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What Roscoe Knew

November 14, 2019

Senator Roscoe Conkling knew there would be a problem.  As a member of the 43rd Congress he had hoped to rectify the matter, but he found himself voting against the proposed solution during the final days of the 2nd Session.  It wouldn’t have mattered anyway.  Although the Senate passed legislation by a 28 to 20 vote, the House rejected it.  Besides, the proposed solution would not have worked.

The 44th Congress had a Special Session from March 5 through 24, 1875, but only the Senate convened.  The 1st Regular Session ran from December 6, 1875 through August 15, 1876, and Senator Conkling, though not making a proposal himself, reminded everyone that “Any plan of arriving at a true solution of it shall have my vote always.”  Still nothing was accomplished.  On November 7 there was a Presidential election, and within a few days everyone became aware of the problem.

With regard to the Electoral vote, the 12th Amendment to the U.S. Constitution states: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”  However, the Constitution does not offer any instructions when there are competing sets of Electors.  As former slave states were being readmitted to the Union such a problem was bound to happen.  In 1876 three such states sent two sets of returns.

If the Democratic returns were accepted, the former slaves, most of whom voted Republican, would be disenfranchised due to fraud and intimidation.  If the Republican returns were accepted, the white supremacist Democrats in Florida, Louisiana, and South Carolina would complain that local election laws were being violated.

The U.S. House of Representatives was controlled by the Democrats, and the U.S. Senate was controlled by the Republicans.  Who would decide which returns to count?

 

 

 

 

 

 

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