- Historic Sites
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
On the day the Oregon electoral college was scheduled to meet, Cronin and the three Republican electors assembled in a room set aside for their use in the state capitol. The secretary of state arrived with the electoral certificates and handed them to Cronin. The Republican electors asked for their certificates, but Cronin refused to surrender them. Thereupon, the Republican electors organized their own college, and Cronin, retiring to a remote corner of the room, turned himself into a one-man electoral college. His first action in his new corporate status was to declare that two vacancies existed; these he filled at once, naming J. N. T. Miller, who was waiting outside, and a Mr. Parker, who soon arrived. Both, needless to say, were Democrats, but just to make things look good, since only one vote was necessary to tilt the scale for Tilden, the rump electoral college gave one vote to Tilden and the other two to Hayes. The three Republican electors, holding their ground in their corner of the room, dutifully cast their votes unanimously for Hayes. The returns of both electoral colleges went on to Washington. For the busy half-day he put in, Cronin was paid a tidy $3,000 by grateful officials of the national Democratic organization.
The central issue emerging from the welter of frantic measures was stark and simple. Who would choose between the conflicting returns submitted by the rival electoral colleges of South Carolina, Florida, Louisiana, and Oregon? Who, in a word, would decide the momentous question: Was Hayes or Tilden to be the next President of the United States?
The Constitution provides that the electoral vote shall be counted by the president of the Senate (who in 1876, along with the majority of that house, was a Republican); it provides further that if no candidate secures a majority of the vote, the House of Representatives (then controlled by Democrats) shall select a President. It was to Congress, therefore, that the attention of the nation now turned, with the Republicans aggressively maneuvering to have the election dispute decided in the Senate, and the Democrats with equal ardor championing the House as the final forum.
No one was especially surprised when Rutherford B. Hayes and most Republicans in Congress began to contend quite vehemently that Article II, Section I of the Constitution provided the answer to the all-important question in these words: “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.” Hayes and like-minded Republicans read this language to mean that the president of the Senate, their fellow party member, Senator Ferry, should determine which of the conflicting electoral votes would be counted.
Tilden personally led the counterattack by compiling a learned History of Presidential Counts, and having a complimentary copy distributed to each member of the Congress. He succeeded in establishing that on no occasion had a Senate president exercised any discretionary power in counting the electoral votes.
In their own quest for a positive legal formula to solve the crisis, the Democrats turned naturally to the House of Representatives. Their chief contention was also based upon language in Article II, Section I of the Constitution, which provides that if none of the presidential candidates should secure a majority of the electoral votes, “then the House of Representatives shall immediately choose by ballot one of them for President.” But Senate Republicans argued that this language became operative only if both houses of Congress certified that the special situation contemplated existed; this the Senate was not disposed to do.
With party lines drawn firm, the houses of Congress became locked in a forensic standoff. From the massive effort of heated debate and learned disquisition one overriding conclusion emerged: no applicable counting procedure was clearly provided for in the Constitution, and no conclusive precedents had materialized.
While the congressional debate churned on inconclusively through the winter months, developments of a more ominous sort were taking place elsewhere in the country. Their common ingredient was the threat of civil war. The northern press was working overtime. “Tilden or war!” was its constant cry. The Albany Argus saw the grim “prospect of war in every street and on every highway of the land” if Tilden should be denied the Presidency.
The Democrats were by no means confining themselves to flaming oratory. They were actively girding for a contest of force. From every corner of the land, battalion commanders of state militias wrote to Tilden, placing their soldiery at his call. A reliable but distraught friend reported to Hayes that the Democrats were secretly organizing into military companies and inventorying every gun and bullet they could lay hands on, to be ready to spring to Tilden’s rescue.