Eight to Seven

The midterms end tonight, November 3. Four days later, on Saturday, November 7, the country crosses an anniversary almost nobody has circled on the calendar. It is one hundred fifty years since the presidential election of 1876, the night the United States voted and then could not say who had won. The count ran for four months. It finished in a borrowed courtroom and then in the House chamber, in the small hours of a March morning, by a margin of one electoral vote. Congress resolved it with a procedure invented on the spot. The price was collected from people who had no seat in the room, and they kept paying it for the better part of ninety years. I count 1876 the worst election in American history. The election of 1860 brought on a war, but its count was honest; in 1876 the count itself was the fraud. The country is still legislating in its shadow, and this is a good week to read the record it left.

No one disputed the raw numbers. Samuel J. Tilden, the Democratic governor of New York, finished about a quarter of a million popular votes ahead of Rutherford B. Hayes, the Republican governor of Ohio. In the electoral college Tilden held 184 certain votes against Hayes’s 165, with 185 required to win. Twenty votes hung in the air: Louisiana’s eight, South Carolina’s seven, Florida’s four, and one of Oregon’s three. Tilden needed one of them. Hayes needed all of them. No law on the books told the country who had the power to give them away.

The Constitution left a hole where the crisis opened. The Twelfth Amendment directs the president of the Senate to open the states’ certificates in the presence of both houses, and then, in six words, “the votes shall then be counted.” Who counts them, and who decides when a state mails in two certificates that contradict each other, the text never says. On December 6, 1876, rival colleges of electors met and voted in four capitals, in Salem, Columbia, Tallahassee, and New Orleans, and Washington received dueling returns from all four. The Senate was Republican, and Republicans argued the Senate’s president could settle the count himself. The House was Democratic, and Democrats argued no count could proceed over its objection. Either theory, followed to its end, elected a different man.

The twenty votes were never honestly ambiguous. In each of the three Southern states a Republican returning board held legal control of the canvass, and each board used it to discard Democratic ballots on a wholesale scale. The boards deserve their best case first. Fraud and violence soaked the election of 1876 across the South, and both parties had done the soaking. The boards claimed they were throwing out precincts where terror, much of it aimed at Black Republican voters, had made a free count impossible. Some of that terror was real and documented. What the boards then produced, however, were official certificates for Hayes, signed by Republican governors, and the printed record shows boards less interested in cleaning the count than in owning it.

Louisiana’s paperwork convicted itself. The Democrats’ formal protest before the Electoral Commission, printed and argued in February 1877, worked from the board’s own papers. On the consolidated statements the parishes returned to the board, the Democratic electors led; the Hayes slate, headed by Governor William Pitt Kellogg, ran 3,459 votes behind. The board refused to canvass some 10,280 votes shown for each Democratic elector. It credited Kellogg with 234 votes that no poll in the state had reported, and it certified the Hayes electors anyway. The protest named the board’s members, J. Madison Wells, Thomas C. Anderson, L. M. Kenner, and G. Casanave, and charged each of them with taking a bribe for the certificate. The same board had opened its canvass with a resolution welcoming the “distinguished gentlemen of national reputation” whom both parties had sent south to watch it work.

Oregon contributed the one clean farce. Hayes had plainly carried the state, but one of its three Republican electors, John W. Watts, drew postmaster’s pay in the town of Lafayette, and Article II bars any person holding an office of trust or profit under the United States from appointment as an elector. Watts resigned the postmastership a week after the election. Governor La Fayette Grover, a Democrat, struck him anyway and certified E. A. Cronin, the highest Democratic finisher, in his place. Cronin then convened himself, cast one vote for Tilden and two for Hayes, and mailed his own certificate to Washington. The maneuver had a purpose beyond one electoral vote. If Republicans went behind Grover’s certificate to reach Watts, Democrats could demand that Congress go behind the governors’ certificates in the South, where the returning boards were vulnerable.

The country rehearsed for violence through December and January. Tilden’s supporters talked of massing on Washington; Grant’s people talked of federal troops keeping the peace. Cooler men in both parties built a machine instead. The Senate and House each appointed a special committee in the week before Christmas. The committees produced a bill for a fifteen-member Electoral Commission: five senators, five representatives, four justices named in the act, and a fifth justice chosen by those four. Its judgments would stand unless both houses, acting separately, agreed to overturn them. The Senate passed the bill 47 to 17 on January 25, 1877. The House passed it 191 to 86 the next day. Grant signed it on January 29 and called it, in his message to Congress, a “wise and constitutional means of escape.”

Everything in the design depended on one man. The act’s arithmetic was seven Republicans, seven Democrats, and Justice David Davis of Illinois, an independent whom Lincoln had put on the Supreme Court and whom nobody could read. As the bill moved through Congress, the Illinois legislature elected Davis to the United States Senate, on the fortieth ballot, with every Democratic vote in the chamber and not one Republican vote. Democrats believed they had purchased his loyalty. They had purchased his departure instead. Davis took the Senate seat, excused himself from the commission, and in time resigned from the Court. The four justices named in the act chose their colleague Joseph P. Bradley of New Jersey, a Republican, and the commission’s balance settled at eight Republicans and seven Democrats.

Hearings opened in the old Senate chamber, the room the Supreme Court then occupied, and the commission sat like a court, with counsel arguing for each candidate. Hayes’s lawyers, led by William M. Evarts, contended that no body in Washington could look behind a governor’s certificate; to reopen county returns, Evarts argued, was an endless task, and March 4 was coming. Tilden’s lawyers answered that Senate and House committees had already taken the testimony, that the testimony showed Tilden had carried Florida and Louisiana, and that a certificate obtained by fraud proved nothing. Florida’s Supreme Court had agreed with the Democrats in December, reversing that state’s returning board, and by the first days of January the Democrats had taken possession of Florida’s government.

The commission voted four times, always eight to seven. On February 9 it gave Florida to Hayes. Louisiana followed on February 16. Oregon fell on February 23, in a vote taken at Senator Thurman’s house because the Ohio Democrat was too ill to come to the Capitol. On February 27 it gave South Carolina to Hayes. Each report drew the same divided response in Congress: the Democratic House voted to reject it, the Republican Senate to sustain it, and since overturning required the two houses to agree, every report stood. Bradley wrote the deciding opinions, and Democrats have never stopped suspecting him of switching sides under pressure in the Florida case; the record shows only that he voted with the Republicans on every question that mattered.

The count then resumed in the House chamber and ground toward morning. Past four o’clock on March 2, with the president pro tempore, Thomas Ferry of Michigan, presiding in place of a vice president who had died in office, the tellers finished: Hayes 185, Tilden 184. The House’s legislative day of February 1 formally adjourned at 4:12 a.m. on March 2. Hayes himself heard the news on a train. He had left Columbus for Washington on March 1, and near Harrisburg, as his diary records it, the party was “wakened to hear the news” that the two houses had counted the last state and declared him elected. Tilden, who had counseled his followers against violence all winter, made no public protest.

Hayes took the oath twice. He arrived in Washington on Friday morning, drove to the Capitol, and the colored hack-drivers, his diary records, “cheered lustily.” The first oath came on Saturday evening, March 3, in the Red Room of the White House, before Grant’s state dinner. March 4 fell on a Sunday, and both administrations worried over an interregnum from Sunday noon to Monday’s ceremony, so Chief Justice Morrison Waite administered the oath a day early. The arrangement, Hayes wrote, was Secretary Fish’s and the President’s: “I did not altogether approve but acquiesced.” The public inauguration followed on Monday, March 5, on the East Portico, where Hayes told the country that “he serves his party best who serves his country best.” He had spent the winter saying almost nothing. The address was his first public account of the settlement that had made him.

On the evening of February 26, while the filibuster against the count still held the House, Hayes’s men and a delegation of Southern Democrats met at Wormley’s Hotel, a few blocks from the White House. James Garfield recorded the evening in his diary with nine flat words: “Went to Wormley’s at the invitation of Stanley Matthews.” The proprietor was James Wormley, a free-born Black caterer who had built one of the finest hotels in Washington and lobbied Congress for the city’s first Black public school. In his rooms, Republicans gave assurances: the troops would leave the South, a Southerner would enter the cabinet, Southern interests would find a friend. The filibuster collapsed within days.

Historians still argue about whether a true bargain was struck at Wormley’s. Hayes needed no bribe to withdraw the troops. His letter of acceptance, written in July 1876, already promised the South “honest and capable local self-government,” and he wrote to Carl Schurz during the campaign that the phrase seemed to him to “smack of the bowie knife and revolver,” because local self-government had already nullified the Fifteenth Amendment in several states. He knew what the words covered. Whether the Wormley assurances bought the count or only confirmed it, the price was understood on both sides, and it was paid on schedule.

Hayes’s diary shows him choosing the payment method with open eyes. His March entries listed the options for Louisiana and South Carolina. Order a new election. Let the legislatures act. Recognize the Republican claimants, Packard and Chamberlain, and leave them to their state remedies. Or withdraw the troops and leave events to take care of themselves. He wrote that his policy was “to put aside the bayonet,” and that he did not believe contested state elections should be decided by the national army. On April 10, at the stroke of noon by the city clock, the soldiers marched out of the South Carolina statehouse. Chamberlain issued a manifesto arraigning the President for deserting the party that had made him. Wade Hampton’s government stood alone. On April 24 the troops left the New Orleans statehouse, and Stephen Packard yielded, saying that one by one the Republican governments of the South had been forced to succumb to “force, fraud or policy.” Reconstruction’s last two garrisons were gone within Hayes’s first two months.

The bill went to the people the bayonet had been protecting. David Key of Tennessee, a Democrat, took the Post Office Department as the promised Southern seat; Stanley Matthews went to the Senate from Ohio. Black Southerners got the disfranchisement that followed: the Mississippi convention of 1890, Louisiana’s grandfather clause in 1898, the poll taxes and literacy tests and white primaries, and a Supreme Court that in 1898 found the devices constitutional. The Fifteenth Amendment became a dead letter across most of the South for generations, until the Voting Rights Act of 1965, eighty-eight years after the troops marched out. That is what it means to say the country’s worst election was resolved by a procedure and paid for by Black Southerners for ninety years.

Hayes had written the counterfactual himself. On February 25, two days after Oregon fell and the outcome was sure, he drafted in his diary the speech he might give. The country needed peace, he wrote, and the Thirteenth, Fourteenth, and Fifteenth Amendments “shall be sacredly observed and faithfully enforced.” The speech was never given. Charles Richard Williams, who edited the published diary, left the entry a flat footnote: “No occasion presented itself for the delivery of such a speech.” The man who benefited from the count drafted the promise that would have redeemed it, and never found the occasion to deliver it.

Congress has tried twice to close the wound with a statute. The first attempt belonged to George Frisbie Hoar of Massachusetts, who had sat on the commission and voted with the eight. For years Hoar carried a bill to make another commission impossible, and on February 3, 1887, Cleveland signed it: the Electoral Count Act, three pages at 24 Statutes at Large 373. Its rules answered 1877 point by point. A state that settled its own contest under laws written before election day, at least six days before the electors met, was conclusive. Congress would take the governor’s certificate, objections required one member of each house in writing, and no vote could be thrown out unless both houses agreed. Hoar said on the Senate floor that the president of the Senate was “not clothed by the Constitution with the power to count the electoral vote.” The machine of 1877 was dismantled and its parts were bolted down.

For a hundred and thirty-four years the scar held, and then January 6, 2021, showed where the sutures had been left loose. One member of each house could still force a vote on a state’s electoral votes, and they did. The vice president’s role was undefined, and a theory grew up in that gap. The 2022 reform, sponsored by Susan Collins and Joe Manchin and signed on December 29, 2022, tightened the old law at each loose point. An objection now needs one-fifth of each chamber. The governor’s certificate is the single conclusive slate. Disputes get expedited court review. The vice president’s duties at the joint session are, in the statute’s word, ministerial. The ancient “failed election” clause, which a legislature might have used to set aside its own people’s vote, gave way to a narrow exception for “extraordinary and catastrophic” events. Each clause answers a specific failure, and most of the failures happened in 1877.

Scar tissue is the right name for both laws. A scar proves the body survived. It also proves the wound existed. The Electoral Count Act and its 2022 repair do not erase what happened in the old Senate chamber in February 1877, when fifteen men voted eight to seven, four times, and made a president; they preserve its outline in law. This anniversary, arriving in midterm week, deserves an honest reading. The election of 1876 was decided by a procedure, and the procedure worked, in the narrow sense that the country got a president without a second civil war. That procedure had a price, and the price was negotiated in a Black man’s hotel and billed to Black voters for ninety years. James Wormley had died in 1884; his hotel was demolished in 1906 for a trust company’s building. The record is still open: the commission’s proceedings fill a volume of the Congressional Record, Hayes’s diary rests in Fremont, and the two statutes remain on the books over the same hole in the Constitution. The hole is covered. It was never filled.