In 1876, Americans marked their centennial as an independent nation with celebrations ranging from small-town barbecues to big-city parades.  The festivities reached their peak in Philadelphia, historic site of the Continental Congress and Constitutional Convention, which hosted the first World’s Fair held in the United States.  It was also fitting in that anniversary year that the oldest existing democracy should hold a presidential election—the capstone event of American representative government which had endured even a civil war.  Amidst such jubilation, few would have dared to predict that the selection of the nation’s chief executive would itself become a challenge to the constitutional system of government.

The first returns on election day, Tuesday, November 7, 1876, indicated a clear victory for the Democratic presidential nominee, Governor Samuel J. Tilden of New York.  He had won his home state, the swing states of Connecticut, New Jersey, and Indiana, and was expected to carry the solid South and most of the West.  Both Tilden and his Republican challenger, Governor Rutherford B. Hayes of Ohio, went to bed assuming that the Democrats had captured the White House for the first time in twenty years.  Similarly, the New York Tribune and other major newspapers across the country reported Tilden’s victory in their morning editions.  

In dismay, Republican Daniel Sickles decided to attend the theater in New York on election night. The colorful Sickles was a former congressman who had been acquitted in 1859 of fatally shooting his wife’s lover on a Washington D.C. street in broad daylight.  A courageous Union general, he lost his leg at the Battle of Gettysburg in 1863, and later served as U.S. minister to Spain (1869-1873).  At nearly midnight, on his way home on election night, Sickles stopped by the Republican headquarters to check the returns.  He soon realized that if Hayes lost no more Northern states and won the states of Florida, Louisiana, and South Carolina, then the Republican nominee would win the Electoral College tally by one vote. Sickles rushed off telegrams to Republican leaders in those states, under the signature of Republican national chairman Zachariah Chandler, who was sleeping off a bottle of whiskey, urging them to hold their states for the Republicans.  At 3 a.m., Republican governor Daniel Chamberlain responded:  “All right.  South Carolina is for Hayes.  Need more troops.”

When John Reid, managing editor of the New York Times and an ardent Republican, received insistent inquiries from Abram Hewitt and D. A. Magone, respectively the national and New York state chairmen of the Democratic party, demanding an immediate dispatch of the Republican paper’s electoral count for Tilden, he deduced that the Democrats were in doubt. Unlike other newspapers, the New York Times did not project the Democratic nominee as the assumed victor.  The early edition of the Times on November 8 characterized the election as undecided; “The Results Still Uncertain,” read the headline.  Its second edition gave Hayes 181 electoral votes, with Florida too close to call.  At 6 a.m. on November 8, Reid rushed to Republican headquarters to rally the party leadership. He and Senator William Chandler of New Hampshire roused Zach Chandler out of bed and sent additional telegrams to the uncertain states to hold the Republican line.

When the dust settled, Tilden had won the popular vote, with 4,284,020 (51%) to Hayes’s 4,036,572 (48%), a margin of less than 250,000.  The only thing that mattered, though, was the Electoral College count, and there, Tilden’s 184 electoral votes were one short of a majority, while Hayes’s 165 electoral votes left him 20 ballots shy of the presidency.   The remaining 20 electoral votes were in dispute:  one from Oregon and 19 from the three Southern states which still retained Reconstruction governments—Florida (4), Louisiana (8), and South Carolina (7).  

In the three Southern states, both parties were claiming victory in close elections and charging the other party with vote fraud.  Being the party in power in those states, the Republicans had a majority on the returning boards, which would certify the election results.  They threw out enough Democratic votes to give the election in their states to Hayes and the Republican gubernatorial candidates.  In Louisiana and South Carolina, Democrats declared their gubernatorial candidates elected, established rival state administrations, and certified Tilden the winner in their states.  In Florida, the state supreme court ruled in favor of the Democratic gubernatorial candidate, but let Hayes’s margin of victory stand.  The new Florida governor promptly appointed a Democratic returning board which announced that Tilden had carried the state.

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The Constitutional Problem

The lack of an Electoral College majority in 1800 between Thomas Jefferson and his running mate, Aaron Burr, led to the election of Jefferson by the House of Representatives and to the eventual passage of the 12^th Amendment to the U.S. Constitution, which required electoral votes to be cast separately for president and vice president.  In 1824, the lack of an Electoral College majority among four presidential nominees resulted in the House choosing John Quincy Adams over the winner of a plurality of the popular vote, Andrew Jackson.  

The Constitution, however, did not provide for the unprecedented scenario of 1876:  disputed, multiple Electoral College returns from four states.  The 12^th Amendment merely stated that the president of the Senate shall open and count the election certificates before a joint session of Congress, without any mention of who had the authority to determine contested returns.  Since the death of Vice President Henry Wilson in 1875, the president pro tempore of the Senate was Republican Thomas Ferry of Michigan.  The Democrats did not want him to determine which returns were legitimate.  Since the Democrats controlled the House in both the outgoing and incoming Congresses, the Republicans did not want that body to choose the new president.  The Electoral College controversy would drag on for months, not reaching resolution until almost the eve of the scheduled inauguration on Monday, March 5, 1877.  

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