9

Rutherfraud Ascends, but Not Equal Rights

TO THE SURPRISE OF BOTH HIS SUPPORTERS AND HIS detractors, Ulysses Grant decided not to run for a third term in 1876. In Grant’s place, Republicans nominated Rutherford B. Hayes, a former Union army general who after the war became a congressman and then a “reform” governor of Ohio. Democrats chose a reformer of their own, Governor Samuel Tilden of New York, who had successfully attacked the almost impossibly corrupt Tammany Hall political machine run by William Magear “Boss” Tweed.

Hayes ran as all Republicans had, as a friend to black Americans. He felt he had little choice. Without the black vote in the South, he appeared to have no chance of being elected. But while Hayes was pledging to maintain the social advances of Reconstruction, Tilden aimed his appeal at “white Southerners who sought to recapture the control of their state governments from Republican carpetbaggers and from newly free African Americans.”¹ If Tilden were elected, white Southerners knew, he would surely withdraw the army from the South.

When the ballots were counted, Tilden had won the popular vote easily and could solidly claim 184 electoral votes, one short of the number needed for election. Hayes could claim only 165. Twenty electoral votes had yet to be assigned, nineteen of which were in Florida, Louisiana, and South Carolina, three of the four secessionist states still under Republican control. Still, Tilden was generally assumed to have won each of the three, since, in what originally seemed a surprise but should not have been, he had won every other state in the South. (Hayes had won in the Midwest and West, and so the contested electoral vote in Oregon was almost certain to be his.)

But soon reports began to drift in that throughout the South, black voters had been intimidated, brutalized, or denied the right to vote. Fraud had been everywhere, with ballot boxes stuffed with nonexistent Democratic votes, and Republican votes destroyed. Although the violence was not new, this was the first presidential election in which fraud seemed to have been the dominant tactic among white supremacist Democrats. Still, no matter how he achieved it, if even one of these disputed electoral votes went to Tilden—and just by the count, he certainly seemed entitled to some of them—he would be the new president.

Almost every newspaper in America reported Tilden as the winner. The New York Times, however, which on the day before the election had proclaimed “Republican Success Certain,” ran a different headline the day after the election: “Result Still Uncertain.”² During the Civil War, the Times’ managing editor, John C. Reid, had been held as a prisoner at the infamous Andersonville prison, and he despised Democrats. On election night, Reid convinced local Republican leaders to contest the election even though Tilden seemed to have won.³ The New Yorkers telegraphed fellow Republicans, telling them to dispute the results in any Southern state where Tilden’s victory might be overturned. Official challenges were filed in Louisiana, Florida, and South Carolina.

The next day, the Times reported, “The Battle Won. Governor Hayes Elected—The Republicans Carry Twenty-one States, Casting 185 Electoral Votes.”⁴ To get to 185, the Times had awarded all three states’ electors to Hayes. The article claimed to be based on canvasses, although the Times was vague on just who had done the canvassing.

Canvassing boards were indeed appointed in each state by the sitting Republican governments, although not until after the Times ran its piece. Staffed largely by party hacks—former Attorney General George Williams served on the Florida board—it came as no surprise when each state confirmed what the Times had reported and declared Hayes the winner.

Democrats were furious. The party that was all too happy to win as a result of fraud felt differently about losing because of it. Very real threats of armed revolt spread throughout Washington. Militias were raised in the countryside and calls for secession were heard for the first time since the war. A shot was fired at Hayes’s home in Ohio while the candidate was having dinner inside.

Nothing in the Constitution or federal law discussed what to do in such a situation, but both sides knew they had to do something. Eventually, they decided to appoint a fifteen-man Electoral Commission—five senators, five representatives, and five Supreme Court justices. Fourteen would be members of the two parties, divided equally, and the fifteenth would be someone both sides agreed would judge the issue on its merits only. Almost certainly, this meant that one man would choose the next president of the United States. Anyone who had previously voiced even a whisper of preference for the Democrats or the Republicans would be unacceptable to the other party. With both sides almost ready to go to war, many doubted that such a man even existed.

But incredibly, that man did seem to exist. Even better, he was available. He was Associate Justice David Davis. A Lincoln appointee, he was so trusted as an independent that it was said, “No one, perhaps not even Davis himself, knew which presidential candidate he preferred.”⁵

After Davis had been named, however, Democrats decided that they were not all that comfortable with the Republican-appointed justice, so they thought to shift the odds a bit. Before the commission could meet, the Democratic-controlled state legislature in Illinois offered Davis a vacant seat in the United States Senate. Republican newspapers denounced this transparent attempt to butter up the swing vote. Both sides assumed Davis would decline the seat and remain on the Court, but that the honor of being named senator just might help tip his vote toward Tilden.

But then, confounding everyone, Davis accepted. He resigned his seat on the Court to be senator from Illinois. He never said why, but he clearly did not want the responsibility of selecting a president by himself.

Since four of the justices were already on the commission, one of the remaining four would be forced to take Davis’s place. Each was closely associated with one of the political parties. For reasons never made public, Joseph Bradley was the man chosen. Democrats denounced the choice as a fix, but after the Davis fiasco, their credibility was strained. Bradley, who did not share Davis’s hesitancy, accepted the appointment and thus became the only man in American history empowered to choose a president essentially on his own.

Bradley, ever careful and meticulous, and proud of both his objectivity and his intellect, drew up a detailed written opinion for each man. But Joseph Bradley was one of those people who, after careful consideration of the facts, always seemed to come down on the side of a question that matched the beliefs he held going in. And so it was here. Bradley chose Hayes.

Democrats’ fury was renewed. Some once more threatened rebellion. Rumors circulated that an army of 100,000 men was prepared to march on the capital to prevent “Rutherfraud” or “His Fraudulency” from being sworn in. In the House of Representatives, Democrats began a filibuster to prevent Hayes’s inauguration.

What happened next has been a subject of debate among historians ever since. The most widely accepted version is the simplest and the most likely. “Reasonable men in both parties struck a bargain at Wormley’s Hotel. There, in the traditional smoke-filled room, emissaries of Hayes agreed to abandon the Republican state governments in Louisiana and South Carolina while southern Democrats agreed to abandon the filibuster and thus trade off the presidency in exchange for the end of Reconstruction.”⁶ The “Compromise of 1877,” as it came to be known, made Rutherford B. Hayes the nineteenth president of the United States. As one of his first orders of business, the man who had run for president promising to defend the civil rights of black Americans ordered federal troops withdrawn from the South. Without the army to enforce fair voting, the intimidation, murder, and fraud that had come to characterize Southern elections could proceed undeterred.

When the soldiers marched out of the South, they took Reconstruction with them.