The Constitution provides that “the President of the Senate shall, in presence of the Senate and House of Representatives, open all the [electoral] certificates, and the votes shall then be counted.” Certain Republicans held that the power to count the votes lay with the President of the Senate, the House and Senate being mere spectators. The Democrats naturally objected to this construction, since Mr. Ferry, the republican president of the Senate, could then count the votes of the disputed States for Hayes.
The Democrats insisted that Congress should continue the practice followed since 1865, which was that no vote objected to should be counted except by the concurrence of both houses. The House was strongly democratic; by throwing out the vote of one State it could elect Tilden.
Samuel J. Tilden.
After a pastel by Sarony in the house at Gramercy Park.
The deadlock could be broken only by a compromise. A joint committee reported the famous Electoral Commission Bill, which passed House and Senate by large majorities; 186 Democrats voting for the bill and 18 against it, while the republican vote stood 52 for and 75 against. The bill created a commission of five senators, five representatives, and five justices of the United States Supreme Court, the fifth justice being chosen by the four appointed in the bill. Previous to this choice the commission contained seven Democrats and seven Republicans. It was expected that the fifth justice would be Hon. David Davis, of Illinois, a neutral with democratic leanings; but his unexpected election as democratic senator from his State caused Justice Bradley to be selected to the post of decisive umpire. The votes of all disputed States were to be submitted to the commission for decision.
It was drawing perilously near to inauguration day. The commission met on the last day of January. The cases of Florida, Louisiana, Oregon, and South Carolina were in succession submitted to it by Congress. Eminent counsel appeared for each side. There were double sets of returns from everyone of the States named. In the three southern States the governor recognized by the United States had signed the republican certificates. The democratic certificates from Florida were signed by the state attorney-general and the new democratic governor; those from Louisiana by the democratic gubernatorial candidate, who claimed to be the lawful governor; those from South Carolina by no state official, the Tilden electors simply claiming to have been chosen by the popular vote and rejected by the returning board. In Oregon the democratic governor declared one of the Hayes electors ineligible because an office-holder, and gave a certificate to Cronin, the highest Tilden elector, instead. The other two Hayes electors refused to recognize Cronin, and, associating with them the rejected republican elector, presented a certificate signed by the secretary of state. Cronin, appointing two new electors to act with him, cast his vote for Tilden, his associates voting for Hayes. This certificate was signed by the governor and attested by the secretary of state.
After deciding not to go behind any returns which were prima facie lawful, the commission, by a strict party vote of eight to seven, gave a decision for the Hayes electors in every case. March 2d it adjourned, and three days later Hayes was inaugurated without disturbance.
The whole country heaved a sigh of relief. All agreed that provision must be made against such peril in the future; but it was not till late in 1886 that Congress could agree upon the necessary measure. The Electoral Count Bill was then passed, and signed by the President on February 3, 1887. It aims to throw upon each State, so far as possible, the responsibility of determining how its own presidential vote has been cast. It provides that the President of the Senate shall open the electoral certificates in the presence of both houses, and hand them to the tellers, two from each house, who are to read them aloud and record the votes.
If there has been no dispute as to the list of electors from a State, such list, where certified in due form, is to be accepted as a matter of course. In case of dispute, the procedure is as follows: If but one set of returns appears and this is authenticated by a state electoral tribunal constituted to settle the dispute, such returns shall be conclusive. If there are two or more sets of returns, the set approved by the state tribunal shall be accepted. If there are two rival tribunals, the vote of the State shall be thrown out, unless both houses, acting separately, agree upon the lawfulness of one tribunal or the other. If there has been no decision by a tribunal, those votes shall be counted which both houses, acting separately, decide to be lawful. If the houses disagree, the votes certified to by the governor shall be accepted.
President Hayes’s first important action was the withdrawal of troops from South Carolina and Louisiana, where the rival governments existed side by side. The republican governments at once fell to the ground. As the Democrats had already got control in Florida, the “solid South” was now an accomplished fact. Financial questions were those which chiefly occupied the public mind during Hayes’s administration. They are referred to in Chapter VII., below.