Presidential Lottery by James A. Michener Page B

more vibrant popular leader would have swept the nation. As it was, Tilden’s reticent campaign produced a popular majority of 251,746 and an electoral vote of 204 to 165, with only 185 needed to win.
    But even before the Democrats could celebrate, Republican managers circulated reports that because of faulty or duplicatecertification, the electoral votes of four states were in question, and these four states provided an interesting total of votes: Florida 4, Louisiana 8, South Carolina 7, Oregon 1. (Oregon had three votes, but the other two had been cast for Hayes without protest.) If these twenty contested votes were subtracted from the Tilden column and added to the Hayes, the result would be Hayes 185 to Tilden 184. The problem for the Republicans therefore became how to swing those contested votes into the Hayes column? Observe that it would do the Republicans no good if they won 19 of the votes; they had to win all 20, and their chances of doing so were extremely remote. But they set about the task.
    What were the facts? Each of the four states had submitted to Congress two sets of returns. Those of the three southern states were drastically contradictory, one set giving all of that state’s votes to Tilden, the other all to Hayes. In Oregon, however, the first set gave Hayes a count of 3 to 0, while the second gave him only 2 to 1. A fact of signal importance was that the Hayes votes from Louisiana had been obtained by the fraudulent device of having a Republican election board in one district reject several thousand Democratic ballots. In the Louisiana case at least, Tilden’s chances looked ironclad, and in the Florida and South Carolina, good. It seemed certain that he must be the next President.
    The Oregon case could go either way. The contested Hayes vote there had been cast by an elector who had forgotten to disclose that he was a postmaster, hence a federal employee, hence ineligible to serve. The Democratic governor took it upon himself to disbar this postmaster and to certifyin his stead the Democratic elector with the highest number of votes, to which the Republicans countered by having the postmaster resign, which made him eligible, and submitting their own list of electors with his name on it. At this point the reader should determine how he would have treated that Oregon vote had he been on the commission reviewing the matter, because if the Florida, South Carolina, and Louisiana votes were all given to Hayes, the outcome of the election would hinge on this single vote.
    Who was to adjudicate this ticklish question? On this point the Constitution was beautifully vague; it began clearly enough; it said that when the results of the electoral vote in each state had been submitted to the president of the Senate, that official should “in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” Grammatically, if the framers had intended the president of the Senate to do the counting—and therefore the accepting and accrediting—their sentence would have read “The President of the Senate shall open all the Certificates and count them.” By phrasing the instructions as they did, they apparently meant that the Congress itself should do the validating and counting.
    The vital questions were phrased thus: Did the president of the Senate count the votes, the Congress being mere witnesses; or did the Congress count them, the president’s duty being merely to preside? And was the counting process merely mechanical or did it also entail validation of the reports as legal? A further question was not asked at that time, but it haunted the proceedings: What should be donein such a situation if the Senate were Republican and the House Democratic, as they were in 1877?
    I suppose one could argue that the framers ought to have anticipated a situation like this, but they did not, so once again pragmatic solutions were called for. It should surprise no