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Lost Opportunity: Learning the Wrong Lesson from the Hayes-Tilden Dispute

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Lost Opportunity: Learning the Wrong Lesson from the Hayes-Tilden Dispute LOST OPPORTUNITY: LEARNING THE WRONG LESSON FROM THE HAYES-TILDEN DISPUTE Nathan L. Colvin* & Edward B. Foley** TABLE OF CONTENTS INTRODUCTION ........................................................................................ 1044 I. THE TWELFTH AMENDMENT PROBLEM .............................................. 1045 A. The Hayes-Tilden Election Dispute and the Electoral Commission ........................................................................... 1045 B. Congress’s Missed Opportunity.............................................. 1047 II. CONGRESS’S RESPONSE TO THE HAYES-TILDEN DISPUTE ................ 1050 A. Forty-Fifth Congress 1877: Republicans Control the Senate and the Democrats Control the House of Representatives ... 1053 1. The House of Representatives Considers a Constitutional Amendment ............................................. 1053 2. Senator Edmunds Responds to the Proposed Amendment and Lays the Foundation for the Electoral Count Act ........................................................................ 1056 3. Other Early Proposals ...................................................... 1060 B. Forty-Sixth Congress 1880: The Democrats Control Both Houses ................................................................................... 1061 1. The Senate Considers a Joint Rule or Bill for the Electoral Count ............................................................... 1061 2. The House Considers the Joint Rule ................................ 1068 3. The Senate Revisits the Question in December 1880 and Amends the Plan ............................................................. 1071 C. Forty-Seventh Congress 1881–1883: A Virtual Tie in the Senate and Republican Majority in the House of Representatives ..................................................................... 1074 * J.D., The Ohio State University Michael E. Moritz College of Law; B.A., Miami University. ** Director, Election Law @ Moritz; Robert M. Duncan/Jones Day Professor of Law, The Ohio State University Michael E. Moritz College of Law. This article grew out of a paper presented in Professor Foley’s Seminar on Disputed Elections and relates to his long-term scholarly interest in the topic. The themes of this paper, as well as related work from the long-term project, were presented at the Fordham symposium, and the authors are extremely grateful for the feedback and intellectual stimulation received at the symposium. Likewise, this specific paper was also presented at an Ohio State Legal History Workshop, and the authors thank the workshop participants for their helpful comments. Matt Steinke, of the Moritz Law Library, provided valuable assistance in researching historical materials. The authors, of course, are responsible for any errors. 1043 1044 FORDHAM LAW REVIEW [Vol. 79 D. Forty-Eighth Congress 1883–1885: The Democrats Control the House of Representatives and the Republicans Control the Senate .............................................................................. 1074 1. Congress Considers the Edmunds Bill ............................. 1074 2. The 1884 Presidential Election ........................................ 1076 E. Forty-Ninth Congress 1885–1887: The Republicans Control the Senate and the Democrats Control the House of Representatives ..................................................................... 1078 1. The Senate Considers the Edmunds Bill Again ............... 1078 2. The House Considers the Edmunds Bill .......................... 1081 CONCLUSION ........................................................................................... 1086 INTRODUCTION A clear, efficient, and fair mechanism for resolving election disputes is an important aspect of smooth presidential succession. It is also something that our Constitution has lacked from its inception, and the adverse consequences of its absence were most recently apparent in the 2000 election. The 1876 Hayes-Tilden election, which required an Electoral Commission to resolve disputes about presidential electors, was the most severe manifestation of this presidential succession gap. As such, it also should have represented the best opportunity to fix the problem. Indeed, shortly after the Senate passed the Electoral Commission bill, then candidate Rutherford B. Hayes reflected that the occasion presented such an opportunity to revisit the subject of presidential elections. Before another Presidential Election this whole subject of the Presidential Election ought to be thoroughly considered, and a radical change made. It is probable that no wise measure can be devised which does not require an amendment of the Constitution. Let proposed Amendments be maturely considered. Something ought to be done immediately.1 Instead of wholesale reform and constitutional amendment, Congress spent the next eleven years focusing its energy on a joint rule and then a statutory fix to the problem. The resulting statute, the Electoral Count Act,2 is confusing, unwieldy and fails to account for all the problems the Constitution creates for disputed presidential elections. It also represents a complete rejection of the Electoral Commission model. In this paper, we piece together all congressional action on this matter in the aftermath of the Hayes-Tilden 1876 election leading up to the passage of the Electoral Count Act in an effort to explain why Congress missed this opportunity and turned away from the Electoral Commission model. 1. RUTHERFORD BIRCHARD HAYES, DIARY & LETTERS OF RUTHERFORD BIRCHARD HAYES: NINETEENTH PRESIDENT OF THE UNITED STATES 70–71 (D. MCKAY CO. 1964). 2. Pub. L. No. 98-456, 98 Stat. 1748 (codified at 3 U.S.C. § 15 (2006)). 2010] LESSON FROM THE HAYES-TILDEN DISPUTE 1045 I. THE TWELFTH AMENDMENT PROBLEM In another article we have detailed the problems and gaps that the Twelfth Amendment to the Constitution has created for our system of electing the President.3 Briefly, the Twelfth Amendment provides the joint session of Congress with instructions for conducting the electoral vote.4 The Amendment is wordy, but the language that causes the most problems is relatively short: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”5 This is all the direction the Constitution provides to the joint session, and one can quickly see the problems it creates if there is a dispute. For instance, what does the language say about who is to count or determine the validity of electoral votes? One can make the argument, as some have, that this authority is vested exclusively in the President of the Senate, with the two Houses being merely onlookers. Alternatively, as others have claimed, one can contend that Congress has authority under the Necessary and Proper Clause6 to fill the gap that exists in the constitutional text. The key point, however, is that because the constitutional ambiguity remains unless and until there is a constitutional amendment to fix it, different arguments can be made to support one or the other of these interpretations depending on the politically strategic reasons for doing so.7 Even if it were settled who has the final constitutional authority to decide which Electoral College votes from a state are entitled to be counted, subsidiary questions arise over how to exercise this authority if there is a dispute over electoral votes. For example, can the vote counter reject votes? How should the vote counter choose among competing votes? These are just a few of the questions posed by the text of the Twelfth Amendment,8 and as we detailed in our article, many of the issues have arisen in our history. The most glaring example was the Hayes-Tilden Election Dispute. A. The Hayes-Tilden Election Dispute and the Electoral Commission The question of what to do when faced with competing electoral returns from a single state reared its head in the Hayes-Tilden dispute. In the aftermath of the 1876 presidential election, Congress was faced with thirty- five disputed electoral votes from five states, enough to swing the election either way.9 In three southern states, Florida, Louisiana, and South 3. Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. MIAMI L. REV. 475 (2010). 4. U.S. CONST. amend. XII. 5. Id. 6. U.S. CONST. art I § 8, cl. 18. 7. See generally Colvin & Foley, supra note 3, at 480–523. 8. For a list of others, see id. at 482–83. 9. CHARLES FAIRMAN, Five Justices and the Electoral Commission of 1877, in THE OLIVER WENDELL HOLMES DEVISE: THE HISTORY OF THE SUPREME COURT OF THE UNITED STATES 40–41 (Paul A. Freund & Stanley N. Katz, eds., Supp. 1988). For another good source on the Hayes-Tilden dispute generally, see PAUL LELAND HAWORTH, THE HAYES- TILDEN DISPUTED PRESIDENTIAL ELECTION OF 1876 (1966). 1046 FORDHAM LAW REVIEW [Vol. 79 Carolina, multiple electoral certificates were returned, along with allegations of fraud, violence, voter intimidation, and corruption.10 In Oregon, one elector was possibly ineligible which led to the submission of two slates, one including the elector and another with a replacement from the other political party.11 If Hayes received all of the disputed electoral votes, he would prevail by a margin of one; therefore each dispute was critical to the overall outcome.12 The Constitution was silent as to how to proceed and there was no legislation governing the electoral count. Perhaps worse still, control of Congress was split between the Democrats
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