PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 1875. IN SENATE. Tuesday, January 26, 1875. ("Congressional Record," p. 729.) Mr. EDMUNDS asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 1191) to provide for and regulate the counting of votes for President and VicePresident; which was read twice by its title, referred to the Committee on Privileges and Elections, and ordered to be printed. IN SENATE. Thursday, February 25, 1875. ("Congressional Record," pp. 1759-1786.) The VICE-PRESIDENT. The bill (S. No. 1251) to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon, is before the Senate as in Committee of the Whole and open to amendment. Mr. THURMAN. Mr. President, in line 8, section 1, I move to strike out the words "one teller" and insert "two tellers." The bill provides for one teller on the part of the Senate and two on the part of the House. I see no reason for that. The Senate and the House stand on an equal footing in respect to the count of the votes. This bill goes on the theory that they stand on an equal footing. Although they meet together to witness the counting of the votes, that does not make a joint assembly in which a majority present can control the minority. The Houses do not lose their individuality, but each House is equal to the other in the functions that are to be performed. There is no propriety, therefore, in giving two tellers to the House of Representatives and only one to the Senate. On the contrary, there ought to be a teller of each party, and in order to do that there should be two tellers of the Senate and two of the House. I move that amendment. Mr. MORTON. The bill is as the present rule is, providing one teller for the House and two for the Senate, but I make no objection to the amendment. I think it is well enough. Mr. CONKLING. I wish to make an inquiry of the Senator from Ohio before we vote upon this amendment. In constituting committees in all parliamentary bodies, an odd number is the rule for the obvious motive of securing action; in other words to prevent a tie. Without stopping now to consider the length and breadth of the function of these tellers, suppose it occurs that they stand two to two. I ask the Senator from Ohio whether it is wise to so adjust the numbers that an equal division may occur? Mr. THURMAN. What the Senator from New York says would have significance if these tellers had any ultimate power of decision; but as the power of decision, and in fact everything but the mere ministerial duty of reading the returns and footing them up is reserved to the two Houses, there is no necessity whatever for constituting a majority of the tellers of one political party or the other. All questions that arise for decision must be decided by the two Houses. The tellers have certain ministerial functions to perform. They read the certificates; and if there is no objection then they put down on sheets, which are already ruled and prepared for them, the votes. That being done, when the work is completed, they add up the figures and hand the paper to the presiding officer, who declares the result. Their duties being ministerial only, there is no necessity for having a majority of one opinion or of another opinion; but in order to preserve the rights of the Senate, its individuality, and in order to avoid any errors that might creep in by the superior vigilance that might be exercised by two over one, it is but right and proper that there should be two tellers on the part of the Senate. Mr. CONKLING. The only fault of the argument of the Senator from Ohio is that it proves too much. If really these tellers have nothing to do but foot up a column of figures and state it, the Senator will see that there is little substance in contending that there should be two rather than one on the part of the Sen PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 449 ate. I am not going to oppose this amendment; | but I still think that if there be any use for the suggestion made by the Senator from Ohio, it would be a better suggestion if he would so fix a number that it should be an uneven number and should insure an opinion from those who are to give an opinion, even though it may be upon a question so ministerial in the function called for as that prescribed by the Senator from Ohio. If he says there is no significance about this one way or the other, then one teller is as good as forty. If any contingency should arise in which numbers might be important, then I submit that it ought to be as in the case of a committee so fixed that there may be a majority. Mr. BAYARD. Does the honorable Senator say that as to the function of tellers and the report made by them provided by the joint rule, the votes of two from one House might overrule the vote of the one from the other House? Mr. CONKLING. I am inclined to think it would. Mr. BAYARD. I think not. Mr. CONKLING. I only say as a proposition at large, assuming that they have anything to do, the idea should be to constitute the body in such wise that there would be a controlling part by reason of having the whole body an odd number, rather than so adjust it that there might be an equal difference with no product from the process. Mr. BAYARD. In this case the tellers are appointed on behalf of each House, act for each House, and not together. Mr. CONKLING. That is true; and now will the Senator from Delaware tell me what reason occurs to him for having two tellers instead of one on the part of the Senate? Mr. BAYARD. I confess I have not thought on the subject. Mr. BOUTWELL. I agree with the proposition of the Senator from Ohio that there should be two tellers from each House, that each leading opinion in each House may be represented by the tellers. The tellers have no positive ultimate authority. If we desire to do anything different, I think it should be in the direction of having an uneven number of tellers from each House, as three or five, for example, that each House might be advised by a majority of its committee of tellers as to what should be done. But plainly the tellers of the two Houses cannot act together, inasmuch as the two Houses themselves cannot act together. Therefore, if any opinion from the tellers were desirable by the respective Houses, it could be ascertained by having one teller or three tellers or five tellers from each House, and in no other way. For one I am content that there shall be two from each House, that the leading opinions of each House may be represented. Mr. THURMAN. My object in making this motion was that the Senate might maintain its | right to a perfect equality of power in this important business, and I have but a few words to say in reply to the suggestions of the Senator from New York. Now, what are the duties of these tellers? The President of the Senate takes up a return, opens the envelope, does not read it himself, but hands it to the tellers. For what purpose is it handed to the tellers? First, that they may read it; and having read it, then if no objection is made, the vote of that State is put down in the blanks which have been previously prepared. But it is the duty of the tellers, when they read such returns, to announce to the joint assembly any defects that they may find. We had an example at the last count where the tellers reported that the returns were all in due form except that one of the seals did not appear to be the great seal of the State. That was a thing which could not appear by mere reading; it could only appear by inspection, and every member of the Senate and House so assembled to the number of between three hundred and four hundred could not make that personal inspection at the moment. The consequence was that that was a duty which devolved upon the tellers. Now, if you have four, you are more likely to have a careful inspection of the returns than if you have a less number. Then, in the second place, the return having been accepted or not rejected, and the votes being put down, it will be necessary to be careful to see that they are put down in the right column, and when footed up that the footing is correct, and it is more likely to be correct where four perform the duty than where a less number do. Still I do not say that three might not perform it or that two might not perform it; and I would prefer one from each House rather than two from the House of Representatives and one from the Senate. What I insist upon is the absolute equality of the Senate in the functions that are to be then performed. I therefore insist that the motion I have made ought to be adopted. Mr. BAYARD. Mr. President, if some gentleman who was in either House of Congress in February, 1865, when this rule was adopted, when I presume there was discussion on the subject, can tell us why the precedent was established, we could better see whether we should change it. If there were good reasons for it then, it might be well to continue it; and I must say that I cannot see any very important results in any way from this change. I thought there were reasons why originally the House of Representatives should have two tellers and the Senate should have one. Those reasons must continue. If they never had an existence, I might as well take the suggestion of my honorable friend from Ohio and insist, for the sake of dignity, or whatever you may please to call it, upon the equal representation of the Senate upon this tally-board with the other House. I confess, however, that if we are there represented by a teller, his report will be quite as sufficient for the Senate as if there were two or three or any other number. It so strikes me. But there might have been reasons why there was that disproportion between the Houses. It might have grown simply out of the numerical difference between the two bodies. Something of that kind might have been in the minds of those who drew the rule, and the rule was a joint rule which of course both Houses were consulted about. I can apprehend that it will be no loss to the Senate if it is represented by an additional teller, nor can I see any harm done by increasing the number. Perhaps it might be some assistance in the arithmetical feat of recording the vote. Mr. CONKLING. Mr. President, without referring to the debates, a considerable portion of which were printed I believe in a pamphlet at the time, which pamphlet is still within reach, I will state to the Senator from Delaware one consideration, growing rather out of usage than necessity or fundamental reason, why the number of three tellers in all was fixed. The custom has been, speaking now of the two tellers on the part of the House, for the tellers representing the sentiments of a particular State from which electors came to count the vote. Speaking more plainly and exactly, a State had cast its vote for the democratic nominees for President and Vice-President. The usage has been for the democratic teller in the House to announce to the House the returns, to read them at large, as has sometimes been done, or to announce the result of them. A State having voted otherwise, the teller representing the other party read its returns to the House; and when the announcement in gross of the result came to be made the teller on the part of the Senate usually did that. So the work has been apportioned, rather as the Senate will see as a matter of comity or courtesy among the tellers than otherwise; and the one teller on the part of the Senate has been held sufficient to represent the Senate. How far the numerical difference between the two Houses, to which the Senator has referred, entered into it, I do not know; but I rather think that the adjustment fell to that number of tellers because the usage had been to apportion the process, as I have endeavored to state. Mr. BAYARD. I am obliged to the Senator for this statement. He has given me now a suggestion in favor of the amendment of the Senator from Ohio, to which I referred before. I wish that no other feeling than that of most gracious comity may prevail between members of the Senate or House in any performance of public duty; but still there is the fact which was recognized in the reasoning which caused the rule to be adopted, that when the vote of one party was to be read from a State in which that party had been successful with its candidate a gentleman associ ated with that party read it aloud, and when the arithmetical computation of a vote was to be announced on the other side his political opponent rose and read it. That rule was, I think, a wise one. It was satisfactory to all. It was courteous and it was substantially just and protective. Just so, Mr. President, will the same reasoning apply to the reading of the votes on the part of the Senate. I think from the fact that there can be a representation of both political parties in counting the votes in the board of tellers created by the joint rule, who act for that purpose, there is something that will be satisfactory to the country at large as well as to the representatives in the two Houses of Congress. Therefore I wish now that there would be not only no objection to, but, for very palpable reasons, cause for giving the Senate two tellers, so that each party of the Senate should proclaim the vote and make it perfectly satisfactory, so far as that proclamation is concerned, to both sides. I think there is force in the suggestion of the Senator from Ohio, and I trust his motion may prevail. The PRESIDING OFFICER (Mr. INGALLS in the chair). The question is on the amendment of the Senator from Ohio [Mr. THTEMAN]. The amendment was agreed to. Mr. THURMAN. After the word "votes" at the end of the eleventh line of the first section, I move to insert Which certificates shall be opened, presented, and acted upon in the alphabetical order of the names of the States, beginning with the letter A. Mr. President, this bill goes upon the theory, which I believe to be the correct one, that the function of the President of the Senate is simply to open the returns; that it is not his funetion to count them; that they are to be counted in such manner as will be provided either by a joint rule of the two Houses or by law, whichever is the proper mode of providing for their count. His function then being simply to open the returns and to deliver them to the tellers, it ought not to be left in his discretion to select the returns that he will first present. They should be presented in some prescribed mode, and I conceive of no one less liable to objection than the alphabetical order of the names of the States. It would be impossible to select any other method that I am aware of, unless you were to call the States in the order of their coming into the Union. Mr. BAYARD. Or in the order of their adopting the Federal Constitution. Mr. THURMAN. In the order of their adopting the Federal Constitution, or of the original thirteen and the subsequent admission of the States; but that is not so convenient a mode as the alphabetical mode. The alphabetical mode requires no research, can give rise to no possible discussion, is perfectly simple, and is perfectly fair. I therefore propose this amendment, which I consider to be correct and to be in perfect harmony with the whole idea of the bill. Manifestly it ought not to be left in the power of the presiding officer to select at his pleasure what returns he will first present. There ought to be a prescribed mode that should settle that question, if for no other reason, to relieve him from any responsibility on the subject or any suspicion as to improper motives in his presentation of the returns. But for much higher reasons than that it is proper that these returns should be presented, opened, and acted upon in some prescribed mode, I hope, therefore, there will be no opposition to this amend ment. The PRESIDING OFFICER. The question is on the amendment of the Senator from Ohio. The amendment was agreed to. Mr. THURMAN. I now move to strike out the last sentence of the first section on page 2 of the bill. The PRESIDING OFFICER. The Secretary will report the words to be stricken out. The SECRETARY. On page 2, beginning at line 34, it is proposed to strike out the following words: And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner. Mr. THURMAN. The previous part of the section provides that when a question shall arise in regard to "counting the votes therein certified"—that is, certified in any certificate which shall have been opened and presented as provided in the section-the Senate shall withdraw, and the two Houses shall act upon the objection or question separately; and then, when each House has made its decision, they shall convene again and the decision shall be announced. Then come in at the close of the section these words: And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner. I do not know why these words were put in. I can conceive of no necessity for them. I can conceive of a construction put upon these words that would lead to irremediable mischief. I would be glad, if the Senator from Indiana is not willing that the amendment should be adopted, that he would give us his view as to the effect of these words. If he is willing that the amendment shall be adopted, I will not trouble him. Mr. MORTON. I find that these words are embraced in the original rule, and form a part of the rule to which perhaps no exception was ever taken. The original rule providing for the counting of the votes says: And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner. It simply provides for the determination of any question that it may be necessary to deter mine which shall require the concurrence of both Houses, to be determined in like manner, subject to the same restrictions. There may be other questions arising. I could not now anticipate one; I do not know that I could mention one; but other questions may arise, the determination of which may be essential; and this clause simply provides for their settlement in the same way. Mr. THURMAN. It seems to me obvious that these words in section 1-the last sentence in the section-should come out. The previous part of the section provides all that is necessary for the counting of the votes. All that can properly be done by the two Houses is already provided for. I was aware that these words were in the twenty-second joint rule, and I can conceive some reasons why they were put in that rule; but I can conceive no good reason why they should remain. The Senator from Indiana and I think that the twenty-second rule is a bad rule. It is proposed to abolish it. I do not think it is necessary to preserve this part of it, which to my mind is in the highest degree objectionable. Let the whole of it go, if any part of it is to go. There were very peculiar circumstances in the first counts of the votes under that rule. The rule was adopted in 1865, I believe. Mr. MORTON. February 6, 1865. Several Mr. THURMAN. It does not say in my copy when it was adopted. It was adopted in 1865. There were very peculiar circumstances under which that rule was adopted. of the Southern States were not reconstruced the majority of both Houses of Congress whether they needed reconstruction at all. thought. I shall not go into the question They were not reconstructed and the question whether they should vote for President and Vice-President was a mooted question. It was a question whether in point of fact they were States of this Union. That was the question. If they were States of the Union they were entitled to vote, but a majority of Congress refused to consider them as States of the Union. as it was then said, as some Senators and as Mr. BAYARD. Not so early as 1865? Mr. THURMAN. I am speaking now of 1868, not at the time when this rule was adopted. The war had not closed at the time the rule was adopted in 1865, and what States would be in the Union in 1868 was a question that no one could then absolutely foretell. The war still existed, and no one was able to foretell what would be the result, after the war should close, upon the autonomy of the States that had been engaged in the rebellion. Under those circumstances this rule was adopted, and it was enforced. It was enforced in the count of 1869, and that most extraordinary of all announcements ever made was made by the President of the Senate, that the vote of Georgia should be received if it would not change the result; but if it would change the result make it more precise to say "the votes having been counted by them;" that is, the tellers. Mr. FRELINGHUYSEN. Is the Senator from Indiana quite sure that that would be right? Mr. MORTON. I scarcely understood the Senator from North Carolina. I think those words hardly necessary. Mr. FRELINGHUYSEN. I do not object to them if they are merely unnecessary, but the question is whether the votes are counted by tellers. it should be rejected! It was in that state of the country that this provision crept into this rule. No reason of that kind exists any more. There is no longer any question what are the States of this Union. Fortunately for the country, every one of them is a State in the Union. There is no longer any expelled sister. On the contrary, you have taken in a couple more yesterday, although they are very young and very feeble. There is no question, therefore, as to what are the States of the Union, and no necessity for this provision being in this rule. On the contrary, if it is left in the rule it may give rise to claims that are utterly inadmissible. We have no provision for contesting the elections of President and VicePresident. This bill does not propose to provide for any such contest, If it did it would be lamentable, nay, wholly, utterly defective. There is no reason, therefore, for opening the door to questions over which we have no juris-tainly perform the ministerial duty of counting diction; and unless we intend to invite ques- the votes, but whether that is the counting tions and the exercise of a jurisdiction we do spoken of in the Constitution I think there is not possess, these words should be stricken very grave question. out of the section. That follows as a matter of course after striking out the last sentence in section 1. The amendment was agreed to. Mr. MERRIMON. As this seems to be a very important bill, I take it that it is well to have the phraseology used as correct as possible. Therefore in line 3 of section 1 I move to amend by striking out the words "the two Houses of Congress" and inserting the words "the Senate and House of Representatives." There is no such phraseology in the Constitution as "the two Houses of Congress." The phraseology used in the Constitution is that which I propose to insert, "the Senate and House of Representatives." The PRESIDING OFFICER. The question is on the amendment. The amendment was agreed to. Mr. MERRIMON. I move to amend in line 4, section 1, by inserting after the words "one o'clock" the letters "P. M." The amendment was agreed to. Mr. MERRIMON. In line 15 of section 1, after the word "counted," I move to insert the words "by them." Mr. MORTON. What does the Senator Mr. MERRIMON. Then we ought to settle it. That is the very thing we ought to settle. I understand the tellers are to count the votes. They are to read the certificates and then cast up the votes; and having done so, they hand the result to the President and he announces it to the joint meeting. Mr. FRELINGHUYSEN. The tellers cer Mr. MERRIMON. Then I ask the Senator who is to count? The statute will not then provide for that. Mr. STEVENSON. I do not think there can be any doubt from the language of the rule that it was intended that the tellers should do the counting. The language is: And said tellers, having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the said certificates; and the votes having been counted, the result of the same shall be delivered, etc. Now it seems to me those words would be useless. If these gentlemen are to make a list of the votes, unless they count them, how can they be ascertained? Mr. FRELINGHUYSEN. I would recall the language of the Constitution to my friend: The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates. "And the votes shall Mr. CONKLING. then be counted." Mr. FRELINGHUYSEN. "And the votes shall then be counted." I understand that that counting is really done under the supervision and in fact by the two Houses. I think the bill is a good deal better leaving it as the Constitution leaves it, without saying "being counted by the tellers." Mr. MERRIMON. Then it seems to me a wrangle might spring up at once as to whether the tellers should count the votes or somebody else. I do not see how the joint meeting could count them unless through some instrumentality. Mr. FRELINGHUYSEN. The bill is in the language of the Constitution now. Mr. MERRIMON. I understand the object of this act is to execute the provision of the Constitution. I submit the amendment to the Senate. |