The Contested Election
With voting for the presidential election to be finalized this Tuesday, my hope is for the candidate who loses to display foresight and character with a timely concession speech. This has not always been the case. An example of a refusal to concede is found in the actions of those who stormed the Capitol Building on January 6, 2021, an act of treason if there ever was one. Spare us a repeat of all this election denial ballyhoo and let’s get on with business.
Before January 6th, there was November 7, 1876!
In my upcoming sequel, “The Gilded Age” - www.beckleysbooks.com - I delve into the effect the 1876 Presidential Election had on all of our ancestors who lived locally during this time period. Roughly five years after the fateful 1876 election (1880), and with promoting of Northeast Ohio’s favorite son, James A. Garfield, into the White House, the local democrats were still fuming over the election that had been stolen from them in 1876. The Democratic mouthpiece, The Carroll Chronicle, was still dredging up “the theft” and reminding folks pretty much on a weekly basis.
A look back at what transpired in the early morning hours of November 8, 1876, and the months that followed, gives us an understanding of why the Democrats were so passionate and why they felt aggrieved for so long. Here’s what went down, by all historical account.
The Republican Party nominated Rutherford B. Hayes, the Governor of Ohio, who was a placid, but outgoing individual. Kenneth E. Davison’s biographical sketch of Hayes tells us of the Kenyon College student walking 40 miles to his family’s home in Delaware, Ohio one Christmas. Hayes later met and married the renown women’s activist, Lucy Webb, who became one of the more gifted First Ladies, and the first to be a college grad. “She was an excellent hostess; her outgoing personality complemented her husband’s more reserved manner.”, Davison writes. Rutherford Hayes was not his party’s first choice for president, but after seven ballots, he was considered the perfect compromise candidate from their primary convention held in Cincinnati that year.
The Democrats coalesced around the Governor of New York, Samuel Tilden. Tilden’s appeal, according to author Roy Morris Jr., was his being a cerebral politician, an intellectual who did not devolve into the personal side of a campaign, but otherwise embodied a self-aloofment. “Centennial Sam” at 62, looked a good ten years older. He was short and slight of stature with sparse sandy hair, a pale complexion, and an odd drooping left eyelid. Is there any surprise that he was a bachelor?
My read on this election is that neither party’s candidate got personally involved with the eventual outcome, but, Hayes’ “essential rectitude” allowed him to overlook the evidence of electoral misbehavior by some of his closest friends and supporters.
Meanwhile, Tilden realized, despite securing 1.3 million more votes than his opponent, the election was being stolen from him. Tilden also understood how one ill-chosen word might reignite the country into civil war. Morris Jr. writes, “Tilden had the good grace and inherent patriotism to avert such a social catastrophe.”
This is a tale that might sound eerily familiar. It starts with a political operative, Daniel Sickles – aka “Dirty Dan” - who had been a Democrat and was a rising star under the James Buchanan administration. That was until Sickles effectively ruined his career by killing the son of Francis Scott Key, whom had been having an affair with his wife. Sickles used his connections through Edwin Stanton, the future War Secretary, to secure an acquittal. Roy Morris Jr., in his best-selling book, “Fraud of the Century”, notes that Stanton, in this legal brief, was the first lawyer to use the argument of “temporary insanity”.
Sickles salvaged his reputation by raising and leading a Union brigade during the Civil War, losing a leg at Gettysburg, but winning a Medal of Honor for his efforts. Then, after the war, Sickles was appointed as Military Command of the Reconstruction District encompassing North and South Carolina, before having been removed once President Grant appointed him as an “American Minister” to Spain. Sickles had to resign this foreign post after having become too familiar with the Queen of Spain and thereafter, he moved to Paris. It was from his residence in Paris where Sickles wrote to his American contacts of his concern for a Tilden presidency. Oddly enough, the National Republican Chairman, Zachariah Chandler, declined Sickles’ offer of help, but this did not deter him from returning and settling in New York City.
On the night of November 7th, Sickles was returning from a Broadway play when he stopped at the hotel of the Republican Headquarters on 23rd Street. He was expecting a hive of activity, but found none; only a disheartened clerk, M.C. Clancy, as everyone else had retired for the night fully expecting a Democratic Party victory in the morning. Morris Jr. describes in his book how Sickles sat at the chairman’s desk and “riffled through a stack of telegrams from Republican State Headquarters across the country. What he saw gave him hope.” Sickles mentioned to the clerk that the presidential contest was “really close ... doubtful, but by no means hopeless.”
Sickles turned his astute eyes on the Electoral College tally and instantly knew that in three states, Florida, Louisiana, and South Carolina, where Republicans still held power through governorships and reconstructive governmental power, he could raise the “slightest air of uncertainty”. Sickles then drafted a message to each of those three states’ party’s chairmen restating, “With your State sure for Hayes, he is elected. Hold your State.” What Sickles needed next was the clerk, Clancy, to forge Chairman Chandler’s signature on the messages. Clerk Clancy was skeptical of the scheme until the powerful and current Collector of the Port of New York, and future President of the USA, Chester A. Arthur appeared. Sickles posed his scheme to Arthur, and under Arthur’s direction, the deceptive telegrams were sent.
Rumors abound as early as 3:45am on the morning of November 8th and worried Democratic officials sought to allay their fears with a wired, urgent message to the Editor of the New York Times, “Answer at once!”. They were enquiring about the returns from Florida, Louisiana and South Carolina. Meanwhile by daylight, the Associated Press was reporting that both sides were declaring victory in Florida. Also, at the break of day, came back a reply to Sickles’ telegraph from the South Carolina Governor - “South Carolina is for Hayes”. Sickles sent more messages to his Florida and Louisiana operatives telling them, despite nearly every U.S. newspaper declaring Tilden the winner, “to hold your State.” And with that, Sickles duties were done.
The New York Times continued to sow seeds of doubt upon the election’s results with their morning headline - “A Doubtful Election”. The New York Herald followed with “The Result – What Is It? The Returns Too Meager.”
The Democrats counted firmly on 17 States and 184 Electoral College votes while the Republicans held 18 States and 166 Electoral College votes, leaving 3 States and 19 Electoral College votes in dispute. For the record, Tilden won all three disputed States with the initial returns, and some by a large margin like the 7757-vote majority in Louisiana. Fear was rampant, though, of what these states’ Returning Boards would finally do.
Tilden’s campaign manager, Abram Hewitt, drafted a memo encouraging Americans to assemble at various points around the country “to protest against the frauds, which have been committed, and to express their determination that the people should not be robbed of their choice for President.” Tilden was unmoved and refused to release the message stating, “it would be safe to trust to the sense of Justice, which sooner or later, would show itself in the public mind and make the consummation of the fraud impossible.” Privately, Tilden’s closest confident ranted, “Another civil war may be the consequence of this state of things and we may enter upon the next century under a different form of government from that of which for nearly a century we have been boasting.” And despite Tilden being bombarded with private wires to act, he remained unmoved. “Be satisfied with reflection that the people are too patriotic, too intelligent, too self-poised to allow anything perilous to be done that may disturb or destroy our peculiar form of government.”, Tilden replied confidently. Meanwhile, seven additional companies of soldiers were moved to protect Washington after rumors that the Democrats were arming themselves to march on the city and install Tilden by force.
Bayonet-wielding soldiers were also beginning to camp around the capitols of Florida, Louisiana, and South Carolina as supporters from both sides arrived to review and oversee the vote certification. All three states’ Returning Boards set their deliberations for mid-November with an eye on a deadline of December 6th to certify their state’s votes. Each state followed a similar format. First, investigators would be dispatched to the counties where the Republican-led boards felt voters were coerced or threatened to vote the Democratic ticket. As an example, in Louisiana, 300 witnesses were rounded up by soldiers and brought before the board members to tell their tales of alleged Democratic abuse. After these hearings were conducted by each state’s commission, the board members would remove the overseers and go into a secret session.
Not surprisingly, some members of each state’s Returning Boards approached Tilden operatives seeking sizable bribes in exchange for their vote to confirm the Tilden vote count. Once again as an example, in Louisiana, a group of board members approached the Tilden campaign representative seeking $250,000 – one hundred thousand for both of the white members and twenty-five thousand for each of the two negro members. Despite these overtures, no bribery money was paid to any Returning Board members of any state.
The South Carolina Board’s final determination was to disregard two State Supreme Court orders and invalidate all votes from three Democrat-leaning counties, which gave Hayes a 7-vote margin in their Electoral College tally. Tilden previously held a 1-vote winning margin. The South Carolinian Board then adjourned placing them out of reach of further legal mandates. The Court issued warrants for the members’ arrest for contempt of court, but their stay behind bars was mitigated by a sympathetic magistrate, who simply released them from custody.
In Louisiana, their Reporting Board invalidated 15,623 votes, of which 13,211 were cast for Tilden. This action made Hayes the winner of their State. From the Board’s secret and final session, these results were released three days later citing systematic intimidation, murder and violence toward one class of voter as the reason for their decision.
The Florida Returning Board, meeting in secret session and protected by armed guards, tossed more than 1800 Tilden votes to give Hayes a majority of 924 votes in their State’s final tally.
December 6th arrived and in 38 State Capitols across the country, the Electoral College vote took place. In 34 of the 38 States, the votes tallied as per on election night. In the three aforementioned States, plus Oregon, two separate election certificates were filed. Not counting the 4 aberrant States, Tilden still had 184 votes and Hayes 165. The remaining 22 votes were mired in contradiction by separate election certificates having been signed by various governors, governors-presumptive, secretaries of states or as in one instance, signed by nobody at all. Through all of this, nothing had been decided.
At this point a frustrated Tilden lashed out, “Our Presidential Election has been subverted by a false count of votes cast by Presidential Electors, found on a substitution of pretended votes known at the time to be fraudulent or forced and to have been manufactured for that particular use.” Tilden feared that his country had become “a bad copy of the worst government of the worst ages.”
The question then became, what would the Senate Majority Leader, Thomas Ferry, do as Acting President of The U.S. Senate? This is normally a role given to the Vice President, but Grant’s VP, Henry W. Wilson, had died the previous year, so Ferry had been filling in since then. Ferry and the other Senators were unsure if the 12th Amendment to the Constitution meant that he was supposed to open the Electoral College votes and count them, or was this just a ceremonial role he had signed up for? And in a situation like this, where there were two different sets of votes from four states, was he supposed to declare which set of votes were to be counted and which ones to set aside? The Democrats wanted Ferry to perform the ceremonial role of simply opening the votes and announcing Tilden 185 Hayes 164. In this case, neither candidate having a majority of the 371 total, the contest then would be automatically thrown into the House of Representatives, where the Democrats held a majority and Tilden would surely win.
What actually transpired was this. Two competing resolutions, one from the Democratic House and the other from the Republican Senate passed each chamber one day after the arrival of the Electoral College votes. Each resolution created a “bipartisan” committee to study ways to resolve this mess. The House committee consisted of 4 Democrats and 3 Republicans and the Senate committee consisted of 4 Republicans and 3 Democrats. The deliberations began, but the two opposing candidates for president used this lull in the proceedings to take two opposite courses of action. The bookworm-ish Tilden dug into reams of legal research to prove legally his rightful claim as the President. Meanwhile, Hayes began to personally reach out to Congressmen who would ultimately be deciding his fate. Then, a twist in events occurred where it was agreed that both legislative committees would combine, now with an equal number of party members represented at the table. The design of this action was to select members for just one committee, a group who would then effectively choose the next President. After three days of vigorous debate, it was agreed that this new committee would consist of 5 Democratic Congressmen and Senators and, 5 Republican Congressmen and Senators, 2 Democrat Supreme Court Justices and 2 Republican Justices, and a fifth Justice who would be chosen by the other four Justices. All parties to this agreement had in mind an “Independent” Justice by the name of David Davis, to take up this fifth spot of the Electoral Committee. However, after the committee had been empaneled, Davis accepted the position to represent Illinois in the US Senate and therefore refused the nomination to be seated as the fifth Justice on the committee. In a scurry, the four seated Justices decided to choose the recently Grant-appointed Supreme Court Justice, Joseph P. Bradley, to take the final seat on the committee. Hayes’ campaign manager informed his boss that Bradley “was as safe as either of the other Republican Judges.”
The Electoral committee commenced with hearings, which droned on through February 6th, when it finally went into executive session for private deliberations. Not long after, the vote took place and the Committee voted along party lines to not receive any more evidence and no further investigations. The Democrats realized at this moment that the selection of Justice Bradley had tipped the scales in Hayes favor. On February 8th, the Electoral Commission awarded the contested votes from all four States to Hayes and he thereafter took up residence in the White House as the President of the United States of America.
Contested elections since 1876 have also occurred in 2000 and 2020. With all the angst and chatter surrounding this upcoming election, why has it recently become in vogue to assume this 2024 election will be contested too?
On October 27th, CNN released results from a poll where just over 30% of the registered voters said that Donald Trump will accept the results of the election and concede if he loses. 73% felt that Vice President Kamala Harris would accept an election loss. This is ominous and staggering to me, but don’t accept my “biased” opinion on this issue. Here’s what a New York Times Opinion Columnist, David French, wrote on October 24th about Trump’s election reversal dreams. “The legal arguments Donald Trump used to try to reverse the election outcome in 2020 have been decisively rejected and the legal loopholes he tried to open have been closed.” French goes on to explain how the Trump Team used the “Conspiracy Theory” to ignite rage that led to the “Coup Theory”, the actual legal mechanism for overturning the election. The Trump Team also arranged for slates of fake electors to be ready to cast ballots for Trump the instant that State Legislatures invalidated the original election results, French pens. The Electoral Count Act of 1887 gives any single Senator or Congressman the right to object to the certification of a state’s vote count. The Act does not define the grounds, though, for overturning a state’s election, and this is what gave the MAGA Team some hope that their scheme might work.
As we know, then Vice President Pence refused to play his part as Presiding Officer of the Senate and, Trump’s efforts failed because of this. French writes, “If Pence had declared Trump the victor, we would have potentially seen two different presidents sworn in on the same day.” French’s article goes into depth explaining how if Trump can once again persuade tens of millions of Americans that the election was stolen, his legal options have narrowed considerably.
French concludes his article by saying, “I want to be very clear – I'm not writing this to say that we have nothing to worry about in 2024. Sadly, legal reform might even make political violence more likely. Trump’s team knows that it’s now virtually impossible to reverse an election outcome through the Courts or Congress. They’ll file their frivolous lawsuits, of course, but they may believe that their last hope is in the streets ... I’d be surprised if the post-election period is entirely peaceful ... but nothing and no one can foreclosure the possibility of political violence. If Trump loses again, chaos is his last – and most dangerous – card to play.”
Wow! It’s hard to believe we’ve come to this, our place, in the annals of history. My opinion is, placing aside the patriotic platitudes (Duty – Honor – Country) that are espoused by all political parties and their loyalist supporters, let’s take a hard look at what our country has been, and where our nation can go from here, and reject the vain attempt of men who attempt to wield political power in this country at all cost.