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Possible Solutions

Initially, most Republicans wanted the president of the Senate—who, after the death of Vice President Henry Wilson in 1875, was Senator Thomas Ferry, a Michigan Republican—to decide which election returns to count. A few Republicans, such as Senators Carl Schurz of Missouri and George Edmunds of Vermont, thought the Supreme Court should settle the matter.  Edmunds’s bill allowing a settlement by the Supreme court was easily defeated in the Senate.  Democrats wanted the Democratically-controlled House to decide jointly with the Republican-controlled Senate.  Senator Conkling, the disgruntled Republican also-ran, agreed with the preferred Democratic method, and asserted that Tilden had won Louisiana and Florida.  

Two Republican senators offered solutions addressing not the immediate situation, but possible future ones.  Senator John Ingalls of Kansas sponsored a joint resolution calling for a Constitutional convention to revise presidential election procedures.  Senator Oliver Morton presented a joint resolution for a Constitutional amendment to allow the direct popular election of the president and vice president.  Both measures were unsuccessful.

Electoral Commission Act

When Congress reconvened in December, Republican Representative George McCrary of Iowa introduced a resolution to establish a special committee of each house to develop a process for resolving the conflict, and it passed Congress in December.  On December 21, Senate president Ferry announced the members of the Senate committee:  Republican George Edmunds, chairman; Republicans, Roscoe Conkling of New York, Frederick Frelinghuysen of New Jersey, and Oliver Morton of Indiana; and Democrats Thomas Bayard of Delaware, M. W. Ransom of North Carolina, and Allen Thurman of Ohio.  On December 22, Speaker of the House Samuel Randall of Pennsylvania announced the members of the House committee:  Democrat Henry Payne of Ohio, chairman; Democrats Abram Hewitt of New York, Eppa Hunton of Virginia, and William Springer of Illinois; and Republicans George Hoar of Massachusetts, George McCrary of Iowa, and George Willard of Michigan.

On January 10, 1877, Edmunds and McCrary, chief Republicans on the Senate and House special committees, respectively, proposed the creation of a commission independent of Congress for final adjudication of the disputed electoral returns. It was an orderly, multi-institutional, bipartisan solution.  The Electoral Commission bill would establish a 15-member commission, consisting of five senators (three Republicans and two Democrats), five representatives (three Democrats and two Republicans), and five members of the Supreme Court (four chosen based on geographic diversity, who would then select a fifth).  The commission’s decisions were to be legally regarded as final unless overridden by both houses of Congress.  

Although Tilden and Randall thought it was a bad plan, Democrats were heavily in favor of it (rather than accept the alternative of Republican Senate president Ferry determining the votes), and enough Republican senators joined them to ensure passage.  On January 25, the Senate accepted the measure, 47-17, with Democrats voting 23-1 and Republicans voting 24-16 in the affirmative.  The next day, the House approved the bill, 191-86, with Democrats voting 181-19 in favor, and Republicans 84-57 in opposition.  President Grant signed the bill into law on January 29.

Representing the Supreme Court on the Electoral Commission were:  Nathan Clifford of Maine, presiding officer (Democrat); Stephen J. Field of California (Democrat); William Strong of Pennsylvania (Republican); Samuel Miller of Iowa (Republican); and Joseph Bradley of New Jersey (Republican).  Representing the Senate on the commission were:  George Edmunds of Vermont (Republican); Oliver Morton of Indiana (Republican); Frederick Frelinghuysen of New Jersey (Republican); Thomas Bayard of Delaware (Democrat); and Allen Thurman of Ohio (Democrat).  Representing the House on the commission were:  Henry Payne of Ohio (Democrat); Eppa Hunton of Virginia (Democrat); Josiah Abbott of Massachusetts (Democrat); George Hoar of Massachusetts (Republican); and James Garfield of Ohio (Republican).

Please read about the Congressional Plan of Settlement as reported in Harper's Weekly on February 3, 1877, page 82.

The Davis Factor

The Supreme Court participants on the Electoral Commission included two Republicans and two Democrats.  A key reason that Congressional Democrats supported the Electoral Commission Act was because they assumed that Justice David Davis would be selected as the fifth justice and the deciding vote on a commission otherwise evenly divided between Republicans and Democrats.  Davis had once been a faithful Republican, beginning his life in national politics as Abraham Lincoln’s campaign manager in 1860.  Over the years, though, he had drifted away from the party’s mainstream.  In 1872, he joined the renegade Liberal Republican movement and was a leading, though unsuccessful, candidate for their presidential nomination.  By 1876, he was considered to be an independent with Democratic leanings, who would be fair to Tilden’s claim.  

To nearly everyone’s surprise, however, a Democratic-Greenback coalition in Illinois’ new state legislature elected Davis to the U.S. Senate on January 25, just as the Electoral Commission bill was passing Congress.  The Illinois Democrats considered the Senate seat an inducement for Davis to treat Tilden favorably.  Neither Tilden nor Hewitt knew of the plan, but it had been urged by the Democratic candidate’s shady nephew, Colonel Pelton.  Contrary to expectations, Davis resigned from the commission, and once again a tactical error (like the admission of Colorado) probably cost the Democrats the presidential election.  The substitute fifth justice, Joseph Bradley, was a Grant Republican who would cast every vote for Hayes.  

Backroom Negotiations

            As the political mechanism for resolving the Electoral College controversy was being established, a series of partially-related negotiations began behind the scenes.  Those private deliberations have often been misleadingly characterized in the press and some textbooks as a compromise between the parties which bartered the presidency to the Republicans for the price of “home rule” in the South and a Democrat in the cabinet.  The implication in such a retelling of the story is that none of those things would have occurred without the negotiations.  A broader understanding of the historical context of the situation, though, reveals that the bipartisan meetings allowed both sides greater assurance about the outcome that was already developing.  The backroom negotiations, therefore, were important to the resolution of the stalemate, yet were not critical to the change in federal policy toward the South.

            Since the Civil War, perhaps the main issue separating the two major political parties was Reconstruction policy.  Republicans consistently favored federal intervention in the former Confederate states in order to protect the basic civil rights of black Americans and their white Republican compatriots.  Democrats vehemently opposed such federal intervention, voted against Reconstruction legislation, and called for the withdrawal of federal troops from political duty in the South.  Beginning in the late 1860s, though, the number of federal troops in the South had dwindled from 15,000 in 1867 to 6,600 by 1870 to 3,000 by 1876.  As the army was relieved of its political duties under Reconstruction policy, the Southern states elected white-only, Democratic governments.

Over those years, Northern Republican commitment to Reconstruction and black civil rights waned.  In 1872, a Liberal Republican movement dedicated to the end of federal intervention in the South joined with the Democratic party to nominate a presidential candidate (Horace Greeley, who lost to Grant).  During the 1876 election, Republicans “waved the bloody shirt” by associating the Democrats with secession, civil war, and anti-black violence.  For too many Republicans, however, it had become empty political rhetoric.  Hayes himself had only talked vaguely of a fair and just policy for the South, a nebulous position he continued to espouse during the Electoral College controversy.

            Of the various negotiations, the most important took place at the Wormley House hotel in Washington D.C. on February 26 between four Southern Democrats and five Ohio Republican surrogates of Hayes.  By early the next morning, the Democrats had agreed to stop the House filibuster which was blocking the final count giving Hayes the presidency, while the Republicans agreed that Hayes would withdraw the federal troops from guarding the statehouses in the three contested Southern states, thus permitting the Democratic governors to take office.  Republicans also agreed that Hayes would name Democratic Senator David Key of Tennessee as U.S. Postmaster General, a cabinet position with the largest amount of patronage jobs to distribute.  The Wormley House negotiations, however, occurred after the Electoral College had awarded, and Congress had ratified, the disputed votes of Florida, Louisiana, and Oregon to Hayes.  Only South Carolina remained to be resolved, and the positive result for Hayes was essentially only a matter of time.

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