The Disputed Election of 1876
William H. Rehnquist
William H. Rehnquist (10-1-1924 to 9-3-2005) served on the US Supreme Court for 33 years and was Chief Justice from 1986 to 2005. As Chief Justice he presided over Bill Clinton's Impeachment Trial and he voted in the majority in Bush v Gore (2000) to end the Florida recount. He has written books on the Supreme Court, civil liberties in wartime, and the impeachment trials of Justice Samuel Chase and President Andrew Johnson. At the time I thought Rehnquist's vote in Bush v Gore stole the election from Gore and lost what little respect I may had had for him. In Centennial Crisis: The Disputed Election of 1876 William H. Rehnquist writes about the disputed election of 1876 between Rutherford B. Hayes and Samuel J. Tilden. In that election the Democrat Tilden won 50.9% of the popular vote to Hayes's 47.9%. Tilden initially won 184 of the 185 electoral votes needed to win and Hayes had 165. The 20 electoral votes from 4 states - Florida, Louisiana, South Carolina and Oregon - remained in dispute. The Compromise of 1877 awarded all the electoral votes to Hayes in return for the withdrawal of Federal troops from the South and the end of Reconstruction. This led to the disenfranchisement of Blacks and the birth of Jim Crow laws in the South. I am writing this in October 2020 and I picked up Rehnquist's book over concerns about the results of the coming election between Joe Biden and Donald Trump and to see what kind of light Rehnquist could shed on this issue. Rehnquist writes better than I expected. He provides a lot of information on the Supreme Court, the backgrounds and personalities of the two candidates and how they came to be nominated, the various players in Congress, and the make up of the Commission that ultimately determined the outcome of the 1876 election. Rehnquist reviews evidence that both parties tried to use their power, influence and bribes to determine the result of the election in the contested states. Rehnquist reviews Article II, Section I of the Constitution and notes that when the state results of an election are disputed it is possible under the Constitution for the State to send 2 different slates of electors. The suppression of black voters in the three southern states and the discarding of large numbers of ballots in these states called the results into question. The Constitution stipulates that the Electors shall meet in their respective states and canst their Ballots and then send these to the President of the Senate. The President of the Senate shall open the ballots in front of the House and Senate and the ballots shall be counted. The Constitution is silent on who counts the ballots. In 1876, Rehnquist points out that the Democrats controlled the House and the Republicans controlled the Senate. The Supreme Court had a majority of Republicans. The House, Senate and Supreme Court hammered out a compromise that established the 1876 Electoral Commission to determine the winner of the 1876 Election. Eight Republicans and seven Democrats comprised the Commission with the House providing three Democrats and two Republicans, the Senate providing three Republicans and two Democrats, and the Supreme Court providing two Democrats and three Republicans. In the end, they voted straight party line, handing the Presidency to Hayes. Rehnquist provides a very good discussion of the mechanics of the decision and the different personalities and institutions involved. He falls short in his discussion of the different political pressures behind the decisions and the impact of the ultimate decision - the end of Reconstruction in the South, the birth of Black voter suppression and Jim Crow, and the retreat of Black rights. That said, the book is timely and may well predict what we might face in the coming election if mail in ballots, voter suppression and other issues raise enough questions about the legitimacy of the vote in certain States. It is an easy read and an important one.