Lost Opportunity: Learning the Wrong Lesson From The Hayes-Tilden Dispute

A clear, efficient, and fair mechanism for resolving election disputes is an important aspect of smooth presidential succession. It is also something that our Constitution has lacked from its inception, and the adverse consequences of its absence were most recently apparent in the 2000 election. The 1876 Hayes-Tilden election, which required an Electoral Commission to resolve disputes about presidential electors, was the most severe manifestation of this presidential succession gap. As such, it also should have represented the best opportunity to fix the problem.

Instead of wholesale reform and constitutional amendment, Congress spent the next eleven years focusing its energy on a joint rule and then a statutory fix to the problem. The resulting statute, the Electoral Count Act, is confusing, unwieldy and fails to account for all the problems the Constitution creates for disputed presidential elections. It also represents a complete rejection of the Electoral Commission model. This Article pieces together all congressional action on this matter in the aftermath of the Hayes-Tilden 1876 election leading up to the passage of the Electoral Count Act in an effort to explain why Congress missed this opportunity and turned away from the Electoral Commission model.