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The Stolen Election

May 2024
5min read

The disputed election of "His Fraudulency" Rutherford B. Hayes ended the era of Reconstruction.

Last February the White House was jubilant over the outcome of the election held in Nicaragua, where voters turned out the governing Sandinista National Liberation Front, which has run the country since 1979, as well as its president, Daniel Ortega. The new president is Violeta Chamorro, the candidate of the National Opposition Union (UNO), a coalition of anti-Sandinista parties backed by Washington as part of its long war against what the Bush and Reagan administrations styled a Marxist-Leninist dictatorship. In the days just after the results were published, however, conservative commentators expressed anxiety over whether or not there could be an orderly transfer of power.

In fact, such a peaceful transfer is rare. This country ought to know; we almost failed at it 113 years ago. And whereas in Nicaragua, in 1990, there was no doubt about the legitimate winner of the election, it was not certain who was going to become President of the United States on March 4, 1877, until 4:00 A.M. on March 2.

It happens that I was in Nicaragua this year as an election observer—a senior historian rejoicing in the chance for a close-up view of a bit of history in the making. I was fascinated by what I saw, and in my opinion any direct comparison between the Sandinista regime and totalitarian Stalinist states is simplistic at best. But that’s not my story here. History is my beat, so let us return to 1877.

That year, in three Southern states, conservatives recaptured power after nearly ten years of enforced racial and social revolution. They did so in a climate of electoral fraud, fear, and plain murder. And because the electoral votes of the three states would be the decisive ones in the presidential election, local disputes about who won state campaigns ripened into a national constitutional and political crisis that some thought might start a new civil war.

The country was approaching the end of the experiment that history knows as Reconstruction. Florida, Louisiana, and South Carolina were the last states in which Republican regimes survived, based heavily on the votes of blacks. In 1867 Congress had decreed that the former Confederate states (with Tennessee a lone exception) would lose their autonomy and become occupied territory until they installed new governments from which all supporters of the former Confederacy were excluded and in which the ex-slaves would be included.

At varying speeds the garrisoned states complied. Not surprisingly the newly elected officials were Republicans, representing classes previously excluded from power. As Southern folk speech put it, “the bottom rail was on the top.” Like most one-party regimes, they waxed in corruption the longer they held power, though not much beyond the average for the Gilded Age. And like most political organizations catering to lesser folk, they also did a great deal of yeoman work in the areas of education, social welfare, economic development, and the equalizing of tax burdens. They even gradually lifted the restrictions on ex-Confederates, hoping to broaden their support base.

In vain. Most Southern whites were unappeased and unrelenting in their denunciation of local white Republicans as “scalawags” and “carpetbaggers.” For the blacks their hate was unbounded. And gradually they began to take back power. They did so partly by frightening black voters away from the polls through terrorism.

One by one, conservative white Democrats “redeemed” their states. A Southern revolution imposed by Republicans in Washington could last only as long as there was Republican unity. But in 1872 came a secession of “Liberal Republicans” protesting Grant-era corruption. In 1873 a gigantic depression hit the country. In 1874 the Democrats won a majority in the House of Representatives. And then came 1876.

On election night the Democratic presidential candidate, Samuel Tilden of New York, beat the Republican Rutherford B. Hayes of Ohio in the popular votes—4,288,546 to 4,034,311 to be exact. But Tilden had only 184 electoral votes for certain, and 185 were needed to win. Hayes definitely had 165. There were 19 out there in Florida, Louisiana, and South Carolina, the final Southern Republican strongholds. In the latter two the state campaigns had been especially dirty and bloody. The Republican incumbents were dutifully proclaiming victory, while the Democrats were insisting that they had won and been cheated in the count. In the three state capitals there were two sets of self-proclaimed “lawful” governors, legislators—and presidential electors.

In addition, one electoral vote from Oregon was disputed on a technicality. If Hayes got that one, plus the other 19, he would have the 185 needed to take the inaugural oath. But which set of electoral votes would actually be counted? And by whom?

The Constitution was ambiguous. It says that the incumbent state officials shall send their electoral votes to the president of the Senate, who shall open them “in the presence of the Senate and House of Representatives,” whereupon “the votes shall then be counted.” Was it the president of the Senate who was to do the counting and decide which ones to count? If so, he was part of a Republican Senate majority and would accept the votes sent in by Republicans. But if disputed votes were not counted, then neither candidate had a majority, and the election would go inco the House of Representatives, which was Democratic. To add a twist, if no decision was reached by March 4, then the Vice-President was to become acting President—but there was no Vice-President: Henry Wilson had died while holding the office.

Hayes and the Republicans argued that the votes certified by the sitting regimes in the disputed states had to be taken at face value and that Congress wasn’t authorized to go behind the results. If it had done so, it would have found Republican fraud balanced against Democratic intimidation, with the provable evidence probably in the Democrats’ favor. So the Democrats insisted on just such a scrutiny. Otherwise why would the Constitution provide for the ballot count under the eyes of House and Senate? The Democrats would not recognize a President chosen without such a review. And the Republicans would recognize no other.

Dangerous murmurs circulated in the deadlock. Some Democrats talked of having the House declare Tilden President if the Senate counted in Hayes—so there would be two Presidents trying to seize the keys to the White House. Some Republicans believed that if the issue was not settled by March 4, and there was no Vice-President, then Grant, backed by the Army, should simply remain in office. Slogans like Tilden or Blood were allegedly uttered. Ex-generals on both sides offered to raise armies of veterans and march on Washington.

In the end a curious, cumbersome compromise was reached. It was engineered by the businessmen of both parties, quintessential conservatives, who did not want the already struggling economy hit with political paralysis or renewed warfare. The votes would be reviewed by a special fifteen-member electoral commission of five representatives (two Republicans, three Democrats), five senators (two Democrats, three Republicans), and five justices of the Supreme Court (two Republicans, two Democrats, and one, Davis, considered to be an independent). Commission decisions would be binding unless rejected by both House and Senate.

Many a Democrat went to his grave grumbling about the election and complaining about “His Fraudulency” Rutherford B. Hayes.

But before the commission could begin to hear what one candidate called “the great lawsuit,” the Illinois legislature elected Justice David Davis to the Senate. The other four justices voted to fill his place with Justice Joseph Bradley, a known Republican, considered to be fair-minded. Perhaps he was. But as each set of Republican returns was presented to the commission during February, he voted with his fellow Republicans to accept them. By a straight 8 to 7 party-line vote, every disputed electoral vote went to Hayes to give him the needed 185.

A few outraged Democrats mounted a filibuster in the House to prevent final acceptance of the result before the relentlessly approaching March 4 deadline. But a majority of their colleagues deserted them, thanks to more dollar-conscious “unofficial” bargaining.

The final terms, secret but understood by the key players, were these: Hayes would not support the remaining Southern Republican machines with troops, so that they would soon collapse. A Southern Democrat would become Postmaster General in Hayes’s cabinet. Votes would be found on both sides of the aisle for more federal subsidies to the South. In a word, Southern Democrats, even more than Northern, had accepted national industrialization and wanted their cut of it. And the party of Lincoln was ready to call off the struggle for equality.

The final vote was reached at a bleary-eyed middle-of-the-night session on Friday, March 2. Hayes took the oath formally on Monday, the fifth, but for safety’s sake was privately sworn in on Saturday night. Some Democrats boycotted the public inauguration, and many a Democrat went to his grave grumbling about the “stolen election” and condemning “His Fraudulency” Rutherford B. Hayes.

So the revolution ended, and the transition to conservative rule took place. It was not violent on the national level. It was very much so within the states. It seemed a vindication of the American pattern of compromise, and so it was—among white Americans, who had finally decided that peace should take priority. The genuine political consensus without which elections are a meaningless form had finally been reached. But over the ensuing years the unconsulted Southern blacks paid the price.

One final irony is noted by the historian James P. Shenton. In 1860 a wrenching era began with the Southern refusal to accept the legitimate election of Abraham Lincoln. In 1877 it ended when the South surrendered what was very likely a legitimate mandate for Samuel Tilden.

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