Election Contests and the Electoral Vote
![handle is hein.journals/dlr65 and id is 329 raw text is: ELECTION CONTESTS AND THE ELECTORAL VOTE
BY L. KINVIN WROTH*
The extremely close presidential election of 1960 stirred a problem that
has long lain dormant. As the result of a recount of the popular vote in
Hawaii, Congress, in its joint meeting to count the electoral vote, was
presented with conflicting returns from a state for the first time since the
Hayes-Tilden controversy of 1877. Since the outcome of the election was
not affected, the joint meeting accepted the result of the recount proceeding,
and the votes given by Hawaii's Democratic electors were counted.' The
once fiercely agitated question of the location and nature of the power to
decide controversies concerning the electoral vote was thus avoided.
This question, arising from an ambiguity in the Constitution, has long
been deemed settled by the statutory provisions for the count of the electoral
vote made in the aftermath of the Hayes-Tilden controversy.2 The system
for resolving electoral disputes which this legislation embodies has never been
tested, however. The events of 1960 raise serious doubts as to whether the
present provisions would be effective either in resolving election contests on
their merits or in producing a smooth solution to a political crisis on the
order of 1877. Moreover, Mr. Kennedy's narrow margin is a reminder
that the possibility of controversy is always present. With broad electoral
reforms once again under consideration in Congress,3 it seems appropriate
to take a fresh look at the present constitutional and statutory scheme for
dealing with disputed electoral votes.
The basis of our system of electing a President is laid down in the
Constitution, which provides that
Each State shall appoint in such manner as the legislature
thereof may direct, a number of electors, equal to the whole num-
ber of Senators and Representatives to which the State may be
entitled in Congress; but no Senator or Representative, or person
* Teaching Fellow, Dickinson School of Law; B.A., Yale University; LL.B.,
Harvard University.
1. 107 CONG. REC. 281-284 (daily ed., Jan. 6, 1961). For an account of the proceed-
ings in Hawaii, see infra, notes 78-81.
2. Act of Feb. 3, 1887, ch. 90, 24 Stat. 373, [hereinafter referred to as the Electoral
Count Act]. For subsequent legislative history, see infra, notes 61, 63, and 76.
The Act provoked considerable debate following its passage, but recent commentators
have treated it only in passing, or have viewed it as solving all problems. See Burgess,
The Law of the Electoral Count, 3 POL. Sci. Q. 633 (1888) ; Carlisle, Dangerous Defects
in Our Electoral System, 24 FORUM 257, 264 (1897) ; DOUGHERTY, THE ELECTORAL
SYSTEM OF THE UNITED STATES 214-249 (1906) ; Tansill, Congressional Control of the
Electoral System, 34 YALE L.J. 511, 524 (1925) ; Mullen, The Electoral College and
Presidential Vacancies, 9 MD. L. REV. 28, 41-42 (1948) ; Dixon, Electoral College Pro-
cedure, 3 WEST. POL. Sci. Q. 214, 222-223 (1950) ; WILMERDING, THE ELECTORAL
COLLEGE XI (1958).
3. Infra, note 117.](ViewImageLocal?handle=hein.journals/dlr65&div=36&collection=&method=preview&ext=.png&size=3)
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Election Contests and the Electoral Vote
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