- The Washington Times - Thursday, November 16, 2000

Until the day he died, Samuel J. Tilden believed the election of 1876 and the presidency had been stolen from him. Many historians think so, too. Rutherford B. Hayes was declared the victor, but between election day on November 8, 1876 and March 2, 1877 the election was in dispute.

It was the "longest, bitterest, and most controversial presidential election in American history," according to Paul F. Boller, Jr. in "Presidential Campaigns," an evaluation which may or may not compare to the shenanigans of election 2000. Mr. Boller exposes the dramatic rewards of aggressive political partisanship.

Patience, of course, was a prized virtue then as now, but those who acted aggressively rather than passively were rewarded with victory. Some of the details of that 1876 post-election wrangling provide either comfort or anxiety today, depending on whose maneuvering you admire and which candidate you like.

But no matter what is said in the name of high-mindedness, it's likely that our election, like that one 124 years ago, will be deeply affected if not determined by partisanship. It earned President Rutherford Hayes the nickname of "His Fraudulency" because he had approximately 300,000 fewer popular votes than his opponent and he may have won the Electoral College by a single vote through crooked means. But win he did.

He paid a price for the cloud that settled over his election. The House of Representatives, with a majority of Democrats, opened an investigation into ballot fraud. It turned up extensive corruption in both parties, including bribery, forgery, intimidation and stuffed ballot boxes. Could history repeat?

What's alarming to historians is how post-election partisanship carried the day. An Electoral Commission in 1877 of 15 members was designed to include 7 Republicans, 7 Democrats and one independent, but when the independent had to drop out he was replaced with a Republican, giving the GOP a majority of one. Naturally this enraged Democrats and delighted Republicans, and when the commission gave all the disputed electoral votes to Hayes, he beat Tilden 185 to 184.

No doubt Jim Baker was familiar with the 1876 election and determined that his candidate shouldn't sit by while the Gore men played hardball. Nearly everyone thinks it best to keep this election out of the courts, but George W. would have been foolish to relax in Texas while the Democrats made all of the moves in Florida. Jim Baker was only wise to ask for an injunction against hand-counted ballots in selected Democratic precincts. Since errors are inescapable in all elections, a Democratic hand-count would obviously tilt toward a Democratic candidate. The judge in Florida, a Democrat, who ruled against the Republicans nevertheless saw merit in their argument. He asked the Gore defense lawyers to explain how hand-counting in selected Democratic counties wouldn't tilt the results toward Democrats. It's a question a lot of us have, and one the U.S. Court of Appeals has now taken under consideration. If hand-counting is more reliable (arguable at best), then hand-counting ought to be done everywhere and maybe even in close elections in other states.

The close counting that elected Hayes came down to 20 electoral votes in South Carolina (7), Louisiana (8), Florida (4), and Oregon's 3 (where one was in dispute). Samuel Tilden needed only one remaining state to win; Hayes needed all of them. The chairman of the Republican National Committee and several other Republican officials telegraphed officials in the three Southern states: "Can you hold your state? Answer at once." Satisfied with the answers, the Republican chairman announced the next morning that Hayes had won the necessary 185 electoral votes.

It didn't end there. Two sets of returns from South Carolina and Louisiana and three from Florida were sent to the Electoral Commission in Washington. Though the 15th man on the commission was a Republican judge, everyone had been assured that he would act in a nonpartisan way. In his "nonpartisan" judgment he agreed with his Republican colleagues on every disputed point. The Southern states got their reward, too. Federal troops enforcing Reconstruction were withdrawn.

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