On the night of November 7, 1876, as the results of the Presidential election between Samuel Tilden, the Democratic governor of New York, and Rutherford B. Hayes, the Republican governor of Ohio, began to come in, America, in its centennial year, was barely holding together. Reconstruction was faltering. The economic collapse that followed the Panic of 1873 had left millions out of work, and provoked strikes and labor unrest across the nation. The outgoing Republican Administration of Ulysses S. Grant had been embroiled in a series of corruption scandals. A few months earlier, Sioux warriors had defeated General George Custer and his troops at Little Bighorn. Hayes, whom Henry Adams described as a “third-rate nonentity,” had earned the Republican nomination, in large part, by being the one candidate all factions of the Party could agree on. Tilden and the Democrats seemed poised for an easy victory. As the historian Eric Foner writes in “Reconstruction,” his history of the period, “political corruption and the depression became Tilden’s watchwords; issues many Republicans feared would suffice to carry the election.”

Before Election Day was over, it was clear that Tilden, who, in his previous career as a Gilded Age corporate lawyer and reorganizer of bankrupt railroad lines, had earned the nickname the Great Forecloser, would comfortably win the popular vote. He needed only a single vote in the Electoral College to put him over the top, and results were outstanding in Florida, South Carolina, and Louisiana, where white citizens routinely used violence, intimidation, and fraud to keep their Black neighbors, most of whom were loyal to the Republican Party of Abraham Lincoln, from voting. With the prospect of Democrats taking the White House through disenfranchisement at hand, Republicans moved to steal the election outright. “With your state sure for Hayes, he is elected,” Party leaders said in an Election Night telegram to their cronies in the three Southern states. “Hold your state.”

In Florida, the two Republicans on the three-person election board—Samuel McLin, the Florida secretary of state, and Clayton Cowgill, the state comptroller—systematically approved and rejected results, district by district, to swing the election in their party’s favor. “If the canvassing board had simply accepted all the local returns, Tilden would have prevailed by 94 votes,” Edward Foley, an election-law professor at Ohio State University, writes in “Ballot Battles,” a survey of disputed American elections. “In its decisive 2–1 rulings, however, the board selectively invalidated Tilden-favoring returns because of technicalities, while refusing to invalidate Hayes-favoring returns despite clear evidence of actual fraud.” In this way, a narrow Tilden lead was transformed into a narrow Hayes lead. Similar events unfolded in South Carolina and Louisiana. “The result was manufactured by a deliberate manipulation of the count,” Foley writes.

Democrats were outraged. What ensued is a mostly forgotten episode of American misgovernment that has lately been haunting Foley and other academics, as well as a loose network of bipartisan ex-officials, activists, and think-tank types, who are now contemplating the potential for a disputed election in the present day, at our own fraught political moment. The three Southern states in 1876 each sent Congress two pieces of paper, one from Republican electors certifying that Hayes had won the election, the other from Democratic electors certifying that Tilden had. The crisis these pieces of paper provoked, as Congress tried to reconcile their competing claims, pushed America’s constitutional order to its breaking point—or perhaps, looked at from another angle, it was a reflection of an order that had already broken down.

The Twelfth Amendment, which lays out the procedure for electing the President and Vice-President, says nothing about what Congress should do in the event that states send competing election certificates. Republicans controlled the Senate, and Democrats controlled the House. The two chambers established a commission to try to break the impasse. The dispute went on for months. (Back then, Administrations were inaugurated in March.) With Inauguration just days away and the prospect looming of a country with two people claiming the Presidency and no actual President, House Speaker Samuel Randall presided over a debate described decades later in a history of the crisis as “probably the stormiest ever witnessed in any House of Representatives.” Congressmen reached for their revolvers, and women in the gallery, “fearing a free fight,” ducked out of the chamber… CONTINUE READING