1911 Encyclopædia Britannica/Electoral Commission

ELECTORAL COMMISSION, in United States history, a commission created to settle the disputed presidential election of 1876. In this election Samuel J. Tilden, the Democratic candidate, received 184 uncontested electoral votes, and Rutherford B. Hayes, the Republican candidate, 163.^[1] The states of Florida, Louisiana, Oregon and South Carolina, with a total of 22 votes, each sent in two sets of electoral ballots,^[2] and from each of these states except Oregon one set gave the whole vote to Tilden and the other gave the whole vote to Hayes. From Oregon one set of ballots gave the three electoral votes of the state to Hayes; the other gave two votes to Hayes and one to Tilden.

The election of a president is a complex proceeding, the method being indicated partly in the Constitution, and being partly left to Congress and partly to the states. The manner of selecting the electors is left to state law; the electoral ballots are sent to the president of the Senate, who “shall, in the presence of the Senate and House of Representatives, open all certificates, and the votes shall then be counted.” Concerning this provision many questions of vital importance arose in 1876: Did the president of the Senate count the votes, the houses being mere witnesses; or did the houses count them, the president’s duties being merely ministerial? Did counting imply the determination of what should be counted, or was it a mere arithmetical process; that is, did the Constitution itself afford a method of settling disputed returns, or was this left to legislation by Congress? Might Congress or an officer of the Senate go behind a state’s certificate and review the acts of its certifying officials? Might it go further and examine into the choice of electors? And if it had such powers, might it delegate them to a commission? As regards the procedure of Congress, it seems that, although in early years the president of the Senate not only performed or overlooked the electoral count but also exercised discretion in some matters very important in 1876, Congress early began to assert power, and, at least from 1821 onward, controlled the count, claiming complete power. The fact, however, that the Senate in 1876 was controlled by the Republicans and the House by the Democrats, lessened the chances of any harmonious settlement of these questions by Congress. The country seemed on the verge of civil war. Hence it was that by an act of the 29th of January 1877, Congress created the Electoral Commission to pass upon the contested returns, giving it “the same powers, if any” possessed by itself in the premises, the decisions to stand unless rejected by the two houses separately. The commission was composed of five Democratic and five Republican Congressmen, two justices of the Supreme Court of either party, and a fifth justice chosen by these four. As its members of the commission the Senate chose G. F. Edmunds of Vermont, O. P. Morton of Indiana, and F. T. Frelinghuysen of New Jersey (Republicans); and A. G. Thurman of Ohio and T. F. Bayard of Delaware (Democrats). The House chose Henry B. Payne of Ohio, Eppa Hunton of Virginia, and Josiah G. Abbott of Massachusetts (Democrats); and George F. Hoar of Massachusetts and James A. Garfield of Ohio (Republicans). The Republican judges were William Strong and Samuel F. Miller; the Democratic, Nathan Clifford and Stephen J. Field. These four chose as the fifteenth member Justice Joseph P. Bradley, a Republican but the only member not selected avowedly as a partisan. As counsel for the Democratic candidate there appeared before the commission at different times Charles O’Conor of New York, Jeremiah S. Black of Pennsylvania, Lyman Trumbull of Illinois, R. T. Merrick of the District of Columbia, Ashbel Green of New Jersey, Matthew H. Carpenter of Wisconsin, George Hoadley of Ohio, and W. C. Whitney of New York. W. M. Evarts and E. W. Stoughton of New York and Samuel Shellabarger and Stanley Matthews of Ohio appeared regularly in behalf of Mr Hayes.

The popular vote seemed to indicate that Hayes had carried South Carolina and Oregon, and Tilden Florida and Louisiana. It was evident, however, that Hayes could secure the 185 votes necessary to elect only by gaining every disputed ballot. As the choice of Republican electors in Louisiana had been accomplished by the rejection of several thousand Democratic votes by a Republican returning board, the Democrats insisted that the commission should go behind the returns and correct injustice; the Republicans declared that the state’s action was final, and that to go behind the returns would be invading its sovereignty. When this matter came before the commission it virtually accepted the Republican contention, ruling that it could not go behind the returns except on the superficial issues of manifest fraud therein or the eligibility of electors to their office under the Constitution; that is, it could not investigate antecedents of fraud or misconduct of state officials in the results certified. All vital questions were settled by the votes of eight Republicans and seven Democrats; and as the Republican Senate would never concur with the Democratic House in overriding the decisions, all the disputed votes were awarded to Mr Hayes, who therefore was declared elected.

The strictly partisan votes of the commission and the adoption by prominent Democrats and Republicans, both within and without the commission, of an attitude toward states-rights principles quite inconsistent with party tenets and tendencies, have given rise to much severe criticism. The Democrats and the country, however, quietly accepted the decision. The judgments underlying it were two: (1) That Congress rightly claimed the power to settle such contests within the limits set; (2) that, as Justice Miller said regarding these limits, the people had never at any time intended to give to Congress the power, by naming the electors, to “decide who are to be the president and vice-president of the United States.”

There is no doubt that Mr Tilden was morally entitled to the presidency, and the correction of the Louisiana frauds would certainly have given satisfaction then and increasing satisfaction later, in the retrospect, to the country. The commission might probably have corrected the frauds without exceeding its Congressional precedents. Nevertheless, the principles of its decisions must be recognized by all save ultra-nationalists as truer to the spirit of the Constitution and promising more for the good of the country than would have been the principles necessary to a contrary decision.

By an act of the 3rd of February 1887 the electoral procedure is regulated in great detail. Under this act determination by a state of electoral disputes is conclusive, subject to certain formalities that guarantee definite action and accurate certification. These formalities constitute “regularity,” and are in all cases judgable by Congress. When Congress is forced by the lack or evident inconclusiveness of state action, or by conflicting state action, to decide disputes, votes are lost unless both houses concur.

Authorities.—J. F. Rhodes, History of the United States, vol. 7, covering 1872–1877 (New York, 1906); P. L. Haworth, The Hayes-Tilden disputed Presidential Election of 1876 (Cleveland, 1906); J. W. Burgess, Political Science Quarterly, vol. 3 (1888), pp. 633–653, “The Law of the Electoral Count”; and for the sources, Senate Miscellaneous Document No. 5 (vol. 1), and House Miscel. Doc. No. 13 (vol. 2), 44 Congress, 2 Session,—Count of the Electoral Vote. Proceedings of Congress and Electoral Commission,—the latter identical with Congressional Record, vol. 5, pt. 4, 44 Cong., 2 Session; also about twenty volumes of evidence on the state elections involved. The volume called The Presidential Counts (New York, 1877) was compiled by Mr Tilden and his secretary.

1. The election of a vice-president was, of course, involved also. William A. Wheeler was the Republican candidate, and Thomas A. Hendricks the Democratic.
2. A second set of electoral ballots had also been sent in from Vermont, where Hayes had received a popular majority vote of 24,000. As these ballots had been transmitted in an irregular manner, the president of the Senate refused to receive them, and was sustained in this action by the upper House.