When nervous political activists and journalists alike anticipate the horrors of a contested 2020 election outcome (particularly now that the Red Mirage scenario of Trump claiming a premature victory on Election Night is becoming plausible), they usually think back twenty years to when no one knew the identity of the 43rd president until the U.S. Supreme Court forced an end to the Florida recount and awarded the presidency to George W. Bush on December 11, 2000.
For all the consequences of that outcome and its contribution to the partisan polarization that still dominates our politics today, there wasn’t much sense at the time that the choice between Bush and Al Gore was some sort of historical turning point. According to a Pew survey asking Americans if it “really matters who wins the presidential election,” or “things will be pretty much the same regardless of who wins,” only 46 percent of Democrats and 56 percent of Republicans said it really mattered in 2000. At this point in the 2020 cycle, by contrast, 85 percent of Democrats and 86 percent of Republicans think the outcome really matters. Al Gore accepted the highly dubious SCOTUS decision in Bush v. Gore quickly, and with words it would be hard to imagine a major-party candidate uttering in similar circumstances today:
President-elect Bush inherits a nation whose citizens will be ready to assist him in the conduct of his large responsibilities. I, personally, will be at his disposal, and I call on all Americans — I particularly urge all who stood with us — to unite behind our next president. This is America. Just as we fight hard when the stakes are high, we close ranks and come together when the contest is done.
But if you want an example of a real nation-rending, Constitution-bending contested presidential election that might have conceivably led to a second Civil War, you have to go back to the U.S. Centennial Year of 1876, when Republican Rutherford B. Hayes defeated Democrat Samuel Tilden by a single electoral vote after a dispute that wasn’t resolved until the eve of Hayes’s inauguration in March of 1877.
The tense run-up to the 1876 election
The solid popular majority (including ex-slaves in the South protected by the actual or threatened presence of federal troops) that had reelected Civil War hero Ulysses S. Grant in 1872 had been weakened by a sustained economic depression, systemic corruption, and southern white resistance to (and northern white fatigue with) Reconstruction. The midterm elections of 1874 produced an epochal 94-seat swing in House seats (there were only 293 seats at the time) towards Democrats, who won the chamber, even as “redemption” movements aimed at restoring white political power (often behind ex-Confederate leaders) made big gains in the South.
By the time voters went to the polls to elect a successor to Grant, he had all but despaired of continuing Reconstruction, with federal courts undermining civil rights enforcement powers and Congress no longer interested in restoring them. Mississippi was “redeemed” for Democrats in 1875 amid widespread white terrorism, leaving just three southern states (Florida, Louisiana, and South Carolina) under Republican control, with another (North Carolina) closely contested.
When Ohio Governor Rutherford B. Hayes won the GOP nomination in 1876, he was mainly known as a hard-money champion and a mild supporter of civil service reform. Privately he had expressed a not-uncommon disinterest in using federal power to defend Black voting and other political rights, though Republicans did “wave the bloody shirt” by accusing his Democratic rival Samuel Tilden (a New Yorker mostly renowned for fighting Tammany Hall corruption) of being a puppet of ex-Confederates.
Much of the South was conceded to Tilden, though as Reconstruction historian Eric Foner has explained, in the four “unredeemed states,” local Republicans “waged a desperate struggle for survival” knowing that a restoration of Democratic control would lead to a restoration of white supremacy. Engagement was high everywhere in the country, as reflected in the 1876 election’s record-high voter turnout of 82 percent — a level which has never again been equaled.
The Hayes-Tilden deadlock
With the economy being the main public preoccupation in the north, Tilden won the key swing states of Indiana, New Jersey, and his own New York, as well as a clear plurality of the national popular vote (at least as reported — widespread violent voter suppression in the South cast considerable doubt on Tilden’s margin). Late on Election Night, Tilden was one electoral vote short of a majority, with three of the “unredeemed” southern states (Florida, Louisiana, and South Carolina) plus Oregon still unresolved.
Subsequently, legal battles broke out in the three southern states over both the presidential contest and partisan control of state governments, with competing slates of electors being sent to Washington by all three. In Oregon, where Hayes’s popular vote win was not disputed, the Democratic governor claimed one of the three Republican electors was legally unqualified, and appointed a Democratic replacement. At this point, rarely-consulted and not terribly clear constitutional provisions governing congressional certification of electoral votes came into play. Republicans claimed the President of the Senate (a member of their party) had the power to determine which slates of electors to accept, and Democrats claimed the full Congress had to concur, which might mean the House (which it controlled) would resolve the election if no electoral college majority was recognized.
As the time neared in January 1877 for this fateful decision to be made, tensions rose around the country and in Washington. Democrats were particularly motivated given their candidate’s apparent popular vote margin (ultimately judged to be three percent) and threatened “Tilden or War.” Southern Blacks feared that a Democratic administration might reinstate slavery. As Ohio Republican congressman James Monroe recalled in 1893, there was no obvious scenario for resolving the crisis:
It was repeatedly stated on the floor of the House of Representatives, and apparently believed by the majority, that if the Republican party should proceed, through the President of the Senate, to count the, votes of the disputed States, and declare them for General Hayes, the House would then proceed to elect Mr. Tilden, or to count the vote and declare him elected by the nation. There would then have been a dual presidency, a divided army and navy, a divided people, and probably civil war. What plan could be devised to save the country from the evils that threatened it?
The Electoral Commission of 1877
Eventually, President Grant and other Republicans proposed a special bipartisan commission to deal with the situation created by the ambiguous constitutional language on counting and certifying electoral votes, and after some hesitation Democrats accepted it. The commission would be composed of five U.S. Representatives (three Democrats and two Republicans), five U.S. Senators (three Republicans and two Democrats), and five Justices of the U.S. Supreme Court (two appointed by Republican presidents, two by Democratic presidents, and one — assumed to be Justice David Davis — reputed to be independent. But a ploy by Democrats to curry favor with David backfired horribly, as history professor Ari Hoogenboom explains:
[Davis] disqualified himself after a monumental miscalculation by Tilden’s corrupt nephew, Colonel William T. Pelton, who assumed that electing Davis as senator from Illinois with Democratic votes would purchase his support for Tilden on the Electoral Commission. Davis was replaced by a Republican, Joseph P. Bradley, giving Hayes’s party an 8:7 edge. Bradley did have an independent streak, but in strict party votes Hayes was awarded the disputed states.
The Wormley Conference and the Compromise of 1877
The obvious partisanship of the commission vote and continuing sentiment among Democrats that Tilden had been robbed led to resistance, via a rare filibuster, in the Democratic-controlled House to a final certification of the electoral vote. This was the situation as the March 3 Inaugural Day approached. But in a series of very secret meetings in Washington, what was later known as the Compromise of 1877 was hammered out, as Nicholas E. Hollis later summarized:
After months of stalemate and rising tensions over the contested Election of 1876, emissaries from the Hayes-Tilden camps privately met several times at the Wormley Hotel and negotiated a settlement…arguably one of the most important in our Nation’s history which remains shrouded in denials to the present. The “secret deal” was formulated only days before the end of the Grant Administration under threat of filibuster and violence on Monday evening, February 26, 1877, chiefly, in the rooms of W.M. Evarts (a key Hayes backer who served as counsel to the Electoral Commission and later became as Secretary of State in the Hayes Administration).
The Wormley Agreement paved the way for the end of the Reconstruction Era, providing assurances for the early withdrawal of remaining Federal troops in three southern states (Louisiana, South Carolina and Florida) and the right of these states to “control their own affairs.” The written pledge provided by trusted Hayes’ aide (Charles Foster) to John Young Brown (D-KY) of the Tilden group cemented a strange alliance between Hayes’ Ohio Republicans and Tilden’s southern Democrats.
Soon thereafter the House filibuster ended, Hayes’s electoral vote victory was certified, and he was peacefully inaugurated.
The price of compromise
There are varying accounts of why the Compromise of 1877 worked, with some historians claiming there was a broader commitment made by the Wormley Conference participants to federal support for capitalist development of the South. But in any event, Hayes kept his end of the bargain on Reconstruction:
Within two months of taking office, Hayes ordered federal troops surrounding the South Carolina and Louisiana statehouses, where [Republicans] Chamberlain and Packard still claimed the office of governor, to return to their barracks. (Hayes did not, as legend has it, remove the last federal troops from the South, but his action implicitly meant that the few remaining soldiers would no longer play a role in political affairs.) [Democrats] Hampton and Nicholls peacefully assumed office, marking the final triumph of “Redemption.” “The whole South—every state in the South,” lamented black Louisianan Henry Adams, “had got into the hands of the very men that held us as slaves.”
Perhaps Reconstruction would have ended in any event, but the acceptance by a Republican administration of “home rule” in the South — which soon meant self-government by white people — paved the way to the steady disenfranchisement of Black citizens and eventually the imposition of Jim Crow.
The Compromise of 1877 was long regarded in conventional histories as a huge step towards peace and regional reconciliation, but it was hardly a harbinger of good feelings. Soon the nation was convulsed in labor strife in the second-most famous development of the year, the Great Strike of 1877, in which the underside of capitalist development and the political power of railroads became evident. An estimated 100,000 workers participated in the strike and around 100 people died in clashes between strikers and troops called to the aid of employers.
Nor did the Compromise or the Electoral Commission precedents create a clear future path to the resolution of disputed presidential elections, as we may learn later this year. The Electoral Count Act of 1887 did provide that the “electors whose appointment shall have been certified by the executive of the State” will be deemed official unless both Houses of Congress agree otherwise. But it’s not clear how this statute is to be reconciled with state laws providing a more collaborative system for choosing electors, or indeed whether the statute as a whole is constitutional given the unique role arguably provided in the Constitution to state legislatures, and also the autonomy afforded to each congressional chamber.
Lessons of 1876
So what does the 1876 experience teach us about a potentially contested 2020 election outcome? The first lesson is that the two main safeguards of the integrity of our presidential elections are the right to vote without intimidation or ballot-tampering and the clear and uncontested certification of a winner. Both were lacking in 1876, and both could be lacking this year as well if Republican threats of wholesale challenges to mail ballots are realized and Republican governors and/or legislators use them to try to disqualify Democratic electors and choose their own slates. The temptation to go in that dangerous direction was significantly reduced in 2018 when Democratic governors were elected offsetting Republican legislatures in the battleground states of Michigan, Pennsylvania, and Wisconsin (a Democratic governor was also elected in North Carolina in 2016), though GOP trifectas in Arizona, Florida, and Georgia could yet be significant in a contested election.
The second lesson is how hazy the system remains for resolution of Electoral College disputes. The federal courts, and the same kind of majority-Republican-appointed SCOTUS that proved decisive in 2000, might ultimately be brought in to adjudicate dispute resolution procedures with unpredictable consequences.
The third lesson is how useful it is to have a Chief Magistrate in place during presidential election disputes who is committed to due process and bipartisan input. Yes, President Grant wanted Hayes to win in 1876, but not if it risked violence, and in fact, many of Grant’s “Stalwart” Republican backers preferred a Democratic administration and a 1880 comeback to a Hayes presidency. This year, of course, the president is one of the contending parties and the one vastly more likely to produce a constitutional crisis by challenging perfectly valid mail ballots and a perfectly reasonable (if extended) count. Who’s going to be a fair arbiter in that scenario?
The fourth and arguably most important lesson of 1876 is that a compromise resolution of a contested election requires, well, a potential compromise. Yes, southern Black voters and some Democrats starved for office had reason to oppose the Compromise of 1877, but partially because the wounds of the Civil War were so recent, and partially because powerful economic interests wanted an end to the struggle for and against racial justice, the powers that be in both parties found it easy to make a deal. It offered Republicans four more years in power and Democrats long-term hegemony in the South (though some Republicans, including Hayes, erroneously believed they could build a southern GOP based on support from “reasonable” white southerners).
This year, it’s unclear the two parties have enough they can offer each other to overcome a contested election. Will those in Trump’s evangelical super-base be willing to support any action that forfeits the judicial appointments they think are necessary to end an abortion “holocaust?” Will Democratic voters who fear an imminent national descent into fascism be willing under any circumstances to go along with a second Trump term? Could there really be a Compromise of 2021 that doesn’t risk triggering civil conflict as much as any deadlock?
Perhaps we won’t have to find out. Maybe one candidate (more likely Joe Biden) will win in a landslide. And it’s possible Trump is bluffing about refusing to accept a defeat in an election “rigged” by mail ballots; God willing, the Red Mirage may be just that. But there is precedent for the worst outcome, and it’s worth taking a long look back at the Centennial Election and its consequences.