The Electoral Votes of 1876

This is the first question. What is meant by counting? In one sense, it is only enumeration, an arithmetical operation, which in the present instance consists of addition and subtraction. In another sense it involves segregation, separation of the false from the true. If a hundred coins are thrown upon a banker's counter, and his clerk is told to count the good ones, he has both to select and to enumerate. He takes such as he finds sufficient in metal and weight, and rejects the light and counterfeit. So when the Constitution ordains that "the votes shall then be counted," it means that the true ones shall be counted, which involves the separation of the true from the false, if there be present both false and true. In regard to the agency by which this double process is to be performed, the words of the Constitution are few: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." What would one take to be the meaning of these words, reading them for the first time? It is, that somebody besides the President of the Senate is to count, because, if he was to be the counting officer, the language would naturally have been that "the President of the Senate shall open all the certificates and count the votes". There must have been a reason for this change of phraseology. It should seem to follow, from these words alone, that, whoever is to count, it is not the President of the Senate. It should seem also to follow, that the counting is to be done, not in the presence of Senators and Representatives as individuals, but in the presence of the two Houses as organized bodies. If their attendance as spectators merely was intended, the expression would naturally have been, in the presence of the Senators and Representatives or so many of them as may choose to attend. The presence of the Senate and House means their presence as the two Houses of Congress, with a quorum of each, in the plenitude of their power, as the coördinate branches of the legislative department of the Government. And inasmuch as no authorities are required to be present other than the President of the Senate and the two Houses, if the former is not to count the votes, the two Houses must.

The meaning which is thus supposed to be the natural one has been sanctioned by the legislative and executive departments of the Government, and established by a usage, virtually unbroken, from the foundation of the Government to the present year.