Notes on the election of 1876

The Electoral Count Act (ECA) has become a subject of controversy. There’s a bipartisan movement to amend it. Donald Trump baselessly invokes that movement as support for his claim that Mike Pence could have overturned the 2020 presidential election.

The ECA was a response to the election of 1876. In that contest, between Republican Rutherford Hayes and Democrat Samuel Tilden, Congress was presented with two slates of electors by three southern states. The outcome of the election turned on which slates were recognized, plus the resolution of a dispute over one Oregon elector.

The matter was settled by a special commission and, effectively, by the decision of one Supreme Court Justice, Joseph Bradley. The commission sided with Hayes and Congress accepted that outcome.

Who should have won the election? When I read up on it years ago, I came to the following conclusions, for what they are worth:

First, Tilden won more votes, correctly counted, in the three southern states than he needed to win the electoral vote. Technically, he should have been declared the winner.

Second, Tilden’s superior vote count in these states (or at least some of them) was the result of denying the vote to a substantial number of black voters, nearly all of whom would have voted Republican. The magnitude of the voter suppression likely exceeded Tilden’s margins.

I don’t mean voter suppression in the sense the left talks about it now — requiring voter identification and refusing to allow people to vote every which way without regard to preventing fraud. I mean flatly not permitting some Blacks to vote and enforcing the prohibition through violence or threats.

Third, therefore Hayes’ victory was the just outcome.

But fourth, the white supremacist vote suppressors got their way because Hayes’ victory was probably sealed with a promise to pull federal troops from the south, and thereby end Reconstruction.

Fifth, Reconstruction was destined to end soon in any event. After years of military engagement with the south — first a war, then an occupation — the country had lost its will to see Reconstruction through.

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Here’s my understanding of the process that led to Hayes’ victory: The dispute over the outcome of the election created so much bitterness that there was talk of violence and even another civil war. To resolve the matter peacefully, President Grant proposed creating a bipartisan commission to decide the matter. Congress agreed.

The commission consisted of 15 people: five Republican members of Congress, five Democratic members of Congress, and five Supreme Court Justices. Of the five Justices, two were Republicans and two were Democrats. The fifth Justice, David Davis, was considered an independent, but he was expected to side with the Democrats.

However, Davis was elected by the Illinois legislature to the Senate and resigned from the Court. He was replaced on the commission by Joseph Bradley, the least partisan of the remaining Justices, but still a Republican.

In the accounts I read, Bradley’s vote wasn’t a knee-jerk partisan exercise. He gave the matter some thought and may have even agonized over his decision. In the end, though, his vote was in Hayes’ favor.

That didn’t end the matter. The Democrats refused to accept the result. They filibustered in the Senate, hoping to push the matter beyond Inauguration Day, so that the House might decide the election in Tilden’s favor. However, these efforts failed after the Hayes forces apparently agreed in late February that federal troops would leave the south if their man took office.

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Finally, a note about the role Roscoe Conkling, and possibly his mistress Kate Chase Sprague, played in this drama. Conkling was a giant of a man and the giant of the Senate. He exerted enormous influence thanks to his unsurpassed oratory, intellect, force of personality, and vindictiveness. In addition, Conkling was Grant’s man in the Senate.

Kate Chase Sprague was the daughter of Salmon Chase, who had been a Senator, a Governor, Secretary of the Treasury under Lincoln, and Chief Justice of the Supreme Court until his death in 1873. Kate, a great beauty, was married to William Sprague, a former Senator, but the two were estranged.

There is no question that Kate had a long affair with Conkling. It is believed that they were lovers by 1876. In any event, they were close friends by then.

Conkling was a spoils man and, as such, an enemy of Hayes, who backed civil service reform. Tilden was something of a reformer, too, but had confined his efforts to fighting Tammany Hall, the Democratic machine in New York City. Conkling, an upstate New York Republican, had no problem with that.

Kate Sprague was an enemy of Tilden. She blamed him for her father’s defeat at the Democratic convention of 1868. Salmon Chase, knowing that the Republicans would nominate Grant, had switched parties (not for the first time). Kate, who as the queen of social life in Washington D.C. knew everyone who was anyone, managed his bid for the nomination.

The bid failed when the New York and Ohio delegations went for a “dark horse,” Horatio Seymour of New York. (Seymour’s sister, by the way, was Conkling’s wife.) Kate blamed Tilden for what she considered a betrayal and never forgave him.

Grant wanted the special election commission and expected his close allies Conkling and James Garfield to support its creation. Garfield balked because, as noted, it looked like the body would favor the Democrat. Conkling appeared to be on the fence. He wanted to back his party, but also wanted to support the president. And unlike Garfield, he did not want Hayes to win.

In the end, Conkling delivered an oratorical masterpiece in favor of creating the commission, and the Senate voted to do so. Beforehand, Kate told a reporter of Conkling’s intentions, after swearing the journalist to secrecy. This suggests that she was involved in Conkling’s deliberations, but also that she was not the driving force in his decisions. Had she been, it’s likely that Conkling wouldn’t have given a speech that seemed at the time to favor Tilden’s interests.

The plot thickened after the commission went for Hayes and the Senate had to decide whether to accept that result. Tilden’s friends knew that Conkling favored their man, and urged him to oppose the outcome determined by the commission. Kate, on the other hand, wanted him to close the door on her old enemy, Tilden.

If Conkling had delivered a speech in favor of overriding the commission, it’s possible he might have persuaded enough Republicans to go along with this. But Conkling was a no-show on the day of the critical vote.

He was in Baltimore, supposedly visiting a friend. Rumor had it that Republican leaders persuaded Kate to invite him there for an encounter at a friend’s house.

Did Kate Chase Sprague cause Roscoe Conkling to stand aside an let his enemy, Rutherford Hayes, become president? Maybe. My guess, though, is that Conkling stood aside because intervening on behalf of a Democrat at this stage of a knock-down-drag-out presidential race would have endangered Conkling’s political future.

Going to Baltimore was a great solution for him, and not just because of Kate’s charms. It enabled him to maintain his standing with Republicans without being party to elevating his enemy — the man he would call “Rutherfraud Hayes” — to the presidency.

NOTE: The final portion of this post draws liberally from the book American Queen, a biography of Kate Chase Sprague by John Oller.