By Elizabeth Stelle
He wasn’t his party’s first choice. He lost the popular vote but won the Electoral College. He even vowed to drain the swamp of corruption in Washington, D.C. His name? Rutherford B. Hayes—“Rutherfraud,” to his detractors—who, in 1877, entered office after the longest contested presidential election in U.S. history.
On Monday the electoral college met across the country to formally elect Joe Biden as president in an anti-climactic conclusion to November’s drawn out presidential election. It was a brutal election year, worsened by a pandemic, urban unrest and cultural tumult. But the election, or crisis, of 1876 offers historical perspective—a reminder that political dysfunction isn’t new to our nation. At that time, the presence of federal troops in the postbellum South and when reconstruction would end was a key election issue. The presidential race had the potential to determine much about voters’ everyday lives. As a result, turnout that year was 81.8 percent—a record that has never been equaled.
On Election Day, Democrat Samuel Tilden, New York’s governor, won the popular vote—4,288,546 votes compared to Hayes’s 4,034,311. Hayes, Ohio’s governor, went to sleep that night believing he lost. But weeks of political chaos ensued as both parties fought for 20 contested Electoral College votes.
The fight began with evidence of voter fraud and intimidation. In South Carolina, for example, turnout was 101 percent; there were even ballots “accidentally” printed to make Republican votes count as Democrat votes. Then, on December 14, the state, along with Louisiana and Florida, sent electors supporting both campaigns in the Electoral College (Yes, even in the nineteenth century, Florida was a high-stakes, swing state). At that point, Tilden needed just one more electoral vote to secure the presidency, while Hayes needed all 20 contested votes to win.
The election, or crisis, of 1876 offers historical perspective—a reminder that political dysfunction isn’t new to our nation.
As the fight over voter fraud intensified, the nation was on the edge of violence. In Ohio, for instance, a shot was fired at the governor’s mansion as Hayes sat down to dinner. The air was thick with tension.
In January, Congress intervened with a solution that seems improbable in 2020: a bipartisan electoral commission to decide the winner. When formed, it included eight Republicans and seven Democrats. And so, unsurprisingly, the Republican-leaning commission voted to hand the election to Hayes by one point.
Democrats weren’t quick to forget the election that they said was stolen from them. Yes, President Trump has not conceded, but Samuel Tilden didn’t concede until June 1877— in an age without television or social media “echo chambers.”
After the crisis of 1876, Congress passed the 1887 Electoral Count Act to safeguard the counting of electoral votes, especially in cases where a single state sent multiple slates of electors. The law was confusing—and in some places even contradictory—but it was a first step to reform processes on the federal level to prevent election fraud and bribery.
Yes, President Trump has not conceded, but Samuel Tilden didn’t concede until June 1877— in an age without television or social media ‘echo chambers.’
Now, 140 years later, Americans once again confront a divisive political climate, one that raises questions about election integrity and the rule of law. Learning from 2020, states must find solutions to prevent future electoral problems. After all, America is a federation that empowers states to process votes and choose electors. Therefore, after this year’s crisis, a new wave of state-level reforms must bolster the integrity of future elections.
This response isn’t new. State reform occurred in 2000, but was limited to Florida, where poorly marked punch-card ballots led to those infamous weeks of uncertainty after the presidential election. In the aftermath, Florida made key changes controlling machine-counting and moving the state to all paper ballots. The legislature also improved its ballot design to avoid voter confusion problems.
Now, Pennsylvania—the decisive state in this election—must go even further. The Commonwealth’s 2019 law, which significantly expanded mail-in voting, detailed the process of counting those ballots and determined the ballot deficiencies that would and would not disqualify votes. However, last-minute maneuvering to extend the deadline for returning ballots led to long counting delays. It took more than a week to complete the count.
In Georgia, another state that has been plagued with ambiguity and litigation following the 2020 election, the Secretary of State is seeking reforms that would allow his office to intervene in counties with systematic problems. He also insists on more authority to probe voters suspected of not living where they vote, or ID verification of mail-in ballots.
From 1876 to 2020, America has been an imperfect union striving to improve. The biggest threat to our country isn’t a drawn-out contested election but disrupting the rule of law. In the future, inconvenient election laws cannot be simply ignored by officials. Otherwise, why hold an election at all?
Elizabeth Stelle is the Director of Policy Analysis at the Commonwealth Foundation, Pennsylvania’s free market think tank.