoral vote of Louisiana, on account of fraud in the election. If the 'majority in both houses had now taken the same position, the minority would probably have been voted down by an appeal to precedent, and the affair would have been settled. But in the house of representatives the democrats, and in the senate the republicans, had a majority. It was therefore to be expected with certainty that they would take directly opposite grounds. The doctrine that both houses should be regarded as one composite body, and that the majority of all of the votes should decide, found not the slightest support in the constitution. Against the claim that congress was capable of deciding, the very important objection was raised, that the constitution provides only that the certificates sha!l be opened and counted “in the presence of the senate and house of representatives." All the other provisions indicate, however, an intention to assign to the states the right and responsibility of taking care that their electors shall be appointed in a constitutional and lawful manner, and their legal votes be properly conveyed to the president of the senate. The assertion of the republicans, that the decision belonged to this official, was equally untenable. Nowhere does the constitution empower him to count the votes. It declares simply that they “shall be counted,"— a formula which forces us to suppose that, according to the views of the framers of the constitution, the question was one simply of addition. The claim of the democrats that the decisive vote must be accorded to the house of representatives, because eventually the election of the president was incumbent upon it, was not a bit better founded. It was evident that no amicable adjustment would be attained, if the decision of the question were delayed until the official counting of the electoral votes. In harmony with public opinion, the most thoughtful leaders of both parties wished, however, to avoid the great commotions which would have been inevitable if the question were not decided before the beginning of the new presidential period. Refuge was therefore taken in an expedient which certainly cannot be called unconstitutional, but must be described as extra-constitutional. It could scarcely
1 So, too, in former times, when the candidates were named by the party representatives in congress, the so-called “king caucus.”
2 Should accident so shape events that the presidential candidate of the victorious party should die immediately before the meeting of the electoral college, then the United States would again have a president who was, not only in form, but in truth, elected by the electors. The effects that such an accident might produce are incalculable. The most substantial result would probably be the final success of the efforts to bring the constitution again into accord with facts, and to have the president and vice-president elected directly by the people. If Horace Greeley had been, not the defeated, but the victorious, candidate, the constitution by his death in 1872 would have come to its rights.
be resorted to again. A law was enacted, the essential provisions of which were as follows: If a state had sent in only one return of the electoral votes, it should not be rejected unless both houses should so decide; if two returns were sent in, these, together with all documents relating to them, should be referred to a commission of fifteen members; each house named five members of this commission; the law made four designated justices of the supreme court members, and these four were to select another justice of the supreme court as the fifteenth member; the decision of this commission was to be final, unless set aside by a concurrent resolution of both houses; an appeal to the courts was not forbidden. The republican candidate, Hayes, was installed in office under this law. The democrats accommodated themselves to circumstances, but adhered to the view that Tilden was the legally elected president. The manifold efforts to render the recurrence of such an event impossible, by amending the constitution or enacting proper laws, have not thus far as yet led to the desired result.
§ 26. THE “CABINET.” The constitution knows nothing of a “cabinet.” Even if the word has become as thoroughly naturalized in the language of America as in European states, it is nevertheless, from a constitutional standpoint, an abuse. The constitution speaks only of “executive departments.” It does not call the heads of them ministers. It generally gives them no titles. By statute, the name "secretary” is given them. Collectively, the secretaries have no constitutional existence whatever. One of the two clauses of the constitution in which they are mentioned shows, however, that the framers intended to give the president, in the secretaries, not only executive organs of his will, but also counselors upon whose official counsel he might rest his acts and