Electoral Commission (United States)

1876 United States presidential election

369 members of the Electoral College 185 electoral votes needed to win
Nominee Samuel J. Tilden Rutherford B. Hayes Party Democratic Republican Home state New York Ohio Running mate Thomas A. Hendricks William A. Wheeler Electoral vote 184 165 States carried 17 18
President before election Ulysses S. Grant Republican Elected President TBD

The presidential election was held on November 7, 1876, and Tilden won the electors of his home state of New York and most of the South, while Hayes' strength lay in New England, the Midwest, and the West. Tilden had won the popular vote by just over 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. Both campaigns claimed the remaining twenty (four from Florida, eight from Louisiana, seven from South Carolina, and one from Oregon) votes. As 185 votes constituted a majority, Tilden needed only one of the disputed votes, while Hayes needed all twenty. The returns in several states, including the disputed states of Florida, Louisiana, and South Carolina, were tainted by allegations of electoral fraud, with each side claiming ballot boxes had been stuffed, ballots altered, and voters intimidated.

The election dispute gave rise to a constitutional crisis, as no clear constitutional directive was given for recognizing or resolving disputed electoral counts. The Twelfth Amendment to the United States Constitution reads in part, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;" but gives no indication by whom "the votes shall then be counted" or where the authority rested to decide between competing slates of electors.

Some Hayes supporters argued that the President of the Senate had the authority to determine which certificates to count, because he was responsible under the Twelfth Amendment for presiding over the congressional session at which the electoral votes were tallied. Since the office was occupied by a Republican, this method would have favored Hayes.[lower-alpha 1] Many Democrats argued that Congress, in joint session, should determine which certificates to count; because they controlled the much larger House, this would ensure Tilden's victory. Other Democrats posited that because neither candidate had a clear majority of the electoral vote, the election should be thrown to the House of Representatives, per the explicit terms of the Twelfth Amendment.[4] Still others proposed that the matter should be settled by the Supreme Court.[2]

As members of the political class returned to Washington D.C. in advance of the December congressional session, Democratic cries of "fraud" and "Tilden-or-fight" were met with Republican recriminations that Democratic victories in the South were attributable to fraud and intimidation. Democratic opinion was united in favor of Tilden, while some Republicans (including President Ulysses S. Grant and Senator Roscoe Conkling) privately expressed their belief that Tilden had won, and some Republican newspapers were ambivalent about Hayes's case.[4] In a reversal of Civil War ideology, many Republicans argued that the right to certify electors lay solely with the states and could not be reviewed by Congress; Democrats argued that state returns were subject to federal scrutiny.[5] However, the sole Democratic elector certified by the Governor of Oregon rendered the Republican argument for states' rights mostly moot, since pure deference to state returns would result in a vote of 185-184 in favor of Tilden.

In the background of the legal and political arguments lay the threat of armed violence, which did not clearly favor either side in the dispute. The United States was just over a decade removed from the American Civil War and sectional, racial, and ideological tensions had remained fraught during the Reconstruction Era. Republicans controlled the regular United States Army, but it was small and widely dispersed; Democratic governors throughout the country controlled their state chapters of the National Guard.[4] Congressman Henry Watterson of Kentucky declared that an army of 100,000 men was prepared to march on Washington unless Tilden was declared President.

The 44th United States Congress met in a lame-duck session beginning December 7, the day after the disputed electoral votes were submitted. The House was controlled by the Democratic Party, while the Senate was controlled by the Republican Party. Based on the results of the 1876 election, party control promised to remain the same in each chamber for the 45th Congress.[2]

On December 21 and 22, respectively, the Senate and House established special committees charged with establishing a process to resolve the dispute, with membership as follows:[2]

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.[6] However, enough 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 Ulysses S. Grant on January 29, 1877.[2]

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.[7]

Originally, it was planned that the Commission would consist of seven Democrats and seven Republicans, with an independent (Justice David Davis) as the fifteenth member of the Commission. According to one historian, "no one, perhaps not even Davis himself, knew which presidential candidate he preferred."[8] Just as the Electoral Commission Bill was passing Congress, the Legislature of Illinois elected Davis to the Senate, with Democrats in the Illinois legislature believing that they had purchased Davis' support for Tilden, but this was a miscalculation: Davis promptly excused himself from the Commission and resigned as a Justice in order to take his Senate seat.[2]

With no other independents on the Supreme Court, the final seat on the Electoral Commission was given instead to Justice Joseph P. Bradley, a Republican, giving the GOP a one-seat majority on the Commission. In each case, Bradley would vote with his fellow Republicans to give the disputed electoral votes to Hayes.[7]

The membership of the Commission was as follows:

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.[9]

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. Conversely, Hayes' counsel 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.

The final results of the presidential election of 1876 are shown above.

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 William A. Wheeler had been elected to the presidency and vice presidency, by an electoral margin of 185–184.[2]

Many of Tilden's supporters believed that he had been cheated out of victory, and 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.[8]

Many historians have complained that, after entering office, Hayes rewarded those who helped him win the election dispute with federal offices.[7] Most notably, one of the lawyers who argued Hayes' case before the Electoral Commission, William M. Evarts, was appointed Secretary of State, while another, Stanley Matthews, was appointed to the Supreme Court, and a third, Edwin W. Stoughton, was appointed Minister to Russia.

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.[11]

To prevent a repetition of the farce of 1876, the 49th Congress passed the Electoral Count Act in 1887. Under this law, now codified in 3 U.S.C. § 15, 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.[12] In the event of a state sending 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.

• Bush v. Gore, a case relating to the disputed presidential election of 2000
• Attempts to overturn the 2020 United States presidential election

• Bigelow, John (1895). The Life of Samuel J. Tilden.
• Ewing, Elbert W. R. (1910). History and Law of the Hayes–Tilden Contest Before the Electoral Commission: The Florida Case, 1876–1877. Washington: Cobden Pub. Co.
• Foley, Edward B. (2016). Ballot Battles: The History of Disputed Elections in the United States. Oxford Univ. Press.
• Haworth, Paul Leland (1906). The Hayes–Tilden Disputed Election of 1876. Cleveland: Burrow Bros.
• Robinson, Lloyd (1968). The Stolen Election: Hayes Versus Tilden 1876. Garden City, N.Y.: Doubleday and Co.
• Polakoff, Keith Ian (1973). The Politics of Inertia: The Election of 1876 and the End of Reconstruction. Baton Rouge: Louisiana State Univ. Press.
• Woodward, C. Vann (1951). Reunion and Reaction: The Compromise of 1877 and the End of Reconstructio. Boston: Little, Brown, and Co.
• U.S. Electoral Commission. (1877) Electoral Count of 1877. Proceedings of the Electoral Commission and of the Two Houses of Congress in Joint Meeting Relative to the Count of Electoral Votes Cast December 6, 1876, for the Presidential Term Commencing March 4, 1877. 44th Cong. 2d Sess. Washington: GPO.

• "Electoral Commission" . New International Encyclopedia. 1905.
• "Electoral Commission" . Encyclopædia Britannica (11th ed.). 1911.