WASHINGTON — A few days before the inauguration, no one knew who would actually take the oath of office as president of the United States. There were cries of fraud and chicanery as a divided, surly nation continued to debate the winner of the election many weeks after the ballots had been cast.
The election of 1876 was the most disputed in American history and in some ways one of the most consequential. As Congress convenes on Wednesday to formalize President-elect Joseph R. Biden Jr.’s victory and dispense with Republican objections, many on Capitol Hill and beyond have been looking to the showdown nearly a century and a half ago for clues on how to resolve the latest clash for power.
The players in that drama have faded into obscurity. Few today remember the story of Rutherford B. Hayes, the Republican who ultimately prevailed and served four years as a tainted president. Fewer still can name his Democratic opponent, Samuel Tilden, who lost the White House despite garnering more votes. But the system that will govern Wednesday’s debate was fashioned from that episode, and the standards that were set then are now cited as arguments in the effort to overturn President Trump’s defeat.
Allies of Mr. Trump, led by Senator Ted Cruz, Republican of Texas, have latched onto the resolution of the 1876 dispute as a model, proposing that Congress once again create a 15-member commission to decide the validity of various states’ electors. “We should follow that precedent,” Mr. Cruz and 10 other new or returning Republican senators wrote in a joint statement over the weekend.
But there are also profound differences between that battle and this one. For one, the candidate claiming to be aggrieved this time, Mr. Trump, is the incumbent president with the power of the federal government at his disposal. For another, Mr. Trump’s claims of fraud have proved baseless, universally rejected by Republican and Democratic state election authorities, judges across the ideological spectrum and even by his own attorney general.
In 1876, unlike today, three swing states in the South still occupied by Union troops — Louisiana, South Carolina and Florida — sent competing slates of electors to Washington for Congress to consider. No state has done that this time and every state has certified its results, resulting in a decisive victory for Mr. Biden with 306 electoral votes to 232 for Mr. Trump.
“I don’t really imagine Ted Cruz knows that much about the election of 1876,” said Eric Foner, an emeritus history professor at Columbia University and a leading Reconstruction scholar. “The fundamental difference here is in 1876, there were disputed returns from three states. Today, there’s a lot of talk from Trump and others about fraud, but you don’t have two reports of electoral votes each claiming to be official from the states.”
Other presidential elections have been disputed over the years as well, though never by a losing incumbent president. In 1800, no candidate received a majority of the Electoral College, so under the Constitution the decision was thrown to the House, which rewarded the presidency to Thomas Jefferson over John Adams, who accepted the decision without trying to hang onto power.
Twenty-four years later, Adams’s son, John Quincy Adams, came out on top when another election went to the House even though he had fewer popular votes than Andrew Jackson, his main opponent. Jackson was convinced that Adams won through a “corrupt bargain” with a third candidate, Henry Clay, who threw his support to Adams and later became secretary of state. Four years later, Jackson ran again and won his revenge, ousting Adams.
Other elections were challenged without intervention by Congress. Some Republicans suspected that John F. Kennedy’s victory in 1960 was based on fraud and filed lawsuits, but Richard M. Nixon disavowed the effort. George W. Bush won the presidency over Al Gore in 2000 only after a five-week recount battle was decided by the Supreme Court. Four years later, some Democrats objected to electors for Mr. Bush’s re-election when Congress tallied the votes, but the move was fruitless and disclaimed by the losing candidate, John F. Kerry.
The fireworks of 1876, however, were like none other and not just because it was the country’s centennial. Then as now, the election dispute had its roots in a major cleavage in American society. Barely a decade after the end of the Civil War, the country remained fractured by geography, economics, class and especially race.
The party that ended slavery won the presidency in the short term that year, but the white supremacists got what they wanted in the long term by agreeing to accept defeat in exchange for the end of Reconstruction, ultimately ushering in 90 years of legalized segregation and oppression of newly freed Blacks in the south.
The contest pitted two northern governors whose fate would be decided by southern states. Hayes, the Republican, had served as a Union general in the Civil War. He fought at Antietam and was wounded four times over the course of the conflict. A two-term congressman and three-term governor of Ohio, he was a restrained figure, “a magic lantern image without even a surface to be displayed upon,” in the biting words of Ambrose Bierce, the famed soldier-turned-writer of the era.
Tilden, the Democrat, was a lawyer and crusading reformer in New York who helped bring down Tammany Hall’s Boss Tweed and parlayed that into the governorship. With a drooping left eyelid, he “looked like a man in desperate need of a good night’s sleep,” as Roy Morris Jr. put it in “Fraud of the Century,” his 2003 account of the election dispute.
The election was replete with intimidation, fraud and efforts to suppress the Black vote. In Florida, where Republicans were divided among themselves, Democrats intimidated Black voters and others by having landlords, shopkeepers, doctors and lawyers charge a 25 percent surtax on anyone suspected of voting Republican. The state-owned railroad fired employees who attended Democratic rallies. And votes were said to be for sale at $5 each.
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On Nov. 7, 1876, Tilden won over 250,000 more votes than Hayes, but as the night wore on, he had secured just 184 of the 185 electoral votes he needed to win. Hayes trailed with 166. Left outstanding were the three southern states, the last yet to be “redeemed” by the federal government after the war, with a total of 19 electoral votes — exactly the number Hayes would need to win.
In all three states, Republican-led “returning boards” examined the votes and allegations of fraud to Hayes’s benefit. In Louisiana, where Tilden led by 76,300 votes, the board threw out 15,000 votes they deemed to be illegitimate, 13,000 of them from Democrats, tilting the state for Hayes. The states likewise disputed their own elections and had two competing state governments.
When the Electoral College met in state capitals on Dec. 6, all three states sent competing slates of electors to Washington for Congress to pick from. (There was also a dispute over a single elector from Oregon.) Like now, Democrats controlled the House and Republicans the Senate. Unable to choose between the competing electors, lawmakers punted by forming a 15-member commission with five members from the House, five from the Senate and five Supreme Court justices.
Fourteen of the members were considered partisans split down the middle so the 15th member was to be the decisive vote and it was expected to be Justice David Davis, who was considered independent. But the Illinois legislature offered him a seat in the United States Senate back when they were filled by appointment and he declined to serve on the commission.
The decisive commission seat then went to Justice Joseph Bradley, a farmer’s son who trained himself as a lawyer and intellectual with 16,000 books in his personal library.
Unlike now, Republicans argued that Congress only had the limited power to ensure the procedural validity of the electors, not to go beyond that and determine whether there was fraud. Justice Bradley accepted the view that external evidence could not be considered and so awarded the electors to Hayes.
But the real decision was made separately between party power brokers. While Tilden himself was antislavery, the Democratic Party in that era was the defender of white rule in the South and agreed to accept Hayes’s election when the commission reported back to Congress in exchange for an end to Reconstruction by the federal government. Hayes later ordered Union troops that had been protecting Republican governments in the disputed states back to their barracks and Democrats again consolidated control of the region for generations.
At a joint session, Congress declared Hayes the winner at 4:10 a.m. on March 2, 1877, barely two days before the March 4 inauguration date then set by the Constitution. “This outcome was a testament to the ability of the American system of government to improvise solutions to even the most difficult and important problems,” Chief Justice William H. Rehnquist wrote in 2004 in his own study of the episode.
Still, Hayes, who was called “His Fraudulency” and “Rutherfraud B. Hayes,” never shed the stigma and did not seek another term. Congress, for its part, resolved never to go through that ordeal again. In 1887, it passed a law setting out the procedures for counting electors, rules that have proved durable ever since. On Wednesday, they will be tested as never before.
