by Michael Liss
There are times where we are simply unable to surpass our elders.
“Corrupt” doesn’t capture it. Neither does any other epithet or adjective or modifier you care to couple with corrupt. When it came to ballot stuffing, voter suppression, intimidation, bribes, and just garden variety mendacity, the Election of 1876 had it all.
In some respects, this all makes perfect sense. In 1876, America is seething. It is the last year of the (impressively corrupt) Grant Administration, early in the Gilded Age, where the buying and selling of virtually everything is more a question of price than right or wrong. Reconstruction has been a mess: eight of the former Confederate States have thrown off their “Carpetbagger” governments and are now controlled by “Redeemers,” the same old folks that seceded from the Union after Lincoln was elected. The substantive meaning of the 14th and 15th Amendments as they relate to former slaves has evaporated in most places. There is xenophobia and anti-Catholic agitation and the continued threat of violence. And there is a dawning realization that the two-party system no longer sorts itself out with consistency when addressing the growing divide between the rich and poor, labor and capital, industrialized vs. agrarian, hard money vs. soft, lavish spending on internal improvements vs. frugality, and so on.
It is still possible for Republicans to ”wave the bloody shirt” and recall the Civil War, but a surprising number of former adversaries are finding common interests that seem to supersede allegiance to whatever uniforms they previously wore. Democrats have been shut out of the Presidency since James Buchanan, but, in 1874, at the height of the recession caused by the Panic of 1873, they rode a Blue Wave to control of the House. Is 1876 the year they can break the Republicans’ iron lock, especially with federal troops still propping up Reconstructionist governments in Florida, South Carolina and Louisiana?
It is November 8, 1876, the morning after Election Day. In this pre-exit-poll, pre-electronic-tabulation era, while the results are still trickling in, it looks like the Democrats have finally taken the Presidency. The extraordinarily dull Samuel J. Tilden, the present (and future) Governor of New York, not only has a lead of 300,000 in the popular vote, but also at least 184 Electoral Votes, just one short of a win. Rutherford B. Hayes, the present Governor of Ohio (and no live wire himself), has no more than 165. Three States are quite close—Florida (of course), which is leaning toward Tilden, South Carolina, with a slight margin for Hayes, and Louisiana, with a significant margin for Tilden. In a fourth, Oregon, a Republican Elector has turned out to be ineligible, and the Democratic Governor claims the right to replace him (with a Democrat). Twenty Electoral Votes out there, and all Tilden needs is one.
The Hayes people are initially depressed. If the reported margins are correct, if either Louisiana or Florida go to Tilden, then the game is over. It is General Dan Sickles who first grasps that, if the Pacific-rim States come in for Hayes, and those three wayward Southern States can be swung in his direction, and whatever bizarre thing that is happening in Oregon can be averted, than Hayes would hit 185 and win the White House.
Sickles might have been one of the most colorful personalities 19th Century America produced (and there was a lot of competition for that crown). Among his many notable accomplishments were leading a heroic, if ill-chosen, stand at Gettysburg (where he lost a leg), serving in the House of Representatives and as Minister to Spain, and, my personal favorite, being the first person in the United States acquitted of murder by reason of temporary insanity. Sickles had accosted Phillip Barton Key II, nephew of Francis Scott Key and then U.S. Attorney, across the street from the White House, and shot him dead for sleeping with Sickles’ (much younger) wife. After a dramatic trial, he was set free.
Fortunately, that little dalliance with unreality was past, leaving Sickles ready for the moment. He quickly roused other Republican powers, including Zachariah Chandler, the Chairman of the Republican National Committee (who apparently had fortified himself with a substantial quantity of spirits the evening before, and was not entirely coherent). These men contacted Republican elements in Florida, South Carolina, and Louisiana (all three still under federal control as part of Reconstruction, with “Carpetbagger” governments), plus Nevada and Oregon, and told them all to hold fast. The Cavalry might still be coming.
One of the Republicans’ real vulnerabilities in this fight (beyond the fact that Tilden had a sizable lead in Louisiana) was that they had been absolutely pulverized in the 1874 Midterm Elections. The loss of the House was critical, since the House was where all contested Elections were supposed to end. So it had been in 1824, when John Quincy Adams bested Andrew Jackson with some assistance from fellow candidate Henry Clay. So it would be in 1876, if the Republicans weren’t careful. The pesky 12th Amendment clearly said so. Hayes needed to get to 185.
Nowadays, the two parties send platoons of lawyers to dispute votes, but, in those days, lawyers were considered too scrupulous, so a collection of distinguished worthies (Civil War officers, men of means, newspaper editors, lobbyists, men of even more means) were dispatched to the contested States. These folks were called, apparently without irony, “visiting statesmen.” The visiting statesmen’s job was to twist (or massage) enough arms so that “returning boards” (which had the actual authority to decide what the exact tallies were) would be impressed enough with the justice of the candidate’s cause to display the appropriate amount of vision.
It was Hayes who needed serendipity, but, as was the custom of the day, neither candidate acted as a leadership voice in the argument. That would be considered unseemly, as personal campaigning was. Electioneering (and “influencing”) was a team sport, and, in 1876, the Republicans had the better team. They also had Grant’s troops to protect returning boards should those returning boards make the “correct” (but quite possibly unpopular) decision.
First, to the job at hand: securing the Electoral Votes of Florida, South Carolina, and Louisiana.
South Carolina was the putatively the easiest—the unofficial count had Hayes up by between 600 and 1000 votes, but Democrats seemed to have won both the Governorship and control of the State Legislature. That wouldn’t do, so the five-man, all-Republican, South Carolina returning board got creative, and, on November 22, invalidated all (as in, “all”) the votes from two Democratic counties, Edgefield and Laurens. That both confirmed Hayes’ State-wide lead and managed to flip back the State Legislature. Then, the Republicans in the Legislature refused to accept the newly elected (and returning-board-rejected) Democrats from Edgefield and Laurens, and declared Daniel Chamberlain the winner of the Governor’s race. Angry Democrats then walked and set up a rival government (yes, a rival government) under Wade Hampton, a former Confederate General. This didn’t solve Hayes’ problem completely, as both parties would later send their slates of electors to Washington, but, since he had won the preliminary tally, it seemed sufficient.
Next, to Louisiana, and here’s where things were very dicey. Tilden held a substantial lead—roughly 6,300 votes, difficult simply to wave a wand at unless the person holding the wand (at that point, James Madison Wells, former Governor and then head of the returning board) was sufficiently pliant. Wells was particularly fond of money, and money was available in return for flexibility. On December 5, in a move that showed flexibility to the point of double-jointedness, the returning board tossed out enough votes to turn Tilden’s 6,300 vote edge into a Hayes margin of more than 5,000. In the same breath, it also flipped back the State Legislature. Just as in South Carolina, angry Democrats set up a rival government. As unfair as a net exchange of nearly 12,000 might seem to the objective eye, the well-meaning Hayes was convinced by his friends that the original Tilden (and Democratic) edge was the result of the Democrats having terrorized black voters, and so justice was done.
On to Florida. There, Hayes trailed by 94 votes, and, again, Democrats seemed to have won both the State Governorship and State Legislature. But Florida was ground zero for the more flamboyant forms of cheating—multiple voting, the odd dead person, stuffing some ballot boxes, “misplacing” others, even reports of Democratic ballots printed with Republican symbols to fool illiterate voters (in 1870, 20 percent of the total population was illiterate, 80 percent of former slaves). So there was every reason to believe that Tilden’s edge might not have been entirely earned. Of course, the Republicans did some of the same things leading General Lew Wallace, a Hayes visiting statesman and later the author of Ben Hur, to report back that he couldn’t tell which side was worse. Once again, Florida’s returning board (controlled by Republicans) found votes to flip (a net of about 1,000), and there went the State to Hayes.
Those three states gave Hayes 185 Electoral Votes, and the victory, if anyone would accept it. Except, not quite yet. Oregon provided the Democrats a last toe-hold, and they gripped it hard. In Oregon, Hayes clearly carried the popular vote, but one of his Electors was a federal employee, which was clearly prohibited by the 12th Amendment. Presumably, he would simply be replaced by another Republican—except that Oregon’s Governor (the colorfully named La Fayette Grover) was a Democrat, and, at the behest of DNC Chairman Abram S. Hewitt (also known as the Father of the New York City Subway System), he picked the replacement—a Democrat.
Under the 12th Amendment, all States needed to certify their Electoral Votes and send them on to Washington to be “counted” by December 6. Thirty-four of those States complied. Our four got creative—Florida, South Carolina, and Louisiana sending completely rival slates, and Oregon with one slate having the all-Republican Electors, a second with one Democratic Elector.
Now it was time for the lawyers, because the two sides immediately disagreed on what the 12th Amendment actually meant. It says the “President of the Senate” (usually, the sitting Vice-President, unless he has passed away) shall “count” the votes sent in by the States in the presence of the House and Senate. No one was exactly sure what that meant, down even to the word “count.” Hayes, given that the Republicans still controlled the Senate, insisted that “count” meant, in effect, “decide,” and that the “counting” should be done by then President Pro Tem of the Senate, Thomas Ferry of Michigan (unsurprisingly, a Republican), standing in for the deceased Henry Wilson. Democrats, needless to say, disagreed, and said the “counting” should be done by either throwing it to the House (which they controlled), or, at the very least, to both Chambers, and “counting” should also include Hewitt’s suggestion, which was to reexamine how the returning boards made their decisions. One thing was certain: as long as Democrats controlled the House, no Republican Senator was going to decide, on his own, who got to be the next President.
The two sides squared off. Interestingly enough, although Hayes was insistent that the only “counting” could be done by Ferry (to his mind both the correct and winning decision), in those days, there was still interest in preserving Congressional prerogatives, and many of Hayes’ fellow Republicans pushed back.
The old adage that politics makes for strange bedfellows began to come into play. Not every Republican was with Hayes, and not every Democrat with Tilden. Both local and regional interests began to chip away at party discipline.
Hayes’ most serious individual defection was Roscoe Conkling, a powerhouse in New York, who insisted on controlling the State’s patronage, something to which Hayes would not accede. Some Southern Republicans were more wary of a Hayes Presidency than a Tilden one, as Hayes had expressed warm, conciliatory thoughts toward the South (although he had not openly made any hard commitments). These Southern Republican Senators worried about being isolated in a region dominated by hostile Democrats.
As for Tilden, not only did his cold-fish personality and detachment fail to inspire loyalty, there were also legitimate concerns coming from Southern Democrats. They wondered if it was better to cut a deal with Hayes—support in return for a hard commitment to Home Rule, getting rid of the troops, the Carpetbaggers, and (more quietly) any substantive rights for former slaves. With those in place, the South would be solidly Democratic in the span of a few years.
Not to be ignored were economic interests. Business wanted markets, infrastructure spending, and taxpayer favors. The most potent of the businesses were the railroads, already the beneficiaries of insanely rich subsidies. Their lobbying forces, led by Thomas A. Scott, the President of both the Pennsylvania and the Texas and Pacific Railroads, had their hands everywhere, using a variety of inducements to gain another round of largess. They were able to frame this as a regional issue for Southern politicians—the North had received the lion’s share of internal improvement money, and the South needed parity to have a chance to grow. But also lobbying was Scott’s sworn enemy, Collis P. Huntington of the Southern Pacific, who proposed to build West to East, without subsidies. Unsurprisingly, there was considerable resistance amongst Northern politicians of both parties to a big new round of grants, particularly to the South. The importance of railroad influence on the final election result has been debated by historians (I recommend C. Vann Woodward’s Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction), but there is little doubt the railroads swung a big stick.
What the power brokers and regional interests were really seeking was more about leverage and less about party. Tilden’s ascetic campaign (he ran mostly on Reform in a time of economic depression) enthused few, so they looked to Hayes for clear commitments that their needs would be served.
Hayes wasn’t especially good at cutting deals. He still believed he was absolutely entitled to the win, without further ado, and he had talked himself into believing that “counting” simply meant “counting by my loyalist who will accept only results favorable to me.” That being said, he was also willing to allow close associates like John Sherman (then Senator from Ohio, later Hayes’ Secretary of the Treasury, and McKinley’s Secretary of State) to represent that they understood his private thoughts, while Hayes, himself, didn’t have to commit to anything.
All this jockeying back and forth was taking time off the calendar. It wasn’t so much that Tilden was growing stronger, as that the internal cross-currents were still being negotiated. In mid-December, the parties managed an ingenious, but highly questionable solution. The two sides decided to create a committee of 15, an “Electoral Commission” consisting of five members of the House, five of the Senate, and five Supreme Court Justices—in all, seven Democrats, seven Republicans, the 15th, a Supreme Court Justice considered “neutral.” In our politicized time, it’s hard to see this as anything other than a recipe for rank partisanship, but the two sides actually had someone in mind for that 15th slot—Justice David Davis, Lincoln’s friend and former campaign manager, who had sat on the Court for nearly 15 years, and was considered fair-minded. In effect, the Electoral Commission really consisted of one man—David Davis. What was amazing was that enough people had confidence in his principles that they would place their (political) fate in his hands.
Ah, best laid plans. Before Davis could actually assume his duties, the Democratically controlled State Legislature of Illinois (possibly induced by Tilden’s thoroughly corrupt nephew) selected him to be their Senator, presumably also thinking that this might influence his decisions on the Commission. To modern ears, this sounds completely crazy: Who would step down from a lifetime appointment on SCOTUS to take a Senate seat—particularly in an era in which the State Legislatures, and not the voters, selected Senators? But Davis was an ambitious man who had previously expressed interest in being President, and, on January 25, he accepted.
Best laid plans, Part II. Davis really was honorable (if a bit of a lifetime operator) and promptly resigned from the Commission, because he didn’t want the implication he’d been bought. The Illinois Democrats had shot themselves, their Party, and Tilden in the foot. With Davis out, what the Electoral Commission got was a consistent eighth Republican vote, that of Justice Joseph P. Bradley. Why Democrats went along with this is unclear—likely they thought he was the best of a bad lot, given his previous decision on the unpopular-in-the South Enforcement Act, but it was Bradley who subsequently came in for most of the blame (including the unproven but tantalizing allegation that he changed his mind as to how to vote at the very last moment, under some influence).
February 1, 1877. It began. A joint session of Congress heard the reading of each State’s returns, until it got to Florida. The conflict was joined, the dispute was referred to the newly created Commission, and the Joint Session adjourned.
Immediately, the critical question was upon them. Should the Commission “go behind the vote” (as Hewitt had wanted and planned for)? More specifically, could (and should) they investigate whether the final vote totals as certified by Florida, in particular, and, by extension, South Carolina, Louisiana, and Oregon, did in fact reflect the popular will? In many respects, this was not only a threshold question, but a decisive one.
In fairness, this was not easy. No one, not even the fiercest partisan, seriously believed that Florida, or any of the disputed election tallies, was accurate. What the Commission’s decision on this point would come down to was, in essence, an irrevocable choice to favor slates certified by the then Republican-controlled States, and not those proposed by Democrats. This was, in effect, Hayes’ position from the beginning—or, to put it in less delicate terms, the side with the power to cheat last would win. Complicating this was that the Florida Supreme Court had already weighed in on December 14, saying that the Democrats had indeed been defrauded, and permitting Democrats to take control of the State government on January 1, 1877. But the Commission didn’t feel itself bound by the State court as it related to the counting of Electoral Votes, and it bought the argument of Republicans that a recanvass was essentially impossible, particularly given how little time was left to Inauguration Day (March 4, 1877). With that, on February 9, by an 8-7 decision, with Bradley in the majority, Florida went Hayes.
Anyone reading the tea leaves could have predicted what came next, and both candidates did. Hayes started planning his Cabinet and sketching out his policies. Tilden turned his attention to a European trip. Democrats were furious, but they were also basically powerless. Having agreed to let the Electoral Commission resolve the election, and having acceded to Bradley’s selection, they knew they were being cheated and also understood that, beyond a miracle in Louisiana, all they had left were procedural moves.
Democrats played the card they had—the threat of a filibuster, and delay. They wanted something, most particularly Home Rule and the end of Carpetbagger governance where it still existed. Railroad money was also being fire-hosed about, and roughly three dozen Democrats pushed for subsidies for the Texas and Pacific plan.
February 12, Louisiana, perhaps the last levee. In hindsight, it’s hard to say why the Commission didn’t take a harder look at the State, given the extent of what was clearly fraud, and being mindful of the shift of what amounted to about eight percent of the entire vote. But the game had been decided when the Committee refused to go behind the votes, and, with that construct, the Democrats’ Louisiana case was, in form and substance, identical to that of Florida…and just as hopeless. On February 16, the Commission went 8-7 for Hayes.
Hayes really started measuring the drapes. He now was faced with a new round of questions—how free a hand would he give the Redeemers in the South, when would all the troops be withdrawn, and what would happen to the rights of the former slaves? Also emerging, the growing insistence of the railroad forces, who were nominally backing Hayes as the perceived winner, for concrete promises on their deliverables.
Hayes continued to be coy. He seemed to be promising a great deal of “friendship” and “looking kindly on” to virtually everyone, but no one could pin him down. It’s hard to say whether it was out of principle or calculation, but it was shrewd politics, with his Inauguration seemingly assured.
Southern Democrats weren’t quite done. They wanted concessions, particularly in Louisiana and South Carolina, where Home Rule also meant to them the recognition of Democratic Governors Francis T. Nicholls and Wade Hampton. This was a tough pill for Hayes and the Republicans to swallow, especially since both Gov. Stephen B. Packard of Louisiana and Gov. Daniel H. Chamberlain of South Carolina were doing their utmost to keep their States Republican, even at the risk of their personal safety.
There was an intellectual point as well, one that went to the legitimacy of the Hayes Presidency. Packard and Chamberlain were the beneficiaries of the same vote-switching scheme as Hayes. If his claim to office was based on those tallies, why wasn’t theirs?
More dissonance, this time from an unexpected source. Southern Republicans, again angry about Hayes’ stroking of Southern conservatives, and fearful of being cut loose to Democrats’ tender mercies, threatened to bolt to Tilden if they weren’t mollified with some tangible goodies, like Cabinet positions. They were made some vague promises and then whipped in the Senate vote on the Louisiana decision on February 19.
Everyone was running out of time. Democrats had only the threat of not ratifying the Commission’s decisions, and only if they could hold through a filibuster. They realized the public would not be happy about the chaos that would occur on March 4 if there were no President, and they had absolutely no viable path to winning. The best they could do was negotiate around the edges.
Hayes wasn’t the easiest man to negotiate with. The soon-to-be President Elect was now right in the middle of trying to assuage everyone’s fears, while not conceding anything publicly. More anodyne statements without substance emerged from his spokesmen.
February 23, Oregon. Quickly disposed of (and possibly the only fair decision of the four), the Commission gave Hayes all three of Oregon’s Electors.
Then, a last minute gaffe came from an unexpected source. An editorial in the Ohio State Journal, considered very friendly to Hayes, called for Grant to uphold Packard’s Governorship in Louisiana with the use of federal troops. This was exactly what Southerners, who had thought they had extracted a promise of the end of “bayonet rule,” feared. If Hayes was behind this, it was a signal he wasn’t going to deliver. The day after Oregon was decided, fired-up Democrats forced a two day adjournment. They wanted what they thought was promised to them. President Grant then took an interesting step, saying that Louisiana Democratic Governor Nicholls should be entitled to stay in office.
It was time to work something out. Edward Burke, then the personal representative of Louisiana’s Democratic Governor Nicholls, huddled together with Sherman and a few others in Stanley Matthew’s rooms at the Wormley Hotel. Matthews, a future Senator and Supreme Court Justice, had been among those arguing Hayes’ case before the Electoral Commission. Everyone wanted something. Sherman needed to hear from Nicholls that the rights of blacks would be respected in Louisiana (Hayes would have insisted), and that outgoing Governor William Pitt Kellogg’s appointment as Senator would be left untouched (Senate Republicans needed the seat). A great deal of discussion took place between all of the parties, with other interests (including that of the railroad lobby) coming into play. Deals were made, some to which Hayes might not have agreed, like the abandonment of Packard. It’s not clear that any new ground was broken, but sometimes the appearance of activity is as important as the substance.
February 27, the Commission met again, and, again, by the same 8-7 margin, settled South Carolina for Hayes. With that formality, and the deals at Wormley, the stage seemed to be set for the closing act.
But the count did not go well. On February 28, the Democrats were back to filibustering, and forced the House to adjourn without taking action. On March 1, the session resumed with ferocity. Men jumped on desks and shouted at each other and at Speaker Samuel Randall, who ruled against the holdouts time after time. While the back and forth continued, Louisiana’s Democratic Congressmen sent a message to Grant, urging him to withdraw troops from their State immediately. Grant, through his Secretary, showed them a text of a telegram he would send to Republican Governor Packard, stating that he (Grant) would not support Packard’s government, provided that the count continued. William M. Levy of Louisiana rose, was recognized, and announced he had received sufficient assurances from both Grant and friends of Hayes that the new Administration’s policy toward the South would be one of “conciliation.”
The Democrats had played a weak hand well, and, with Levy’s remarks, they essentially read it into the record. The leadership called for a vote, but, even at this last moment, 57 diehards continued to obstruct, and final passage didn’t come until 3:38 a.m. It went to the Senate, and, at 4:10 a.m. on March 2, Hayes finally got his reward.
As March 4 was a Sunday, Hayes was sworn in privately at the White House on March 3, with a public ceremony on Monday March 5. At the same time as his private ceremony was taking place, incensed Democrats, not and never to be reconciled to what had occurred, introduced and passed a resolution declaring Tilden the winner of the 1876 Election. As is often true in politics with public responses to the seamy, it was an empty gesture.
Special thanks to Professor Philip Klinkner of Hamilton College, who was kind enough to point me in the right direction after I received an email from a reader suggesting the 1876 election as a topic.
If you are interested in Rutherford B. Hayes (and the Election of 1876), you may wish to visit the website of his Presidential Library, where there are two excellent pieces—the first, the text of a speech by Michael Holt, and, the second, a chapter of a longer book, Disputed Election, by Ari Hoogenboom.