Well, here we are again, careening towards Election Day with many of the polls within the margin of error. Could this be another year our president is selected, not by popular choice, but by the vote of a single Supreme Court justice? Does this possibility conjure up ghosts of a past presidential election? A presidential election with early returns that seemed to coronate the Democratic nominee only to dash his hopes even before the celebrations could begin? A presidential election that left Florida’s electoral result in chaos with both sides rushing agents south to watch the count? A presidential election that elected a candidate who had actually lost the popular vote? A presidential election with fuzzed up election returns leaving the Democrat’s feeling bitter and betrayed? Yeah, the presidential election of 1876 was arguably the most fiercely disputed election in American history. What’s that you say; I got the year wrong? Read on.
The Republican candidate was Rutherford B. Hayes. Born in Ohio in 1822, Hayes was educated at Kenyon College and Harvard Law School. He fought in the Civil War, and was wounded in action. In spite of his injuries, Hays ascended to the rank of brevet major general. While still in the Union Army, Hays won a seat in the House of Representatives in1865. Between 1867 and 1876 he served three terms as Governor of Ohio.
Samuel J. Tilden was the Democratic nominee. Tilden was a veteran of New York politics that went back to Martin Van Buren. Tilden’s role in exposing and prosecuting the Boss Tweed Ring propelled him to the governorship of New York in 1874. Tilden was a rather curious choice for the Democratic candidate. He was sixty-two years old (old in terms of a politician’s age in those days) and a multimillionaire and so not really considered a populist (almost a prerequisite for a Democratic candidate at the time and perhaps even today.)
However, the betting odds clearly favored Tilden with Hays prepared to concede even before the total was tallied. Sure enough, the early results of that election evening indicated that Tilden would easily win and Hays was grasping a towel, maybe not in his hand but surely in his mind with plans to toss it in the next day. But in the wee hours of that post election day, just as the New York Times editorial staff was about to announce Tilden the winner, a message arrived from the Democratic party with a request that diverted the flow of the election away from Tilden and toward Hays. The Demarcates asked the Times for an estimate of the electoral vote. Why would the Democrats request this estimate if they were sure of victory? This message conveyed enough insecurity by the Democrats to cause the New York Times, a staunch Republican organ, to hold off its announcement of a Tilden win. In those days the New York Times was considered to be the final authority on all things enumerated. The Times instead of proclaiming Tilden the winner, announced that several states, including Florida, were still to close to call leaving both sides short of a majority of electoral votes needed to win.
Also, on that early post-election morning, John C. Reid, managing editor of the Times, prodded Republican operatives to send telegrams to party leaders in various states alerting them that Hay’s still had a chance of victory and that chance was hanging by the thread of securing electoral votes in the closely divided states.
The Republicans controlled the state governments in many of these states and thus the election machinery. And they certainly were not afraid to put a heavy thumb on an election scale. In Florida, the southern Democrats, the party of Jim Crow, rather than the party of civil rights used intimidation and violence to keep blacks away from the polls. All of this with the firm determination of white voters to rid themselves of corrupt carpetbaggers from the control of local governments guaranteed the lack of any chance of a fair vote count.
With the smell of a possible Democratic debacle in the air, the Republican controlled election boards in Florida, Louisiana and South Carolina wiped out Tilden majorities and instead proclaimed Hays the victor. In Oregon, where Hays had won a narrow victory, the Democrats contested a single electoral vote on a technicality, throwing the results into Tilden’s column. Both the Democrats and the Republicans offered electoral votes in opposition to the respective board certified votes from these states.
A divided congress, with a Democratic controlled House and a Republican controlled Senate, had to decide which of the double sets of the (twenty total) electoral votes in dispute should be accepted. A joint committee of the two houses finally decided after much wrangling that an Electoral Commission consisting of fifteen participants with five each from the Senate, the House and the Supreme Court would be established. The House and the Senate elected representatives based on three for the majority and two for the minority from each. The five Supreme Court justices were selected based on two each from known political allegiance and one justice of uncertain party affiliation. Justice David Davis was to be that impartial representative. Tilden needed only one additional electoral vote to win, and the Democrats felt certain that the commission would not be so partisan as to reward all twenty votes to Hays, and so felt confident of victory.
The Democrat’s hopes were dimmed, however, on the very day that the by-partisan commission bill passed the lower house. News arrived that on the preceding day a coalition of Democrats and independents had elected Justice Davis to the United States Senate, and thus disqualifying him for the Electoral Commission. All of the remaining justices were known Republicans and the Democrats were forced to settle on the selection of Joseph P. Bradley who appeared to be the most independent of the bunch.
Of course Bradley went along with his follow Republicans on every disputed electoral vote and Hays was named the winner.
The quaintest part of this whole sorted story is that many Democrats actually believed that the judicial members of the committee would set aside their partisan views and operate with the fair-mindedness of true judges.
Even in the 2000 race, I suspect a lot of Democrats didn’t realize the election was lost as soon as the Supreme Court got its dogmatistic stained mitts on the electoral process. One thing is certain, if the right wing of the Supreme Court gets its chance to extra-constitutionally usurp the American election process again in 2008, you can bet your house that it will be John McCain for the next four years.
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