By Jerry Kopel and Dave Kopel
National Review Online, Nov. 24, 2000
The last time a Presidential election was stolen in broad daylight was in 1876. Then, as now, the authority of a state legislature to choose the state’s presidential electors was essential to the story.
When President Ulysses S. Grant proclaimed Colorado the 38th state in 1876, he may have changed the course of history, and all because Colorado voters had elected Democrat Thomas Patterson as the territorial delegate to Congress in 1874.
Republican President Grant, prodded by Republican senators, was worried. If Colorado became a state, would it give three electoral votes to the Democratic candidate for president in 1876?
But while some Republican strategists wanted to keep Colorado out of the Union till after the 1876 election, Grant’s friend, Colorado multimillionaire Jerome Chaffee, wanted to be a U.S. Senator, and therefore wanted Colorado to become a state promptly. The Republican Chaffee had served as a territorial delegate before the 1874 election of Democrat Patterson. Chaffee assured Grant and the senators Colorado's electoral votes would go to the Republican candidate for president. Based on this promise, Chaffee succeeded in getting the Enabling Act for Colorado statehood to pass Congress on March 3, 1875, during the last days of Chaffee’s delegate term.
The 1876 Colorado state constitutional convention that followed adopted a "Schedule" -Sections 19 and 20 of which required the state legislature to appoint presidential electors. The legislature was allowed to appoint electors by an unprinted bill, without committee hearings, with one day debate each in the House and Senate, and without the governor’s approving the bill. All these provisions were flatly contradictory to the ordinary procedures for legislative bills which the new Colorado Constitution required.
This “Schedule” for appointment of electors was probably a violation of the United States Constitution. The federal Constitution [Article II, section 1(2)] provides: “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors...” But the language in Sections 19 and 20 of the Colorado Schedule unlawfully took away the power of the legislature to decide WHETHER to allow voters in Colorado to select the electors.
Colorado voters easily adopted the state constitution on July l, 1876, with 15,443 in favor and 4,062 against. President Grant declared Colorado to be the 38th state on August 1st.
Elections were held Oct. 3, 1876. Republican Governor John Routt won 14,154 to 13,316. The Republican margin of victory in the other statewide federal elections—for two U.S. Senate seats and one House seat--was paper thin. Republicans Jerome Chafee narrowly achieved his goal of becoming a Senator.
Republicans also won the Colorado state House and Senate. Colorado's legislature convened Nov. l, 1876. On Nov. 2 and 3, the new state legislature passed House Bill 1, which called the House and Senate into "Joint Convention" 10 a.m. Tuesday, Nov. 7th to choose three presidential electors. On Nov. 7th, the legislature chose three presidential electors, who then cast three votes for Republican presidential candidate Rutherford B. Hayes.
Would Coloradans have voted for Hayes for President if they had the chance? Probably. But Colorado voters have long been known for their contrariness and their penchant for ticket splitting. And while all the Colorado Republicans running for Governor and for federal office were well-known figures in Colorado, Hayes was a much weaker candidate.
Few political observers had expected Hayes to the Republican nominee. Hayes was a minor potential candidate at the June 1876 Republican convention. When the convention stalled after six ballots, Hayes was, as Henry Adams put it, chosen as "a third rate nonentity, whose only recommendation is that he is obnoxious to no one" and "necessary for party harmony."
Nationally, the 1876 presidential election was the most corrupt in the first century of American independence. Both parties had dirty hands. Democrat presidential candidate Samuel Tilden won the popular vote 4,284,000 to Hayes' 4,037,000. Tilden had 184 electoral votes and needed one more, but Republicans made certain final outcomes were delayed in South Carolina, Florida and Louisiana.
Hayes really had won in South Carolina and probably Florida, but Louisiana had definitely voted for Tilden, who had a majority of 9,000 of 207,000 votes cast. Matthew Josephson in his 1938 book The Politicos wrote:
"Supported by Republican ‘visiting statesmen’, not to mention regiments of Federal soldiers, the Louisiana Returning Board proceeded to accept the testimony of perjurers, thieves and prostitutes, and to throw out the ballots of whole parishes, until over 13,350 Democratic votes were canceled and a Hayes majority of over 4,000 votes were produced."
The three Southern states and Oregon eventually sent in competing sets of Democratic and Republican ballots to Washington. The disputed certificates arrived in Washington in early December, and for many weeks the country didn't know who was to be president.
In Congress, the Democratic House and Republican Senate agreed to a 15-member commission: Five members each from the House, Senate and Supreme Court.
Politically, the commission had seven Republicans, seven Democrats and independent Supreme Court Justice David Davis of Illinois. But Davis suddenly resigned from the Court to accept a U.S. Senate position from Illinois. His replacement was Republican Supreme Court Justice Bradley. The commission voted 8 to 7 for all of the Republican electors, giving Hayes 185 to Tilden's 184 electoral votes.
Would Tilden call on his followers to march on Washington? No. On Feb. 26, 1877, representatives of the two parties met in secret at the Wormley Hotel in Washington. Josephson wrote: "Democrats would abandon presidential claims and Republicans promised federal troops, which enforced the constitutional amendment giving Negroes full rights of citizens, would be removed from the South." The troops were removed, Reconstruction ended, and white supremacy nullified the Fourteenth Amendment for many decades to come.
President Hayes was tainted, and was thereafter known as "Rutherfraud" Hayes. He decided not to seek re-election in 1880.
Even with Louisiana’s electoral votes, Hayes might not have been able to steal the presidential election, by a single electoral vote, if the people of Colorado had been given the opportunity to vote for President—and perhaps to give their three electoral votes to the distinguished Governor of New York, Samuel Tilden, the man who helped break New York City’s corrupt Tweed Ring.