The Electoral Votes of 1876: Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong Count

In Short

This legal treatise addresses the constitutional crisis triggered by the disputed 1876 U.S. presidential election. It investigates three fundamental questions: who possesses the authority to count electoral votes, which votes are legally eligible to be counted, and what legal remedies exist if a fraudulent or incorrect count occurs. By analyzing historical precedents—specifically the acts of Congress and the role of State returning boards—the text argues that the power to verify election results resides firmly with Congress, asserting that the certificate of a state official is merely evidence, not an infallible judgment.

The Story

The narrative begins in the immediate aftermath of the 1876 election, a moment when the integrity of the American democratic process stood on a knife’s edge. While the votes of thirty-four states were undisputed, the returns from four states remained in volatile contention. The author sets the stage by defining the citizen’s duty: one’s obligation to the Republic does not end at the ballot box but extends to ensuring that the vote is accurately weighed and counted. If the machinery of government allows for the substitution of conjecture for fact, the entire democratic experiment risks descending into farce.

The arc of the argument moves through a rigorous examination of historical authority. The author contends that the two Houses of Congress possess the constitutional mandate to accept or reject electoral votes. By citing the joint resolution of 1865—in which Congress explicitly excluded certain states from the electoral college—and referencing Abraham Lincoln’s own message to the legislature, the text establishes that Congress has historically maintained the right to eliminate false or illegal votes. The author uses the analogy of a banker counting coins: if two clerks disagree on the validity of a piece of currency, they must set the disputed item aside, for a decision cannot be made where there is no concurrence.

From here, the focus shifts to the definition of a "valid appointment" of electors. The author argues that a state’s authority to appoint electors is a living power that cannot be delegated to unauthorized agencies or manipulated by "returning boards" acting in secrecy. Such boards, often operating ex parte and without true judicial oversight, lack the authority to disenfranchise thousands of voters based on speculative claims of intimidation or influence. The author posits that a certificate of election is merely a piece of paper, not a revelation from above; it is evidence that must be subject to scrutiny. To deny Congress the right to investigate the authenticity of these certificates is to accept the tyranny of fraud.

The final phase of the argument proposes a remedy for future crises. The author suggests the creation of a judicial committee within Congress or, in cases of profound impasse, a path to the Supreme Court. The objective is to provide a mechanism for a speedy, impartial resolution that avoids an interregnum or the subversion of the popular will. The text concludes by reinforcing the necessity of constitutional supremacy, urging that the maintenance of justice and the rule of law must take precedence over the temporary passions of party politics.

How It Unfolds

The core inquiry The author defines the urgent need to address who counts the votes and by what authority. He establishes the premise that the citizen’s duty persists until the final tally is verified.

Historical precedent The text surveys previous congressional actions and joint resolutions dating back to 1789. It demonstrates that the two Houses have consistently maintained the power to adjudicate the validity of electoral certificates.

The limits of certification The argument shifts to the nature of "returning boards" and state-level certification. The author asserts that these documents are merely evidence, often prone to error or corruption, and cannot be considered beyond the reach of federal investigation.

The danger of assumptions The author critiques the practice of disqualifying entire districts based on unproven allegations of intimidation. He argues that rejecting legal votes to account for uncast ones is a logical fallacy that undermines the legitimacy of the entire election.

A proposed remedy The final section offers structural solutions for future elections. It advocates for judicial committees or Supreme Court intervention to ensure that disputes are resolved peacefully before the transition of power.

The People

The book is primarily a battle of ideas rather than a portrait of individuals, yet key figures serve as touchstones for the author’s arguments. Abraham Lincoln is cited for his 1865 message to Congress, in which he acknowledged the legislature's power to exclude illegal electoral votes, thereby bolstering the author's argument for congressional oversight. The "returning boards" appear as the antagonist—not as people, but as agents of potential corruption that seek to substitute their own judgment for the will of the voters. The "President of the Senate" is also addressed, with the author working to dismantle any claim that this individual holds unilateral, supreme power to decide the count. Finally, the "citizen" is the central, albeit collective, character; the author views this person as a participant whose vote is an obligation that must be protected from the mechanical failures and human fallibility of the electoral system.

In Its Own Voice

"Whatever may be the ultimate result of the count, whether his candidate will have lost or won, is of no importance compared with the maintenance of justice and the supremacy of law over the preferences and passions of men."

(Reflecting on the duty of the voter beyond the act of casting a ballot.)

"The fact to be determined is the appointment; the certificate is produced as evidence; it may be controvertible or incontrovertible, as the law may have provided, but there is nothing in the nature of a certificate which forbids inquiry into its verity; it is not a revelation from above."

(On the nature of election returns as evidence subject to challenge.)

What It's Really About

At its heart, the book is a defense of the constitutional process against the erosion of institutional legitimacy. It explores the tension between state-level administrative authority and federal oversight, arguing that the latter must prevail when the integrity of the presidential selection is at stake. The text grapples with the inherent "clumsiness" of democratic machinery, advocating for a system that prioritizes the actual counting of cast votes over the conjecture of returning boards. Ultimately, the work is a plea for transparency, emphasizing that a government whose foundation rests on secret or unchallenged certification is a government that has ceased to be truly representative of its people.

Why Read It Today

This book is essential reading for students of American political history and constitutional law. It offers a clear, window-into-the-past look at the 1876 crisis, which remains one of the most volatile elections in U.S. history. The prose is precise and dignified, written with the measured tone of a nineteenth-century jurist who values logic over rhetoric.

However, readers should be prepared for a dense, formal style that reflects the period’s legalistic discourse. The author’s arguments are deeply rooted in the specific statutes and political conflicts of the 1870s, which may feel distant to the modern reader. There are no dramatic personal accounts or narrative flourishes; this is a strictly argumentative piece designed to persuade through constitutional reasoning. Despite this, the central question—how a democracy can survive its own internal disputes over electoral legitimacy—retains a striking relevance. What stays with the reader is the author's persistent insistence that the "machinery of elections" is fragile and that the duty of the citizen to defend the truth of the vote is an ongoing, vital obligation. For those interested in the structural evolution of the American presidency, the book provides a fascinating, if challenging, primary look at how these foundational issues were first articulated during a time of national peril.