The Electoral Commission was a temporary body created on January 29, 1877 by the United States Congress to resolve the disputed United States presidential election of 1876. Democrat Samuel J. Tilden and Republican Rutherford B. Hayes were the main contenders in the election. Tilden won 184 electoral votes—one vote shy of the 185 needed to win—to Hayes's 165, with 20 electoral votes from four states unresolved. Both Tilden and Hayes electors submitted votes from these states; and each claimed victory over the other.
Facing an unparalleled constitutional crisis and intense public pressure, the Democratic-controlled House of Representatives and the Republican-controlled Senate agreed to formation of the bipartisan Electoral Commission to settle the election. It consisted of fifteen members: five each from the House and the Senate, plus five Supreme Court justices. Eight members were Republicans; seven were Democrats. The Commission ultimately voted along party lines to award all twenty disputed votes to Hayes, thus assuring his electoral victory by a margin of 185–184. Congress, meeting in a joint session on March 2, 1877, affirmed that decision, officially declaring Hayes the winner by one vote.
Election of 1876
The presidential election was held on November 7, 1876. Tilden carried his home state of New York and most of the South, while Hayes' strength lay in New England, the Midwest, and the West. Early returns suggested that Tilden had won the election; many major newspapers prematurely reported a Democratic victory in their morning editions. However, several other newspapers were more cautious; for example, the headline of The New York Times read: "The Results Still Uncertain." The returns in several states were tainted by allegations of electoral fraud; each side charged that ballot boxes had been stuffed, that ballots had been altered, and that voters had been intimidated.
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; in all, over 15,000 votes (of which more than 13,000 were for Tilden) were discounted. As a result, Hayes won Louisiana's eight electoral votes, while the Republican candidate won the governorship. In response, the Democratic Party instituted a rival state government under Francis T. Nicholls. This rival administration, in turn, certified that Tilden had won.
A nearly identical scenario played out in South Carolina, where initial returns suggested that Hayes had won the presidential election, while the Democratic Party had triumphed in the gubernatorial contest. Here, too, the Republican-controlled returning board discounted several votes, ensuring the election of a Republican Governor and Legislature. As in Louisiana, the Democratic Party organized a rival state government, under the leadership of Wade Hampton III. Hampton's government declared Tilden the victor in the presidential election.
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. Subsequently, 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; however, the Florida Supreme Court overruled them, instead awarding 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, as the Hayes elector. 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; however, he 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 he did not have a clear Electoral College majority. He received 184 uncontested electoral votes, while Hayes received 165, with 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; hence, Tilden needed only one of the disputed votes, while Hayes needed all twenty.
Electoral Commission Act
The election dispute gave rise to a constitutional crisis. Democrats, who fervently believed that they had been cheated, threatened: "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. Since the Constitution did not explicitly indicate how Electoral College disputes were to be resolved, Congress was forced to consider other methods to settle the crisis. Many Democrats argued that Congress as a whole should determine which certificates to count. However, the chances that this method would result in a harmonious settlement were slim, as the Democrats controlled the House, while the Republicans controlled the Senate. Several Hayes supporters, on the other hand, argued that the President pro tempore of the Senate had the authority to determine which certificates to count, because he was responsible for chairing the congressional session at which the electoral votes were to be tallied. Since the office of President pro tempore was occupied by a Republican, Senator Thomas W. Ferry of Michigan, this method would have favored Hayes. Still others proposed that the matter should be settled by the Supreme Court.
In late December, both the House and the Senate established a special committee charged with developing a mechanism to resolve the issue. The two committees ultimately settled upon creating a commission that would count the electoral votes and resolve questions arising during the count. Many Republicans objected to the idea, insisting that the President pro tempore should resolve the disputes himself. Rutherford Hayes charged that the bill was unconstitutional. However, a sufficient number of Republicans joined the Democrats to ensure its passage. On January 25, 1877, the Senate voted in favor of the bill 47-17; the House did likewise the next day, 191-86. The Electoral Commission Act (19 Stat. 227) was signed into law by President Grant on January 29, 1877.
The Act provided that the Electoral Commission was to consist of fifteen members: five representatives selected by the House, five senators selected by the Senate, four Supreme Court justices named in the law, 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.
Membership of the Commission
Originally, it was planned that the Commission would consist of seven Democrats, seven Republicans, and one independent. Justice David Davis, who was widely regarded as a political independent, was supposed to be the fifteenth justice on the Commission. According to one historian, "no 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.
With no independents left on the Supreme Court, the final seat on the Electoral Commission was given instead to Justice Joseph P. Bradley, a Republican. As a result, the GOP held a one-seat majority on the body. Bradley would, in every case, vote with his fellow Republicans to give the disputed electoral votes to Hayes. The membership of the Commission was as follows:
|Josiah Gardner Abbott (Massachusetts)||House||Democratic|
|Thomas F. Bayard (Delaware)||Senate||Democratic|
|Joseph P. Bradley (New Jersey)||Supreme Court||Republican|
|Nathan CliffordPEC (Maine)||Supreme Court||Democratic|
|George F. Edmunds (Vermont)||Senate||Republican|
|Stephen Johnson Field (California)||Supreme Court||Democratic|
|Frederick T. Frelinghuysen (New Jersey)||Senate||Republican|
|James A. Garfield (Ohio)||House||Republican|
|George Frisbie Hoar (Massachusetts)||House||Republican|
|Eppa Hunton (Virginia)||House||Democratic|
|Samuel Freeman Miller (Iowa)||Supreme Court||Republican|
|Oliver Hazard Perry Morton (Indiana)||Senate||Republican|
|Henry B. Payne (Ohio)||House||Democratic|
|William Strong (Pennsylvania)||Supreme Court||Republican|
|Allen G. Thurman (Ohio)||Senate||Democratic|
Proceedings of the Commission
The Electoral Commission held its meetings in the Supreme Court chamber. It sat in the same manner as 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 tribunal began hearing arguments on February 1, 1877. Tilden's lawyers argued that the Commission should investigate the actions of the state returning boards, and reverse those actions if necessary. Hayes' counsel, on the other hand, suggested that the Commission should merely accept the official returns certified by the state Governor without inquiring into their validity. To do otherwise, it was argued, would have violated the sovereignty of the states. The Commission voted 8–7, along party lines, in favor of the Republican position.
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. Thus, Hayes' victory was assured.
Unable to overturn the Commission's decisions, many Democrats instead tried to obstruct them. Congressman Abram Hewitt, the Chairman of the Democratic National Committee, made a spurious challenge to the electoral votes from Vermont, even though Hayes had clearly carried the state. The two houses then separated to consider the objection. The Senate quickly voted to overrule the objection, but the Democrats conducted a filibuster in the House of Representatives. In a stormy session that began on March 1, 1877, the House debated the objection for about twelve hours before overruling it. Immediately, another spurious objection was raised, this time to the electoral votes from Wisconsin. Again, the Senate voted to overrule the objection, while a filibuster was conducted in the House. However, the Speaker of the House, Democrat Samuel J. Randall, refused to entertain dilatory motions. Eventually, the filibusterers gave up, allowing the House to reject the objection in the early hours of March 2. 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.
Some historians have argued that Democrats and Republicans reached an unwritten agreement (known as the Compromise of 1877) under which the filibuster would be dropped in return for a promise to end Reconstruction. This thesis was most notably advanced by C. Vann Woodward in his 1951 book, Reunion and Reaction. Other historians, however, have argued that no such compromise existed.
Many of Tilden's supporters believed that he had been cheated out of victory. Hayes was variously dubbed "Rutherfraud", "His Fraudulency", and "His Accidency." On March 3, the House of Representatives went so far as to pass 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. Many historians have complained that, after entering office, Hayes rewarded those who helped him win the election dispute with federal offices. Most notably, one of the lawyers who argued Hayes' case before the Electoral Commission, William M. Evarts, was appointed Secretary of State. Another, Stanley Matthews, was appointed to the Supreme Court.
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. At approximately the same time, 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, Samuel Tilden was declared innocent by the Potter Committee.
To prevent a repetition of the 1876 debacle, the 49th Congress passed the Electoral Count Act in 1887. Under this law, (now codified in 3 U.S.C. § 5) 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. The interpretation of this act was the subject of controversy in Bush v. Gore, a case relating to the disputed presidential election of 2000.
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