President

On this day in 1822, a future President of the United States is born. Rutherford B. Hayes’s election would be one for the record books! Would you believe that the 1876 election wasn’t decided until two days before Inauguration Day?

It makes the contentious 2000 election look like a picnic.

The election had started uneventfully enough. Democrat Samuel J. Tilden seemed certain to win. Some newspapers even reported a Tilden victory the morning after Election Day. But at least one man thought the race wasn’t over yet.

What would have happened without Civil War hero General Daniel E. Sickles? He was on his way home from a dinner that night when he decided to swing by Republican headquarters and check out election returns. He thought that Democrats were celebrating too early. Hayes could still win by a single electoral vote if he could just hang on to the closely contested states of South Carolina, Florida, and Louisiana.

Sickles sent telegraphs to officials in each of those states: “WITH YOUR STATE SURE FOR HAYES, HE IS ELECTED. HOLD YOUR STATE.”

And so, you could say, the politicking began.

To his credit, Hayes seemed uncomfortable with at least some of it. “[W]e are not to allow our friends to defeat one outrage and fraud by another,” he said. “There must be nothing crooked on our part.” He’d just received a report that his vote tallies in Louisiana should be higher: Black men had been kept from the polls there.

The election was contested in four states. In South Carolina, Florida, and Louisiana, state officials submitted multiple slates of electors. Should Congress count the votes of the Republican electors or should it count the votes of the Democratic electors? The identity of a single elector in Oregon was also in doubt.

In total, twenty electoral votes were disputed. Hayes needed all of them if he was to win the presidency. Tilden needed only one.

Unsurprisingly, no one knew what to do about the conflicting sets of election returns. The Senate was then controlled by Republicans, while the House was controlled by Democrats. Congress finally created an Electoral Commission composed of 15 Senators, Congressmen, and Supreme Court Justices.

The intent had been to create an evenly divided commission: seven Republicans, seven Democrats, and one independent Supreme Court Justice. Unfortunately, the Illinois state legislature accidentally got in the way by selecting Justice David Davis to the United States Senate, just as he was about to serve on the Commission. He’d been an acknowledged independent, but now there was no other similar Justice to take his place. Instead, he was replaced by Justice Joseph Bradley, a Republican appointee.

Did such early incidents in our nation’s history affect the perception of some that the Court should intervene for political purposes on occasion? Would confirmation battles be less fierce today if our ancestors had more steadfastly avoided such a mixture of politics and the Court?

Either way, the Republican-controlled Commission predictably decided all 20 disputed electoral votes in favor of Hayes. Southern congressmen objected at first, but withdrew those objections in return for an agreement to bring Reconstruction to an end.

Hayes was finally declared the winner of the presidential election at about 4:00 in the morning on March 2, 1877. Just two days later, he was inaugurated 19th President of the United States.

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