Today, both houses of the United States Congress will meet to count the votes from last November’s presidential election — kind of. For those unfamiliar with the U.S. presidential election system, voters don’t vote directly for President. Here’s what I wrote in October:
Without going too far into the weeds, it makes more sense to look at the Presidential election as 51 separate elections — one in Washington, D.C., and one in each U.S. state. Instead of voting directly for the candidate, voters in each of those 51 places vote for a set of electors (the number of which varies by state) who, in turn, actually elect the President. With some exceptions, whichever candidate gets the most votes in a state gets all the electors for the state. In order to become President, a candidate needs to get a majority of the electors from across the 51 states.
That paragraph was true a few months ago and it’s still true today. And the votes that Congress counts today? It’s the vote cast by those electors, commonly known as the “Electoral Vote.”
If you’re following the news, you may have heard that there’s some controversy around who gets to decide which electoral votes count. For our purposes today, we don’t need to delve into that; suffice it to say that while Congress can reject electoral votes, they rarely do and typically need a very, very good reason and one consistent with the Constitution. Not doing so imperils the rule of law and faith in democratic institutions, a lesson the nation almost learned the hard way in 1876. That year, a very close election and a lot of questions about the voting process in multiple states resulted in a disputed election, and Congress, unsure what to do, ended up creating an Electoral Commission to, effectively, choose the election’s victor. (This article, which I wrote in 2012, goes into it a bit more.) It was a hot mess, to use the technical term, leaving many feeling disenfranchised and cheated, and reasonably so. To avoid such outcomes in the future, in 1886, Congress passed the Electoral Count Act, outlining most of the processes and procedures available to future Congresses, including the one meeting later today.
But before that Act became law, Congress had to figure out a difficult question: if an elector votes for a dead candidate, does Congress have the right to reject that vote?
The answer: Maybe.
The 1872 election wasn’t a close one. The incumbent President, Ulysses S. Grant, was very popular, His main opponent, Horace Greeley (pictured), wasn’t unpopular, but he wasn’t much of a politician; Greeley had made a name for himself as editor of one of the nation’s largest newspapers, and his only political experience was a three-month-long stint in the House of Representatives as part of New York’s delegation. Grant won the popular vote in what can fairly be called a landslide, and he should have won the electoral college 300 to 66. But the end result? Grant received 286 such votes (the votes from two states were invalidated for reasons we’ll not bother with here). Greeley received none, on account of him being dead.
As is true today, regular people voted for electors, states counted and checked that vote, and then, the electors cast their votes. All told, the process took a few weeks. Greeley was very much alive on November 5, 1872, when citizens took to the polls to vote. But his wife had recently died, the election had taken a toll on him, and the newspaper he edited prior to the campaign wanted to move on. His health quickly declined and on November 29th, he passed away at the age of 61. This created a strange problem for the election process, as the electors hadn’t yet cast their votes. When the 66 electors went to do just that, 63 thought it better to vote for someone living, so they did just that. Three voters from Georgia, however, decided to vote for Greeley despite the fact that he was dead. (He wasn’t going to win the election anyway, so what was the harm?)
Fast-forward to February 12, 1873. The two houses of Congress sat down to count the electoral votes and, despite the outcome being crystal clear, debated the question: should votes for a dead man be counted? The Senate, after some back and forth, voted 44 to 19 to let Greeley’s three votes stand, with many of those in favor believing that Congress’s role was ministerial and that Senators lacked the power to reject the votes certified by the Georgia government. The House of Representatives, however, came to the opposite conclusion.
One of the representatives objected to Greeley’s votes, noting that the Constitution implies that only an actual “person” be eligible to become President, which Greeley no longer was. And while the state of Georgia seemed to not care about this Constitutional requirement, the representative suggested that Congress had a duty to enforce it. Not all of the other members of the House agreed, though; at least one rose to argue that the House wasn’t empowered to rule on whether a candidate was eligible for office, and therefore, the three votes should be counted. Ultimately, the House put it to a vote. Along mostly partisan lines, the House voted that dead men can’t be elected President. They rejected Georgia’s three votes for Greeley, 102 to 78.
Today, it’s unlikely we’d have the same outcome. First, electoral votes are only rejected if majorities in both houses vote to do so. Second, the 20th Amendment, ratified in 1933, provides that if a President-elect dies before taking office, his or her running mate becomes the President. But a century and a half ago, Congress couldn’t reach a consensus on whether they were empowered to reject a candidate that had already expired. But back in 1872, that wasn’t the case. Greeley, despite receiving the second-most votes on election day and winning majorities in six states, officially received no electoral votes.
(If you want to read a detailed report of Congress’s debate over Greeley’s votes and a lot of other electoral vote matters, here’s an old newspaper clipping.)
Another fact about the Bonus: Woodhall’s running mate was a household name — the Equal Rights Party nominated famed abolitionist Frederick Douglass as her Vice President. Douglass, though, never accepted the nomination and may not have even been aware of it. On the contrary, he ended up casting one of New York’s electoral votes — for President Grant.
From the Archives: Swing Vote: Meet David Davis, the man who (kind of) decided the 1876 election.