>>The next change in the Electoral College occurred with a Federal statute that
was passed by Congress and signed into law by President John Tyler on 23
January 1845, requiring that the Presidential Electors be chosen on the same
day nationwide: the by now famous "Tuesday next after the first Monday in
November of the year in which they are to be appointed". This provision first
became effective for the Election of 1848 and, of course, is still in force-
which is why Americans will go to the polls on Tuesday 7 November 2000
during this particular presidential election cycle.
The presidential election of 1876- the infamous "Disputed Election"- was to
provide a severe test for the Electoral College system, certainly as much a
test of it as the Jefferson-Burr deadlock of 1800 had been. The Electors
were chosen (by popular vote in all states save the newest state of Colorado,
which was permitted to have its legislature choose its 3 Electors this time
only) on Tuesday 7 November 1876, per the 1845 timetable for actually
choosing Electors. Under the ancient and honorable schedule laid down back
in 1792, the Electors met in their respective States on Wednesday 6
December 1876 and cast their ballots for President and Vice-President. It
was soon apparent (the telegraph having greatly changed the rapidity of
interstate communications) that 20 of the 369 Electoral Votes were in dispute
due to two conflicting sets of returns being received by the President of the
Senate (Senator Thomas W. Ferry- a Republican from Michigan who was
also Senate President pro Tempore: Vice President Henry Wilson having
passed away a year earlier) from 4 states: Florida, Louisiana, Oregon and
South Carolina. To make matters worse, the Democrat candidate for
President- Governor Samuel J. Tilden of New York- led with 184
undisputed Electoral Votes (to 165 for the Republican candidate- Governor
Rutherford B. Hayes of Ohio), leaving Tilden one vote shy of the 185 needed
to elect! (It goes without saying- but I'll say it anyway- that, given the 12th
Amendment, the same problem affected the respective Vice-Presidential
hopefuls: Democrat former Senator Thomas A. Hendricks of Indiana and
Republican Congressman William A. Wheeler of New York; Hendricks was,
by definition, also- like his running mate Governor Tilden- one vote shy of the
majority needed to elect!!)
Under the 1792 schedule, the Electoral Votes would not be opened and
tabulated before a Joint Session of Congress until Wednesday 14 February
1877 and this would not leave enough time before the new Administration
(whosever it was to be!) was scheduled to take office on 4 March to resolve
the dispute. No one wanted a repeat of the political chicanery of 1800/1801
and- with the Senate of the lame-duck 44th Congress (which would choose
the Vice President in case of a lack of a majority in the Electoral College) in
the hands of the Republicans and the House (which would choose the
President in the case of a lack of an Electoral Vote majority) in the hands of
the Democrats- the possibilities for such chicanery were much the more
multiplied! Thus, on 21 December 1876, anticipating these difficulties, the
Senate appointed a committee (per an earlier Resolution of that body) to
meet with a House committee appointed the next day (per an even earlier
Resolution) to discuss how best to handle what was a rather dicey situation,
considering the Nation had only lately readmitted three of the four disputed
States (which had been members of the Confederate States of America that
had been the cause of the Civil War and the subsequent Reconstruction then
still ongoing in the South).
As a result of these discussions, a bill was passed by both houses and signed
into law by President Ulysses S. Grant on 29 January 1877, which created-
for resolving that election only- a 15-member Electoral Commission (5
members from the Democrat-controlled House of Representatives, 5 from
the Republican-controlled Senate and 5 from the U.S. Supreme Court [4
Associate Justices (2 having been- before their appointment to the Court-
Democrats, the other 2 having been Republicans in the past) were specifically
named and they would subsequently pick a 5th Associate Justice, who- it
was presumed- would be the deciding vote in case of a tie among the other
14 "Commissioners"]). The next day, the two houses of Congress chose their
allotted "Commissioners"- the House choosing 3 Democrats and 2
Republicans (one of whom was a future President- Congressman James A.
Garfield of Ohio), the Senate choosing 3 Republicans and 2 Democrats,
while the 4 Supreme Court Justices chose Associate Justice Joseph R.
Bradley, a Republican (it was intended that Associate Justice David Davis, a
true political Independent, be the 5th Justice on the Electoral Commission-
but he was elected to the Senate from Illinois by a Republican legislature
[back then, Senators were not yet chosen by popular vote but by the
legislature of their State] just before the Commission was formed [but
AFTER the bill forming the Commission was drafted!... there is, as one might
suspect, a lot of interesting historical speculation about this little factoid!]; this
forced the 5th Justice to be a Republican, as the only two former Democrats
on the Supreme Court were already on the Commission!!).
The Electoral Commission Act had moved the date of the Joint Session of
Congress to tabulate the ballots- for that election only- up to "the first
Thursday in February" [1 February in 1877]. The Electoral Vote would be
counted alphabetically, rather than geographically as had hitherto been the
practice, and any Electoral Vote from a State to which there was objection
from any of the Senators and Representatives then assembled would be put
aside and submitted to the Electoral Commission. When the list of States was
completed (with the Electoral Vote tally at 184 for Tilden/Hendricks and 165
for Hayes/Wheeler), the Joint Session adjourned and the Electoral
Commission went about its work, taking each disputed State in alphabetical
order.
On 9 February 1877, the Commission voted 8-7 (strictly along Party lines) to
give Florida's 4 Electoral Votes to Hayes/Wheeler (now the count was
184-169 in favor of Tilden/Hendricks). Identical votes gave Louisiana to
Hayes/Wheeler on 16 February and Oregon to Hayes/Wheeler on 23
February. The last State to be considered was South Carolina with 7
Electoral Votes: the Electoral Vote tally last stood at Tilden/Hendricks 184 to
178 for Hayes/Wheeler; on 28 February, the Commission voted, once more
by a vote of 8-7, to give the Hayes/Wheeler ticket South Carolina's Electoral
Votes. On 1 March 1877, the Electoral Commission formally announced the
results of its work and disbanded; the following day, the two houses of
Congress met once more in Joint Session to ratify these results and
Rutherford B. Hayes was declared elected President (the votes of the
Electoral Commission had given him just the 185 needed to elect him!)- just
in time for him to take office on 4 March!!
The Electoral Commission of 1876/1877 was clearly a failure in the sense
that it was obviously overtly partisan, but it was a success in that it had
provided a method of avoiding a messier consequence of the dispute within
the Electoral College. It did have two lasting effects: the entire United States
Code section dealing with presidential elections was recodified in 1878 (it
was felt that Congress had to assert that the Electoral Commission Act had
been a temporary expedient and had not been intended to repeal existing
sections of the relevant statutes: by repassing both the 1792 and 1845
language already on the books, there could be no question that the Electoral
Commission Act was no longer in force) and Congress would never tabulate
the Electoral Vote geographically ever again: from now on, the opening,
announcing, counting and tabulating of state-by-state Electoral Vote in the
post-presidential election Joint Session would be alphabetical and this
remains true to this day!<<
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