From Stuffed Ballot Boxes in 1876 to the Chad-Clogged Votomatic Systems of 2000:

Why Votes Didn�t Matter Then and Don�t Matter Now

Natalie Schuster

Examining the contested election of 2000 in which incumbent Vice President Al Gore lost to George W. Bush, Abner Green remarked, �[Gore] was more popular, but that wasn�t enough to make him president.  We don�t elect the president as we elect virtually all other officeholders.  Instead, we have something called the �electoral vote.��[1]  While Abner directed his critique at the Bush-Gore race of 2000, his remarks were equally fitting for the 1876 disputed election involving Samuel J. Tilden and Rutherford B. Hayes.  In both case studies, the ultimate victors secured the presidency without securing the popular vote of the American people.  Hayes, trailing Tilden by 264,292 popular votes, secured the presidency in 1877 after an Electoral Commission composed of Senators, Representatives, and Supreme Court Justices was created to decide the results of disputed electoral votes.  The Electoral Commission, despite being organized to offer a clear-minded decision above partisan politics, voted with an 8-7 partisan vote in favor of Hayes.  Fast forwarding to the twenty-first century, Bush, trailing Gore by some 539,947 popular votes, secured the presidency in 2000 after the U. S. Supreme Court ruling in Bush v. Gore.  The U.S. Supreme Court, despite being organized to offer a clear-minded decision above partisan politics, voted with a 5-4 partisan vote in favor of Bush.

The similarities between 1876 and 2000 serve to remind that, despite nearly 125 years of separation, the Electoral College of the twenty-first century is still imperfect.  The election of 2000 brought the election of 1876 into the present, linking the past to the current conversation on Electoral College reform.

The Contested Election of 1876

Before Hayes�s March 4, 1877 inauguration, the future president ironically remarked that �he felt more anxiety about the South�about colored people especially than about anything else�.� He then predicted that in the South �the amendments will be nullified, disorder will continue, prosperity to both whites and colored people, will be pushed off for years.�[2]  Within months Hayes made his own prediction come to fruition as he effectively ended Reconstruction efforts in the South in order to secure the validity of his contested presidential election through the Compromise of 1877.  From the onset of the election of 1876, the prospect of securing a Republican success in 1877 was precarious.  The Republican Party vied for their candidate freshly after the scandal-ridden Republican Grant administration and the legacy of the economic Panic of 1873.  In short, the Republican Party faced a hard win.  Historian and Hayes biographer Ari Hoogenboom noted that in the election, Republicans �faced an almost certain defeat.�[3]  Hayes even remarked, �I still think Democratic chances the best.�[4]  Nevertheless, Hayes, along with running mate William Wheeler entered the presidential race against Democratic Governor Samuel J. Tilden of New York to vie for the presidency.

            While the platforms of the two presidential candidates differed, common to the election of 1877 was the context of racism that produced violence and voter intimidation, particularly against African-Americans of the U.S. South.  Hayes wrote in his diary that �history will hold that the Republicans were by fraud [,] violence and intimidation, by the nullifications of the 15^th amendment, deprived of the victory which they fairly won.�[5]  While Hayes�s remark proved to be inaccurate�the Republicans ultimately secured the White House�, Hayes was accurate in noting fraud, violence, and intimidation as tactics to dissuade voters from casting Republican votes.  For example, the New York Times reported disturbing information characteristic of the time on September of 1876. Thomas, an African-American Mississippian at home with his family was disrupted when group of white men demanded to talk to him about casting his vote.  �They said they intended to have Thomas,� reported a family member.  �And if he did not come they would fire in on us.  We told them he was not coming.  They then commenced firing on us�. My mother stepped to the door to see if they had gone.  Just as she went to the door they fired two more shots through the door and shot my mother. �and they said that if he voted on next Tuesday they would hang him that night. Then they road off.�[6]            

Nevertheless, African-Americans remained surprisingly adamant in expressing their right to vote, despite the threat of death.  �I was fired at by some one,� remembered an African-American man who was walking to the local church to cast his ballot. �The ball passed through my hat.  There was a large company of [white men]. They went up to the church. I saw the colored men running�. I dodged round and went and voted while these armed men were going up to the church.�[7]  It is disturbing to consider that African-Americans risked death to cast their votes for Hayes, the president who ultimately, in private meetings with Democrats, ended Reconstruction with the Compromise of 1877 and subsequently allowed white supremacy to be restored in full.[8]

            This Compromise of 1877 came as a response to the contested election of 1876.  As mentioned earlier, Hayes did not expect to win the election.  On the night after the election, his campaign manager Zachary Chandler went to sleep depressed and drunk, hugging a bottle of whiskey, waiting for the next day�s announcement of defeat.[9]  Soon, though, it became obvious that the election results remained in doubt and that the Republicans could still secure a victory.  �It dawned on us,� wrote Hayes, �that with a few Republican States in the South to which we were fairly entitled, we would yet be victors.�[10]  Zach Chandler surely felt reassured by the new prospect of success�even if his head was throbbing from a hangover.  A combined nineteen disputed electoral votes in Florida, Louisiana, and South Carolina remained in question.  If Hayes secured these states, he could secure the presidency with 185 electoral votes�one over Tilden�s 184.  What is more, if Hayes took the three disputed states, he would win the presidency despite having lost the popular vote by over 250,000 votes.[11] 

            Deciding the states, however, proved to be difficult.  South Carolina showed a greater number of votes tallied than eligible voters; Florida found stuffed ballot boxes, repeat voters, and Republican symbols printed on Democratic ballots in an effort to dupe illiterate voters to vote for Tilden; rampant African-American intimidation characterized Louisiana.[12]  Moreover, in Louisiana, elector Aaron B. Levisse reported having been offered $100,000 to cast his electoral vote for Tilden.[13]  Thrown into the mix was intense racism, especially felt by Democrats opposed to the election of a Republican.  With that, separate slates of electors formed in Florida, Louisiana, and South Carolina.  Thus each of the three states had a pro-Hayes slate and a pro-Tilden slate.  Confused, Congress could not decide which slates held legitimacy.  According to the U.S. Constitution, the electoral votes should be �directed to the President of the Senate� who �shall, in the Presence of the Senate and House of Representatives, open all the Certificates and the Votes shall then be counted.�[14]  However, the Constitution left unclear the procedure to follow in the case of conflicting votes.  So, to decide the winner of the 1876 election, Congress created a special electoral commission outside of the legislative to determine the next U.S. President.

            The Electoral Commission of 1877 was to be a bipartisan group of five Senators, five Representatives, and five members of the Supreme Court that could collectively determine the true winner to the 1876 election.[15]  It quickly became quite clear that the commission operated solely at a partisan level.  The original group consisted of seven Democrats and seven Republicans, with Chief Justice David Davis acting as the independent chair.  But, on January 25, 1877, the day before Congress officially passed the measure to create the Electoral Commission, Davis became the Greenback senator of Illinois, resigning his chairmanship.  Republican Justice Joseph P. Bradley of New Jersey replaced Davis.  Thus, the ideological scale of the commission tipped towards the Republican end, with an 8-7 majority.[16]

 On February 1, 1877, Congress met in a joint session to officially begin the count.  Starting alphabetically with Alabama, each state�s electoral votes were determined in a systematic manner.  The count went smoothly until Congress reached �F�.  Congress passed on the disputed Florida returns to the Electoral Commission, who determined by the expected partisan 8-7 vote that Florida belonged to Hayes.  Tilden, disillusioned by the partisan results, which he predicted to be the pattern in deciding South Carolina and Louisiana, planned a vacation to Europe.  As suspected, Louisiana and South Carolina both went to Hayes.  The final state to be counted was Wisconsin, which on March 2, 1877, went to Hayes.  As James P. Pfiffner notes, �This decision gave Hayes the 185 to 184 victory in the electoral vote count and the majority needed to win the presidency.  Democrat Samuel Tilden won 4,300,590 million popular votes to 4,036,298 cast for Hayes. Thus the runner-up in the popular vote became the president with 264,292 fewer votes than his opponent.�[17]

            After the commission�s declaration of his win, Louisiana and South Carolina still felt unsatisfied.  Both states established rival Democratic governments that threatened the legitimate Republican state governments and refused to recognize the validity of the Hayes presidency.  Hayes noted his concern at his March 5, 1877 Inaugural Address: �The question we have to consider for the immediate welfare of those States of the Union is the question of government or no government; of social order and all the peaceful industries and the happiness that belong to it, or a return to barbarism.�[18]  Conditions in South Carolina and Louisiana�as well as in the South in general�remained tenuous and evoked fears of disunion.  Detachments of federal troops guarded the legitimate Republican governments in those states as the de facto rival Democratic governments increasingly threatened local government.[19]  Hayes�s main priorities were to preserve the Union and secure recognition of his presidency.  To do this, Hayes ultimately made a compromise with the South that effectively ended Reconstruction efforts, leaving African-Americans exposed to rampant racism and violent discrimination.

            Hayes�s Compromise of 1877 illustrated a bargain with the South in which the rival Democrat governments in South Carolina and Louisiana gained validity and federal troops supervising Reconstruction efforts in the South left so that the Hayes administration gained the acceptance of the South.  The Compromise of 1877 foiled Hayes�s earlier concern over the plight of African-Americans in the South and his outrage aimed at voter intimidation.  After his inauguration, instead of concerning himself with the disregard for the rights of African-Americans, Hayes wrote that he �would like to get the support from good men of the South, late Rebels.  How to do it is the question.�[20]  He answered his own question by agreeing to the Compromise of 1877.  In can be concluded, then, that for Hayes, the approval of South Carolina and Louisiana carried more weight than his concern for the human rights of African-Americans.  According to C. Vann Woodward, �the Republican managers were abandoning the platform on which they were elected�. In effect, the Southerners were abandoning the cause of Tilden in exchange for control over two states, and the Republicans were abandoning the cause of [African-Americans] in exchange for the�possession of the Presidency.�[21]  With the compromise, Hayes �removed the soldiers who had protected black rights in the South, and white supremacy [was] restored.�[22]

The Contested Election of 2000

Because of the contested election of 1876, the subsequent Compromise of 1877 stained the Hayes administration, pointing historians to critique the presidency that caused the end of Reconstruction.  While the election of 2000, which ultimately saw the victory of George W. Bush over incumbent Vice President Al Gore, did not produce a notorious compromise as seen in 1877, similarities exist.  �In both elections,� noted historian Ronald F. King, �the winner of the popular vote lost the Electoral College vote; the Electoral College vote depended upon contested returns in southern states; charges of ballot mismanagement and possible fraud were rampant.�[23]  Bush�s loss of the popular election but secure of the electoral votes, charges of fraud, and the partisanship that characterized the Supreme Court�s 5-4 vote in favor of Bush invoked images of the election of 1876.  Moreover, the reality of contested elections continuing into the twenty-first century moves to explain the current conversations on Electoral College reform, essentially bringing the 1876 election into the present.

            While it remains unclear if Bush�s campaign manager went to sleep on election night hugging a bottle of whiskey as Hayes�s did, it was clear that Bush found himself in a tense race with an unsure result.  As Pfiffner simply put it, �It was clearly a tight race in the Electoral College, with the outcome depending on who won Florida�s twenty-five electoral votes.  If Gore won Florida, he would have a solid electoral victory; if Bush took Florida, he would win by a narrow margin, with two electoral votes deciding the outcome.�[24]  Not knowing the final popular vote�Gore received 50,996,116 votes, 539,947 more than Bush�s 50,456,159�Florida became the focus of a contested election.[25]  The first reports from Florida told that Bush had secured 1,784 votes over Gore. With that, Dan Rather proclaimed on CBS, �Bush wins�That�s it�. Sip it.  Cup it. Photostat it.  Underline it in red.  Put it in an album.  Hang it on a wall�.�[26]  Soon the situation became a bit more complicated and the election results questionable.  Rather went back on the air and announced, �To err is human, but to really foul up requires a computer�. If you�re disgusted with us, frankly, I don�t blame you.�[27]

            Computers did �foul up� election results.  And, with less than 2,000 votes separating the two candidates, �flaws in Florida�s balloting process made it nearly impossible to get an accurate count.�[28]  In comparison to the violence imposed on African-Americans in the election of 1876, the voting problems of 2000 seemed minor in comparison.  Nevertheless, pregnant chads, butterfly ballots, and chad-clogged Votomatic Systems all became issues unique to the twenty-first century election in Florida, which suddenly became important to a close race.  Furthermore, in such a close race, Florida law required that an automatic recount be taken.[29]  The recount, though, was hindered by technical difficulties.  Palm Beach County became notorious for its �butterfly ballot.�  The butterfly ballot caused confusion, as proved in Pfiffner�s description: �It was designed so that the names of the candidates would appear in large type in adjacent columns, with the hole to punch between the two columns, with one name over the other.  The design evidently confused a number of voters who intended to vote for Gore but punched the hole for Buchanan.�[30]  In the heavily pro-Gore county, it was odd (and most likely a mistake) that Buchanan took in more votes there �than in any of Florida�s sixty-seven counties.�[31]  An elderly Jewish woman who intended to vote for Gore but accidentally voted for Buchanan remarked, �I would rather have a colonoscopy than vote for that son of a bitch Buchanan.�[32]  Thus, it was unclear whom voters truly intended to vote for, and obvious that miscounts resulted.

            Even more confusing, using the Votomatic system Palm Beach County residents who left hanging chads (the little piece of the ballot supposed to be punched clearly off with the stylus) or pregnant chads, clogged the Votomatic counting machines.  Those in charge of the recount literally had to stop the machines to clean out the chads creating the clogs.  A worker remarked that �she had �tried to shake out the chads every few hours� but that some machines �became clogged beyond repair.��[33]  Moreover, in some cases, pregnant chads did not register on the machines at all, thus, while being clear to the naked eye who the citizen voted for, the machine could not register the vote, creating an undercount.[34]  As the United States waited in limbo, �images of weary vote counters holding perforated ballots up to the light flashed around the world� giving some validity to those who re-named the state �Flori-duh.�[35]

            Ultimately, the U.S. Supreme Court stopped the recounts and determined the winner of the 2000 election.  Before reaching the U.S. Supreme Court, however, several partisan bickers ensued.  To begin, Gore wished for hand recounts in four Florida counties known to be pro-Gore, hence hopefully earning enough votes to take the presidency.  Not surprisingly, the Bush camp responded without enthusiasm to Gore�s plan for strategic hand recounts.  On Monday, November 13, �the Bush legal team�sought to stop the hand counts, arguing that the Florida standard of clear voter intent was subject to varying interpretations and thus violated the equal-protection clause of the U.S. Constitution.�[36]  This was admittedly a weak argument on the Bush team�s behalf; �according to the Washington Post, several of Bush�s key lawyers characterized the equal-protection argument as �lame� and �extremely weak.��[37]

            Nevertheless, the U.S. Supreme Court opened to the Republican�s arguments.  Despite the apparent weakness of the equal-protection argument (Justice Stephen Breyer noted that �the Court was wrong to take this case�) five of the justices favored the arguments of the Bush team, deciding that �the Florida Supreme Court�s decision violated the equal protection clause of the Fourteenth Amendment because it did not specify the criteria by which all ballots should be judged�. The Court further argued that there was not enough time to establish specific standards and recount the ballots before the deadline for reporting the state�s electoral votes to Congress.�[38]  On Tuesday, December 12, 2000, at 10:00 P.M., the election ended. [39]  Thus, the important decision of determining the next U.S. president boiled down to an issue of time and partisanship.  After all, of the five justices ruling in favor of Bush in Bush v. Gore all were pro-Bush, four being appointed by Ronald Reagan or George Bush Sr., and Rehnquist being appointed by Nixon.[40]  With the ruling, the Florida recount stopped.  It was determined that Florida�s twenty-five electoral votes be awarded to Bush, bringing his total to 271�a full one vote extra than the majority of 270 needed.  Gore received 266 electoral votes, after an elector from Washington, D.C. �cast a blank ballot to protest the lack of congressional representation for the District.�[41]  Another president went to the White House without the support of the popular vote.

What Year Is It?

Whether studying the election of 1876 or the more recent election of 2000, a similar argument can be made: it may be time to enact electoral reform.  While today�s conversation on the need for Electoral College reform may seem new and provocative, the discussion has been present for some time.  For example, an 1878 article in Harper�s Weekly discussed the need for reform in much the same language that scholars use today.  The article�s author noted that an election �does not make the President�the choice of the popular majority, for he may be and has been constitutionally elected without such a majority.�[42]  Writing with the result of the 1876 election fresh in his mind, the author continued with suggestions for reform: ��a vitally important part of a revised electoral method must be the provision for settling disputed results. This must be clearly defined, as it is not now, and it was because of the obscurity that the danger last year was so imminent.�[43]  The same could have been written in regards to the 2000 presidential election.  Consequently, one may pick up the continuity between 1876 and 2000.

            Obvious to both elections was the discontent justifiably felt after the popular election results were essentially pushed aside.  For example, the Pew Research Center for the People and the Press revealed on December 1, 2000, that �no matter who wins the presidency, George W. Bush or Al Gore, many Americans think that the victor will come to office because of the way the voting was conducted or counted rather than because he legitimately won the election in Florida.�[44]  This feeling among the population that their votes, simply stated, did not much matter, renewed among scholars the argument for Electoral College Reform.  Paul S. Boyer pointed out that �the chaotic struggle also revived calls to abolish the Electoral College and choose presidents by popular vote.�[45]  Moreover, it has been pointed that �the Electoral College system is �flawed� from the perspective of those who think that the candidate who wins the most popular votes should be elected president�or at least that the runner-up in the popular election should not be elected.�[46]

            It may seem to be common sense to many that the future president should be the winner of the popular election, but as the case studies of Hayes and Bush revealed, the president is not always the candidate that the general U.S. public chooses.  Because of those historical cases, scholars of government have argued that the Electoral College should be done away with and replaced with direct popular elections.  Pfiffner writes that �perhaps the most compelling argument that the president should be elected by direct popular vote is based on the premise that the president and vice president are the only national officials who represent the people as a whole and that the choice of the people is best approximated by the candidate who wins the most votes.�[47]  With modern presidents claiming to act as the representative of the people, operating as if they have a popular presidential mandate, �it is not too far a stretch to argue that the choice of the people ought to determine the winners of the only national elective offices in the government.�[48]

            But calls for a constitutional amendment to boot the Electoral College in favor of direct popular election, while to many seeming a common sense proposal, has been a somewhat radical pitch that has met considerable resistance over time.  In 1969 a proposed amendment actually passed the House of Representatives, 339 to 70.  It seemed as if the idea was popular.  However, the proposed measure of 1969 moved into the Senate, where it was considered and stalled for ten years.  By 1979, the members of the Senate picked up the proposal once more and passed the measure, 51 to 49.  With that, a two-thirds majority was clearly denied and the legislation never reached the states for consideration.[49]

            Thus, opponents of direct popular election were set at ease in 1979, but continued to convey their arguments in support for the continuation of the Electoral College system.  Arguments against direct popular elections include the warning that the dismantling of the College could lead to the end of the traditional two-party political system that has long characterized American political history.  In return, minority parties could gain clout.  �They argue,� writes Pfiffner in regards to opponents of the direct vote, �that minor political factions would have an incentive to run candidates for president with the goal of forcing a runoff election and extract concessions in return for their support.�  He continues, �The hope of these minor parties would be to attract enough votes, along with other splinter parties, to prevent either of the two-party candidates from winning 40 percent of the vote and thus force a runoff.�[50]  In becomes clear, then, that even with direct popular election, the winning candidate may still not be the person chosen by the majority of the populace.

            Other opponents of the dismantling of the Electoral College cite arguments that conjure images of the contested election of 2000.  Critics in this conversation project that the use of direct popular voting could potentially lead to �endless recounts and challenges.�[51]  Scholar Judith A. Best writes that a contested election under a direct popular election would call for �a recount of every ballot box in the country��not just a few counties in Florida.[52]  If the Electoral College was out of the picture in 2000, pregnant chads may have plagued the entire nation.             Nonetheless, proponents of direct popular election are fast to interject plausible counterarguments.  Arguing the exact opposite, proponents claim that �one of the attractions of direct popular election is that recounts would be less likely. In order to undertake a recount, there has to be the reasonable possibility that enough incorrect or fraudulent votes can be found to change the election outcome.�[53]  Without pressure to win the relatively few votes of certain states in order to gain their electoral votes�in the case of 2000, Bush and Gore battled over the few votes of one state�the need for election recounts would, in fact, be less likely.

            After considering all the arguments, the shift away from the traditional Electoral College system towards direct popular election has yet to be achieved.  In 2006 an interesting attempt to ensure that the president be the winner of the popular vote by effectively scooting around the challenge of securing a constitutional amendment was proposed.  This �Fair Vote� plan asked for states to promise that their electoral votes be awarded to the candidate who won the popular support of the entire U.S. popular vote.  If a sufficient amount of states agreed to this pledge, the winner of the popular election would take the Electoral College votes to become the president.[54]  Without any enforcement and without the enthusiasm of many states, though, this plan remained only an interesting idea. 

            Perhaps the general apathy towards initiatives like the Fair Vote plan or the even more drastic proposal for a constitutional amendment stems from the reality that, overall, the Electoral College works.  Throughout the overwhelming majority of American political history, the winner of the popular election has also been awarded the Electoral College vote majority to secure the presidency.  But, at the same time, certain examples illustrate that the Electoral College is not perfect in ensuring that the popular vote winner becomes president.  Moreover, these particular instances have proven to be historically significant.  It is important to remember that Hayes, who lost the popular general election but was awarded the Electoral College�s majority votes, entered a presidency where he effectively ended Reconstruction efforts in the South to appease Southern rivals, despite exposing African-Americans to the horror of southern racism.  Some 125 years later, George W. Bush unpacked his bags in the White House even with having lost the popular election.  While Bush did not impose such controversial measures as Hayes�s Compromise of 1877, the two were similar in that decision groups dominated by partisan majorities settled their disputed elections, awarding the men the presidency.  And in both cases, the general voters felt slighted that their votes, essentially, did not matter.  Despite the common apathy felt towards moving America into a direct popular election, the events of 1876 and 2000 should point Americans to at least consider the benefits of a direct popular election.  

Bibliography

Best, Judith A. The Choice of the People?: Debating the Electoral College. Lanham, MD: Rowman and Littlefield, 1996.

Bishop, Arthur, ed. Rutherford B. Hayes, 1822-1893: Chronology, Documents, Bibliographical Aids. Dobbs Ferry, NY: Oceania Publications, 1969.

Boyer, Paul S. Promises to Keep: The United States Since World War II, 3rd Ed. New York: Houghton Mifflin Company, 2005.

Davison, Kenneth E. The Presidency of Rutherford B. Hayes. Westport, Conn.: Greenwood Press, 1972.

Dershowitz, Alan M. Supreme Injustice: How the High Court Hijacked Election 2000. New York: Oxford University Press, 2001.

Greene, Abner. Understanding the 2000 Election: A Guide to the Legal Battles That Decided the Presidency. New York: New York University Press, 2001.                     

Hoogenboom, Ari. The Presidency of Rutherford B. Hayes. Lawrence, Kan.: University Press of Kansas, 1988.

�How to Elect the President,� Harper�s Weekly, 1878.

King, Ronald F. �Counting the Votes: South Carolina�s Stolen Election of 1876.� Journal of Interdisciplinary History November 2001.

�Many Question Bush Or Gore As Legitimate Winner.� Pew Research Center for the People & the Press, 1 December 2000. Available at: http://people-press.org/reports/print.php3?ReportID=22.

�Mississippi Grand Juries: Evidence That They Ignored Scenes at the Elections in Chickasaw County�Threats�Armed Intimidation�Midnight Oaths Not to Vote the Republican Ticket�An Old Woman Shot at Her Cabin Door.� New York Times 5 September 1876.

Nagle, John Copeland. �How Not to Count Votes.� Columbia Law Review November 2004.

Polakaoff, Keith Ian. The Politics of Inertia: The Election of 1876 and the End of Reconstruction. Baton Rouge: Louisiana State University Press, 1973.

Posner, Richard A. Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. Princeton: Princeton University Press, 2001.            

Sabato, Larry J. ed. Overtime: The Election 2000 Thriller. New York: Longman, 2002.       

Williams, T. Harry, ed. Hayes: The Diary of A President, 1875-1881, Covering the Disputed Election, the End of Reconstruction, and the Beginning of Civil Service. New York: David McKay, 1964.

Woodward, C. Vann. Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction. Boston: Little, Brown, 1951.

Zinn, Howard. �Disputed Elections, Concealed Facts.� The Progressive February 2002.