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Investigating the President: The 1876 Electoral Commission

The Electoral Commission of 1876 was a panel created by Congress to attempt to resolve the disputed presidential election of 1876, the most contentious in American history. That year the presidential election was held on November 7, 1876, and when the results were tallied, it was unclear who the winner was. Democratic candidate Governor Samuel Tilden carried his home state of New York and most of the South, while Republican Candidate Rutherford Hayes, the Governor of Ohio, won most of New England, the Midwest, and the West. Early returns suggested that Tilden had won the election and many major newspapers prematurely reported a Democratic victory in their morning editions. Even Rutherford Hayes went to bed believing that he had lost the contest.

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But the results in a number of states were too close to call. In Louisiana unofficial tallies indicated that Tilden had carried the state by over 6000 votes. However, the Republican-controlled returning board threw out the votes from several areas, citing fraud and voter intimidation. Over 15,000 votes (of which more than 13,000 were for Tilden) were discounted. As a result, Hayes was awarded Louisiana's eight electoral votes. Similar problems arose in Florida. The initial count showed Hayes ahead by 43 votes, but after a correction was made, Tilden took a lead by 94 votes. Once again the returning board disallowed numerous ballots, delivering the election to Hayes by nearly a thousand votes. The board also declared that the Republican candidate had won the gubernatorial election. When the Florida Supreme Court overruled them and awardied the victory to Democrat George Franklin Drew, Drew then announced that Tilden, not Hayes, had carried Florida.

Further complications arose in Oregon. Although both sides acknowledged that Hayes had won the state, Tilden's supporters questioned the constitutional eligibility of John W. Watts, one of the Hayes electors. The Constitution provides that "no…person holding an office of trust or profit under the United States shall be appointed an elector." Watts was a United States postmaster, but he had resigned from his office a week after the election, long before the scheduled meeting of the Electoral College. Nevertheless, the state's Democratic Governor, LaFayette Grover, removed Watts as an elector, replacing him with C. A. Cronin, a Tilden supporter.

On December 6, 1876, the electors met in the state capitals to cast their ballots. In Florida, Louisiana, and South Carolina, both the Democratic and the Republican slates of electors assembled, and cast conflicting votes. In Oregon, likewise, both Watts and Cronin cast ballots. Thus, from each of these four states, two sets of returns were transmitted to Washington.

Tilden had won the popular vote by almost a quarter of a million votes, but it was still unclear who had a majority in the Electoral College. Tilden received 184 uncontested electoral votes, while Hayes received 165. Both sides claiming the remaining twenty (4 from Florida, 8 from Louisiana, 7 from South Carolina, and 1 from Oregon). A total of 185 votes constituted an Electoral College majority, so Tilden needed only one of the disputed votes to become President, while Hayes needed all twenty.

The election dispute gave rise to a constitutional crisis. Many Democrats who believed that they had been cheated. They raised a cry of "Tilden or Blood!" Congressman Henry Watterson of Kentucky declared that an army of 100,000 men was prepared to march on Washington if Tilden was denied the presidency. The Constitution did not spell out how Electoral College disputes were to be resolved. Democrats controlled the House, while the Republicans controlled the Senate.

In late December, each House created a special committee charged with developing a mechanism to resolve the issue. The committees ultimately decided to create an Electoral Commission. Many Republicans objected to the idea, insisting that the President pro tempore of the Senate (a Republican) should resolve the disputes. Rutherford Hayes called that the bill unconstitutional. But a sufficient number of Republicans joined the Democrats to ensure the legislation's passage. On January 25, 1877, the Senate voted in favor of the Electoral Commission Bill 47-17. The House followed suit the next day, by a vote of 191-86. On January 29, President Ulysses S. Grant signed the bill into law.

Under the new legislation, the Electoral Commission would be made up of fifteen members: five representatives selected by the House, five senators selected by the Senate, four Supreme Court justices, and a fifth Supreme Court justice selected by the other four. The most senior justice was to serve as President of the Commission. Whenever two different electoral vote certificates arrived from any state, the Commission was empowered to determine which return was correct. The Commission's decisions could be overturned only by both houses of Congress.

Originally, it was planned that the Commission would consist of seven Democrats, seven Republicans, and one independent. Justice David Davis, who was widely respected as a political independent, was supposed to be the fifth justice on the Commission. But 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 by doing so, they had cemented Davis' support. They were wrong. Instead of staying on the Supreme Court so that he could serve on the Commission, Davis promptly resigned as a Justice in order to take his Senate seat.

With no independents left on the Supreme Court, the final seat on the Electoral Commission was given instead to Justice Joseph Philo Bradley, a Republican. As a result, the Republicans now held a one-seat majority on the body. In every case of a disputed vote, Bradley voted with his fellow Republicans to give the disputed electoral votes to Hayes.

The Electoral Commission held its meetings in the Supreme Court chamber. It held its hearings much like a court, hearing arguments from both Democratic and Republican lawyers. Tilden was represented by Jeremiah S. Black, Montgomery Blair, John Archibald Campbell, Matthew H. Carpenter, Ashbel Green, George Hoadly, Richard T. Merrick, Charles O'Conor, Lyman Trumbull, and William C. Whitney. Hayes was represented by William M. Evarts, Stanley Matthews, Samuel Shellabarger, and E. W. Stoughton. The commission began hearing arguments on February 1, 1877.

Subsequently, in a series of party-line votes, the Commission awarded all twenty disputed electoral votes to Hayes. Under the Electoral Commission Act, the Commission's findings were final unless overruled by both houses of Congress. Although the Democrat-controlled House of Representatives repeatedly voted to reject the Commission's decisions, the Republican-controlled Senate voted to uphold them.

Unable to overturn the Commission's decisions, many Democrats instead tried to obstruct them. Congressman Abram Hewitt challenged the electoral votes from Vermont, even though Hayes had clearly carried the state. The Senate quickly voted to overrule the objection, but the Democrats conducted a filibuster in the House of Representatives. On March 1, 1877, the House debated the objection for about twelve hours before overruling it. This was followed by another objection to the electoral votes from Wisconsin. Again, the Senate voted to overrule the objection, while a filibuster was conducted in the House. Eventually, the filibusterers gave up. The House and Senate then reassembled to complete the count of the electoral votes. At 4:10 AM on March 2, Senator Ferry announced that Hayes and Wheeler had been elected to the presidency and vice presidency, by an electoral margin of 185-184.

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Many of Tilden's supporters believed that he had been cheated out of victory. Hayes was given pejorative nicknames such as "Rutherfraud," "His Fraudulency," and "His Accidency." On March 3, the House of Representatives passed a resolution declaring its opinion that Tilden had been "duly elected President of the United States." Nevertheless, Hayes was peacefully sworn in as President on March 5.

In May 1878, the House of Representatives created a special committee charged with investigating the allegations of fraud in the 1876 election. The eleven-member committee was chaired by Clarkson Nott Potter, a Democratic congressman from New York. The committee, however, could not uncover any evidence of wrongdoing by the President. The New York Tribune published a series of coded telegrams that Democratic Party operatives had sent during the weeks following the 1876 election. These telegrams revealed attempts to bribe election officials in states with disputed results. Despite attempts to implicate him in the scandal, the committee did not find any wrongdoing on the part of Samuel Tilden.

Years later, in 1887, Congress passed the Electoral Count Act. Under this law, a state's determination of electoral disputes is conclusive in most circumstances. The President of the Senate opens the electoral certificates in the presence of both houses, and hands them to the tellers, two from each house, who are to read them aloud and record the votes. If the same state sends multiple returns to Congress, then whichever return has been certified by the executive of the state is counted, unless both houses of Congress decide otherwise.
Tags: elections, rutherford b. hayes, samuel tilden, ulysses s. grant
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