The Case Against Expulsion

Andrew Horatio Reeder

Andrew Horatio Reeder

The legislature of Kansas convened at Pawnee and immediately set for itself resolving vexing differences. Between the fraudulent elections of March and the smaller number of fair elections in May to rectify the March frauds, in however  limited a fashion, they had two men claiming a right to several seats. The legislature took seriously Andrew Reeder’s injunction that they set aside their differences and begin the great and necessary work of building Kansas. What better way to do so than to purge dissenters from their ranks? Thus, after the free soil men refused to resign, the Council and House formed committees that took two days to examine the cases and expel all the victors of the May special elections. In their places, as the committees ruled those elections void ab initio, sat the proslavery men elected by Missourians in March. Only one free soiler remained, the House’s Samuel Houston. He had a certificate of election that dated back to March.

But the free soilers did initially come to Pawnee, barring one who resigned in advance, and until expelled they occupied the seats they won in May. That meant that some of them sat on the committees on credentials, where they had a small role in deciding their own fates. They wrote a minority report that Houston entered into the record. It began with a direct repudiation of the majority’s doctrine that Reeder had only narrow, limited powers. Like the majority, the minority took its argument straight from the Kansas-Nebraska Act:

The government of Kansas Territory, in the opinion of your committee, is an official and progressive one, or, in other words, it is a government whose successive steps of progression is dependent on official action. Congress passes a law designating the president and senate of the United States as the means to a governor, and the governor, when thus appointed, becomes the organizing authority from which the legislative body emanates.

Congress, through the governor, organizes the territory, and through him continues to retain its connection, and hold and exercise such control as it may from time to time.

A territory, the minority might have added, thus differs from a state. Much of the wider southern interest in Kansas revolved around assigning to territories all the powers and prerogatives of states. This, surely only by coincidence, rendered the territory absolutely sovereign on matters of slavery. Few Americans, even among abolitionists, believed that the federal government had the power to abolish slavery within a state. Whatever one thinks of the minority’s conclusion, they certainly have it right that Congress reserved to itself considerable power over territorial government. It could even veto territorial laws.

All power thus flowed from Reeder, who acted as Congress’ agent in Kansas. Reading second twenty-two of the Kansas-Nebraska Act, they found it

made him the sole judge of the returns when made out by the judges. It requires him to declare the person or persons having the highest number of legal votes to be duly elected, and confines his commissionary powers to members thus elected. And in the twenty-third section the governor is further specifically and definitely instructed how to judge of legal voters. It positively decides that no man but a white man, and that one an actual resident, shall be entitled to vote.

This would bear some unpacking. The twenty-second section begins by vesting in the governor and legislature the legislative power over Kansas. It goes on to specify:

And the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the Governor shall appoint and direct

The judges of election have authority over how they run elections, but so does the governor. Thus his instructions on the oath they must take and require of questionable voters fall under directing the manner of the election. He can’t personally come to each polling place and exercise his authority directly, but Reeder’s advance instructions do the same job. An election not conducted in the manner he proscribed would thus produce returns of questionable legality.

The twenty-third section further specifies just what it took to legally vote in Kansas, criteria that the invading Missourians could not have met if they tried. Few bothered with even token gestures in that direction. Thus they voted illegally and Reeder had no right to issue their candidates certificates of election. In fact, the law required that he refuse since those men transparently did not possess a majority of the legal votes.

Furthermore, Reeder could not usurp the legislature’s prerogatives in denying certificates of election to the winners of the March frauds and giving them to the winners in May. The Kansas-Nebraska Act vest him legislative power and authority, if shared with the assembly. By accusing him of usurpation, the majority

assert[ed] that this legislative body exists before it can have a legal existence. Whatever latitude may be taken in state legislation, with reference to contested elections, they can form no precedent for us, for the plain reason that, while their governments are formed and complete, ours is in a forming state, and therefore not complete.

No legislature existed for Reeder to usurp when he set down oaths, set aside elections, and ordered new ones. None did exist until the second of July, 1855.

The minority went on to recount the bare facts of the many irregularities back in March: oaths not taken by judges, oaths modified by the judges, and voters not examined. Even if Reeder had colored outside the lines, and they insisted otherwise, he did it to stop obvious frauds and actual usurpations of his own legal authority.

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