In December of 2000, Chief Justice Rehnquist sided with a majority of U.S. Supreme Court judges in awarding Florida’s electoral votes and thus the American presidency to George W. Bush. Rather than focus on that still-contentious decision, Rehnquist examines here a parallel incident: the disputed presidential election of 1876. In this fray, Democrat Samuel Tilden, who won the popular vote (just as Al Gore would in 2000), ultimately lost the presidency to Republican Rutherford B. Hayes. The contest was finally decided strictly along party lines by an Electoral Commission made up of five Democratic members of the House of Representatives, five Republican senators and five Supreme Court justices. Florida’s electoral votes were at issue in 1876, too, as were those of Louisiana, South Carolina and Oregon. Since the Electoral Commission’s ruminations were fairly brief and not intrinsically dramatic, Rehnquist embellishes his account with brief biographies of the principal players, frequent historical asides and an explanation of how the Supreme Court of that time differed from today’s court. But the meat, of course, is his assessment of the arguments made by Hayes’ and Tilden’s proponents. Between the lines, he appears to be justifying his own vote.
“In the Hayes-Tilden dispute, [the] concept of state sovereignty played an important role,” Rehnquist observes. “The Republican position was that the Constitution left the choice of electors to the states, and that with rare exceptions Congress could not . . . examine the correctness of the vote count certified by state officials.” Sound familiar? Tilden was philosophical if not gracious in defeat: “Everybody knows that, after the recent election, the men who were elected by the people as President and Vice President were counted out,” he said, “and the men who were not elected were counted in and seated. If my voice could reach throughout our country . . . I would say: Be of good cheer. The Republic will live.”
