The Electoral Commission Law was just one part in the process of counting the electoral vote. First, the President of the Senate would open the certificates from each state, as provided in the Twelfth Amendment to the Constitution. If a senator or representative from a certain state objected to the certificate from that state, the question would be referred to the Commission. The Commission would then consider the matter and report back its decision to Congress. The decision of the Commission was to be final, unless overridden by a majority in each House. In practice this procedure guaranteed that the Commission’s decision would be final in fact, because the Democrats had a majority in the House, and the Republicans a majority in the Senate. In the politically charged atmosphere of the time, it was inconceivable that both houses would agree to override the Commission no matter which way it decided.
That body held its first meeting on January 31, 1877, in the Supreme Court chamber (then in the Capitol building). But because its members were too numerous to fit in the justices’ nine seats behind the bench, a table was set up in the middle of the courtroom. On one side sat the five justices, and the senators and representatives were arrayed around the other three sides. Justice Clifford was sworn in as president of the Commission at 11 a.m., and he then administered the oath to the other members. Representative Garfield kept a personal diary of the proceedings. This is the only contemporary source shedding light on the deliberations because they were closed to the public. At the first meeting, “one of the judges told Garfield that there had been a long struggle to decide the fifth Justice,” and on the way home Justice Strong told him, “All the judges except one were very sorry to be called to the Commission.”1
The following day the two houses of Congress met in joint session to count the electoral votes. Thomas Ferry, the President of the Senate, opened the certificates from each state, beginning with Alabama. He then handed the certificate to a teller, who announced the result shown by the certificate. The count proceeded routinely until Ferry opened not one, but three, certificates from Florida, and there were objections to all three. Democrats objected to the certificate giving Hayes the state’s vote, and Republicans objected to the certificates giving it to Tilden. The matter was accordingly referred to the Electoral Commission.
The rules of the Commission adopted at its first meeting illustrate the hybrid nature of that body; it was a creature of Congress, but it also had to decide what were at bottom questions of law. Thus the rules provided that the objectors in the joint session—who in effect were all House members—should have two hours each to present their objections. At that point, counsel for both sides would take over and presumably argue the merits of the various claims. Two hours apiece would be allotted for these presentations. Garfield wrote in his diary that the Commission had allowed too much time for argument, but this was an era of lengthy arguments. Important cases before the Supreme Court then were often argued for days at a time, whereas today each side is allowed one-half hour.
It was not entirely clear how the roles of the objectors—who had made the objections in the joint session of Congress—and of counsel before the Commission differed, if they differed at all. David Dudley Field, in Lincoln’s time a Republican but now a Democratic representative from New York, led off for the Democratic objectors. He devoted considerable time to discussing the returns from only one county in Florida—Baker County in the northeastern portion of the state. He used this county, he said, as an illustration of what went on not only there but in other counties. He pointed out various procedural irregularities in the canvassing of the county’s vote, then referred to the majority report of the House committee which had concluded that Tilden had won the electoral votes, and offered to prove “by a cloud of witnesses and by a host of documents” that Tilden had achieved a majority in Florida. Congressman John Randolph Tucker of Virginia joined Field’s plea to the Commission to go beyond the certificates presented to the President of the Senate and examine outside evidence.
Representatives John Kasson and George McCrary urged the Republican objections to the Florida certificates which purported to give the state’s electoral votes to Tilden. Kasson said that the Constitution left only a small part of the presidential electoral process to the federal government. The joint session of Congress was to count the electoral votes, but it had no authority to go behind the state’s certificate. A contrary approach, he said, would “launch yourselves into a tumultuous sea of allegations of fraud, irregularity and bad motive.”2
McCrary stressed that the Constitution itself prescribed the day when the electors in each state should cast their vote, thus making it the same throughout the nation. If it remained open to a court in a state to review the choice of electors after this date, the plan of the Constitution was defeated. And, he said, if courts in one state may do it, at the behest of one party, courts in another state may do it at the behest of the other party.
When the congressional members’ time on each side had expired, counsel began their presentation. They were to discuss the merits of the question, but of course this phrase could mean different things to different people. Could the Commission “go behind” the certificates sent to the President of the Senate and determine for itself whether the electors designated in the certificate were properly chosen? Could it go even further beyond the certificate and decide whether voters in a particular state had been intimidated and prevented from casting their vote as a result?
Answers to these questions would determine whether the Commission would enter upon a wide-open inquiry of the same sort that the returning boards in Florida and Louisiana had undertaken. The issue was critical to both sides. If the Commission could hear witnesses and examine documents in the way that the congressional committees had done earlier, the proceedings would be greatly lengthened, and the Democrats could concentrate on their charge that, particularly in Louisiana, the returning board had acted fraudulently. If, on the other hand, the Commission’s authority to go behind the certificates was nonexistent, or very limited, the Republicans would benefit. Thus the entire complicated political and procedural history of the Hayes– Tilden election and ultimately its outcome, had finally been reduced to the resolution of one issue: what was the scope of the Commission’s review? If broad—as the Democrats urged— Tilden had a good chance; if narrow—as the Republicans wanted—Hayes would likely prevail.
It was generally agreed by both parties that the Commission could do no more than Congress itself in joint session as far as counting the electoral vote. And, of course, at this time in history “states’ rights” were regarded with greater sanctity than they would be at a later date.
One of the ironies was that the Democrats were thought to be the party upholding states’ rights, while the Republicans were the party who favored greater national authority. But advocates for the two parties experienced no difficulty in nimbly switching sides on this issue. The Republicans would suggest that for Congress or the Commission to “go behind the returns” was inconsistent with the division of authority between national and state governments which had been established by the Constitution. The Democrats would champion the authority of the national government to root out fraudulent returns by whatever means necessary. The Republicans conceded that while the certificates delivered to the President of the Senate were not “conclusive”— that is, immune from being attacked at all—they could be challenged only for forgery or for mistakes in naming the electors, and not by later executive or judicial action in the state which went beyond such challenge. The Democrats argued that fraud on the part of a returning board vitiated the entire state proceeding.
The question was exhaustively debated by extraordinarily able counsel on each side. Charles O’Conor, Jeremiah Black, and Richard Merrion spoke for the Democrats. Ashbel Green filed an impressive brief for them on the issue of whether the certificates were “conclusive.” William M. Evarts, Matthew H. Carpenter, and Stanley Matthews—Hayes’ college chum—spoke for the Republicans. On Monday
, February 7, the Commission met at 11 a.m. to hear counsel argue the question of whether additional evidence, beyond the certificates, could be considered by the Commission. Bradley said he wished time to consider the matter, and Edmunds and Thurman concurred. The Commission thereupon adjourned until noon the following day.
When they reconvened, the members of the Commission stated their views on the issue of whether additional evidence should be considered. But most of them also discussed the related question of what effect the Florida court proceedings should have on the counting of that state’s electoral vote. By the time each of them had spoken, the main issue in the Florida case was resolved on its merits. The congressional members of the Commission spoke first, and Garfield commented: “The proceedings were very impressive and the debate very able. . . . I have never spent a day in closer and severer intellectual work with more sharp incitement from the presence of able and trained minds.”3
On the following day, the justices who were members of the Commission gave their opinions. Stephen Field’s opinion, in support of receiving outside evidence, was representative of that of the other Democrats. He viewed the action of the Florida Canvassing Board as simply “ministerial”—to declare who was elected as shown by the returns presented to them. In support of this position, he relied on the decision of the Supreme Court of Florida in Drew v. Stearns, which had faulted the canvassing board for throwing out some votes. And, said Field, when a state supreme court has spoken on the subject, that is considered to be state “law” just as surely as if it were embodied in a statute. Since the canvassing board had acted in excess of its authority, its action was invalid.
Field conceded that the Governor’s certificate was “prima facie” evidence of the choice of electors, but concluded that countervailing evidence could be considered by the joint session of Congress, and therefore by the Commission. He pointed out that the decision of the trial court in the quo warranto case (a legal proceeding to determine who is entitled to a particular public office) was “the highest possible evidence of state action of the state of Florida, which although being appealed had the full force of law in the meantime.” He also referred to the House committee which had investigated the returns and concluded that Tilden had received a majority of the votes in the state; the House had adopted a resolution to that effect by a party vote of 142 to 82.
Field’s strongest point was probably the principle that a decision of a state’s highest court was considered to be law just as surely as if enacted by the legislature. The Florida Supreme Court ruled that the State Canvassing Board acted improperly in disregarding returns which it believed to be fraudulent. He was on much weaker ground when he relied on a state trial court decision which was then being appealed, and on the findings of the House of Representatives based on its committee report, when the Senate—controlled by the Republicans—had reached a diametrically opposite result. He was concerned that a decision be had by March 4, which was the date for inaugurating the President, but thought this could be done by recognizing as controlling the decisions of the Florida courts and the conclusion of the House committee.
Justice Strong, a Republican commissioner, summarized his views in these words:
My conclusions, then, are that neither Congress nor this commission has authority under the Constitution to recanvass the vote of Florida for state electors; that the first determination of the State canvassing-board was conclusive until it was reversed by state authority; that while it remained unreversed it conferred upon the persons declared by it to have been chosen electors rightful authority to cast the vote of the State; and that the act that those electors were appointed to do having been done, it was not in the power even of the State afterward to undo the act and call in question the authority by which it was done.4
This is an admirably concise statement of the views espoused by those who supported the cause of the Hayes electors. The state may provide methods for contesting the election of presidential electors, but such proceedings must be concluded by the time that the Constitution requires the electors to cast their votes. Once the duly certified electors have done so, later state court proceedings are of no effect. And Congress may not on its own recanvass the Florida vote.
Justice Miller, with his eye ever on practical considerations, said:
It is strongly urged upon us that a large pile of papers, a half-bushel perhaps in quantity, of the contents of which both this Commission and the two Houses of Congress are profoundly ignorant, has become legitimate evidence and must necessarily be considered by us, because they are in a very general way referred to in the papers filed by certain members of the two houses as their objection . . . to the certificate of Governor Stearns that the electors who have since cast their votes for Hayes and Wheeler were the duly appointed electors for the state of Florida. . . . No statement of the character, or nature, or source of a single paper, out of perhaps one hundred, is made. No reference is made to anything by which these papers can be identified. . . . They may be ex parte affidavits taken in the morasses of Florida, the slums of New York, or the private office of retained counsel in this city. It would be very strange indeed if the act of Congress under which we sit, intended to furnish in this manner the materials on which our decisions must be founded.5
He disagreed with Justice Field as to the weight which should be attached to the Florida court proceedings. He pointed out that these proceedings had taken place after the electors had cast their votes, and that the decision of the trial court in the quo warranto proceeding had been appealed by the Hayes electors. He went on to observe that if a single judge of a trial court might review the actions of the State Canvassing Board and set it aside, presumably any one of the many New York State trial judges could do the same and thereby at least render uncertain the casting of New York’s 35 electoral votes. He concluded by saying:
Much has been said of the danger of the device of returning boards, and it may be that they have exercised their power in a manner not always worthy of commendation. But I take the liberty of saying that such a power lodged in one or in both Houses of Congress would be a far more permanent menace to the liberty of the people, to the legitimate result of the popular vote, than any device for counting those votes which has yet been adopted by states.6
In short, Justice Miller was of the view that deference should be given to the state returning boards and to the constitutionally imposed deadlines for the electors to cast their votes.
The opinion which was most eagerly awaited, of course, was that of Justice Bradley—the “casting vote.” Garfield says:
Judge Bradley arose at 2:13 to read his opinion. All were intent, because B. held the casting vote. It was a curious study to watch the faces as he read. All were making a manifest effort to appear unconcerned. It was ten minutes before it became evident that he was against the authority to hear extrinsic evidence. His opinion was clear and strong....7
Bradley began by observing that the Commission could have no greater power than the two houses in joint session would have—common ground among all members of the Commission. He then inquired as to just what power the two houses could have. He first observed that the President of the Senate, by himself, exercised a purely ministerial function, and had no authority to do other than have the votes announced. In so holding, he rejected the arguments of Hayes and others that the President of the Senate had the authority to decide whether or not a particular vote should be counted.
Bradley observed that up until the electors cast their votes on the day prescribed by the Constitution, the entire election proceeding is in the hands of the states. He pointed out that the provision for the election of senators and representatives, where the Constitution provided that “each House shall be the judge of the elections, returns and qualifications of its own members,” was different from the provision concerning the election of the President. Both the House and the Senate were thereby authorized to make detailed inquiry into the claims of contesting candidates in congres
sional elections. But the absence of a similar provision in connection with the counting of electoral votes for President strongly suggested that no similar authority existed with respect to those votes.
He then stated that the two houses of Congress could certainly inquire whether the certificate presented had actually been signed by the executive, or whether the certificate contained a clear mistake of fact. The certificate, Bradley said, was a document of high authority, but not conclusive as to such cases. But in the present case there was no claim that the certificate of the Governor had been forged, or that there was any mistake of fact in it, or that it was willfully false and fraudulent. If erroneous at all, its error stemmed from erroneous proceedings of the canvassing board. But the canvassing board had been authorized by Florida law to decide which returns to be counted and had some authority to disregard false or fraudulent returns. The state itself could provide for any sort of election contest challenging the returns of the board so long as it was concluded by the time that the electors were to cast their vote in December. Here, of course, the state proceedings had occurred after that date.
Bradley then said that the decision of the Florida Supreme Court had only held that the board had acted mistakenly, although he conceded that the language of its opinion, if not its holding, had said that the canvassing board acted beyond its authority. But, he concluded, neither the state courts nor the Florida legislature—which had also intervened in the matter after the electors had cast their votes—could retroactively change the designation of electors after they had cast their votes and the certificate had gone to the President of the Senate.
In passing, he noted his agreement with Justice Miller’s warning that the recognition of a congressional authority to recanvass state votes for presidential electors would be far more dangerous than any failure to correct fraud in a single state such as Florida.
Centennial Crisis- the Disputed Election of 1876 Page 15
