Historical Oddities: The 1876 Presidential Election

The 2000 United States presidential election contested between George Bush Jr. and Al Gore was one of the most controversial in the country’s history. Gore won the national popular vote, but the Electoral College seemed to favor Bush. In Florida, the margin between the two candidates was so close that a recount had to be held. After months of political wrangling, the case was brought to the United States Supreme Court which decided in favor of giving the votes from Florida to Bush, settling the margin in favor of Bush at 537 votes of the state’s nearly six million votes cast. This margin of 0.01% is the closest percentage margin ever in a state’s presidential vote. This situation may seem unique, but it has happened once before in 1876. And while many Democrats claimed that the Republicans stole the 2000 election, the 1876 election might just have seen the Republicans actually steal the presidency.

The 1876 election was between Republican candidate Rutherford B. Hayes and Democratic candidate Samuel Tilden. The major issues of the election were Reconstruction after the Civil War and the continued occupation of the former Confederate states by federal troops, and the ongoing corruption scandals plaguing the Republican Party during the Grant administration. Tilden, who had fought corruption and state machine politics as governor of New York, ran as a reformist candidate calling for civil service reform and an end to the policies of Reconstruction. The Republicans, meanwhile, campaigned largely by bringing up the Civil War and attempting to court the newly enfranchised black vote In the South. Hayes, then governor of Ohio, was nominated as he was considered the least corrupt of the potential candidates and the one least connected to the Grant administration.

The campaign was bitter between the two parties and the returns after election day showed irregularities in many states. The initial results in Louisiana had Tilden winning by 6,000 votes, but the Republican controlled electoral board tossed out 15,000 votes including 13,000 for Tilden as invalid, putting Hayes ahead. There was a similar case in South Carolina, except with Hayes showing an initial victory and the Democratic electoral board putting Tilden ahead in the state. Florida was more complicated. The initial vote count had Hayes ahead by only 43 votes, and a correction flipped it to showing Tilden ahead by 94. The returns board disallowed votes in Florida as well, putting Hayes ahead again by 922 votes. In Oregon, the state went to Hayes but the Democratic governor claimed one of the electors chosen was invalid due to being a former postmaster. The governor appointed a replacement elector who cast one vote for Tilden, while the other two’s were for Hayes. However, the state electoral commission rejected this outcome and instead reported all three of Oregon’s electoral votes as going to Hayes.

The initial result, then, has Louisiana, South Carolina, and Florida all going to Hayes, and gave the Republicans 185 votes in the Electoral College to the Democrats’ 184. The Democrats cried fraud, helped by Tilden’s 50.92% in the popular vote to Hayes’ 47.92%. A constitutional crisis erupted surrounding the counting of the electoral votes. The Democratic Party, which controlled the House, claimed that the electoral votes from each state had to be certified by both the House and the Senate for them to be valid. The Republicans, on the other hand, claimed that the House and Senate were merely spectators in the opening and counting of the electoral votes. The practice approved by the Democrats had been done since 1865, and if the House were to invalidate one state’s votes, then Tilden would win the presidency.

The impasse continued until January 29, 1877 when Congress passed a resolution to create an Electoral Commission to settle the result of the election. In particular, the commission was to rule on the conflicting vote tallies in Louisiana, South Carolina, and Florida. The commission had 15 members, with 5 from the House, 5 from the Senate, and 5 from the Supreme Court. For each chamber of Congress, the majority party appointed three members and the minority party appointed two. Since Congress was divided, this put 5 Democrats and 5 Republicans on the commission from Congress. The Supreme Court, meanwhile, placed Democrats Nathan Clifford and Stephen Johnson Field and Republican justices Samuel Freeman Miller and William Strong. The fifth justice on the commission was intended to be David Davis, widely regarded as a political independent.

However, just as the Electoral Commission bill passed Congress, the Democratic Illinois legislature elected Davis to the U.S. Senate. The Democrats thought they had gained Davis’ vote for Tilden with the appointment, but Davis instead chose to resign from the Supreme Court to take his position in the Senate even though the inauguration was not until March. With Davis no longer on the Court, Justice Joseph Philo Bradley was appointed to replace him on the commission. Bradley was a Republican, giving the Republicans an 8-7 advantage in the commission.

The proceedings of the commission began on February 1, 1877 with lawyers for Tilden and Hayes arguing their positions. Tilden’s lawyers argued that the cases should each be reviews, while Hayes’ lawyers argued that the findings of the state electoral boards should be accepted. After deliberation, the Electoral Commission voted 8-7 along party lines in every case. Hayes was declared the winner in Louisiana, South Carolina, and Florida and defeated Tilden in the election by a margin of 185 to 184 electoral votes. Democrats in the House began raising objections to the counts in other states where Hayes had clearly won such as Vermont and Wisconsin and filibustered to delay the official recognition of the electoral vote count. Finally at 4:10am on March 2, 1877, the filibusterers gave up and the votes were officially counted, giving Rutherford B. Hayes and William Wheeler the presidency and vice presidency.

The next days leading up to the inauguration were tense. On March 3, the House passed a resolution declaring its opinion that Tilden was the duly elected president, and many people still maintained that Hayes was fraudulently elected. Despite this, Hayes was peacefully inaugurated on March 5. To prevent an occurrence like this from happening again, Congress passed a law in 1887 that declared the state’s determinations in an electoral dispute to be binding. This law played a large part in the Supreme Court’s ruling in 2000 on Bush v. Gore. Today, the 1876 election stands out as the closest victory in the electoral college (by one vote), and the only case where a presidential candidate has received more than 50 percent of the popular vote but lost the election.

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