Disputed Election of 1876
The presidential election of 1876 between Republican Rutherford B. Hayes of Ohio and Democrat Samuel J. Tilden of New York was one of the most disputed and fractious political contests in U.S. history. On election night, November 7, Tilden led by about 250,000 votes, but was one electoral vote shy of victory. Rutherford Hayes went to bed believing that he had lost, but at Republican headquarters in New York, General Daniel Sickles and later John C. Reid of the New York Times discovered that the vote in Florida, Louisiana, South Carolina, and Oregon was still undecided—a total of twenty electoral votes. 185 votes were needed to win, and as it stood, Tilden had 184 while Hayes had 165. If Hayes could manage to secure all twenty in question, he would win. Sickles boldly sent telegrams to all these states telling the Republicans there “With your state sure for Hayes, he is elected. Hold your state.”
Both Republicans and Democrats sent “visiting statesmen” to these contested states to observe the vote count done by the state returning boards—all of which were controlled by Republicans—and inspect the returns for voter fraud. Most significantly was the “bulldozing,” or violence and intimidation, perpetrated against blacks and white Republicans in the South by white supremacist Democrats attempting to keep them away from polling places altogether. The returning boards, however, were also guilty of illegal activities at the ballot box, throwing out enough votes to secure not only Hayes’ victory, but other Republican candidates who would have otherwise lost. However, had there not been mass bulldozing in the South with Democrats attempting to nullify the black vote in several states, there is little doubt that Hayes would have won not only the popular vote but the electoral vote handily, since blacks overwhelmingly voted Republican at the time.
Despite the returning boards ultimately certifying the Republican electors in the three contested states, both parties sent electoral returns to Washington claiming to represent the winner. The Constitution (specifically the Twelfth Amendment) provided no means for a resolution, offering only the provision that the electoral votes be counted in the presence of the President of the Senate (also the Vice President) and Congress, but it did not state who should count the votes, or what to do in the case of multiple slates of electors. Further complicating this, Vice President Henry Wilson had died in 1875, leaving Republican Senator Thomas Ferry, the president pro tempore, to serve in his place. Ferry would not accede to Republican requests for him to count the vote, citing no guidance from the Constitution, while the Democrats wanted the House of Representatives to perform the count, since it would result in a Tilden presidency. A constitutional crisis loomed.
On December 21, a special Senate committee announced that it would establish a process for resolving the disputed election. In January 1877, the Senate passed and President Grant signed the Electoral Commission Bill, which established a fifteen-member bipartisan Electoral Commission comprised of five senators, five representatives, and five Supreme Court justices. The decisions of this commission would be final unless both houses of Congress overrode it. There were seven Democrats and seven Republicans, with one independent, Justice David Davis, who was assumed to be the deciding vote. When Davis suddenly resigned to fill a Senate seat, Joseph Bradley—a Republican—took his place. On February 1, Ferry and Congress convened to count the votes. When they reached Florida, the multiple returns were opened. After arguments made by lawyers on both sides, the Electoral Commission decided on February 9 by a vote of 8-7 to award Florida’s votes to Hayes. All of the rest of the contested states were decided by the same count, and on March 2, Congress proclaimed Rutherford B. Hayes president of the United States. The final electoral tally was 185 to 184.