Accomplishments and Records

A Crazy, Messed Up, Fraudulent, Stolen Election — (Not the One You’re Thinking Of)

The Presidential election was an absolute mess. After a long, nasty, contentious campaign, the voting was over, but the outcome was far from clear. Both sides claimed victory. The Democrats pointed to the popular vote and apparent Electoral College victory. The Republicans claimed widespread fraud and suppression of legal votes and maintained that their candidate was the rightful winner of the White House. Rather than come together in unity, the country found itself taking sides once again.

Sound familiar? If you think this yet another commentary about the election of 2020, think again. The above is a description of a presidential race nearly 150 years earlier. It was an election so convoluted that it wasn’t resolved until the day before the winner was to take office.

The contenders in the 1876 election were Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. The Civil War had concluded 11 years earlier, and the country was much changed as a result. The Republican Party dominated the federal government throughout that time and instituted massive civil rights reforms, including the 13th, 14th, and 15th amendments to the Constitution and laws to protect the rights of the newly-enfranchised African-Americans. As a result, much of the South went from legalized slavery to having biracial state and local governments within the span of just a few years.

Although slavery had been outlawed and the Constitution granted citizenship and the right to vote to those who had previously been slaves, no law could change the rampant racism that remained in parts of the country. Strong opposition to civil rights reforms ran deep, and many state and local governments refused to recognize the equality the Constitution now guaranteed. Although the Civil War was over, federal troops remained throughout the South to enforce the laws the states were unwilling to uphold.

By the time the 1876 election rolled around, the country was experiencing “Reconstruction Fatigue.” Increasing calls for a return to normality sparked calls for the end of Reconstruction and the return of full control of state governments to local authorities. On top of that, the economic crisis of 1873 plunged the country into its worst depression to date. Allegations of corruption connected to the administration of President Ulysses S. Grant only added to the factors that gave the Democrats their best hope of regaining the White House since before the Civil War.

As Election Day came to a close, it appeared that New York Governor Samuel J. Tilden would be the 19th President of the United States. His 4,288,546 votes surpassed Ohio Governor Rutherford B. Hayes’ 4,034,311 votes by a margin of more than a quarter-million. As discussed here, it is the Electoral College vote that matters, not the popular vote. That’s where things got complicated. With 185 electoral votes needed to clinch the election, Tilden was almost there with 184 votes on his side. Hayes had only 163.

Electoral College Map following the election of 1876, showing the disputed states.

Four states, Oregon, Louisiana, South Carolina, and Florida, with a combined electoral vote total of 22, remained unresolved. Hayes would have to win each of those states to push his vote total across the finish line.

In Oregon, there was only a dispute about one of the electors. The state’s popular vote clearly went for Hayes. The Democratic governor refused to certify one of the Republican electors, however. He maintained that former postmaster John Watts was ineligible to serve, under Article II, Section 1 of the Constitution, which provides that an elector may not be a “person holding an office of trust or profit under the United States.” The governor instead substituted a Democratic elector, C.A. Cronin, to take Watts’ place.

“Either party can afford to be disappointed in the result, but the country cannot afford to have the result tainted by the suspicion of illegal, or false returns.” — Ulysses S. Grant

The Republican electors challenged the governor’s actions and reported that Oregon was casting all three of its electoral votes for Hayes. They prepared a certificate of election and had Oregon’s secretary of state sign it and send it on to Washington, D.C. Watts, in turn, prepared a certificate that gave two of the state’s votes to Hayes and one to Tilden. This certificate was signed by the governor and likewise sent on to the nation’s capital.

The remaining three states reported popular votges in favor of Tilden, but evidence of fraud immediately clouded the outcome. Each state was replete with reports of intimidation against Republican voters — particularly Republican African-Americans. Signs of election tampering abounded. South Carolina, for example, reported an impressive — but unlikely — voter turnout of 101%. In other cases, there was evidence of voter manipulation when ballots were printed with the Republican symbol of Abraham Lincoln next to the name of the Democratic candidate. This was done in an effort to confuse the choice of illiterate voters.

The state legislatures of each of the three states were dominated by Republicans. After a thorough investigation, each of the legislatures determined that enough of the Democratic votes were invalid to award their electoral votes to Hayes. This did not resolve the matter, however. Although the state legislatures awarded their votes to Hayes, the certificates of election that were sent to Congress told a different story. Florida’s certificate was signed by the Democratic governor and attorney general. Louisiana’s was signed by the Democratic gubernatorial candidate. In each case, the certificate gave its state’s votes to Tilden. In South Carolina, the electors claimed they had been chosen by the popular vote to support Tilden. The state election board disagreed. Consequently, no one signed South Carolina’s certificate of election.

Days turned into weeks, and weeks turned into months. The inauguration of March 4 was looming on the horizon, and there was no clear winner to be named as President-elect. The country was getting nervous. President Grant quietly strengthened military positions around Washington, D.C. in response to rumors about planned uprisings and a coup. Hayes urged patience, saying “It is impossible, at so early a time, to obtain the result.”

“The Political Farce” by N.J. Newark – The Library of Congress

Meanwhile, voices on both sides vied for public support. One flyer circulated by the Democrats, “The Political Farce,” played to the racist elements in the country. The flyer, (shown right) includes text of four quotes regarding election fraud, such as this by Messrs. Clifford, Field, Bayard, Abbott, Hunton, Thurman, Payne, “We can prove beyond a shadow of doubt that Louisiana and Florida voted for Tilden by decisive majorities, and we are prepared to show up the villainous frauds of the Returning Boards. All we ask is investigation by this commission.” Another quote by President Grant, who had earlier said, “No man worthy of the office of President should be willing to hold it if counted in, or placed there, by any fraud. Either party can afford to be disappointed in the result, but the country cannot afford to have the result tainted by the suspicion of illegal, or false returns.”

The situation brought the nation into uncharted territory. The Constitution states 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 members of Congress maintained that the sole power to count the votes rested with the President of the Senate, with the members of Congress merely serving as witnesses. Others insisted that Congress itself vote on how the certificates should be counted. Since Democrats controlled the House of Representatives and the Senate was under Republican control, a mutually-acceptable outcome seemed elusive.

On January 29, 1877, Congress created a 15-member Electoral Commission to figure out the whole sorry mess. The Commission consisted of five members of the Supreme Court, five from the House of Representatives, and five from the Senate. In the case of the House and Senate members, three from each chamber were chosen by the majority party for that chamber and two by the minority party. For the Supreme Court members, two Republicans and two Democrats were chosen, with the fifth member to be selected by the other four justices. At least, that was the plan.

Just as everything else with this election, the composition of the Electoral Commission proved to be more complicated than one might imagine. The justices initially selected Justice David Davis to be the fifth Supreme Court member on the Commission. Davis was largely viewed as a political independent. Since there were 7 Republicans and 7 Democrats in the Commission, the spot to be filled by Davis would likely decide the outcome of the entire election.

Before the Electoral Commission could convene, the legislature of Illinois elected Davis to the U.S. Senate. Since Davis’ political leanings were unknown, the Democrats who controlled the Illinois legislature thought this would be a way to insure Davis’ loyalty to their party. This proved to be a miscalculation on their part.

Upon being notified of his election to the Senate, Davis resigned from the Court and from the Electoral Commission. The legislation that created the Commission required that the vacancy be filled by a member of the Supreme Court. The four remaining6 members of the Court were all Republicans. The one who was selected was Justice Joseph P. Bradley, an appointee of President Grant. He was considered the most impartial of the choices, and if the Commission’s vote split along party lines, he would be the one to decide who would be the next President of the United States.

Commission Member (State)BodyParty
Josiah Gardner Abbott (Massachusetts)HouseDemocrat
Thomas F. Bayard (Delaware)SenateDemocrat
Joseph P. Bradley (New Jersey)Supreme CourtRepublican
Nathan Clifford (Maine)Supreme CourtDemocrat
George F. Edmunds (Vermont)SenateRepublican
Stephen Johnson Field (California)Supreme CourtDemocrat
James A. Garfield (Ohio)HouseRepublican
George Frisbie Hoar (Massachusetts)HouseRepublican
Eppa Hunton (Virginia)HouseDemocrat
Samuel Freeman Miller (Iowa)Supreme CourtRepublican
Oliver Hazard Perry Morton (Indiana)SenateRepublican
Henry B. Payne (Ohio)HouseDemocrat
William Strong (Pennsylvania)Supreme CourtRepublican
Allen G. Thurman (Ohio)SenateDemocrat
Frederick T. Frelinghuysen (New Jersey)SenateRepublican
Members of the Election Commission

The Commission began its work on January 31, giving it a scant 32 days before the new president was to be sworn in. As the Commission members met, considered evidence, and debated, the political mechanisms of Capitol Hill were in full gear. Behind the scenes, legislators worked out an unwritten deal that came to be known as the Compromise of 1877. In short, the Republicans agreed to bring an end to Reconstruction and withdraw federal troops from the South. In exchange, the Democrats agreed to withdraw their objections to a Hayes presidency.

Political cartoonist Thomas Nast memorialized the agreement with a cartoon that appeared in the February 17, 1877, issue of Harper’s Weekly. The cartoon’s caption says “A truce—not a compromise, but a chance for high-toned men to retire gracefully from their very civil declarations of war.”

Courtesy of Library of Congress, Nast, Thomas, “A truce – not a compromise, but a chance for high-toned gentlemen to retire gracefully from their very civil declarations of war.” Harper’s Weekly, 1877

With Hayes’ pledge to place a Southerner in his cabinet and to cede control of the South to Democratic governments, the Democrats promised to honor the civil rights of African-American citizens.

The Electoral Commission ended up awarding all disputed electoral votes to Hayes. The Commission voted along party lines, 8 to 6, giving him the presidency by an electoral vote of 186 to 185. It was — and remains — the closest presidential election in history. The Commission made its final recommendation on March 2. The next day, Hayes privately took the oath of office one day early. He did this nominally to avoid being sworn in on the Sabbath, but it was also out of genuine concern that mobs might attempt to prevent his inauguration. This may have resulted in the country having two presidents for 24 hours.

The final result of the Electoral College distribution of votes.

Shortly after taking office, Hayes fulfilled his side of the deal from the Compromise of 1877. He withdrew federal troops from Louisiana and South Carolina. This effectively marked the end of the Reconstruction era. Without federal troops to protect the civil rights of African-Americans in the South, it also ushered in the era of Jim Crow laws, institutional racism, and over 100 years of solid Democratic control in the South.

The Election of 1876 would be remembered for many reasons. It was not only the closest but also the longest. While there have been many contenders, it was probably the nastiest. While Rutherford B. Hayes has been relegated by historians to relative obscurity, it’s fair to say that his election has some of the biggest consequences for the nation.

One day, we can only hope, we will learn from the mistakes of history and not have to repeat it.

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