When the votes came in, it appeared that Samuel J. Tilden was the new president of the United States. He had won the popular vote by 260,000 and though state returning boards were not yet confirmed, it appeared he would win the electoral college as well [1]. On November 8, the day after the election, The New York Times received a message from the Democratic headquarters asking, “Please give your estimate of electoral votes secured for Tilden. Answer at once" [2]. John Reid, an editor in the Times office felt that if Democrats were unsure about victory, Republicans should not concede. The Times immediately announced their vote tally, putting Tilden at 184, just one shy of the necessary 185, and Hayes at 181, with Florida up for grabs [3]. Republicans followed the Times lead and declared victory in several key states, including South Carolina, Louisiana, and Florida, which both sides claimed to have won.
With the election contested, Republican and Democratic politicos flooded the three Southern states to oversee the counts. It was abundantly clear at the time that Democrats had intimidated voters and used violence to keep African-Americans from the polls, and that both sides subsequently engaged in attempted bribery and massive voter fraud [4]. All of this was confirmed a few years later in the Potter Committee's 1878 investigation of the election, but it was also apparent at the time. Rep. Benjamin Butler, a Republican and member of the Potter Committee, explained that “each party justified itself by the claimed acts of the other”; he continued, “the Republicans… claimed the right to cheat in the returns because the Democrats were intimidating voters" [5].
The Constitution did not explicitly indicate how to settle Electoral College disputes, so Congress had to decide how to act. Tilden, a lawyer by trade, retreated to his study and meticulously studied the history of disputed electoral votes over the past century and determined that the election should be decided in the House, a proposition that all Democrats agreed with. Republicans disagreed, arguing that the disputes should be left to the discretion of the President of the Senate, who was a Republican, since he was in charge of the session in which electoral votes were counted [6]. The stalemate that followed was very clearly driven by pragmatic partisan politics, as Democrats held the House and Republicans the Senate. Passions flared during this uncertain time, with southern Democrats threatening a second Civil War if denied the presidency.
Finally, on January 18, 1877, two bi-partisan committees jointly proposed an electoral commission to resolve the dispute, composed of five House members, 5 Senators, and 5 Supreme Court justices [7]. The commission’s decision would be final unless rejected by both chambers. Seven members of the commission would be Democrats, seven Republicans, and one, Justice David Davis, was not clearly partisan. Davis wanted to be a politician more than a Supreme Court justice and he had run for and lost the “Greenbacker” nomination for president the same year. Despite Davis’ supposed independence, Democratic Rep. Abram S. Hewitt explained, “The division of the parties on this measure was largely controlled by the conviction that Judge Davis would have the casting vote, and that he could be relied upon” to side with “Mr. Tilden" [8]. On January 25, one day before the commission passed in Congress, the Illinois state legislature, where recently elected "Greenbackers" now held the cards, elected fellow Justice David Davis as U.S. Senator. The news had not yet reached Washington when Davis quickly resigned from the commission and retreated to Illinois [9]. Democrats certainly would have reversed course on the electoral commission, as there were only Republicans left on the Supreme Court to replace Davis' seat. With Justice Joseph P. Bradley on the committee, Republicans now held an 8-7 majority. |
To the Democrats chagrin, the electoral commission determined not to go behind the returning board's in the disputed states and investigate the vote count themselves. After the voter intimidation and fraud that had taken place, it would be a hopeless task to actually discern who won. Thus, the commission voted 8-7, along party lines in each case, to accept the returning board's vote counts and grant the disputed electors in South Carolina, Florida, and Louisiana to Rutherford B. Hayes. Democrats attempted to disqualify one elector in Oregon on the grounds that he was an office holder, which is prohibited in the Constitution. Though the elector was a postmaster when first chosen as an elector, he resigned upon Democratic objections, and was legally certified as an elector [10]. On February 23, just nine days before Inauguration Day, the electoral commission voted in another party line vote to affirm the elector's standing, thus giving Hayes the necessary 185 electoral votes. Though the outcome decided by the electoral commission was clear, the House still had to vote for the count to become conclusive under the Constitution [11]. Instead, Democrats filibustered the vote in the House, prompting grave concerns about what would happen if Democrats continued to filibuster until Inauguration Day.
[1] Sarah Pruitt, “How the 1876 Election Tested the Constitution and Effectively Ended Reconstruction,” History, January 21, 2020, https://www.history.com/news/reconstruction-1876-election-rutherford-hayes.
[2] Walker Lewis, “The Hayes-Tilden Election Contest,” American Bar Association Journal, 47:1 (Janaury 1961), p. 37. [JSTOR]
[3] Ibid.
[4] Karen Guenther, “Potter Committee Investigation of the Disputed Election of 1876,” The Florida Historical Quarterly, 61:3 (January 1983). 287. [JSTOR]
[5] Walker Lewis, “The Hayes-Tilden Election Contest (Part II),” American Bar Association Journal, 47:2 (February 1961), p. 165. [JSTOR]
[6] Walker Lewis, “The Hayes-Tilden Election Contest,” 38.
[7] Karen Guenther, “Potter Committee Investigation of the Disputed Election of 1876,” 282.
[8] Walker Lewis, “The Hayes-Tilden Election Contest,” 39.
[9] Ibid.
[10] Walker Lewis, “The Hayes-Tilden Election Contest,” 165.
[11] Ibid, 166.
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[12] "The Compromise of 1877," The Hayes Tilden Compromise of 1877, http://93676977.weebly.com/the-compromise-of-1877.html.
[13] Thomas Nast. “Ex-Judge David Davis (Now Senator) At Home.” Illustration. Harper’s Weekly, February 17, 1877. https://elections.harpweek.com/09Ver2Controversy/Cartoon-Medium.asp?UniqueID=12&Year=1876.
[14] "Electoral Commission in Session in Supreme Court Chamber." Illustration. Harper's Weekly, February 17, 1877. https://elections.harpweek.com/09Ver2Controversy/cartoon-Medium.asp?UniqueID=15&Year=1876.