by Stephen Raher
The presidential election of 1876 was a contentious battle over the future of the post-Civil War United States. Students of history will recall that Louisiana, Florida, and South Carolina each submitted dueling vote tallies after the election, thus requiring Congressional action to decide the disputed results in those states. Less well-remembered, however, was an electoral controversy in a fourth state: Oregon.
Setting the Stage
In the years leading up to November 1876, political observers knew the election to replace President Ulysses S. Grant would be hotly contested. The policy of Reconstruction was under increasing attack, and while Republicans still controlled the Senate, anti-Reconstruction Democrats had regained a majority in the House. The Republican party named Rutherford B. Hayes as its presidential candidate, while Democrats nominated Samuel J. Tilden. On Election Day evening, early returns indicated that Tilden had 203 electoral votes, comfortably in excess of the 185 needed to win.
Yet Republican leaders saw a path to victory: if Hayes could win South Carolina, Florida, Louisiana, and Oregon, he would beat Tilden by one electoral vote, 185 to 184. When Republican operatives learned that Hayes had won the Oregon vote, their attention turned to the three Southern states. Although early returns indicated that Tilden had won all three, there was evidence of fraud and violence (especially in Florida) meant to suppress black Republican voters. Under Reconstruction policies, the popular votes in these three states were subject to review by returning boards (an official body designated by law to canvass election returns), which could invalidate votes upon finding fraud or voter intimidation. Those returning boards were controlled by Republicans who were likely to favor Hayes. And so, the country awaited a final vote count.
The Oregon Controversy
No one really disputed the outcome of the popular vote in Oregon. Democratic Secretary of State Stephen F. Chadwick certified the vote totals: Hayes won with approximately 15,200 votes, Tilden trailed with roughly 14,150 votes, and third-party candidate Peter Cooper snagged around 500 votes. At the time, the Oregon ballot listed the electors whom the respective parties had nominated to vote for the presidential candidate, and voters cast ballots for each individual elector. The Republicans had run William H. Odell, John W. Watts, and John C. Cartwright as the electors pledged to vote for Hayes.
Republican elector John Watts was the acting postmaster of Lafayette, Oregon (in Yamhill County). But article II of the U.S. Constitution provides that no “Person holding an Office of Trust or Profit under the United States” can serve as a presidential elector. Watts resigned his postmaster position prior to the December 6 meeting of the electoral college, but Democrats realized that there could be a strategic advantage in challenging Watts’ vote.
At noon on December 6, Oregon’s Republican slate of electors assembled at the capitol building in Salem; but Democratic Governor LaFayette Grover (allegedly acting at the behest of Democratic National Committee Chair Abram S. Hewitt) declared that Watts was ineligible to serve. Accordingly, Grover and Secretary of State Chadwick prepared a certificate of election stating that the winning electors were Odell, Cartwright, and Democrat E.A. Cronin, who had received the fourth greatest number of votes of any of the electors.
Chadwick delivered all three certificates of election to Cronin. Cronin, in turn, refused to share the papers with Odell and Cartwright, who—out of frustration—reassembled with Watts and prepared their own certificate to send to Washington, D.C. Cronin then declared that the Republican electors had refused to act, and he named two replacement electors—J.N.T. Miller and John Parker, both Republicans, although the Oregonian (a reliable Republican mouthpiece) called them “tools in carrying out the plot.” The two newly appointed Republican electors proceeded to cast votes for Hayes, while Cronin voted for Tilden.
Oregon Republicans were predictably outraged. The Oregonian reported on an “immense indignation meeting” in Salem, where Republicans condemned the electoral trickery and “fair minded Democrats” admitted to being “chagrined at the situation of their party leaders.” In his defense, Governor Grover published a written explanation that set forth detailed legal arguments supporting his decision. Framing the issue as one of obeying his oath to uphold the Constitution, Grover stressed that the popular vote was void due to Watts’ ineligibility. “It is the same in principle, as though by mistake, or otherwise, the highest number of votes should have been given to an alien, a woman, a person insane, a non-resident, the ‘man in the moon,’ or a dead man,” he wrote.
A major problem for Grover’s legal analysis was that Oregon statute provided a mechanism for filling a vacancy in the office of presidential elector: the remaining electors were to select a replacement. To prevent this outcome, Grover argued that the vacancy provision did not apply because there was not a vacancy “unless there has been an incumbent and that incumbent has gone out of the office.” Because Watt never assumed the office of elector, Grover concluded there was no vacancy and that he must award the seat to Cronin, who was the candidate with the next highest number of “legal votes” cast for the office of presidential elector.
Even though Grover’s actions only increased Tilden’s vote count by one, it was strategically significant for two reasons. First, the margin of victory could be (and, ultimately, was) one electoral vote. Second, the 12th amendment to the U.S. Constitution provides that electoral votes are to be sent to Washington, D.C., where the president of the Senate shall “open” the votes during a joint session of Congress, and “the votes shall then be counted.” But there was considerable legal uncertainty about how Congress could address disputes over the validity of votes. In particular, it was unclear whether Congress could look beyond the official certificates of election submitted by the states. Democrats figured that if Congressional Republicans looked beyond Governor Grover’s certificate naming Cronin as an elector, then they would have strong grounds to challenge the certificates from South Carolina, Florida, and Louisiana, all of which awarded electoral votes to Hayes.
As the disputed votes made their way to the national capital, the ambiguity inherent in the 12th amendment came into focus. With each house of Congress under the control of a different political party, the potential for crisis was high. The compromise that emerged was the creation of a 15-member commission, composed of five senators, five representatives, and five Supreme Court justices.
The commission took up the Oregon case on February 21, 1877. By this time, the commission had already decided the Florida and Louisiana elections in favor of Hayes, and most observers were comfortable that Hayes would prevail in the end. Nonetheless, the commission had to rule on the disputed electoral ballots received from Salem. Oregon’s senior senator, Democrat James H. Kelly, argued in favor of upholding Grover’s decision, urging that the governor had merely adjudicated a controversy that he was legally empowered to decide. The counter argument was delivered by Republican John Hipple Mitchell, the state’s other senator. Mitchell—an icon of Gilded Age Oregon, who would eventually be dragged down in land scandals—spared no rhetorical excess. “So momentous” were the issues at stake, Mitchell told the commission, “that to their final determination by this high tribunal the whole people of this nation, and may I not say of all Christendom, are with bated breath looking forward with ever-increasing and intense anxiety.” Mitchell concluded by alleging rampant corruption in the opposition party (“a changeless palsied plague spot upon the record of the democratic party, that time cannot obscure, or repentance obliterate”), heaping praise on the commission, and reading a quote from Shakespeare.
After an entire day of closing arguments—which were interrupted to allow witness testimony, including from John Watts himself—the commission took a series of votes. First, the body voted unanimously that the Cronin/Parker/Miller ballots were not valid. The commission then voted, 8 to 7, to accept the Odell/Watts/Cartwright ballots as the valid constitutional votes. In a brief written report, the commission concluded that Watts was eligible because he had resigned his postmaster position prior to December 4, and that Governor Grover lacked the authority to name Cronin as an elector in defiance of the popular vote.
While the commission had been sifting through evidence and legal arguments, members of Congress and political bosses had engaged in political horse-trading. After all, the commission’s findings were not the final word—the actual electoral votes had to be counted in a joint session of Congress, and Democrats in the House threatened filibusters and other dilatory tactics to prevent a final count by the expiration of Grant’s term. In a series of political trades touching upon Southern “home rule” (i.e., government controlled by white, former Confederate, leaders), railroad subsidies, and cabinet appointments, a compromise eventually emerged. The Congress would agree to the commission’s findings, thereby handing the election to Hayes, who in return would allow white governments in Louisiana and South Carolina to assume control, displacing the Reconstruction governors who remained in office only through the protection of U.S. Army troops. The compromise effectively ended Reconstruction throughout the South, and Congress declared Hayes the winner of the election at 4:10 a.m. on March 2, 1877.
Hayes’s presidency was inevitably tarnished as a result of the electoral dispute, but he pursued a platform (rhetorically, at least) of promoting unification of the country. In furtherance of this goal, Hayes took an interest in Western affairs, and the election dispute was not Hayes’s last involvement with Oregon. In 1880, he took a lengthy tour of the west, during which he became the first sitting U.S. President to visit Oregon.