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The Election Case of John P. Stockton of New Jersey (1866)

Conduct of election; whether senator could vote for himself on Senate floor in contested election case.

Credentials presented: Dec. 4, 1865
Referred to committee: Jan. 8, 1866
Committee report: Jan. 30, 1866
Senate vote: Mar. 27, 1866

Result: Unseated

John P. Stockton's family connections prepared him for political leadership in New Jersey, since both his father and grandfather had been United States senators. In 1858, President James Buchanan appointed Stockton, who was a lawyer, to be United States Minister to Rome, where he served until 1861.

When Stockton, a Democrat, was elected to the Senate in 1865, the method of his election precipitated a major debate and ultimately passage of a law specifying procedures for state legislatures to follow in electing U.S. senators.

Statement of the Case
Stockton's credentials for the term to begin March 4, 1865, were presented on December 4, 1865, together with a memorial from a portion of the New Jersey legislature complaining that the election was invalid. Opponents in the legislature protested that Stockton had received only a plurality, rather than a majority, of the votes in the joint session. At the time of the election, the joint session of legislature had voted, 41 to 40, to rescind the state requirement that a senator be elected by a majority of all the legislators and instead to permit election by plurality of those present. The opponents contended that such a change would require a majority vote by each house and that a majority of the state assembly members had not voted for the resolution. The Senate, however, allowed Stockton to take his seat, while referring his credentials to the Judiciary Committee on January 8, 1866.

Response of the Senate
The Judiciary Committee, chaired by Lyman Trumbull (Republican-IL), reported on January 30 that Stockton's election had been valid. According to committee, the New Jersey statute provided that a joint meeting of the senate and the general assembly would select the United States senators, but the law contained no stipulations regarding how the joint meeting would be organized and the election conducted. In fact, the committee noted that the New Jersey legislature's joint meetings had in the past operated under a variety of different rules, which were adopted at the beginning of the session, an arrangement apparently permitted by the state constitution.

On March 22, 1866, Daniel Clark (Republican-NH) initiated the Senate debate, challenging the recommendations of the Judiciary Committee. Clark argued that the Constitution remained silent on the subject of election by plurality of majority and that past custom represented the accepted common law for New Jersey. Additionally, Clark noted that when the New Jersey legislature had voted to change the traditional method counting a victory, only one body, the state senate, had a majority present.

In defending the legislature's conduct, Stockton raised a point that was becoming increasingly apparent to the Senate. He said, "Senators are not always elected in New Jersey, or in any other State, I presume, in precisely the same way." "Since I have been in Washington," he complained, "the position I have occupied has been very unexpected. . .It is a very unpleasant thing to have any one believe that a gentleman would claim a seat to which he was not clearly entitled."

Post-Civil War factional animosities continually surfaced during the complex legal arguments of the contending senators, adding considerable heat to the debate. On March 23 the Senate voted 22 to 21 to affirm the Judiciary Committee's recommendation but failed to end the controversy, since Stockton himself participated in the vote. Urged on by Radical Republicans William P. Fessenden (ME) and Charles Sumner (MA), Lot M. Morrill (Republican-ME), who had been paired with Stockton's absent New Jersey colleague, William Wright (Democrat), insisted on voting against the resolution. He thus abandoned the pair arrangement--in which the vote of a senator who is present is neutralized by that of an absent senator on the opposite side of the issue. Contending that New Jersey was thus being denied a vote on an issue crucial to the state, Stockton then angrily demanded that his name be called, and he cast the deciding vote for the committee's resolution, although some senators objected that he could not properly vote in his own case. On Monday, March 26, Charles Sumner declared that the record in the Senate Journal showing Stockton voting on his own case reflected badly on the Senate. He therefore demanded that the Journal be amended to remove Stockton's name from the list of those voting. After considerable debate, Stockton offered to withdraw his vote, but the Senate finally decided that the proper approach was simply to reconsider its earlier action.

In the midst of the heated debate, Stockton asked the Senate not to act on the case until his ailing New Jersey colleague, Democrat William Wright, could return to Washington. The Senate, however, decided to move ahead the next day and take a new vote on the Judiciary Committee's resolutions, this time without Stockton's participation. On March 27, the Senate voted, 23 to 20, to deny the New Jersey senator his seat.

During the course of defense, Stockton had prepared a detailed list of the procedures used by state legislatures across the country in electing their senators. This report dramatized the inconsistency in the way such elections were handled and led the Senate to take action. In response to this evidence, and to the burden of multiple election challenges resulting from extensive misconduct and corruption at the state level, Congress in July 1866 passed a law to regulate the time and procedure for the election of United States senators. This legislation represented the first major change in the selection process originally authorized by the Founding Fathers. It stipulated that, on the first Tuesday after a legislature met in a senatorial election year, the two houses would meet separately to each select a senator by voice vote. The next day, both houses would meet in joint session to report their individual selections. If both houses chose the same candidate, that candidate would be declared elected. If not, the law provided that "the joint assembly shall meet at twelve o'clock meridian, on each succeeding day of the legislature, and take at least one vote until a Senate shall be elected." The requirement that the two houses of a legislature meet together was designed to end the deadlocks in which each house of a legislature had ignored the other.

Although much of the extensive debate on this case dealt with the complexities of the New Jersey election, Radical Republican senators like Sumner and Fessenden had an additional agenda. The Senate had recently failed to override President Andrew Johnson's veto of the Freedmen's Bureau bill, and the president was also expected to veto the civil rights bill. They hoped that unseating the Democrat Stockton would help them gain the necessary two-thirds vote to override that veto. As it happened, on April 6, 1866, the Senate succeeded in overriding the civil rights veto by a vote of 33 to 15, and in July the Senate overrode a veto of a second Freedmen's Bureau bill. Stockton's seat remained vacant until the following September when the legislature elected a Republican to serve out the remainder of the term.

In 1869, John Stockton was returned to the Senate, where he served until 1875. In 1877, he became attorney general of New Jersey, a position he held for fifteen years. Stockton died in 1900. 

Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.

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