Electoral Vote Counts in Congress: Survey of Certain Congressional Practices Page: 4 of 30
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CRS-2
"Whole Number" and "Majority" Used. Much of the congressional practice
reviewed occurred prior to the passage of the so-called Electoral Count Act of 1887,2
which sought to codify and regulate procedure for the counting of electoral votes in the
Congress. It should be noted that the particular issue of the necessary "majority" to be
used when certain electoral votes were not given or were not counted was not specifically
addressed in the 1887 Act. Contemporaneous analysis and commentary on the 1887 Act,
in fact, expressed criticism of the law precisely for failing to resolve this particular
question. In an article in the noted journal, Political Science Quarterly, published in 1888,
a year after the passage of the Electoral Count Act, John W. Burgess provided the
following criticism, among several others, of the law:
Furthermore, no provision is made in the law as to whether, when the vote of a state is
rejected, it is to be deducted from the whole number of electoral votes to which all the
states are entitled, in determining the majority necessary to choose the President.3
As discussed in that article, and as evident from the legislative history of the 1887
law, there was no clear answer to that question in the legislation, and there existed
differing and conflicting views expressed during its enactment by Members of Congress
as to whether the so-called denominator (in determining the "majority" of electors
appointed) stayed the same or was reduced when electoral votes were not given and/or
not counted. One Senator believed the provision allowing the houses of Congress
concurrently to reject electoral votes given, was subject to abuse and manipulation, since
the "whole number" of electors would remain the same upon rejecting some electoral
votes, preventing any candidate from receiving a majority, and thus allowing the House
of Representatives, rather than the people through their electors chosen, to select the
President:
When the bill was in the Senate, Mr. Evarts, pointed out the fact that this provision
would enure to the undue advantage of the House whenever the loss of the vote of the
state affected the election, since the House could, by throwing out the vote of the state,
bring the election into its own hands. This condition of things could easily be
manufactured of course; and a House so disposed could easily be enabled to defeat an
election by the electors and substitute its own choice therefor.4
This view, and the perceived potential for manipulation was challenged, however, by
Senator Hoar, who believed that the whole number of electors would not stay the same,
but would be decreased when electoral votes given were not counted by the Congress,
thus effectuating an election of the President without resorting to the contingent election
in the House of Representatives. This view, of course, could present its own opportunity
for possible "manipulation" and mischief, as Congress' action in decreasing the number
needed for a majority could elect a different person President than if all the votes were
counted and included:
2 24 Stat. 373, ch. 90, February 3, 1887.
3 John W. Burgess, "The Law of the Electoral Count," Political Science Quarterly, Volume
3, Issue 4 , 633- 653, at p. 651 (December 1888).
4 Id. at 650, citing 17 Congressional Record 820 (January 21, 1886).
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Maskell, Jack; Halstead, T. J. & Welborn, Angie. Electoral Vote Counts in Congress: Survey of Certain Congressional Practices, report, December 13, 2000; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc813056/m1/4/: accessed May 3, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.