The Supreme Court Justice Who Almost Single-Handedly Decided a Presidential Election

If you want to become President of the United States, you have to campaign for it. You have to be popular. You have to earn votes.

Lots of them.

Seriously…. You need millions of votes. Yes, we know that it is the Electoral College that really matters, but if you’re going to win there, you need the support of a whopping-big number of voting citizens, right?

What if it only took one vote? What if one person could single-handedly decide who gets to be the most powerful person in the world? Would you want to be that person? If you had that chance, would you take it?

Once upon a time, there was a man who had that chance. This is the story of what he did with his history-changing opportunity.

David Davis

David Davis was Abraham Lincoln’s campaign manager in the 1860 election. He was rewarded for his service and loyalty when Lincoln appointed him to the Supreme Court in 1862 as Associate Justice.

For most lawyers, earning a seat on the Supreme Court would be the high point in their careers. That was not the case for Davis. He had his sights on loftier goals. Although appointed to the Court by a Republican, Davis was not an ideologue. When the Labor Reform Convention met to nominate a candidate to represent the party in the 1872 presidential election, it chose Davis.

Justice Davis said that he had not sought the nomination, but the nature of the presidency was such that it had to seek its own. As such, he could not decline the nomination. As the standard-bearer for a minor third party, however, he knew he needed broader support if his candidacy had a prayer. He hoped that support would come from the Liberal Republican Party. When it nominated Horace Greeley, instead, Davis saw the writing on the wall. He withdrew from the race. Even so, he managed to receive one electoral vote. He also had the sensibility to keep his seat on the Supreme Court during the campaign, so he still had a job.

Samuel Tilden (left) and Rutherford B. Hayes (right) fought in the close election of 1876.

Davis may have missed out on a chance to become President, but that doesn’t mean that he was content to remain on the Supreme Court. Four years later, he had an opportunity for a career change. The way that played out carried more consequences than anyone could have guessed. at the time.

The 1876 election was the most-disputed presidential election in the nation’s history. The popular vote was split between Republican Rutherford B. Hayes receiving 4,288,546 votes, and Democrat Samuel Tilden getting 4,034,311. As previously mentioned, it is the Electoral College vote that really matters. One hundred eighty-five electoral votes were needed to clinch the election. Tilden was almost there, with 184 votes on his side. Hayes had only 163. 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.

Congress created a special Electoral Commission to resolve the disputed 22 electoral votes. The Commission consisted of 15 members, with five from the House of Representatives, five from the Senate, and five from the Supreme Court. The majority party in each of the legislative houses appointed three members, and the minority party got two. This arrangement received bipartisan approval because of David Davis. Under the plan, each party was assured of having 7 reliable votes. Davis, despite his close association with the nation’s first Republican president, was widely viewed as nonpartisan.

As the plans for the creation of the Commission neared fruition, no one — perhaps not even Davis — knew which candidate he favored. All eyes were on him to cast the deciding vote that would award 22 electoral votes and the presidency itself.

Before the members of the Commission could be formally appointed, however, fate intervened. In the days before the 17th Amendment to the Constitution, U.S. senators were elected by the legislatures of the states. When the Illinois legislature met to fill an open seat in the Senate, David Davis’ name floated to the top of the list. Illinois Democrats assumed that they could gain favor with Davis by throwing their support to him. In doing so, however, they made one of the worst political blunders of all time.

The Democrats expected the senator-elect to remain on the Supreme Court until the work of the Electoral Commission was completed. Instead, Davis unexpectedly resigned from the Court so he could assume his seat in the Senate. His replacement on the Commission was Justice Joseph Philo Bradley, a nominee of Ulysses S. Grant and a devout Republican. From the moment of Bradley’s appointment to the Commission, the outcome of the election was never in doubt. The Commission awarded all 22 disputed votes and the White House to Hayes on an 8-7 vote.

Davis missed out on becoming president, as well as being the one person to single-handedly decide the presidency. Even so, he still managed to get very close to the top spot. When James A. Garfield was assassinated in 1881, his vice president, Chester A. Arthur, took over. Under the terms of the Presidential Succession Act of 1792, the next person in line to the presidency was the President pro tempore of the Senate. (Read this article for a more detailed explanation of the presidential order of succession.) The Senate was evenly divided between Republicans and Democrats. The only way to reach an agreement about who should hold this potentially-critical office was to turn to the junior senator from Illinois who was known to be solidly non-partisan.

The man who could have decided a presidential election with one vote was, from October 13, 1881, to March 3, 1883, one heartbeat away from becoming President of the United States.

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