The Electoral Votes of 1876: Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong Count — John Shaqi
The Electoral Votes of 1876: Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong CountField, David Dudley
History
The Electoral Votes of 1876: Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong Count
Field, David Dudley
Presidents -- United States -- Election -- 1876
The words of the Constitution are not many: "Each State shall appoint,
in such manner as the Legislature thereof may direct, a number of
electors," who shall meet and vote, "make distinct lists of all
persons voted for as President" ... "and of the number of votes for
each, which list, they shall sign and certify and transmit sealed to
the seat of the Government of the United States, directed to the
President of the Senate."
_The State_ must appoint, and the appointment must be made _in such
manner_ as _the Legislature_ thereof may direct. Here are the two
elements of a valid appointment, and they must concur. An appointment
not made by the State, or not made in the manner directed by its
Legislature, is no appointment at all.
There must be _State_ action in the _manner_ directed. If, for
example, an appointment were made by a State authority, such as the
Governor, without the sanction of the Legislature, it would be void.
If it were made by the people in mass-convention, but not in a manner
directed by the Legislature, it would be void also. And if, on the
other hand, it were made in such manner as the Legislature had
directed, but not made by the State, it would be equally invalid.
Indeed, the Legislature may itself have given a direction in
contravention of the State constitution, and thus the direction prove
a nullity. So, too, the Legislature may have acted in contravention of
the Federal Constitution, and for that reason its direction may have
been void. The appointing power is the State, the manner of its action
is prescribed by the Legislature; the valid authority and the valid
manner of its exercise must concur, to make a valid appointment.
Public-domain text, read in full here on John Shaqi.
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