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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
Although the bulk of the southerners were now lost, the possibility of a filibuster was far from dead. A goodly number of northern and western Democrats were fully resolved to carry it on, and Hewitt and Speaker of the House Samuel J. Randall, responsible men acutely mindful of the implications of the situation, begged Tilden to put an end to the nonsense with a decisive statement. Tilden dillydallied. Only after some long hours of introspection at Gramercy Park did he conclude that the situation presented an absolute choice between accepting the Electoral Commission’s results or facing civil war. Accordingly, he wired Speaker Randall that the verdict of the Electoral Commission must be accepted. All except a few die-hard Democrats respected Tilden’s wishes. The recalcitrants made a final but vain outburst when the count of Wisconsin was reached in the early morning of Friday, March 2. The high point of the acrimonious discussion was the observation by Democratic Congressman Joseph C. S. Blackburn of Kentucky that Friday was the day of Christ’s death and fittingly the day on which the crucifixion of “constitutional government, justice, honesty, fair-dealings…” was transpiring “among a number of thieves.” At about four o’clock that morning, only two days before Grant’s term was to end, Rutherford B. Hayes was declared the duly elected President of the United States.
Without exception, the principal historians of the period—James Ford Rhodes, James Schouler, William A. Dunning—all concluded that Tilden was robbed of Louisiana and probably of Florida. President Grant confided to Hewitt his belief that Louisiana, and therefore the Presidency, belonged to Tilden. Such estimable Republicans as Roscoe Conkling, E. L. Godkin, and Samuel Bowles all were convinced and publicly asserted that Tilden had been elected. On the basis of the popular vote, a majority of the people held an identical opinion. However creditably Hayes went on to perform as President, his Administration always labored under a clouded title.
A principal item of his program was electoral reform, a step fully augured by a diary entry the future President made on January 26, 1877, amid the tensions of the awaited decision. “Before another Presidential election,” Hayes wrote at the time, “this whole subject of the Presidential election ought to be thoroughly considered, and a radical change made.... Something ought to be done immediately.” But nothing was done immediately, and certainly no “radical” change has been effected since Hayes’s day.
It was not for a full decade after the 1876 election that Congress enacted a law empowering each state to determine the authenticity of its selection of electors. It was not until the late date of 1933 that the Constitution directly provided for the nightmarish possibility —which loomed so starkly in the Hayes-Tilden controversy—that the incumbent President’s term might expire before the next President or Vice President could be chosen. The Twentieth Amendment, adopted that year, specifies that Congress may in such a case declare “who shall act as President, or the manner in which one who is to act shall be selected, and such a person shall act accordingly until a President or Vice-Président shall have qualified.”
But no amendment or statute has yet solved the central problems which bedeviled the election of 1876. Irregularities in the selection of electors can still occur in the states. The Negro voter can still be intimidated and defrauded of his right to vote. A “minority President” like Hayes, who receives a majority of the electoral vote but not of the popular vote, can still be elected. These disquieting possibilities, which were at the bottom of the trouble in 1876, could arise to haunt us again.
Our presidential election system remains a hodgepodge of divided responsibilities between state and nation. The electoral college lingers on, normally a meaningless anachronism, but potentially, as in 1876, a creator of infinite mischief.
*It was true that the Twelfth Amendment, adopted in 1804, made it clear that if a Vice President had been chosen—wither by the electoral college or the Senate—to take office on March 4, 1877, he would have acted as President. But the two vice-presidential candidates of 1876, Republican William A. Wheeler of New York and Democrat Thomas A. Hendricks of Indiana, wre tied up in the same electoral-vote as Hayes and Tilden.