Bush v. Gore periphera

[Stephen Siegel]

I've been asked to provide some cites and a little more information for my
message about the less famous occasions when Congress had before it
returns from two divergent sets of electors from the same State who voted
on the same (appropriate) day for different presidential and
vice-priesidential candidates.

For the Louisiana double returns of 1872, see the Congressional Globe,
42nd Cong., 3rd Sess, pages 1302 and subsequent pages.  Also mentioned in
those pages is a Senate Report, No. 417, for that Congress, that
investigated the Louisiana situation.

For the Oregon double returns of 1888, see the Congressional Record, 50th
Cong., 2nd Sess. page 1860.

The Oregon situation is quite mysterious to me.  There was no
discussion of it in Congress.  Congress, at the suggestion of the
President of the Senate, simply agreed by unanimous consent, to accept the
set certified by "the Governor of Oregon."  I only know anything about the
other set because the National Archives were kind enough to send me
photocopies of the various electoral certificates received from Oregon for
the 1888 presidential election.  (It's amazing that that stuff is so
handy in our national attic.)

The electors certified by Gov. Pennoyer voted for Benjamin Harrison
and Levi Morton.  The electors certified by Gov. (de jure) McDowell voted
for Samuel McDowell and Allen Thurman, who were not the Democratic party's
candidates for that year.  Whether they were on the ballot at all, I
cannot tell.  There is evidence that they were not.

The McDowell certificate is handwritten.  If I am reading it right, it
lists Samuel McDowell, T.N. Kelly and a name I can't make out as the
electors.  The Pennoyer certificate, as is customary, lists all the people
who received votes for elector at the 1888 Oregon election, and McDowell,
Kelly and the last person are not mentioned at all.

Perhaps there is more to the story; but for all I can tell at present, the
McDowell certificate is, how shall I say, the work of a crank, or a
prank.  If it is, it illustrates one of the standard fears about the
1887 Electoral Vote Count Act.  (The 1888 vote count was the first
under the new act.)  That anyone can dummy up a set of returns
and change a state from a single return state to a double return
state.  That change has significant legal consequences, that in this case
proved to be harmless.

Stephen Siegel
DePaul University College of Law