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  THE STOLEN ELECTION

  The chief characteristic of our system of electing a President has been pragmatism. When the Constitutional Convention first assembled, not a delegate, so far as we can now ascertain, was in favor of the plan that was finally adopted; it is possible that none had even considered it seriously, but out of pragmatic compromise it was born. Furthermore, most of its basic components were also compromises within the original. To take one example: as drafted, the basic compromise sent deadlocked elections to the Senate, but belatedly it was pointed out that to give this branch of Congress the right not only to confirm Presidential appointments but also to elect in the first place was to make the President a creature of the Senate. Even so, when doughty James Wilson proposed that right of election be moved to the House, he was defeated by a vote of 3 to 7. Next day Wilson was back with the observation that the plan as it then stood meant that “the President will not be the man of the people as he ought to be, but the minion of the Senate.” This time Wilson lost 4 to 6. How was the matter resolved? By a secondary compromise. Roger Sherman of Connecticut and Hugh Williamson of North Carolina proposed that the election go to the House, but that there each state would have but one vote. This pragmatic solution passed 10 to 1.

  I am always refreshed when I read of the common-sense role played by James Wilson; of all the delegates he seems best to have anticipated the temper of the future. A fierce proponent of the rights of the people, an adversary to all that would vest government in the hands of a few, he suffered more defeats of his individual proposals than almost any other delegate, yet in the end his larger ideas prevailed. After his work at the convention, he helped write Pennsylvania’s second constitution, served in Congress and on the federal Supreme Court, where he delivered several pace-setting opinions. He was a Scotsman, a graduate of St. Andrews University, and in the years when I attended that school, the students conducted an annual pageant in which the great men who had studied there in past centuries paraded in antique costume to inspect and advise the contemporary students. As an American, I was always given the job of impersonating Wilson, and thus was driven to discover something about the man whose body, dress, and manner I was assuming, and the more I found out, the more impressed I became with the solid pragmatism he had carried from Scotland to Pennsylvania.

  I would suppose, therefore, that the genius of our election system has best been expressed when the nation has faced an election crisis, discovered an inadequacy, and moved swiftly to correct it. I think no man could successfully argue that the compromise devised by the convention was totally good; the defects were too many and too grave, the invitation to fraud too enticing. But at numerous climaxes the nation has patched the system, or allowed custom slowly to evolve new forms that have sufficed; and the advantage of the whole has been that it has worked. The stubborn pragmatism of James Wilson and his colleagues has allowed us to elect a series of reasonably good Presidents in reasonable calm. But where troubles have arisen they have been corrected, and if we now do nothing in the face of the troubles I have been discussing, we shall be false to the spirit of our system. From time to time it needs patching; we are delinquent in our historical duty if we fail to apply the patches.

  Nothing could better illustrate this principle than the election of 1876. The Republican candidate was a large, amiable Cincinnati lawyer whose outward aplomb reminds one of a later President from the same state, Warren G. Harding, but whose performance when elected was much superior. A law graduate from Harvard, with a modest hankering for politics and a flair for catching and holding public approbation, he was in the Union army in July, 1864, when leaders of his district proposed that he run for Congress. From his encampment he wrote: “An officer fit for duty who at this crisis would abandon his post to electioneer for a seat in Congress ought to be scalped.” This statement, widely broadcast, ensured his election, whereupon he promptly resigned his commission, went to Washington, and served in the House of Representatives from 1865 to 1867.

  After having served twice as governor of Ohio, he was denied a third term and returned to the law, but when a vacancy on the Republican gubernatorial ticket opened up in 1875, he was approached by the leaders of his party and asked to run again. In his diary he wrote: “Several suggest that if elected governor now, I will stand well for the Presidency next year. How wild! What a queer lot we are becoming.”

  In the Republican Convention in 1876 he had little chance of winning the nomination, for a group of able men stood ahead of him, but as in the Harding case there was a deadlock, and after six unproductive ballots he was put forward as the compromise candidate. Handsome, polished, well spoken, and gifted in recalling if not waving “the bloody shirt” of southern rebellion, Rutherford B. Hayes was a formidable candidate, exactly the kind required to gloss over the scandals that were erupting across the face of the Grant administration.

  His Democratic opponent was Samuel J. Tilden, a strange man, moody, a retiring bachelor, a patrician railroad lawyer who had invested his substantial fees to build a personal fortune of more than $6,000,000 and who had built a strong reputation as a reformer by sending members of the Tweed ring to jail. On a strong reform platform he had become governor of New York. If Hayes reminds one of Harding, Tilden is clearly suggestive of Adlai Stevenson.

  The Democrats had a good chance of winning this election, for by capturing the House in 1874 they had won a platform from which they could attack Grant and his corrupt administration. The scandals their investigating committees uncovered provided powerful campaign material and in the hands of a more vibrant popular leader would have swept the nation. As it was, Tilden’s reticent campaign produced a popular majority of 251,746 and an electoral vote of 204 to 165, with only 185 needed to win.

  But even before the Democrats could celebrate, Republican managers circulated reports that because of faulty or duplicate certification, the electoral votes of four states were in question, and these four states provided an interesting total of votes: Florida 4, Louisiana 8, South Carolina 7, Oregon 1. (Oregon had three votes, but the other two had been cast for Hayes without protest.) If these twenty contested votes were subtracted from the Tilden column and added to the Hayes, the result would be Hayes 185 to Tilden 184. The problem for the Republicans therefore became how to swing those contested votes into the Hayes column? Observe that it would do the Republicans no good if they won 19 of the votes; they had to win all 20, and their chances of doing so were extremely remote. But they set about the task.

  What were the facts? Each of the four states had submitted to Congress two sets of returns. Those of the three southern states were drastically contradictory, one set giving all of that state’s votes to Tilden, the other all to Hayes. In Oregon, however, the first set gave Hayes a count of 3 to 0, while the second gave him only 2 to 1. A fact of signal importance was that the Hayes votes from Louisiana had been obtained by the fraudulent device of having a Republican election board in one district reject several thousand Democratic ballots. In the Louisiana case at least, Tilden’s chances looked ironclad, and in the Florida and South Carolina, good. It seemed certain that he must be the next President.

  The Oregon case could go either way. The contested Hayes vote there had been cast by an elector who had forgotten to disclose that he was a postmaster, hence a federal employee, hence ineligible to serve. The Democratic governor took it upon himself to disbar this postmaster and to certify in his stead the Democratic elector with the highest number of votes, to which the Republicans countered by having the postmaster resign, which made him eligible, and submitting their own list of electors with his name on it. At this point the reader should determine how he would have treated that Oregon vote had he been on the commission reviewing the matter, because if the Florida, South Carolina, and Louisiana votes were all given to Hayes, the outcome of the election would hinge on this single vote.

  Who was to adjudicate this ticklish question? On this point the Constitution was beautifully vague; it began clear
ly enough; it said that when the results of the electoral vote in each state had been submitted to the president of the Senate, that official should “in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” Grammatically, if the framers had intended the president of the Senate to do the counting—and therefore the accepting and accrediting—their sentence would have read “The President of the Senate shall open all the Certificates and count them.” By phrasing the instructions as they did, they apparently meant that the Congress itself should do the validating and counting.

  The vital questions were phrased thus: Did the president of the Senate count the votes, the Congress being mere witnesses; or did the Congress count them, the president’s duty being merely to preside? And was the counting process merely mechanical or did it also entail validation of the reports as legal? A further question was not asked at that time, but it haunted the proceedings: What should be done in such a situation if the Senate were Republican and the House Democratic, as they were in 1877?

  I suppose one could argue that the framers ought to have anticipated a situation like this, but they did not, so once again pragmatic solutions were called for. It should surprise no one that Congress decided it had the right to count and to accept or reject, but with the two houses in opposite hands politically, how precisely was Congress to perform these two functions? A compromise was reached whereby an electoral commission was established to which the Senate would appoint three of its Republican members and two Democrats; the House, three Democrats and two Republicans; and to which would be added two Republican Supreme Court justices, two Democratic, plus a fifth to be chosen by those four. Obviously, since the Republicans and Democrats could be expected to vote their party interests down the line, this fifth judge would determine the election.

  The commission contained names famous in American history: from the Senate, the Republicans Edmunds of Vermont, Morton of Indiana, Frelinghuysen of New Jersey, and the Democrats Thurman of Ohio and Bayard of Delaware; from the House, the Democrats Payne of Ohio, Hunton of Virginia, Abbott of Massachusetts, and the Republicans Hoar of Massachusetts, Garfield of Ohio. Of this group, Frelinghuysen would become a Secretary of State, and Hoar would be famed in Congressional history; Morton would be a serious candidate for the Presidential nomination, and Garfield would achieve the Presidency. But in certain respects it was Bayard of Delaware who best epitomized American history, for his grandfather had been in the House during the Jefferson-Burr impasse in 1801 and had been the middleman who had arranged the final disposition of that deadlock. He had solved it by convincing Vermont and Maryland backers of Burr that they should refrain from voting, a policy which he himself followed.

  The Democratic House had agreed to submit Tilden’s fortunes to this commission on the understanding that the fifth judge would be Justice David Davis, born in Maryland but now a resident of Illinois, ostensibly a Republican but with a high-handed tendency toward independent action. Davis was a man of gargantuan size; it was said that when he needed new trousers he went not to the tailor but to the surveyor. As a rural lawyer he had early formed the habit of buying up any real estate that was sold at distress for taxes or mortgages, and on a modest salary, had accumulated a fortune of more than $2,000,000. It is true that Lincoln had appointed him to the Supreme Court as a Republican, but judging from his behavior in later years, he would have been impartial, mercurial, arbitrary, and self-directed in his decisions on the 20 contested votes, and it is inconceivable that he would have voted consistently one way or the other. With David Davis as the crucial fifteenth member of the commission, Tilden’s election was assured.

  And then an incomprehensible thing happened. The fact that the 20 votes would be contested had been determined on December 6, 1876. The bill authorizing the compromise commission was passed on January 26, 1877. This would have paved the way for the Democrats to maneuver the nomination of Davis as the fifteenth member; but just the afternoon before, the Democrats of Illinois, to settle a petty problem confronting them, had reached out to the Supreme Court of the United States and elected Justice David Davis to be their junior senator from Illinois. The Democratic plan had been torpedoed by thoughtless Democrats; the fifteenth man would now have to be some other judge; and what he would do on the commission no one could predict.

  To follow Davis for a moment, he entered a Senate that was evenly balanced between Republicans and Democrats, and on numerous bills he constituted the balance of power. By deep conviction a Republican, by his experience on the Supreme Court a liberal Democrat, he vacillated on every vote until it was said of him that he had jumped from the bench to the fence; in his later years he voted mainly Republican, thus incurring the enmity of the Illinois Democrats who had given him his position at such a heavy cost to their party. It does seem likely that had he been the fifteenth man he would have split his vote and elected Tilden.

  With his departure the four Supreme Court judges already appointed to the commission had to find another of their number, and they settled finally on Associate Justice Joseph P. Bradley, the only man in our history who could accurately claim that he alone had determined who was to be President of the Union. Born in New York State and educated at Rutgers, he was a fastidious man who bore little in common with the giant Davis. He was a corporation lawyer, but also a first-class accountant who had deduced the rules for the perpetual calendar that one finds in almanacs giving the day of the week for any date since the birth of Christ and on to infinity. He worked for one of America’s largest insurance companies, but had as his hobby the genealogy of his family, which he compiled in exhaustive detail. When this was completed in several volumes he turned to his wife’s family, and then to various branches and collateral connections.

  He had once run for Congress on the Republican ticket, had served as head of New Jersey’s electoral delegation when that state went for the Republican Grant in 1868, and had been appointed to the Supreme Court by a grateful Grant under circumstances that seemed dubious at the time and have not seemed less so with the passage of years. Almost immediately upon his appointment he led the Court in reversing a decision which had angered the Republican leadership.

  On the surface, therefore, Bradley was a self-admitted Republican, but in his six years on the bench he had shown a marked individuality, and some of his later decisions had given the outward appearance of at least considering the Democratic point of view, so the commission accepted him, largely because there was no alternative. From the moment he took his place on the commission he voted straight Republican.

  When there were indications that he was going to do so, throwing the election to Hayes, the Democrats began to show anxiety. They realized that the Florida, South Carolina, and Oregon decisions would probably go against them, but they trusted that the arrogant fraud in Louisiana would prove so malodorous that even Justice Bradley would have to vote with them. This became the central issue of the contest and it was debated on a high intellectual level. Democrats argued that the commission had not only the right but also the obligation to go behind the formal ballots and inquire into the basic truths of the matter; Republicans argued that Congress had no authority for questioning the integrity of a state. On this point, as on all others, Justice Bradley sided with the Republicans; with an undeviating vote of 8 to 7, every contest was settled in favor of Hayes, and on March 2, two days before inauguration, he was declared the winner, 185 to 184. On Saturday night, March 3, Hayes took the Presidential oath in a private White House ceremony, repeating the pledge in public on Monday, March 5.

  Most accounts of this protracted battle, which brought our nation to the fracture point, overlook an extraordinary aspect of the case: the Democratic House, burning with resentment over the way it had been defrauded, met in separate session on March 3 and officially declared that Tilden had been elected President, thus nullifying the actions of the combined Congress. Since the Constitution clearly stated that in deadlocked elections t
he House shall choose, this was an open invitation to Democrats across the nation to reject Hayes; but by the miracle which seems to preserve us in these matters, the nation did just the opposite. It accepted the decision, and Hayes, who proved a flabby man, took the Presidency from Tilden, who then and always was a man of character and strength. Accepting his defeat he said graciously, “I can return to private life with the consciousness that I shall receive from posterity the credit of having been elected to the highest position in the gift of the people without any of the cares and responsibilities of the office.” His lasting memorial is the New York Public Library, of which the Tilden Library, endowed by him, became an important part.

  In 1887 the problems that had agitated the nation in 1876 were pragmatically settled, for Congress passed an election law which laid down procedures to be followed whenever the reports of the states to Congress were challenged in that body. In most important details the new law sustained the arguments which the Republicans had advanced in 1877. Congress was given the right to accept or reject state reports if they evidenced technical faults but was denied the right to look behind the integrity of a state’s report. Furthermore, to avoid the possibility of another fifteen-man commission to determine validity, the new law said that if upon presentation to the joint session of Congress, a state’s report is challenged by a member of each house, the two houses shall immediately convene separately and vote upon the matter. If both houses agree to accept or reject, that decision is final. “But if the two Houses [acting separately] shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”