COUNTING ELECTORAL VOTES. PROCEEDINGS IN THE FEDERAL CONVENTION OF 1787. IN THE FEDERAL CONVENTION, August 6, 1787. In the "draught of a constitution reported by the committee of five, August 6, 1787," article 10, section 1, is as follows: "The executive power of the United States shall be vested in a single person. His style shall be "President of the United States of America ;" and his title shall be "His Excellency." He shall be elected by ballot by the Legislature, [Congress.] He shall hold his office during the term of seven years; but shall not be elected a second time."(Journal of Convention, page 224.)* September 4, 1787. The Hon. Mr. Brearly, from the committee of eleven, to whom sundry resolutions, &c., were referred on the 31st ultimo, reported that in their opinion the following additions and alterations should be made to the report before the convention, namely: 4. After the word excellency, in the first section, tenth article, to be inserted, "He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected in the following manner: 5. "Each State shall appoint, in such manner as its Legislature may direct, a number of electors, equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature. 6. "The electors shall meet in their respective States and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the General Government, directed to the President of the Senate. 7. "The President of the Senate shall, in that house, open all the certificates; and the votes shall be then and there counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of the electors appointed; and if there be more than one who have such majority and have an equal number of votes, then the Senate shall choose by ballot one of them for President; but if no person have a majority, then, from the five highest on the list the Senate shall choose by ballot the President. And in every case after the choice of the President the person having the greatest number of votes shall be Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them the Vice-President. 8. "The Legislature may determine the time of choosing and assembling the electors and the manner of certifying and transmitting the votes.' September 6, 1787. On the question to agree to the fourth clause of the report, as follows: "He shall hold his office during the term of four years, and, together with the VicePresident chosen for the same term, be elected in the following manner It passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia-10. NAY-North Carolina-1. On the question upon the fifth clause of the report, prescribing the appointment of electors, *In this draught of the Constitution there was no Vice-President provided for, and by article 5, section 4, the Senate was to choose its own president and other officers. It passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, and Georgia-9. NAYS-North Carolina and South Carolina-2. It was moved and seconded to agree to the following clause: Which passed in the negative: YEA-North Carolina-1. NAYS-New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia-10. It was moved and seconded to insert the words, "under the seal of the State," after the word "transmit," in the sixth clause of the report; Which passed in the negative. It was moved and seconded to agree to the sixth clause of the report; Which passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia—10. NAY-North Carolina-1. It was moved and seconded to agree to the words, "the person having the greatest number of votes shall be President," in the seventh clause of the report; Which passed in the affirmative: YEAS-New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia-8. NAYS-Massachusetts and Connecticut-2. It was moved and seconded to agree to the words, "if such number be a majority of the whole number of the electors appointed;" Which passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, South Carolina, and Georgia-8. NAYS-Pennsylvania, Virginia, and North Carolina-3. It was moved and seconded to insert the words "in presence of the Senate and House of Representatives," after the word "counted;" Which passed in the affirmative: YEAS-New Hampshire, Maryland, Virginia, North Carolina, South Carolina, and Georgia-6. NAYS-Connecticut, New Jersey, Pennsylvania, and Delaware-4. It was moved and seconded to insert the words, "and who shall have given their votes," after the word "appointed," in the seventh clause of the report; Which passed in the negative: YEAS-Massachusetts, Pennsylvania, Virginia, North Carolina, and South Caroli na-5. NAYS-New Hampshire, Connecticut, New Jersey, Delaware, Maryland, and Georgia–6. It was moved and seconded to insert the word "immediately" before the word "choose;" Which passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia-10. NAY-North Carolina-1. It was moved and seconded to insert the words "of the electors" after the word "votes;" Which passed unanimously in the affirmative. It was moved and seconded to agree to the following clause: "But the election shall be on the same day throughout the United States" after the words "transmitting their votes ;" Which passed in the affirmative: YEAS-New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia-8. NAYS-Massachusetts, New Jersey, and Delaware-3. It was moved and seconded to strike out the words "the Senate shall immediately choose by ballot," &c., and to insert the words "the House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote;" Which passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia-10. NAY-Delaware-1. PROCEEDINGS IN THE FEDERAL CONVENTION OF 1787. 3. It was moved and seconded to agree to the following amendment: "But a quorum for this purpose shall consist of a member or members from twothirds of the States;" Which passed unanimously in the affirmative. On the question to agree to the following amendment: "And also of a majority of the whole number of the House of Representatives;" It passed in the negative: YEAS-Massachusetts, Connecticut, Pennsylvania, Virginia, and North Carolina-5. NAYS-New Hampshire, New Jersey, Delaware, Maryland, South Carolina, and Georgia-6. On the question to agree to the following paragraph of the report: "And in every case after the choice of the President the person having the greatest number of votes shall be the Vice-President; but if there should remain two or more who have equal votes, the Senate shall choose from them the Vice-President;" It passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia-10. NAY-North Carolina-1. The several amendments being agreed to, on separate questions, the first section of the report is as follows: "He shall hold the office during the term of four years; and, together with the VicePresident chosen for the same term, be elected in the following manner: "Each State shall appoint, in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives to which the State may be entitled in the Legislature. "But no person shall be appointed an elector who is a member of the Legislature of the United States, or who holds any office of profit or trust under the United States. "The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the Government, directed to the President of the Senate. 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. "The person having the greatest number of votes shall be the President, (if such number be a majority of the whole number of the electors appointed ;) and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President, the representation from each State having one vote. But if no person have a majority, then from the five highest on the list, the House of Representatives shall, in like manner, choose by ballot the President. In the choice of a President by the Honse of Representatives a quorum shall consist of a member or members from twothirds of the States; and the concurrence of a majority of all the States shall be necessary to such choice. And in every case after the choice of the President the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes the Senate shall choose from them the Vice-President. "The Legislature may determine the time of choosing the electors, and of their giving their votes, and the manner of certifying and transmitting their votes. But the election shall be on the same day throughout the United States." September 13, 1787. The Hon. Mr. Johnson, from the committee of revision, reported the following as a substitute for the twenty-second and twenty-third articles: "Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this Convention that it should afterward be submitted to a convention of delegates chosen in each State by the people thereof, under the recommendation of its Legislature, for their assent and ratification; and that each convention assenting to and ratifying the same should give notice thereof to the United States in Congress assembled. The words "in presence of the Senate and House of Representatives" were moved to be inserted after the word "counted," (page 334 Journal of Federal Convention,) and this motion was carried. The Journal of the Convention does not show that any motion was made to strike out the words "in that house," which occur in the original draught, nor does it show why the words "in the presence of the Senate and House of Representatives" were inserted in the place of the words "in that house" instead of after the word "counted," as was voted by the convention; but from the clause in the journal, at the bottom of page 371 thereof, it appears that the report of the committee of revision was taken up and read by paragraphs and in some places corrected and amended, and that no entry is made upon the journal of these corrections and amendments adopted or proposed. From this it would appear that this clause was constructed in this shape by the committee of revision. "Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the States which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for commencing proceedings under this Constitution. That after such publication, the electors should be appointed, and the Senators and Representatives elected. That the electors should meet on the day fixed for the election of the President, and should transmit their votes, certified, signed, sealed, and directed as the Constitution requires, to the Secretary of the United States in Congress assembled; that the Senators and Representatives should convene at the time and place assigned; that the Senators should appoint a president of the Senate, for the sole purpose of receiving, opening, and counting the votes for President; and that after he shall be chosen, the Congress, together with the President, should, without delay, proceed to execute this Constitution."* (Page 370.) It was moved and seconded to postpone the consideration of the report of the committee respecting the twenty-second and twenty-third articles; Which passed in the affirmative: YEAS-New Hampshire, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia-9. NAYS-Connecticut-1. It was moved and seconded to proceed to the comparing of the report from the committee of revision, with the articles which were agreed to by the house and to them referred for arrangements. Which passed in the affirmative: YEAS-New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, and Georgia-7. NAYS-Pennsylvania, Delaware, and South Carolina-3. And the same was read by paragraphs, compared, and in some places corrected and amended. [No entry of the corrections and amendments adopted or proposed appears upon the journals. The sheets of yeas and nays exhibit, however, many of the questions upon the amendments proposed, and the result of the votes upon them. The amendments adopted are interlined in manuscript in the revised draught of the Constitution used by Mr. Brearly, and, with the minutes furnished by Mr. Madison to complete the journal, collated with the entries on the sheets of yeas and nays, present the following questions and votes:-Note in the original text Journal of Convention, page 372.] Here follow proceedings irrelevant to the question of counting the electoral votes. PROCEEDINGS IN CONGRESS OF THE CONFEDERATION. The Journals of Congress, September 28, 1787, contains the following as a part of the proceedings of the Federal Convention, transmitted to Congress by the president of the convention and the secretary: "In convention Monday, September 17, 1787; present the States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia." Then follows the resolution above given, signed "by the unanimous order of the convention, George Washington, president, William Jackson, secretary." There also appears on the record the letter addressed to the President of Congress by George Washington, "by unanimous order of the convention," whereupon the Congress passed the following resolution: Resolved unanimously, That the said report, with the resolutions and letter accompanying the same, be transmitted to the several Legislatures, in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the convention made and provided in that case.—Journals of Congress, vol. 4, pages 781, 782. CONSTITUTIONAL PROVISIONS AS ADOPTED IN 1787. Paragraph 3 of section 1, article 2 of the Constitution as adopted in 1787 is as fol lows: "The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with them *In the Madison papers, containing the debates on the Confederation and Constitution, page 602, is the following note in reference to these resolutions: "The proceedings on these resolutions are not given by Mr. Madison, nor in the Journal of the Federal Convention. In the Journal of Congress, 28th September, 1787, volume 4, page 781, they are stated to have been presented to that body as having passed in the Convention on the 17th September, immediately after the signing of the Constitution." PROCEEDINGS IN THE FEDERAL CONVENTION OF 1787. 5 selves. And they shall make a list of all the persons voted for, 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 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. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such a majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors, shall be the VicePresident. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President." |