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The Electoral Commission

December 5, 2019

The Electoral Commission of 1877 was created by the U.S. Congress in order to determine which set of conflicting returns from Florida, Louisiana, and South Carolina should be counted.  If all three states went Republican, Rutherford Hayes would be elected President.  Otherwise Samuel Tilden would be the victor.

The Electoral Commission consisted of five members from the House of Representatives, five from the Senate, and five from the Supreme Court.

Since the House was controlled by Democrats, they appointed three Democratic Congressmen and two Republicans.  James Garfield was one of the Republicans.

Since the Senate was controlled by Republicans, they appointed three Republican Senators and two Democrats.

The five Supreme Court members were chosen as follows: two Democrats, two Republicans, and the fifth member to be chosen by the other four.  Everyone assumed the fifth Justice would be David Davis.  Because Davis had gone from Republican to Liberal Republican to independent in recent years, James Garfield was certain Davis would side with the Democrats.

The Democrats were also hoping Davis would take their part.  The Illinois legislature, controlled by Democrats, even took steps to reward Davis for his anticipated vote by making him a U.S. Senator.  Associate Justice Davis was indeed upset with the Republican Party and would have given Democratic claims a fair hearing, but he felt it was his duty to immediately resign from the Court in order to serve in the Senate.  This made him ineligible to serve on the Commission.

Since there were no other independents or Democrats on the Court, the four Justices on the Commission had no choice but to select a Republican as the fifth Justice.

The Democrats then tried to influence Davis’s replacement.

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