Most remember the contested 2000 election of George W. Bush vs. Al Gore. It ended in the U.S. Supreme Court, with Vice President Al Gore finally conceding to Bush. 2020’s Trump vs. Biden election was contested in numerous courts on a state by state-level, but not at a federal level. The last contested U.S. presidential election that required Constitutional Congressional intervention was over 125 years earlier. How did that one work out? Let’s set the stage. The year was 1876 – 11 years after the end of the Civil War, with Southern Reconstruction still in full swing. Civil War hero and President Ulysses S. Grant had served 2 terms. However Grant’s Republican majority had weakened due to an economic recession and a nationwide fatigue over Southern Reconstruction. Southern Democrats now controlled the House of Representatives.
Back then, the Republican party was strongest in the Northeast and former slave regions of the South. The Democratic party focused around southern whites and northern states that had been against the Civil War. That year, Republicans nominated Ohio Governor Rutherford B. Hayes. The Democrats nominated New York Governor Samuel Tilden – simple enough so far. So what went wrong?
Well to start, in the South there was widespread voter intimidation against black voters, who would tend to vote for the Republican party of Lincoln. Tilden won the popular vote by 3% and initially, it seemed, the Electoral College too. Not so fast though! Florida, Louisiana and South Carolina had Republican-controlled election boards and in those states, results indicated Democrat Tilden victories. So Republicans challenged the results, alleging widespread voter fraud and intimidation! The state election boards invalidated enough votes to give their state’s Electoral Votes to Hayes instead. Hayes was now the winner with a narrow Electoral College majority of 185-184. Legal battles broke out immediately in the 3 contested states, with competing Electors for both candidates being sent to Congress in January 1877.
What to do now?! At this point, the rarely-consulted provisions of the US Constitution around Congressional certification of elections were in fact finally consulted. The Constitution’s 12th Amendment requires the House and Senate to formally count the certificates of election in a joint session. If the President of the Republican-controlled Senate count the electoral votes, he would declare Hayes the victor. If the Democratic-controlled House counted the votes, they’d elect Tilden.
There would then have been essentially Two Winners, a divided military, a divided people, and probably another Civil War!
President Grant stepped forward and proposed a special bipartisan commission to deal with the ambiguous Constitutional guidance. Congress created a Federal Election Commission of 15 Congressional members and Supreme Court justices to determine how to allocate the Electors from the three Southern states. Seven were to be Republican, seven Democrats, and one swing independent. The commission would be composed of 5 Representatives, 5 Senators, and 5 Supreme Court Justices (2 Republican, 2 Democratic, and 1 independent – Justice David Davis of Illinois.)
Democrats in the Illinois state legislature had just chosen Judge Davis to serve in the US Senate (Senators were appointed back then, not voted in) hoping to ‘win/buy’ his support on the Commission with a vote towards Tilden 8-7. Instead, Davis recused himself from the Commission and was replaced by Republican Justice Joseph Bradley.
With such a close election, the entire country was divided into angry Hayes and Tilden camps. There was credible fear the Commission’s controversial vote would spark violence in the post-Civil War South – maybe even another War between the States. As the time neared in 1877 for the decision to be made, tensions rose around the country, waiting for a spark to set off unrest … or worse. “TILDEN OR WAR!” was a common refrain in the South.
Then, in a series of secret meetings at the Wormley Hotel in Washington, the COMPROMISE OF 1877 was negotiated by the Hayes & Tilden camps. A deal was cut only days before the end of the Grant Administration. The Wormley Agreement would allow Republican Hayes the win, and satisfied Southern Democrats by allowing for an end to Reconstruction. The remaining Federal troops in the South would be withdrawn, thereby giving Southern states the rights to “control their own affairs,” as it were.
The Commission voted along party lines 8-7 in favor of Rutherford B. Hayes. Bradley joined Republicans for a majority awarding all the disputed Electoral Votes to Hayes and an 185-184 victory in the Electoral College. Because of the Wormley Agreement, the Democrats went along with the vote. The Commission’s vote occurred just in the nick of time, almost on the eve of Inauguration Day. The Hayes’s electoral college victory was certified, and he was inaugurated Presidet without incident. The Compromise of 1877 is regarded today as a significant step towards North-South reconciliation.
It left the South in a state of disrepair, BUT free to discriminate against black freed slaves as they wished.
The Compromise more or less destroyed any political clout African-Americans might hope for in the South. Within 2 months of taking office, Hayes ordered federal troops, deployed in the south for Reconstruction purposes, to return to their barracks. Southern state legislatures were now free from Northern oversight under Reconstruction, and would implement Jim Crow Laws, restricting the ability of blacks to vote – up until the Voting Rights Act of 1965.
So what does contested 1876 Election teach us about the contested 2020 Presidential election? Well, the integrity of U.S. presidential elections depends on every citizen’s right to vote without intimidation or ballot-tampering, AND the clear and uncontested certification of a winner per the Constitution. Both were at risk in 2020 as the incumbent President challenged the validity of mail-in ballots in swing states, and state legislators could have disqualified Electors and chosen their own state winner. That did not happen, and the U.S. Senate certified the election on January 6th, 2021.
Unfortunately, the Constitution does not offer detailed guidance on resolving Electoral College disputes, and this time, we have an extremely polarized Congress and nation not prone to compromise. Unless there is a clear landslide, a majority-appointed Supreme Court, like that in 2000, might have to resolve any dispute once again; OR even a major Congressional intervention, like in 1876. President Grant wanted Hayes to win, but not if it risked nationwide unrest, and was committed to a peaceful, bipartisan transition of power.
Today, we have witnessed a U.S. President who lost his re-election bid (both in the popular vote and Electoral College) and nearly threatened a Constitutional Crisis. Donald Trump refused to accept the certified results; claiming voter fraud and a rigged election never proven in court, challenging mail-in balloting, individual state’s election boards, the Electoral College, even his own Vice-President and the U.S. Senate process, when the votes did not go in his favor. He rallied 8,000 like-minded supporters across the country to descend on Washington D.C. on January 6th, 2021. The most violent of those supporters stormed the U.S. Capitol, attacked police and broke in, while Congress fled, trying to ratify the election inside. President Trump then called it all the “Big Lie” and refused to attend the inauguration of his successor, as every President in U.S. history had done.
We have no Ulysses S. Grant in our present world, and a ‘Compromise of 2020′ never occurred. Despite the facts and testimony presented at the January 6th Congressional Hearings, we still have a portion of Americans believing that the 2020 election was somehow ‘rigged,’ without any evidence to prove it in court. All we can do now is hold our breath, and pray for American democracy to hold, for a better result in 2024, and a peaceful transition of power envisioned by our founding fathers.