After the last post on the Electoral College, some of you asked how Joseph Bradley got to pick the president all by himself. Here it is…
By 1876, the radical reforms spurred by Reconstruction had begun to wear on the nation’s white population. Many felt that the time had passed for the United States to be devoting so much effort and expense to support a group of people they didn’t care all that much about to begin with.
It was a dangerous time for Black Americans. Reconstruction’s successes—expansion of the right to vote, the election of hundreds of African Americans to state, local, and even national office, enormous advances in literacy, significant increases property and business ownership—were under increasing threat from the Ku Klux Klan and other “Redeemer” groups. Only the continued presence of the army in the conquered Confederacy prevented white supremacists from using brutality and intimidation to retake control of state governments.
Given the rising tide of violence, the only alternatives were either toughening the military presence or pulling the troops out, ceding the South to Redeemers and leaving Blacks and their supporters to their fates.
Whether to perpetuate or abandon Reconstruction was one of the two key issues in that year’s presidential election between Republican Rutherford B. Hayes and Democrat Samuel Tilden. (The other was the widespread corruption in the Grant Administration, where Tilden touted his reputation as the man who had taken on New York’s Tammany Hall and Boss Tweed.)
Hayes ran as a friend to recently enfranchised Black Americans, pledging to maintain the social advances of Reconstruction against Redeemer movements. Tilden, on the other hand, was said to have “appealed to those throughout the country who were fed up with the corrupt mess in Washington and to white Southerners who sought to recapture the control of their state governments from Republican carpetbaggers and from newly free African Americans.” Republicans feared, with good cause, that Democrats would augment their growing popularity by covertly backing militant white supremacist organizations and thereby carrying the South through the suppression of Black voters.
When the more than eight million ballots were counted, Tilden had won the national popular vote handily and could solidly claim 184 electoral votes, one short of the number needed for election. Hayes could claim only 165. Twenty electoral votes were in dispute, nineteen of which were in the three Reconstruction states still titularly under Republican control: Florida, Louisiana, and South Carolina. The twentieth was for a disputed Republican elector in Oregon who was eventually allowed to cast his vote for Hayes.
Although in each of these states, Tilden had won the popular vote, reports of intimidation and fraud were widespread. Even so, most Republicans, including outgoing President Grant, believed Tilden would be the next president, and virtually every newspaper in America reported it that way. But not the New York Times. On November 6, the day before the election, it had proclaimed, “Republican Success Certain.”
The headline was not a coincidence. The Times’ managing editor, John C. Reid, had been held as a prisoner-of-war at the infamous Andersonville stockade during the Civil War, and he loathed Democrats. On election night, Reid convinced New York Republican leaders to challenge the initial results and they dutifully wired partisans in the disputed states to hold out.
The Times did its bit by announcing, “Result Still Uncertain,” on November 8, and then running a page-one headline on November 9, two days after Election Day, “The Battle Won. Governor Hayes Elected—The Republicans Carry Twenty-one States, Casting 185 Electoral Votes.” The Times had thus awarded all the disputed electors to Hayes, which the newspaper claimed was based on canvasses in the three states, although the identity of the canvassers remained a mystery.
After the Times ran its piece, the sitting Republican state governments, sensing opportunity, appointed genuine review boards. The boards, with the army to back them up, dutifully tossed thousands of Democratic votes in all three states and declared Hayes the winner.
Democrats were in a fury and for good reason. One historian reported, “Tilden was almost certainly the rightful winner in Louisiana, probably the victor in Florida by an even closer vote than occurred in 2000, and perhaps the winner in South Carolina, too.”
Within days, threats of armed insurrection spread throughout Washington. Calls for secession were heard for the first time since the war. A shot was fired at Hayes’s home in Ohio while the candidate was having dinner inside.
Given the hastily conceived and inadequately wrought Electoral College clause, there was no provision in the Constitution that could adjudicate the problem. With a second Civil War a genuine possibility, the necessity to devise a solution was apparent to both sides.
They agreed to appoint a fifteen-man Electoral Commission consisting of five senators, five representatives, and five Supreme Court justices. Fourteen would be members of the two parties, divided equally, and the fifteenth would be unaligned, assuming such a person could be found. Little knowledge of politics and even less of arithmetic is necessary to realize that the odd man out would choose the president by himself.
Incredibly, a magical, non-partisan fifteenth seemed to both exist and be available. Associate Supreme Court Justice David Davis, a Lincoln appointee, was deemed acceptable to both sides, which was likely why each party had agreed in the first place. So trusted as an independent was the justice that it was said, “No one, perhaps not even Davis himself, knew which presidential candidate he preferred.”
Before the commission could meet, however, the Democratic-controlled state legislature in Illinois appointed Davis to a vacant seat in the United States Senate. (Senators were not elected by popular vote until 1914.) Republican newspapers decried this bald-faced attempt at flattery. Both sides assumed Davis would decline the seat and remain on the Court, but that the honor of being named just might tip his vote toward Tilden.
But Davis flummoxed the Democrats by immediately resigning from the bench to accept the appointment. He never stated his reasons for leaving both the Court and the Commission, but perhaps the enormity of the responsibility got the better of him.
With Davis, perhaps the only acceptable independent in the entire nation, now ineligible, one of the remaining four justices would be forced to sit in his place. Each was associated with one of the political parties. Eventually, also for reasons never made public, recently appointed Associate Justice Joseph Philo Bradley was chosen to take Davis’s place. Democrats denounced the choice as a fix, but after the Davis fiasco, their protests lacked persuasiveness.
Joseph Bradley was the Antonin Scalia of his day. Both were partial to contorting language to come to the conclusion they wanted, even when it was the precise opposite of what the law in question was meant to say. In D.C. v Heller, Scalia interpreted the 2nd Amendment, which had theretofore been seen as relating to the need for government-controlled militias, as saying no such thing, which opened the door to Americans’ ability to openly carry loaded weapons in shopping centers; in U.S. v. Cruikshank, Bradley claimed the 15th Amendment, which was almost universally interpreted as guaranteeing the right to vote, as saying no such thing, which opened the door to the almost total disenfranchisement of Black Americans in the South and the rise of Jim Crow.
Personally, however, the men were quite different. Scalia was an affable, gregarious opera lover, whose best friend on the Court was Ruth Bader Ginsburg. Bradley was a dour, meticulous, almost friendless man with a love of mathematics and an obsession with order, detail, and punctuality. Bradley described himself as “cold; stoical; willing to do favors without caring for the objects of them, and willing to receive them without making very intemperate demonstrations of gratitude.” He had been named to the Court by President Grant due to his reputation as a corporate lawyer, where he specialized in defending the interests of railroads.
Before deciding which man would serve as the next President of the United States, Bradley, ever punctilious, drew up a written opinion for each man, then, he said later, evaluated each scrupulously and objectively.
Finally, after all this supposed soul-searching, he concluded precisely want he wanted to conclude and chose Hayes. And so, Joseph Bradley became the only man in American history to choose a president by himself.
Although Hayes was then president-elect, the story did end there. Democrats were livid, some once more threatening rebellion. Rumors circulated that an army of 100,000 men was prepared to march on the capital to prevent “Rutherfraud” or “His Fraudulency” from being sworn in. In the House of Representatives, Democrats began a filibuster to prevent Hayes’ inauguration.
What happened next has been a subject of debate among historians ever since. For most, the simple explanation was the most persuasive. “Reasonable men in both parties struck a bargain at Wormley’s Hotel. There, in the traditional smoke-filled room, emissaries of Hayes agreed to abandon the Republican state governments in Louisiana and South Carolina while southern Democrats agreed to abandon the filibuster and thus trade off the presidency in exchange for the end of reconstruction.”
The “Compromise of 1877,” as it came to be known, made Rutherford B. Hayes the 19th President of the United States. As one of his first orders of business, this erstwhile defender of Black rights ordered federal troops withdrawn from the South. When the soldiers marched out, they took Reconstruction with them.