Electoral Commission (United States) - Electoral Commission Act

Electoral Commission Act

The election dispute gave rise to a constitutional crisis. Many Democrats who believed that they had been cheated threatened: "Tilden or Blood!" Congressman Henry Watterson of Kentucky declared that an army of 100,000 men was prepared to march on Washington if Tilden was denied the presidency. Since the Constitution did not explicitly indicate how Electoral College disputes were to be resolved, Congress was forced to consider other methods to settle the crisis. Many Democrats argued that Congress as a whole should determine which certificates to count. However, the chances that this method would result in a harmonious settlement were slim, as the Democrats controlled the House, while the Republicans controlled the Senate. Several Hayes supporters, on the other hand, argued that the President pro tempore of the Senate had the authority to determine which certificates to count, because he was responsible for chairing the congressional session at which the electoral votes were to be tallied. Since the office of President pro tempore was occupied by a Republican, Senator Thomas W. Ferry of Michigan, this method would have favored Hayes. Still others proposed that the matter should be settled by the Supreme Court.

In late December, each House created a special committee charged with developing a mechanism to resolve the issue. The committees ultimately settled upon creating an Electoral Commission. Many Republicans objected to the idea, insisting that the President pro tempore should resolve the disputes himself. Rutherford Hayes charged that the bill was unconstitutional. However, a sufficient number of Republicans joined the Democrats to ensure the legislation's passage. On January 25, 1877, the Senate voted in favor of the Electoral Commission Bill 47-17; the House followed suit the next day, 191-86. On January 29, President Ulysses S. Grant signed the bill into law.

Under the new legislation, the Electoral Commission was to consist of fifteen members: five representatives selected by the House, five senators selected by the Senate, four Supreme Court justices named in the law, and a fifth Supreme Court justice selected by the other four. The most senior justice was to serve as President of the Commission. Whenever two different electoral vote certificates arrived from any state, the Commission was empowered to determine which return was correct. The Commission's decisions could be only overturned by both houses of Congress.