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congressionAl electorAl commission Act, JAnuAry 29, 1877 U.S. Statutes at Large 19:227–29. This extraordinary piece of legislation met the needs of an extraordinary time and situation. The presidential election of 1876 resulted in a constitutional and political crisis because the speaker of the House received contradictory sets of electoral votes from the states of South Carolina, louisiana, and Florida and an issue regarding a disputed elector in oregon. Those states had two legislatures meeting: one, a legislature that Congress had established under the Reconstruction Acts that returned electoral votes in favor of the Republican candidate, Rutherford B. Hayes of ohio; and a second, redeemed, legislature of previously disfranchised voters who represented the white majorities in those states who sent their electoral votes in support of the Democratic Party candidate, Samuel Tilden of New York. Tilden won a majority of the popular vote, but he lacked one vote in the electoral College to win the presidency. These two sets of electoral votes presented a problem because the 1787 Constitution states in Article 2, paragraph 3, only that “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall be counted.” But, the Democrats who controlled the House of Representatives objected to this procedure, arguing that the Republican president of the Senate would ignore the set of certificates that favored their candidate. They argued that no objections should be allowed unless both bodies concurred in the objection. Their insistence resulted in stopping the counting of all of the electoral votes and started the search for a compromise. This act constitutes that compromise. Congress established a special and extra-constitutional committee—an electoral Commission . It was composed of five members of the House of Representatives , five members of the Senate, and five associate justices of the united States Supreme Court. Congress tasked these fifteen persons to review the electoral votes from the disputed states Documentary History of the American Civil War era 288 and oregon’s issue and decide which set of state electoral votes to award to which candidate, thus deciding the 1876 presidential election. Tilden needed to receive just one of the twenty votes in dispute to receive the requisite number of electoral votes to be elected, while Hayes needed to receive all twenty of the disputed electoral votes. But the structural make-up of the electoral Commission mattered little; what did matter was the party affiliation of those who sat on the commission. As first constituted, the commission contained seven Democrats, seven Republicans, and one political independent—Associate Justice David Davis. But, in late January 1877, just as the commission was being appointed, the Illinois state legislature elected Davis to the united States Senate. He resigned his seat from the united States Supreme Court so he could become Illinois’ senator. In his place, the four associate justices already serving on the commission appointed an associate justice known for his independence who was also a Republican—Associate Justice Joseph P. Bradley. His presence proved crucial, for when the commission reached the point of awarding the disputed electoral votes, it split along party lines—all of the disputed electoral votes went to the Republican Hayes on a commission vote of eight to seven. As a result, on march 2, 1877, Congress declared that Hayes had won the electoral vote and on march 5, Rutherford B. Hayes became president of the united States. This statute represents a creative piece of legislative compromise in a time of political crisis. Chap. 37—An act to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon, for the term commencing march fourth, anno Domini eighteen hundred and seventy-seven. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Senate and House of Representatives shall meet in the hall of the House of Representatives, at the hour of one o’clock post meridian, on the first Thursday in February, anno Domini eighteen hundred and seventy-seven; and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate, and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates, and papers purporting to be certificates, of the electoral votes, which certificates...

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