The Election of 1876
Before there was Bush v. Gore, there was an even closer election, the election of 1876, which was the second time that the person elected president did not receive the most popular votes (in 1824 Andrew Jackson outpolled John Quincy Adams). In 1876, after a bitter and hard fought campaign, Rutherford B. Hayes received 185 electoral votes, beating his rival by one electoral vote. Democratic candidate Samuel Tilden received 184 electoral votes. Tilden won the popular vote however, receiving 4,288,546 votes, compared with 4,034,311 for Hayes.
In 1876, like 2000, Florida was one of the states at the center of the controversy. The Republican-dominated state electoral commissions subsequently disallowed a sufficient number of Democratic votes to award their electoral votes to Hayes.
The Democrats cried fraud as excitement spread across the country. Threats were made that Hayes would never be inaugurated and in Columbus, somebody fired a shot at Hayes's house as he sat down to dinner. Outgoing President Ulysses Grant quietly strengthened the military force in and around Washington.
The Constitution provides that "the President of the Senate shall, in presence of the Senate and House of Representatives, open all the [electoral] certificates, and the votes shall then be counted." Some Republicans held that the power to count the votes lay with the President of the Senate, the House and Senate being mere spectators. The Democrats objected to this construction, since the Republican president of the Senate, could then count the votes of the disputed states for Hayes. The Democrats insisted that Congress should continue the practice followed since 1865, which was that no vote objected to should be counted except by the concurrence of both houses. The House was strongly Democratic; by throwing out the vote of one state it could elect Tilden.
Facing an unprecedented constitutional crisis, on January 29, 1877, the U.S. Congress passed a law forming a 15-member Electoral Commission to settle the result. Five members came from each house of Congress, and they were joined by five members of the Supreme Court. William M. Evarts served as counsel for the Republican Party.
The majority party in each house named three members and the minority party two. As the Republicans controlled the Senate and the Democrats the House of Representatives, this yielded five Democratic and five Republican members of the Commission. Of the Supreme Court justices, two Republicans and two Democrats were chosen, with the fifth to be selected by these four.
The justices first selected a political independent, Justice David Davis. According to one historian, "[n]o one, perhaps not even Davis himself, knew which presidential candidate he preferred." Just as the Electoral Commission Bill was passing Congress, the Legislature of Illinois elected Davis to the Senate. Democrats in the Illinois Legislature believed that they had purchased Davis' support by voting for him. However, they had made a miscalculation; instead of staying on the Supreme Court so that he could serve on the Commission, he promptly resigned as a Justice in order to take his Senate seat. All the remaining available justices were Republicans, so the four justices already selected chose Justice Joseph P. Bradley, who was considered the most impartial remaining member of the court. This selection proved decisive.
As inauguration day drew near, the commission met on the last day of January. The cases of Florida, Louisiana, Oregon, and South Carolina were in succession submitted to it by Congress. Leading counsel appeared for each side.
The commission first decided not to question any returns that were appeared lawful. Bradley joined the other seven Republican committee members in a series of 8-7 votes that gave all 20 disputed electoral votes to Hayes, giving Hayes a 185-184 electoral vote victory. The commission adjourned on March 2. Two days later Hayes was inaugurated without disturbance.
The returns accepted by the Commission placed Hayes' victory margin in South Carolina at 889 votes, making this the second-closest election in U.S. history, after the 2000 election, decided by 537 votes in Florida. Also, Tilden became the first presidential candidate in American history to lose in the electoral college despite winning a majority of the popular vote.
In 1876, like 2000, Florida was one of the states at the center of the controversy. The Republican-dominated state electoral commissions subsequently disallowed a sufficient number of Democratic votes to award their electoral votes to Hayes.
The Democrats cried fraud as excitement spread across the country. Threats were made that Hayes would never be inaugurated and in Columbus, somebody fired a shot at Hayes's house as he sat down to dinner. Outgoing President Ulysses Grant quietly strengthened the military force in and around Washington.
The Constitution provides that "the President of the Senate shall, in presence of the Senate and House of Representatives, open all the [electoral] certificates, and the votes shall then be counted." Some Republicans held that the power to count the votes lay with the President of the Senate, the House and Senate being mere spectators. The Democrats objected to this construction, since the Republican president of the Senate, could then count the votes of the disputed states for Hayes. The Democrats insisted that Congress should continue the practice followed since 1865, which was that no vote objected to should be counted except by the concurrence of both houses. The House was strongly Democratic; by throwing out the vote of one state it could elect Tilden.
Facing an unprecedented constitutional crisis, on January 29, 1877, the U.S. Congress passed a law forming a 15-member Electoral Commission to settle the result. Five members came from each house of Congress, and they were joined by five members of the Supreme Court. William M. Evarts served as counsel for the Republican Party.
The majority party in each house named three members and the minority party two. As the Republicans controlled the Senate and the Democrats the House of Representatives, this yielded five Democratic and five Republican members of the Commission. Of the Supreme Court justices, two Republicans and two Democrats were chosen, with the fifth to be selected by these four.
The justices first selected a political independent, Justice David Davis. According to one historian, "[n]o one, perhaps not even Davis himself, knew which presidential candidate he preferred." Just as the Electoral Commission Bill was passing Congress, the Legislature of Illinois elected Davis to the Senate. Democrats in the Illinois Legislature believed that they had purchased Davis' support by voting for him. However, they had made a miscalculation; instead of staying on the Supreme Court so that he could serve on the Commission, he promptly resigned as a Justice in order to take his Senate seat. All the remaining available justices were Republicans, so the four justices already selected chose Justice Joseph P. Bradley, who was considered the most impartial remaining member of the court. This selection proved decisive.
As inauguration day drew near, the commission met on the last day of January. The cases of Florida, Louisiana, Oregon, and South Carolina were in succession submitted to it by Congress. Leading counsel appeared for each side.
The commission first decided not to question any returns that were appeared lawful. Bradley joined the other seven Republican committee members in a series of 8-7 votes that gave all 20 disputed electoral votes to Hayes, giving Hayes a 185-184 electoral vote victory. The commission adjourned on March 2. Two days later Hayes was inaugurated without disturbance.
The returns accepted by the Commission placed Hayes' victory margin in South Carolina at 889 votes, making this the second-closest election in U.S. history, after the 2000 election, decided by 537 votes in Florida. Also, Tilden became the first presidential candidate in American history to lose in the electoral college despite winning a majority of the popular vote.