THREE

THE ELECTION OF 1876

In America in 1876, national pride intersected with national insecurity. The year marked the 100th anniversary of U.S. Independence, an event greeted with mass celebration, including the ballyhooed Centennial Exposition in Philadelphia, a grand display of the nation’s achievements. At the same time, the Civil War, little more than a decade old, remained a vivid reminder of the nation’s flaws and fragility. Moreover, if the centennial served to unite the nation, the ongoing fight over Reconstruction reinforced the nation’s still bitter divisions.

Against that backdrop, Democrats sought to win their first presidential election in forty years, while the Republicans aimed to extend their four consecutive terms in the White House. (There were four Whig Party presidents during the 1840s and ’50s.) The fight for the nomination of both parties was wide open. Unlike the three previous cycles, in which Republicans more or less anointed the incumbent presidents, Lincoln and Grant, they had no prohibitive favorite (given Grant’s intent to step down after two terms, following the precedent established by George Washington and adhered to by every president since). The Democrats, too, lacked a clear front-runner.

The Republican field included three prominent U.S. senators: Maine’s James Blaine, New York’s Roscoe Conkling, and Indiana’s Oliver Morton. Morton, who as governor of Indiana during the Civil War had supplied the Union far more troops than requested, suffered a stroke in 1865 that left him permanently disabled but did not diminish his lust for the presidency. Blaine and Conkling, who sowed the seeds of their candidacies for years, were such bitter enemies that Conkling, asked whether he could imagine supporting Blaine, replied, “I don’t engage in criminal practice.”⁵⁶ Another Republican candidate, Grant’s secretary of the treasury Benjamin Bristow, was a hero of the liberal wing of the party who advocated less aggressive policies toward the South.

Blaine, who had been Speaker of the House for six years before his recent selection to the Senate, was widely perceived as the front-runner. At the opposite end of the spectrum was dark horse Rutherford B. Hayes. A successful criminal defense attorney (with a degree from Harvard Law School) who had represented a number of escaped slaves and a Union general badly wounded in battle, Hayes was elected to Congress in 1864 and re-elected in 1866, but resigned shortly thereafter to seek the governorship of Ohio. He was elected to that position in 1868, and served two terms before retiring in 1872. However, three years later the Republicans drafted him to run again for governor. No sooner was Hayes again elected to that position than his name began to be bandied about as a long-shot presidential candidate.

In the run-up to the Republican Convention in June in Cincinnati, all of the candidates craved the endorsement of President Grant, and courted him assiduously. The other major activity in the spring of 1876 was the holding of state conventions to select delegates committed to one of the candidates. However, many states opted to eschew the declared candidates and instead support a “favorite son” (their own governor or some other local politician) in order to maintain their flexibility and leverage at the national convention.

Blaine might have been a more commanding favorite if he hadn’t been dogged by charges of corruption, especially the claim that shortly after he was elected to Congress in 1863, he received a $64,000 bribe from Union Pacific Railroad. It wasn’t until 1880, when Blaine again sought his party’s nomination, that Democrats trotted out their famous rallying cry: “James, James, James G. Blaine, the continental liar from the state of Maine.” But questions about Blaine’s probity surfaced throughout the run-up to the 1876 Republican Convention in Cincinnati. A lengthy congressional investigation into his alleged misdeeds was ongoing when, on June 11, while walking to church on a hot day, Blaine collapsed and fell to the ground unconscious. The New York Sun, a Democratic-run newspaper, ran an article titled “Blaine Feigns a Faint.”⁵⁷ That others shared skepticism about Blaine’s alleged faint indicates the widespread doubts about his character, not to mention the fact that “fake news” long preceded the forty-fifth presidency.

The fainting incident was a double-edged sword for Blaine: It postponed the congressional investigation into his affairs, but it concerned delegates to the Republican Convention, who were already assembling in Cincinnati. (Blaine recovered just before the convention convened.) Even so, he entered the convention sufficiently confident to send out feelers to Hayes about the latter’s interest in the vice presidency. Hayes nixed the idea, writing a friend that “I have the greatest aversion to being a candidate on the ticket with a man whose record as an upright public man is to be in question.”⁵⁸

The convention opened on June 14, with a few days devoted to speeches, back-room meetings and maneuvering, and debate over the party platform. The latter served as a reminder that, over a decade after Lee surrendered at Appomattox, the Civil War had not really ended. The Republican platform that emerged in Cincinnati called for “permanent pacification of the Southern section of the Union” and accused the Democratic Party of “being the same in character and spirit as when it sympathized with treason.”

The nominating process commenced on Friday, June 16. As was typical in the pre-modern era, the outcome was unknowable because no delegates were bound by primaries (there were none) or anything else. Blaine, still the perceived front-runner, faced an anybody-but-Blaine coalition that could thwart him if it coalesced around any of the other six names placed in nomination.

On the first ballot, Blaine received the most votes, 285, but still ninety-four short of the 379 needed for the nomination. Morton was a distant second with 124, Bristow third with 113, followed by Conkling’s ninety-nine. Rutherford B. Hayes received only sixty-one votes, just seventeen from outside his home state of Ohio, making him closer to a favorite son than a serious contender. The clerk immediately called for a second ballot, but the results hardly changed—Blaine gained eleven votes, no one else more than five. Two more ballots barely moved the needle. Before the fifth ballot, the leader of the Michigan delegation, who opposed Blaine, pushed his delegation to vote Hayes as a compromise choice, and other states followed suit. Hayes gained thirty-six votes on the fifth ballot, while Blaine lost six. But the movement was not linear. On the sixth ballot, all of North Carolina’s eleven delegates who had switched from Blaine to Hayes now switched back to Blaine. Overall, Blaine gained twenty-two votes, reaching 308, whereas Hayes, despite the North Carolina defection, picked up nine more.

It had become a two-man race between the favorite and the dark horse, the former with the most passionate support and opposition alike and the latter exciting little passion in either direction. Finally, on the seventh ballot, Hayes received 384 votes, five more than needed for the nomination, and Blaine 351. The Republican nomination for president belonged to Governor Rutherford B. Hayes.

The process reflected, first and foremost, dislike of Blaine and the need to find someone. The great nineteenth-century historian Henry Adams offered this contemporary assessment of Hayes: He was “a third rate nonentity whose only recommendation is that he is obnoxious to no one.”⁵⁹ In those days, the convention, not the presidential nominee, selected his running mate. The delegates opted for an inoffensive and obscure New York congressman, William Wheeler, primarily because he was popular among his colleagues and offered geographical balance to the ticket. (When Hayes heard, he wrote to his wife Lucy: “I am ashamed to say: Who is Wheeler?”)⁶⁰ Blaine, for his part, took the defeat well, graciously congratulating Hayes and pledging his full support in the general election.

Hayes’s opponent in that race, Samuel Tilden, secured the Democratic nomination with far less intra-party division and drama, and figured to pose a real threat to Hayes in the general election. The Democrats had suffered terrible defeats during and in the aftermath of the Civil War, but a Wall Street panic in 1873 leveled the political playing field. In 1874, a so-called “Tidal Wave” gave Democrats a majority in the House and, it was believed, a realistic shot at the White House.

Tilden, like Hayes a successful lawyer (with an undergraduate degree from Yale and law degree from NYU), was an aloof figure who made his name as the prosecutor who broke up the notorious Tweed Ring that dominated New York City politics for a decade. He rode a wave of positive publicity to election as a state assemblyman, where he was ahead of his time as a machine politician, gathering an extraordinary amount of information about citizens’ voting records and distributing targeted campaign literature accordingly. Tilden was elected governor of New York in 1874, defeating the popular incumbent, John Dix, during the Democratic Tidal Wave. He used his platform as governor of the nation’s most populous state to criticize alleged corruption in the Grant administration, and the resulting attention elevated him to the status of presidential contender.

The Democratic field eventually included Delaware senator Thomas Bayard (whose grandfather played a pivotal role in breaking the Jefferson-Burr deadlock in 1800), Indiana Governor Thomas Hendricks, former Ohio governor William Allen (defeated by Hayes in 1875), General Winfield Hancock, and a few also-rans. The party convention took place in St. Louis in late June. The Tilden campaign touted the candidate’s electability in a general election, emphasizing that New York would be a large, crucial swing state. This was back in the day when, to a large extent, party bosses controlled their state’s delegates, and the Tilden camp was comfortable moving and schmoozing in smoke-filled rooms.

On June 27, the convention’s first day, the Democratic National Committee selected a Tilden supporter as convention president. The next day was given over to approving a platform largely drafted by Tilden’s people. The balloting began on June 29, and on the first ballot Tilden picked up 401.5 votes, easily outpacing the runner-up, Hendricks, who tallied 140.5, but falling well short of the 491 needed for the nomination. Between the first and second ballots, Tilden’s adroit operatives convinced several delegations that their man was the inevitable nominee and that they should cast their lot with him sooner rather than later. On the second ballot, he received 535 votes and the nomination. Hendricks was the virtually unanimous choice for vice president. The Democrats were united by a fervent desire to regain the White House after a long exile, and chose the ticket that seemed best designed for that purpose.

From the beginning, a close contest between Hayes and Tilden was expected. In the wake of several scandals plaguing the outgoing Grant administration, the issue of civil service reform favored Tilden and the Democrats. The Republican platform echoed the Democrats’ call for such reform, but as the candidate of the incumbent party, Hayes needed to do more. With that in mind, he pledged to serve only one term if elected.

Another prominent issue was Reconstruction and the future of African Americans. Republicans were the more progressive party on this issue and labeled Democrats the “rebellion party.” Tilden himself, however, had opposed slavery and supported the Union during the Civil War. In part for that reason, Hayes, though a staunch abolitionist long before the Civil War, declined to emphasize racial justice issues. The Republican standard bearer had supported the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution that enshrined formal political equality for African Americans, but he did not believe the races equal and gave only lukewarm support to Reconstruction policies designed to force further concessions from the South with respect to the treatment of blacks.

In keeping with the American tradition, the general election campaign featured little actual campaigning by the candidates themselves. This suited Hayes and Tilden, who had their hands full governing their respective states. (In addition, Tilden was still recovering from a mild stroke he suffered in February.) Perhaps because there were few substantive differences between the candidates, their personal peccadilloes took center stage. Tilden stood accused of filing a false income tax return in 1863, courtesy of a New York Times report that followed months of digging into the financial records of their home state governor. The issue was neutralized when it turned out that Hayes had paid zero federal income tax in 1868 and ’69.

Though there were no public opinion polls in 1876, that doesn’t mean the nation awoke on Election Day without a clue as to who would win. There are always tea leaves to read, and in November 1876, most people who read them concluded that Samuel Tilden would be the next president of the United States. On November 7, 1876, 8.5 million Americans cast their ballot for president, a full 2 million more than voted in 1872. We remember the “Dewey Beats Truman” Chicago Tribune headline in 1948, because Truman famously held it aloft to be photographed. It is less well known that, on November 8, 1876, another Chicago newspaper got ahead of itself. The Chicago Daily News reported that Tilden won the presidency “by a very considerable majority of the electoral vote.”⁶¹ It was not alone. In its headline, the New York Sun flatly declared “Tilden is Elected,” and newspapers around the country followed suit.⁶²

The reality was that Tilden received 250,000 more votes than Hayes and enjoyed an Electoral College lead of nineteen (184 to 165), but three states—South Carolina, Florida, and Louisiana—remained too close to call. That left Tilden one vote short of an Electoral College majority. If Hayes captured the three cliff-hanger states, he would have the requisite 185 electoral votes to become president. And all three of these states, undergoing Reconstruction, were controlled by Republicans.

This was the first crisis-ridden presidential election since 1824, and Democrats hoped it would follow suit in one crucial respect. The earlier election ended up being resolved by the House of Representatives. Tilden welcomed that possibility, because Democrats controlled the House; he would be elected if things took that turn. Accordingly, while Democrats hoped that Tilden would win an outright majority of the electoral vote, their Plan B was to disqualify enough electors so that neither candidate amassed a majority. This may seem odd today, but in the nineteenth century, substantial mischief surrounded the Electoral College. In 1856, for example, on account of a blizzard, Wisconsin’s electors met the day after the congressionally prescribed date. Their votes were accepted, but only after two days of acrimonious debate in Congress. In 1872, Congress refused to count Arkansas’s electoral votes ostensibly because the certificate of return lacked the particular seal required by federal law.

While the participants in the 1876 drama looked to past elections for guidance, they had no way of knowing that their election would be oddly echoed more than a century later. Historians who study the 1876 election remark on the “eerie similarities to the 2000 dispute over Florida.”⁶³ To take just one example, shortly after Election Day in 1876, dozens of politicians and lawyers from each party descended on Florida (and the other disputed states)—to observe, protest, and litigate. To take another, one party (in this case, the Democrats) was widely accused of suppressing the African American vote in Florida and elsewhere.

One difference between the two elections is that the atmosphere after Election Day in 2000, tense though it may have seemed, was far calmer. The post-vote maneuvering in 1876 produced sufficient chaos and acrimony to prompt rumblings of a second Civil War. With the first barely a decade behind the young nation, animosities remained high. Tilden supporters in particular threatened to raise vigilante armies if their man was denied the White House (“Tilden or blood” was their rallying cry), and President Ulysses S. Grant dispatched troops to the three disputed states to keep the peace. Some Democrats called for Grant’s impeachment, but people in Florida, Louisiana, and South Carolina welcomed the protection. The military presence prevented violence, but not chicanery. As political scientist Norman Ornstein succinctly explains, both before and after Election Day, “There was bribery, forgery, and ballot-box stuffing by both sides.”⁶⁴

That is not to suggest symmetrical behavior by the two candidates during the post–Election Day dispute. While Hayes lobbied politicians for support, Tilden devoted the next several weeks to writing a book-length study about the history of presidential elections. He planned to give a copy to every member of Congress, believing that the history supported his position in the Electoral College and, more naively, that congressmen could be swayed by the merits of the case.

In Florida, Tilden won the initial count by a mere ninety-four votes. However, calls came to invalidate the votes in a number of precincts because of alleged improprieties. The state’s three-person canvassing board consisted of two Republicans and one Democrat. Most of their determinations with respect to challenged votes broke down along party lines, with the board rejecting votes for Tilden and upholding votes for Hayes. One of the Republican canvassers, Florida’s secretary of state Samuel McLin, admitted in testimony before Congress two years later that he approached the work “as a very active partisan. . . . I shall always lean to my own party, and give my decision in its favor, even at the hazard of straining a point.”⁶⁵

Such straining included discounting Tilden votes based on technicalities. The board invalidated two precincts that together gave Tilden a net gain of 354 votes because the election inspectors left the ballots unattended during a dinner break. They rejected the ballots from another precinct, which produced a 342-vote Tilden margin because the election inspectors did not count the ballots until the day after the election and outside of public view. Perhaps these rulings were defensible, but not in conjunction with other decisions declining to reject the tally in precincts won by Hayes despite evidence of overt fraud.⁶⁶ As a result of the board’s handiwork, Hayes won the state by 924 votes. Most historians to study the matter maintain that, had the board acted impartially, Tilden would have won Florida. (To be sure, most of them believe that Hayes would have won the state handily but for intimidation and other means of suppressing African Americans from voting.) Some fair-minded observers at the time reached the same conclusion. President Grant sent Francis Barlow, a former Civil War hero, to Florida to observe the count. Though himself a Republican, Barlow claimed that Tilden won the state and that the decision favoring Hayes resulted from pure partisanship.

On December 5, one day before the electors met to cast their ballots, the canvassing board completed its work and certified Hayes the winner of the state. The next day, while the Republican electors cast their ballots for Hayes and sent these votes to Congress (certified by Florida’s Republican governor), Democrats did the same! The Democratic votes were certified by the state’s attorney general, who happened to be the one Democrat on the canvassing board. Accordingly, Congress received a pair of certified slates of twenty-five electoral votes, one for each candidate.

Democrats filed suit in state court, and a Democratic judge ruled that Tilden’s slate of electors, not Hayes’s, was valid under state law. Meanwhile, on Election Day, Florida voters had replaced the majority Republican legislature with a majority of Democrats. (On account of a court ruling following a disputed election, a Democrat won the governor’s race as well.) On January 17, the newly sworn-in Democratic legislature reconstituted the canvassing board to include all three Democrats, and ordered the board to re-canvas the presidential ballots. To no one’s surprise, the new board found that Tilden won the state. The new Democratic governor certified this finding, and sent Congress a third certification—so that two Florida certifications now favored Tilden.

The situation was similar in Louisiana and South Carolina, both of which experienced blatant fraud. While many blacks in these states were prevented from voting, many whites voted more than once. In South Carolina, which lacked voter registration laws, the number of votes exceeded the number of potential voters. Apparently some people took seriously the admonition to vote early and often. So too, many Georgians allegedly crossed the Savannah River to cast votes in South Carolina before returning home to cast a lawful vote. In one precinct in Louisiana with a total of 3,000 registered voters, roughly two-thirds of whom were black, the tally showed Tilden receiving 1,743 votes and Hayes . . . zero. Throughout these states, the two parties hurled credible accusations and counter-accusations of fraud. In South Carolina, they moved beyond accusation: Members of the canvassing board briefly found themselves in prison, before a panel of federal judges granted writs of habeas corpus to free them.

South Carolina and Louisiana, like Florida, sent to Congress competing certificates of electoral votes, albeit only two rather than three. In each state, the canvassing board, controlled by Republicans, determined that Hayes had won, and the Republican governor certified the electoral votes in Hayes’s favor. In Louisiana, the votes for Tilden were certified by Democrat John McEnery, who claimed to be the rightful governor. (In 1872, McEnery lost a disputed election for governor.) In South Carolina the Democratic electors essentially certified themselves, sending their votes to Washington with no official signature of certification.

Simply as a matter of math, the situation in Louisiana seemed most egregious to Democrats. Tilden won the original vote there by 6,000, much larger than the margin by which he seemed to win Florida and South Carolina, but canvassing boards invalidated roughly 13,000 Democratic votes due to alleged “intimidation.” Many African Americans, who overwhelmingly favored Republicans, were undeniably intimidated. The exact basis for discounting particular ballots was less clear.

In Louisiana, Democrats questioned the legitimacy of the canvassing board for good reason, since state law prohibited the formation of a canvassing board whose members all belonged to the same party. When the lone Democrat on the board resigned in 1874, the Republicans refused to fill the vacancy. Accordingly, the board that ruled for Hayes consisted of four Republicans and zero Democrats. In an effort to win the public’s confidence, the board did hold twelve public sessions. It did not help, however, that the board was presided over by James Madison Wells, a notoriously sleazy politician considered open to bribes.⁶⁷ It may or may not be coincidental that, after the Louisiana board helped him become president, Hayes appointed Wells and two other board members to federal positions.

While the main event took place in Florida, Louisiana, and South Carolina, Democrats also raised an issue concerning one of the three electoral votes in Oregon, a state that indisputably went for Hayes. The U.S. Constitution forbids presidential electors from “holding an office of Trust or Profit under the United States,” and one Hayes elector was a local postmaster. However, under Oregon law, an ineligible elector can be replaced prior to December 6. Accordingly, when the objection to this elector surfaced shortly after the November 7 election, he resigned his position as postmaster and was reappointed to his position as an elector by the other electors. Oregon’s Democratic governor nevertheless replaced him with a Tilden elector. The governor then certified two electoral votes for Hayes but the third for Tilden, whereas the secretary of state certified three electoral votes for Hayes. Thus, as with the other three disputed states, Congress received dueling certifications.

The Democrats did not expect to prevail in Oregon; they were trying to force Congress to scrutinize rather than automatically accept the states’ certifications of electors. If Congress did that with respect to Oregon (and if it didn’t, Tilden had his 185th elector), it would have to do so as well for Louisiana, Florida, and South Carolina. But, as Supreme Court Justice William Rehnquist observed in his book about the 1876 election, the Democrats’ ploy hurt them in the court of public opinion because “the Democratic position in Oregon . . . was even more egregious than the Republican position in Florida and Louisiana.”⁶⁸

The situation involving competing certifications of electors is not directly addressed by the Constitution. Indeed, when it comes to the Electoral College, the Constitution says little and leaves many potentially troubling situations unaddressed. The previous presidential election, in 1872, provided a bizarre illustration. The Democratic candidate, Horace Greeley, died three weeks after the election, prior to the date on which members of the Electoral College met. Greeley had earned eighty electoral votes, but could electors cast valid ballots for a dead man? The Constitution doesn’t say. Some electors did so, but the joint House-Senate committee tasked with receiving and recording the votes chose not to count votes for Greeley.

The Twelfth Amendment to the Constitution provides that each state’s electors must send their certificates to the president of the U.S. Senate, who “shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.” With respect to the disputed states in the Hayes-Tilden race, Republicans interpreted this language to give the president of the Senate the authority to choose from among the competing certifications. The Constitution makes the vice president the president of the Senate, but President Grant’s vice president, Henry Wilson, had died a year earlier and had not been replaced. (Prior to ratification of the Twenty-Fifth Amendment in 1967, vice presidential vacancies went unfilled.) The acting president of the Senate (or “president pro tempore”), Senator Thomas Ferry, was a Republican, which explains the Republicans’ interpretation of the Twelfth Amendment. Democrats pointed to a different constitutional provision, the one giving the House authority to choose the president if no candidate receives a majority of electoral votes, and argued that the House therefore controls the count and should determine which slates of electors to accept. Democrats controlled the House, which explains their interpretation of the Twelfth Amendment.

In early December, the House and Senate each appointed special committees to investigate and resolve the situation in the four disputed states. Each committee held extensive hearings, but they needn’t have bothered. The Republican-controlled Senate committee found that Hayes had won each of the states; the Democrat-controlled House committee determined Tilden to be the winner. In each case, the committee’s determination broke down perfectly along party lines.

This impasse raised the very real possibility of two presidents enjoying simultaneous swearings-in on March 4. It might make for a great political novel, with the plot eventually involving the military facing orders from two putative commanders-in-chief. But precisely because the two branches were controlled by different parties, no easy solution suggested itself. Moderates in the two parties undertook a predictable bipartisan approach: formation of a joint congressional committee. The committee included seven House members and seven senators; seven Democrats and seven Republicans. During the next two weeks, every proposal on how to proceed produced a seven-seven deadlock. Finally, someone proposed and everyone embraced a way to break the stalemate: creating a fifteen-member commission consisting of five senators, five House members, and five Supreme Court justices. The commission’s determinations would be binding unless rejected by both houses of Congress.

Choosing an odd number of members of the commission made good sense in one way but not another. It prevented a tie vote but raised the obvious question of which party would have the extra member. That, in turn, depended on another vexing question: Which five Supreme Court justices would serve? It was originally proposed that the justices be picked by lot, prompting Tilden to object that “I might lose the presidency, but I will not raffle for it.”⁶⁹ Members of Congress next proposed designating the five most senior justices, which fortuitously included two Democrats, two Republicans, and David Davis, a self-described independent who had not voted in the presidential election. Davis was an enormous man (allegedly 300 pounds) who played an enormous role in the 1876 election by playing no role at all.

The Illinoisan was a close friend of Abraham Lincoln, his campaign manager in 1860, and appointed by Lincoln to the Supreme Court in 1862. He was a Whig-turned-Republican who became disillusioned by the Republican Party to the point that, when his appointment on the election commission of 1876 was proposed, Republicans balked, claiming that Davis was “to all intents and purposes, a Democrat,” and thus would tip the commission in Tilden’s favor.⁷⁰

The joint committee, which was created by a bill signed into law by President Grant on January 29, solved the problem by naming four justices, two Democrats and two Republicans, and tasking these four with selecting the fifth. It was fully expected that they would choose Davis, and that his selection by a bipartisan group of his colleagues would enhance public confidence. But the plan quickly went awry: Prior to the selection of Davis, the Democratic-controlled Illinois legislature selected him as a United States senator. Republicans cried foul, alleging that the Democrats were essentially bribing Davis, the quid pro quo being his vote for Tilden when the electoral commission made its decision.⁷¹ If that was indeed the plan, it was too clever by half: Davis declared that, as a soon-to-be-sworn-in senator, he could not in good conscience serve on the commission. He received dozens of telegrams and some in-person appeals urging him to reconsider, but he proved steadfast. Some historians speculate that Davis, who long eyed the presidency himself (and for a while had been considered a viable candidate in 1872), saw little value in serving on a commission whose decision was guaranteed to infuriate half the country.

When the four justices huddled to select a fifth, by a three-one vote they nevertheless tapped Davis, thinking he might be persuaded yet. However, Davis declined their offer. The justices then unanimously selected Joseph Bradley, a moderate Republican regarded as the least partisan of the remaining justices. Representative Abram Hewitt of New York, chairman of the Democratic National Committee and Tilden’s campaign manager, considered Bradley “a man of the highest integrity.”⁷² Not all Democrats concurred. The Democrat-leaning New York Sun editorialized that Bradley was “a partisan to whom his party never looked in vain.”⁷³ The Chicago Tribune split the difference, reporting that no one knew what to expect from Bradley; Republicans “fear that he is more [impartial] lawyer than Republican, and the Democrats fear that he is more Republican than lawyer.”⁷⁴

In a process that stretched out over a month, and included public hearings featuring learned presentations by the nation’s most prestigious lawyers for both sides, the commission (which included future president James Garfield, then a member of the House) ruled in Hayes’s favor with respect to the disputes in all four states—by an 8-7 party-line vote. In each case, the principal issue was whether the commission, on behalf of Congress, had the authority to “look behind” the canvassing board’s determination. This difficult question divided legal scholars at the time and ever since. Unfortunately, when it came to the commission’s findings, as well as Congress’s decision whether to approve or reject them, perspective on legal issues seemed determined by political allegiance. The Democrat-controlled House voted to reject the commission’s findings, whereas the Republican-controlled Senate endorsed them. Since the resolution creating the commission stipulated that its findings would be followed unless rejected by both Houses, it appeared to be case closed and Hayes president. But the Democrats refused to acquiesce just yet.

On February 28, the House and Senate met in the constitutionally required joint session to do the final vote tally, at this point seemingly a mere formality. And so it went, with the alphabetical call of the states and recording of their electoral votes, from A through U. That covered all four of the disputed states, whose Republican votes were recorded without incident. But when Vermont was called, Representative Hewitt rose and asked to be recognized. Hewitt explained, “I hold in my hand a package which purports to contain electoral votes from the State of Vermont.” He offered it to Senator Ferry (presiding as president pro tempore), who replied that he could not consider new materials at that late date. Ferry had in his possession Vermont’s five certified votes for Hayes, and the last thing he wanted was yet another contested state, particularly after the previous four had been resolved. But House Democrats did not accept his ruling. A representative from Illinois screamed and gesticulated wildly until the Senate walked out, convened separately, and accepted Vermont’s certification of votes for Hayes.

What was going on? Hewitt and the Democrats had contrived the Vermont dispute in the hopes of reconvening the commission and running out the clock—preventing resolution of the matter until Inauguration Day. They were playing with fire, since dueling inaugurations would have created national chaos, and by this time, on account of the commission’s decision, Republicans held the high ground. It was difficult to imagine a winning end game for the Democrats, but many of them, feeling cheated, did not feel compelled to accept reality.

The House met on March 1, three days before the scheduled inauguration, and found Democrats split between those wishing to acquiesce in Hayes’s election to spare the nation chaos and others willing to take that risk. In the session of the House that followed, fights nearly erupted (with some members brandishing pistols, presumably for protection from the public), and the speaker had to call in the sergeant at arms to restore order. Hours of debate ensued. A decisive moment came when Louisiana Representative William Levy, a Democrat, passed along crucial intelligence. He and other Southern Democrats had met with close associates of Hayes and, he hinted broadly, received reassurances that a President Hayes would treat white Americans in the South well. In particular, Hayes allegedly agreed to withdraw federal troops that propped up Reconstructionist governors.

Accordingly, Levy urged his fellow Democrats to accept Hayes’s election. The tide turned against obstruction. Even so, on March 3 the House passed a resolution declaring that Tilden received 196 electoral votes and “was thereby duly elected President.” But by this point the candidate himself had publicly conceded, and congressional Democrats went down without further fight beyond their toothless resolution. Outside the halls of Congress, all wasn’t so copacetic. Some Democrats around the nation called for armed rebellion, an idea allegedly entertained by George McClellan, the Civil War general and Democratic presidential candidate in 1864.

As noted, legal scholars disagree about the propriety of the commission’s findings in favor of Hayes. The commission received the imprimatur of none other than Justice-then-Senator Davis, apparently considered by many the only person in government capable of an impartial opinion. Davis privately opined that the commission ruled properly, and “no good lawyer, not a strict partisan, could decide otherwise.”⁷⁵ Few Democrats agreed. Justice Stephen Field, who served on the commission, considered its work “a gigantic conspiracy and fraud.”⁷⁶ Justice Bradley, in particular, came in for harsh criticism (not to mention death threats), such as the New York Sun’s view that he “will be known in history as the infamous eighth man who, without scruple and without shame, cast his vote every time to uphold the frauds.”⁷⁷ Even Hayes’s hometown newspaper, the Cincinnati Enquirer, darkly declared that “by the grace of Joe Bradley . . . the monster fraud of the century is consummated.”⁷⁸ Rumors circulated, supported by shreds of circumstantial evidence, that Bradley had written an opinion favoring Tilden with respect to Florida’s electors, and changed his mind only as a result of last-minute pressure from Republican politicians.⁷⁹

It is unclear what would have happened without the assurances reported by Congressman Levy. Perhaps cooler heads would nevertheless have prevailed. Or perhaps the unthinkable—two presidential inaugurations, two would-be presidents, and a grave constitutional crisis. In any event, Hayes aimed for conciliation in his inaugural address, directly addressing his controversial election. He acknowledged that “peculiar circumstances” led to the creation of the commission, and despite the “reputation for integrity and intelligence” of its members, “opinion will vary widely as to the wisdom of several of the conclusions announced by that tribunal.” That, he claimed, was inevitable in legal matters, as the losing party will inevitably feel wronged. The new president urged Americans to regard the peaceful resolution as “an occasion for general rejoicing.”⁸⁰

Indeed, one might be tempted to conclude that the system worked, or at least that the guardrails held, insofar as the election was resolved without bloodshed. But we should not fool ourselves into thinking that a peaceful resolution was inevitable—even apart from the fact that, in December, a bullet into Hayes’s house narrowly missed him. Thirty years later, Pulitzer Prize–winning historian James Ford Rhodes claimed that everyone who lived through the Hayes-Tilden imbroglio, or studied the evidence thereafter, “cannot avoid the conviction that the country was on the verge of civil war.”⁸¹ To say the system worked because a second civil war was narrowly averted is to set the bar awfully low. A process that played out primarily in partisan terms can hardly be judged a success.

In his inaugural address, Hayes claimed that the commission’s decision was “entitled to the fullest confidence of the American people.”⁸² That judgment seems naïve or self-serving. Even if one agrees with the commission’s decision, it was a serious source of concern that our election system lent itself to the kind of chaos and disenchantment that prevailed for four fraught months and left half the nation feeling cheated.

As it happens, President Rutherford B. Hayes did indeed adopt a conciliatory stance toward white supremacists, effectively ending Reconstruction. That pleased but did not placate Democrats, who routinely referred to the president as “Rutherfraud” and “His Fraudulence.” During the post–Election Day drama, President Grant stated that “either party can afford to be disappointed in the result, but the country cannot afford to have the result tainted by the suspicion of illegal or false returns.”⁸³ Alas, as in 1824, suspicions of skullduggery only grew over time, and a cloud of illegitimacy hovered over the new president. Hayes served one unremarkable term after an election that was anything but.

What lessons were learned from the 1876 election? Not enough, at least to judge by the fact that the nation experienced something fairly close to a repeat, albeit more than a century later. No constitutional amendments were adopted in the wake of the ’76 donnybrook, although in 1887 Congress did pass the Electoral Count Act (ECA). The ECA clarifies that Congress should honor only those electoral vote certifications made by the state’s executive, unless a majority in both houses of Congress rejects that certification. The ECA also provides procedural guidance for the conduct of the joint House-Senate committee receiving the certified votes, and incentivizes states to send in the certifications in timely fashion by establishing that electoral votes certified six days before the Electoral College meets must be accepted by Congress. The latter provision played a key role in the 2000 election but, as we shall see, did more harm than good.

During the debate over the ECA, Senator John Sherman, a Republican from Ohio, asserted that failure to provide a proper means to resolve disputed presidential elections “is more dangerous to the future of this country than probably any other.”⁸⁴ He may have been right. However, as shall become apparent in the next chapter, ECA failed to prevent another intra-state fight over a state’s electors, much less to address a number of other existing or potential problems with the Electoral College. In the sober assessment of Professor Edward Foley, an election law expert and author of an invaluable study of disputed elections, “the Hayes-Tilden dispute exposed structural frailties in the nation’s constitutional order that . . . were unchanged in 1876 and remain unchanged today.”⁸⁵

As for what lessons should be learned from the 1876 crisis, we will revisit that question after first reacquainting ourselves with the delayed sequel: the election of 2000.