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The Election That Got Away
A loophole in the Constitution made it possible for the winner of the popular majority in 1876, Tilden, to lose to Hayes in the electoral college amid bitterness, fraud, and chicanery. It could happen again
October 1960 | Volume 11, Issue 6
“If the manner of it be not perfect, it is at least excellent,” Alexander Hamilton once said of the machinery of the Constitution for electing the President and Vice President of the United States. In making this statement, Hamilton, for all his brilliance, was either committing an egregious error or engaging in eighteenth-century Madison Avenue encomium. On the basis of historical experience, it can reasonably be contended that the system of presidential election is anything but excellent, that it is in actuality a morass of complexity, indirection, and ambiguity. Nothing indeed could have been more expertly contrived to thrust the nation into periodic crises of uncertainty and strife.
The Constitution establishes the electoral college system to govern the President’s selection, and provides further means ol choice when that system bogs down in inconclusive result. But it grants the federal government only limited authority over its most important election, that of the President: critically significant powers repose in the states. My express or implicit constitutional authority, federal statutes specify the date of election day, determine when the electors are to meet and cast their ballots, and establish the procedure for counting those ballots in Congress. But at the same lime, the Constitution authorizes the states to decide how the electors are to be chosen and their electoral vote cast. State laws also regulate the conduct of elections, including the presidential contest, and political activity carried on within their borders. This authority and autonomy invite wide variation from state to state in the method, honesty, and freedom of federal elections.
In sanctioning this division of powers, the Constitution leaves elementary and crucial questions of procedure unanswered and permits the most outrageous eventualities to materialize. If, let us say, two conflicting sets of electoral votes are returned by a given state, who shall decide which set is to prevail? The Constitution provides no solution.
Consider another likely untoward instance. A candidate who receives on election day a majority ot the popular vote cast may not, under the Constitution, necessarily become President—it he fails to secure also a majority of the electoral vote. The utter contradiction of this state of affairs with the most elementary principles of democracy is self-evident: the majority popular will can be denied.
It was to the great misfortune of the United States that both these forbidding eventualities actually occurred in a single election, under circumstances so confused and so acrimonious that they brought the country to the very edge of civil war.
The occasion was the presidential contest of 1876, between Republican Governor Rutherford B. Hayes of Ohio and Democratic Governor Samuel J. Tilden of New York. When all the returns were in, Tilden had won 4,300,590 popular votes to 4,036,298 for Hayes—a margin of 264,292 for Tilden. The crisis arose in the certification of the electoral vote, and it was to drag on for months before Hayes was finally declared President by an electoral vote of 185 to 184.
The country, already surfeited with crises of the most formidable sort, could ill-afford another. The South was still wallowing in the slough of Reconstruction, although a decade had elapsed since the close of the War Between the States: a depression, which had commenced in 1873. was at its worst, and unemployment at its peak; upon the outgoing Grant Administration crashed wave alter wave of disclosure of immoralities and policy misadventures. The country could bear no more.
By sheer good luck, the principals in the disputed election were cautious, unsensational men of patriotic instincts. Governor Tilden, a wealthy, cold, secretive, sixty-two-year-old corporation lawyer totally without eloquence or personal magnetism, was incurably dilatory. “He postpones too much and waits too long,” the New York Tribune despairingly said of him. “He rides a waiting race.” To Martin Van Buren, who had intimately observed his career for thirty years, Tilden “was the most unambitious man he had ever known.” Governor Hayes was an exemplary solid citizen. Brigadier general in the Civil War, veteran of a decade of state and congressional politics, he was little known nationally. “He was not a leading debater or manager in party tactics,” a fellow congressman said of him, “but was aways sensible, industrious, and true to his convictions.” Hayes had another talent that stood him well: the gift of prophecy. Two weeks before the election he wrote musingly in his diary of the hazards that confronted him in the election. “Another danger is imminent,” be stated; “A contested result.”
The first returns on election night, November 7, indicated Tilden victory in a close rate. The New Yorker had carried his own state. Connecticut, Indiana, New Jersey, and apparently the Solid South. In an era innocent of radios, telephones, and voting machines, however, only fragmentary returns were available from the West, the far South, and the back counties of most states.