The Electoral Commission, sometimes referred to as the Hayes-Tilden or Tilden-Hayes Electoral Commission, was a temporary body created by the United States Congress on January 29, 1877, to resolve the disputed presidential election of 1876. Democrat Samuel J. Tilden and Republican Rutherford B. Hayes were the main contenders in the election. Tilden won 184 undisputed electoral votes, one vote shy of the 185 needed to win, to Hayes' 165, with 20 electoral votes from four states (Florida, Louisiana, Oregon, and South Carolina) unresolved. Both Tilden and Hayes electors submitted votes from these states, and each claimed victory.
Facing an unparalleled constitutional crisis and intense public pressure, the Democratic-controlled House of Representatives and the Republican-controlled Senate agreed to the formation of the bipartisan Electoral Commission to settle the election. It consisted of fifteen members: five each from the House and the Senate, plus five Supreme Court justices. Eight members were Republicans; seven were Democrats. The commission ultimately voted along party lines to award all twenty disputed votes to Hayes, thus assuring his electoral victory by a margin of 184. Congress, meeting in a joint session on March 2, 1877, affirmed that decision, officially declaring Hayes the winner by one vote.
Election of 1876
The presidential election was held on November 7, 1876, and Tilden won the electors of his home state of New York and most of the South, while Hayes' strength lay in New England, the Midwest, and the West. Tilden had won the popular vote by just over a quarter of a million votes, but he did not have a clear Electoral College majority. He received 184 uncontested electoral votes, while Hayes received 165. Both campaigns claimed the remaining twenty (four from Florida, eight from Louisiana, seven from South Carolina, and one from Oregon) votes. As 185 votes constituted a majority, Tilden needed only one of the disputed votes, while Hayes needed all twenty. The returns in several states, including the disputed states of Florida, Louisiana, and South Carolina, were tainted by allegations of electoral fraud, with each side claiming ballot boxes had been stuffed, ballots altered, and voters intimidated.
Florida, Louisiana, and South Carolina Early returns suggested that Tilden had won the election, and on election night Republican Party chair Zachariah Chandler believed Hayes had lost. However, Chandler gave permission early the next morning to William E. Chandler and John C. Reid, managing editor of The New York Times (which had run the headline "The Results Still Uncertain"), to wire Republican officials in Florida, Louisiana, and South Carolina to hold their states for Hayes. In each state, Republicans controlled the partisan returning boards, tasked with certifying the popular results of the election. In response to Chandler's directive, Democratic Party chair Abram S. Hewitt organized committees of prominent Democrats to travel South and oversee the vote counting. President Grant, in turn, sent Republican delegations to follow the Democratic observers.
In each of the three disputed Southern states, the pattern that followed was largely the same: the returning board invalidated numerous ballots on the grounds of fraud or voter intimidation, delivering a popular majority to Hayes and the Republican candidate for Governor. A dissident Democratic government claimed victory and the legitimate authority to govern and certify the electoral vote of the state. The Republican claimant certified an electoral slate for Hayes, and the Democratic claimant certified a slate of electors for Tilden.
In Florida, the initial count showed Hayes ahead by 43 votes, but after corrections were made, Tilden took the lead by 94 votes. Subsequently, the returning board rejected numerous ballots, delivering the election to Hayes by nearly a thousand votes. The board also declared that the incumbent Republican governor, Marcellus Stearns, had won the gubernatorial election; however, the Florida Supreme Court overruled them, instead awarding the victory to Democrat George Franklin Drew, who announced that Tilden had carried Florida."Hayes v. Tilden: The Electoral College Controversy of 1876–1877." HarpWeek.
In Louisiana, early unofficial tallies indicated that Tilden had carried the state by over 6,000 votes, but the Republican-controlled returning board rejected over 15,000 votes (13,000 for Tilden and 2,000 for Hayes) for reasons of fraud and voter intimidation. As a result, Hayes won Louisiana's eight electoral votes, while Republican candidate Stephen B. Packard was considered to lead the vote count in the simultaneous election for Governor of Louisiana. In response, the Democratic Party instituted a rival state government under Francis T. Nicholls, and this rival administration, in turn, certified that Tilden had won. The Louisiana Returning Board was composed of James Madison Wells, Thomas C. Anderson, Gardene Casanave, and Louis M. Kenner.
A nearly identical scenario played out in South Carolina, where initial returns suggested that Hayes had won the presidential election, while the Democratic candidate Wade Hampton III had won the gubernatorial contest. As in Louisiana, the Republican-controlled returning board rejected several thousand votes, ensuring the election of a Republican governor, Daniel Henry Chamberlain, and legislature. The Democratic Party promptly organized a rival state government, led by Hampton, and this body declared Tilden the victor in the presidential election.
Oregon elector In addition to sending Democrats to observe the vote count in the South, Hewitt also responded to Chandler by directing Governor La Fayette Grover of Oregon to reject the election of a Republican elector. Though the popular vote in Oregon had clearly favored Hayes, the elector, John W. Watts, was a United States postmaster, calling into question his constitutional eligibility to serve. Article II, section 1, clause 2 of the Constitution reads "no … person holding an office of trust or profit under the United States shall be appointed an elector." Watts resigned his office a week after the election, long before the Electoral College was scheduled to meet. Thus, the question hinged on whether Watts was "appointed" at the time of his election in November or at the meeting of the electoral college in December.
Governor Grover certified a Tilden elector who had the next-most votes, C.A. Cronin, in his place. Thus, the Governor had certified two Republican electors and one Democratic elector. Historian C. Vann Woodward suggests this was done to provide a legal pretext to look behind the official state certification in the disputed states; if Republicans questioned Cronin's credentials as an elector (which they would have to do in order to win), they would be forced to permit questions against the apparently certified slates in Florida, Louisiana, and South Carolina.
Electoral College vote On December 6, 1876, the electors met in the state capitals to cast their ballots. In Florida, Louisiana, and South Carolina, both the Democratic and the Republican slates of electors assembled, and cast conflicting votes, while in Oregon Watts and Cronin both cast ballots. Thus, from each of these four states, two sets of returns were transmitted to Washington, D.C.
Constitutional crisis The election dispute gave rise to a constitutional crisis, as no clear constitutional directive was given for recognizing or resolving disputed electoral counts. The Twelfth Amendment to the United States Constitution reads in part, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;" but gives no explicit indication as to whom "the votes shall then be counted" by or where the authority rested to decide between competing slates of electors.
Some Hayes supporters argued that the President of the Senate had the authority to determine which certificates to count, because he was responsible under the Twelfth Amendment for presiding over the congressional session at which the electoral votes were tallied. Since the office was occupied by a Republican, this method would have favored Hayes. Many Democrats argued that Congress, in joint session, should determine which certificates to count; because they controlled the much larger House, this would ensure Tilden's victory. Other Democrats posited that because neither candidate had a clear majority of the electoral vote, the election should be thrown to the House of Representatives, per the explicit terms of the Twelfth Amendment. Still others proposed that the matter should be settled by the Supreme Court.
As members of the political class returned to Washington D.C. in advance of the December congressional session, Democratic cries of "fraud" and "Tilden-or-fight" were met with Republican recriminations that Democratic victories in the South were attributable to fraud and intimidation. Democratic opinion was united in favor of Tilden, while some Republicans (including President Ulysses S. Grant and Senator Roscoe Conkling) privately expressed their belief that Tilden had won, and some Republican newspapers were ambivalent about Hayes's case. In a reversal of Civil War ideology, many Republicans argued that the right to certify electors lay solely with the states and could not be reviewed by Congress; Democrats argued that state returns were subject to federal scrutiny. However, the sole Democratic elector certified by the Governor of Oregon rendered the Republican argument for states' rights mostly moot, since pure deference to state returns would result in a vote of 185–184 in favor of Tilden.
In the background of the legal and political arguments lay the threat of armed violence, which did not clearly favor either side in the dispute. The United States was just over a decade removed from the American Civil War and sectional, racial, and ideological tensions had remained fraught during the Reconstruction Era. Republicans controlled the regular United States Army, but it was small and widely dispersed; Democratic governors throughout the country controlled their state chapters of the National Guard. Congressman Henry Watterson of Kentucky declared that an army of 100,000 men was prepared to march on Washington unless Tilden was declared President.
Electoral Commission Act
The 44th United States Congress met in a lame-duck session beginning December 7, the day after the disputed electoral votes were submitted. The House was controlled by the Democratic Party, while the Senate was controlled by the Republican Party. Based on the results of the 1876 election, party control promised to remain the same in each chamber for the 45th Congress.
On December 21 and 22, respectively, the Senate and House established special committees charged with establishing a process to resolve the dispute, with membership as follows:
Senate Special Committee House Special Committee Member StatePartyMember StatePartyVermont Ohio New York New York New Jersey Virginia Indiana Illinois Delaware Massachusetts North Carolina Iowa Ohio Michigan
The two committees ultimately settled upon creating a commission that would count the electoral votes and resolve questions arising during the count. Many Republicans objected to the idea, insisting that the President pro tempore should resolve the disputes himself. Rutherford Hayes charged that the bill was unconstitutional.Rehnquist, William H. (2004). Centennial Crisis: The Disputed Election of 1876. New York: Alfred A. Knopf. However, enough Republicans joined the Democrats to ensure its passage. On January 25, 1877, the Senate voted in favor of the bill 47–17; the House did likewise the next day, 191–86. The Electoral Commission Act () was signed into law by President Ulysses S. Grant on January 29, 1877.