The Battle of the Ballots.

Which candidate had won? In 1876, the dispute nearly began a second civil war.

In the wee hours of March 2, 1877, Washington, D.C., was ready to party. In three days, a new President would be inaugurated with balls, parades, and public speeches. But one problem kept the lights on late in the Capitol: No one knew who that new President would be.

The Gore-Bush battle of 2000 isn't the first U.S. presidential election to go into overtime. When Democrat Samuel J. Tilden ran against Republican Rutherford B. Hayes in 1876, it took the country four months to decide who had been elected--and it turned out to be the candidate who had won fewer popular votes. But the real loser that year, like an innocent bystander socked in a bar-room brawl, was not either party, but America's black population.

The Civil War had concluded just 11 years before, and everyone knew that political arguments could end in bloodshed. After the war, the 15th Amendment to the Constitution had assured black males the right to vote. In the South, that fight had been protected by occupying federal troops.

But many Southern whites had chafed at seeing political power given to ex-slaves. They also resented the way Northerners had flocked to the South. Some of these men, known as carpetbaggers, had taken seats in state legislatures and exploited for their own gain the postwar rebuilding that gave the era the name Reconstruction.

By election time 1876, only three states still had standing federal troops. The country was weary of Reconstruction, and weary of the scandals that had rocked the administration of President Ulysses S. Grant. In nominating Tilden of New York and Hayes of Ohio, both parties chose reformminded Governors.

On Election Night, early returns showed Tilden on top. A few schemers, however, helped to change history. One of them was John C. Reid, managing editor of The New York Times--at the time, a very partisan Republican newspaper.

At 4 a.m. on Election Night, a Democratic campaign representative telegraphed Reid asking for the latest estimate of Tilden's electoral count. Reid realized the Democrats didn't know whether Tilden had captured certain key states. He woke up Zachariah Chandler, the Republican Party chairman, and Chandler telegraphed party leaders in states that had not reported their votes, telling them Hayes could win if he carried those states.

Readers of that day's Times learned how close Tilden was to wrapping it up:

At the hour of sending The Times to press this morning, the result of the presidential election, held yesterday, is stiff in doubt.... Tilden will have 184 electoral votes. Necessary to elect, 185.

Republican leaders scrambled to deny Tilden that one last vote--by fair means or foul. But historians say there were bribes and other misdeeds on both sides. Democrats, for instance, knew that the black vote went heavily to the Republicans, the party of Lincoln. So some Democrats had used intimidation to keep Southern blacks from voting. On November 12, still thinking he was a loser, Hayes wrote in his diary that he had been robbed:

... history will hold that the Republicans were by fraud, violence, and intimidation, by a nullification of the 15th Amendment, deprived of the victory which they fairly won.... if there had been neither violence nor intimidation nor other improper interference with the fights of the colored people, we should have carried enough Southern states to have held the country and to have secured a decided popular majority in the nation.

The totals actually tabulated, however, showed that Tilden was the popular-vote winner by more than 250,000 votes. But the all-important electoral-vote struggle went on. The two parties sent observers to Louisiana, South Carolina, and Florida, where the results were super-close. In those states, rival election boards sent in conflicting "official" election returns --one set saying Hayes had won, the other giving the victory to Tilden.

After debating the issue for weeks, in January 1877, Congress created a bipartisan commission to resolve disputes over the returns. The commission included 15 men: 5 Senators, 5 Representatives, and 5 Supreme Court Justices. Of these, seven were Democrats and seven Republicans. The 15th member was supposed to be David Davis, a Justice and a respected independent. But that winter, Davis was elected Senator from Illinois, and he resigned from the commission. The only Justices left to choose from were Republicans. So that party gained an 8-7 edge in the voting--a split that, in the end, would determine the outcome.

In the midst of the turmoil, emotions were at fever pitch. Some people feared that a new civil war would break out. Democrats cried "Tilden or blood!" and one newspaper editorial called for the assassination of Hayes. Someone did fire a bullet through the window of Hayes's home in Ohio while his family was eating dinner. The Times, meanwhile, urged Democrats to give up:

... the reasonable course of the Democratic Party to pursue is to submit peaceably to the presidency of Mr. Hayes and carry their grievances before the tribunal of the American people. If they can impress upon a sufficiently large majority that Mr. Hayes is not entitled to the seat he holds ... the result will be reversed when the next presidential election occurs, and by a vote so decisive and immense that no one would dare to raise a question of dispute.

On February 1, 1877, the counting of electoral votes began in a joint session of Congress. When the roll call reached the three disputed states (plus Oregon, a Hayes state the Democrats challenged on a technicality), the Electoral Commission's 15 members went to a tiny room in the Supreme Court building to hash out a solution. After more than a week of wrangling, they voted along party lines to award the disputed states to Hayes, making Hayes the electoral-vote winner, 185 to 184.

Today, most historians think they blew it. With foul play on both sides, it's hard to tell who really won, but scholars think Hayes was entitled to the votes of South Carolina and Louisiana, and Tilden was the real winner in Florida. Such a finding would have elected Tilden, 188-181.

The battle wasn't over. Congress still needed to ratify the commission's decision. When the results were announced, the Republican-controlled Senate cheered, but the Democratic-run House of Representatives threatened to filibuster--use delaying tactics such as endless talking--to block approval of the election results.

The struggle culminated in an 18-hour marathon session on March 1-2, 1877. But the House filibuster was superseded by a political deal. Southern Democrats had met with representatives of the Republican camp. In what became known as the Compromise of 1877, they had agreed to accept Hayes as President if he would withdraw the last troops from the South, give a Southerner a Cabinet post, finance internal improvements in the South, and give Southern Democrats some power to appoint local federal office holders.

Neither Hayes nor his supporters were hostile to blacks. But the removal of troops was a signal that blacks' newly won voting rights would no longer be protected by federal authority. White-dominated state governments soon set up barriers to keep blacks from voting, and it would be nearly a century before they voted in large numbers in the South again. That is why some historians call the Compromise of 1877 the "great betrayal" of African-Americans.

Predictably, Hayes and Tilden had opposite reactions to the final results of the 1876 election. In his inaugural address, Hayes said:

The fact that two great political parties have in this way settled a dispute, in regard to which good men differ as to the facts and the law, no less than as to the proper course to be pursued, in solving the question in controversy, is an occasion for general rejoicing.

But Democrats didn't rejoice. They nicknamed Hayes "Rutherfraud," and believed that Tilden had been robbed. In a speech the following summer, Tilden corrected them:

I did not get robbed. The people got robbed. To the people it was a robbery of the dearest rights of American citizens.... a great fraud triumphed, which the American people have not condoned, and will never condone.... Such a usurpation must never occur again ...

The experience of 1876 suggests a lesson for another long-undecided election 124 years later. Never mind what Yogi Berra said. This mess won't be over even when it's over.

FOCUS: Another Disputed Presidential Election the Hayes-Tilden Contest of 1876

TEACHING OBJECTIVES

To help students understand that the election uproar has a parallel in history, In 1876, a similarly close election--also involving disputed ballots from Florida--gave victory to Republican Rutherford B. Hayes, even though he trailed Democrat Samuel J. Tilden by 250,000 votes.

Discussion Questions:

* How would you describe the deal between Hayes and the Southern Democrats?

* How do you think citizens and Congress--would react if a state sent in two sets of electoral returns---one favoring a Democratic candidate and one favoring a Republican candidate?

CLASSROOM STRATEGIES

Critical Thinking: Study the Hayes-Southern Democrat deal. Was the deal the kind of compromise that is required in politics every day? Contrast the deal with the violence that broke out over political disagreements in 1861. When is compromise acceptable, and when is it not?

Role-play: If students were members of the Electoral Commission, how would they decide which ballots to open? What could they have done after Justice David Davis left the commission to assure that the commission remained politically balanced?

History Link I: Did ending Reconstruction affect the rights of African Americans in the 20th century? (It took 77 years before racially segregated public schools were outlawed and another 87 years before the Civil Rights Act of 1964.) Would race relations be different today if blacks had obtained civil rights in 1877, rather than in 1964?

History Link II: A memo distributed in Congress in November referred to an 1877 law that permits Congress to reject a state's electoral votes. The memo also quoted the 12th Amendment, which allows the House of Representatives to choose the President if no candidate has a majority of electoral votes. How would Americans react if Congress rejected some states' electoral votes?

Web Watch: For more on Hayes, log on to the Hayes Library at www.rbhayes.org To learn how ending Reconstruction affected Southern blacks, log on to the Library of Congress: http://lcweb2.loc.gov/ammem/ndlpedu/lessons/rec /rhome.html