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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
With the commission now constituted, Congress was ready to proceed with the counting of the electoral votes. On February 1, senators and representatives gathered in the House chamber at 1 P.M. with the galleries full and privileged visitors crowding the floor. After tellers representing each house were appointed, the president of the Senate turned to a wooden box, a little more than a foot on each side, selected the return of Alabama, and the count began. All went swimmingly until Florida was reached and her two conflicting returns read. Each side made its objections and all the papers involved were turned over to the Electoral Commission.
Two batteries of able lawyers, personally selected by Hayes and Tilden, presented their opposing arguments to the commission. The Republicans contended that the language of the Constitution limited Congress to the ministerial act of counting the electoral votes presented by the officially established state authorities. The Democrats pleaded that Congress, or its agent, the commission, had the duty to inquire into the circumstances surrounding the choice of electors in the disputed states. Such an inquiry, the Democrats contended, would uncover gross irregularities that would compel the award of the electoral vote of the three states to Tilden. After hearing argument, the commission spent a full day in camera, pondering the disposition of the Florida case. Washington and the country were strangulating with excitement and suspense. Justice Bradley’s vote was generally expected to hold the balance.
On the night before the decision was due, Hewitt, who was on the brink of nervous exhaustion, again dispatched his good friend Stevens to Bradley’s house. The Justice graciously read the opinion he intended to hand down the next day. To Stevens’ great joy, which he struggled to keep within discreet bounds, the opinion upheld the Democratic position and thus, by adding Florida’s three electoral votes to his uncontested total of 184, ensured Tilden’s election with two votes to spare. Stevens returned to Hewitt with the tremendous news at about midnight. Next morning, however, the two were dumbfounded when Bradley did a complete about-face and presented a decision upholding the Republicans. Sometime between midnight and sunrise, Bradley had changed his mind, apparently under the influence of the Republican senator Frederick T. Frelinghuysen of New Jersey and Secretary of the Navy George M. Robeson, who had arrived after Stevens had departed. They seem to have been strongly aided by the dominating Mrs. Bradley. The tenor of the trio’s argument was that whatever the strict legal equities of the situation, it would be a national disaster if the government fell into Democratic hands.
The commission swept on inexorably, handing down decisions on Louisiana, Oregon, and South Carolina consistently favorable to the Republicans. Its final tally gave the electoral vote to Hayes, 185 to 184. Editor Reid’s hopes had come true. Significantly, just after Florida and Louisiana had been decided, and before Oregon and South Carolina were reached, Rutherford Hayes was writing confidently in his diary, “The inaugural and Cabinet-making are now in order.”
Shortly after the Oregon decision in late February, however, a group of Democrats, enraged by the disastrous turn of affairs in the Electoral Commission, proposed as a last-ditch measure to delay the completion of the electoral count. March 4, the day the Constitution then required a presidential term to begin, was only days away. If no President were declared elected by that time, an interregnum would occur, opening up infinite possibilities of mischief. Neither the Constitution, precedent, nor statute made any provision for such a contingency.∗ Anything could happen, even war itself. If, for example, Ulysses S. Grant continued in office, which from duty or ambition he might feel driven to do, he could be challenged and defied as an outright usurper. The chief instrument to be relied upon by those bent upon disrupting the machinery of government was the filibuster. Every necessary ingredient was present. The time was perfect. A few days’ delay and the damage would be done. In the House of Representatives Democratic manpower was more than adequate to carry it on.
Only some desperate eleventh-hour negotiations between the representatives of Governor Hayes and the southerners saved the country from the filibuster and the dreaded interregnum. The negotiations, occupying nearly two days and nights and conducted principally at the Wormley Hotel in Washington, produced what became known as “The Bargain,” a complex of pledges by the Hayes representatives of major measures for southern home rule, paramount among them a promise to withdraw federal troops. The southerners unhesitatingly agreed, as quid pro quo, to withdraw from the projected filibuster.