The Disputed Presidential Election of 1916

Not all Republicans were happy about the choice of Charles Evans Hughes as their presidential candidate in 1916, but the truly bitter pill [here's the POD] was having to swallow Hiram Johnson for vice-president. Nevertheless, they had no choice: Theodore Roosevelt made it clear that without Johnson on the Republican ticket he would run as Progressive candidate again, even if it meant the re-election of the hated Wilson. (TR privately didn't think Hughes would be that much of an improvement, calling Hughes a "whiskered Wilson.")

But on Wednesday, November 8, the morning after Election Day, it looked as if their decision had been vindicated: The Hughes-Johnson ticket had carried California's thirteen electoral votes--and with them the Electoral College 267-264. https://en.wikipedia.org/wiki/United_States_presidential_election,_1916

True, Wilson was not immediately conceding because a couple of Hughes states were close. But within a few days it was clear that Hughes had indeed carried Minnesota. That only left Indiana, but even after a recount Hughes led by 135 votes there. (Critics of the Johnson nomination sourly remarked that if former US senator from Indiana and 1905-9 Vice President Charles Fairbanks had been nominated as Hughes' running mate, Hughes would have carried Indiana by several thousand votes, not one or two hundred. And California was such a heavily Republican state that Hughes would probably have carried it even without Johnson on the ticket. But of course all that was assuming that TR had been bluffing and would not have run against a Hughes-Fairbanks ticket, and the GOP just couldn't have taken that risk.)

With the recount in Indiana finished two weeks after the election, it was finally time for Wilson to concede. Everyoe was expecting him to--but instead there came a bombshell from Attorney General Thomas Watt Gregory:

"The Department of Justice has credible information that within the few weeks before the election, the Republican party in Indiana lured thousands of colored men from the South to Indiana, allegedly to seek employment, but actually to influence the results of the election. Many of these colored men voted in violation of the residency requirements of the state of Indiana as well as its disqualification for voters who had been convicted of serious crimes. Consequently, we believe that President Wilson won a majority of the legally cast votes in Indiana, and thus has a majority of the national electoral vote. We are taking legal action to set aside what we regard as a fraudulent vote in Indiana..."

***
I don't really know where if anywhere I will go with this scenario. But to prove that it is plausible that the Democrats would make such a claim if Hughes had carried a state like Indiana very narrowly--and if his victory there gave him an Electoral College majority-- here is Lewis L. Gould, The First Modern Clash over Federal Power: Wilson versus Hughes in the Presidential Election of 1916, pp. 113-115:

"Then, three weeks before the election, news of warnings from the Justice Department of as many as 60,000 black men leaving the South for the Middle West perhaps to vote in November began popping up in newspapers. There was a genuine shift of population of blacks out of the South. It was part of the Great Migration of African Americans from the South to northern cities during the twentieth century. Unable to endure the daily humiliations of the racist South and drawn by the urgent demand for labor that war contracts produced in the North, those blacks who were able to escape from southern states began to flee northward. Stories appeared in metropolitan newspapers in 1916 marking the extent of the population shift and its implications.

"These accounts had a certain alarmist emphasis as though blacks were being driven by irrational forces in a search for better jobs and better employment. There was also the implication that African Americans belonged in the South performing their historic roles as field hands and agricultural laborers...

"With the proximity to the election, some officials in the Justice Department believed that partisan politics were also at work. Could these black men be on the move to perpetrate voting frauds th key northern states such as Indiana and Illinois? Would the Republicans wield the black vote in this election as southerners were convinced they had done years before in Reconstruction? There were those in the Wilson admin-istration who thought that such a result was a possibility and they acted to alert the public to the danger. Thomas Watt Gregory was Wilson's second attorney general appohted after his predecessor lames McReynolds went on the Supreme Court in 1914. A graduate of the University of Texas and a close ally of Colonel Edward M. House, Gregory believed in, as he later wrote to William G. McAdoo in 1928, 'the continuous efforts of the Republican party since the Civil War to force upon the south negro equality and destroy the culture and civilization of our fathers.'

"That there was concern at the highest levels of the administration is evident from a letter that Assistant Attorney General Samuel J. Graham sent to the president on October 20. Graham had recently been to Ohio, Indiana, and Michigan and he warned Wilson of a corrupt Republican scheme to carry the election in the Middle West through various illicit procedures—-'colonization, false registration and voting, repeating counting where they have control of the election machinery, etc.' Graham offered to meet with Wilson to outline the nature of Republican wrongdoing.

"When the Justice Department began receiving reports of the movements of black men from South to North, Gregory smelled an electoral rat. He shared Graham's verdict that the Republican leaders were capable of anything. Instructions went out to district attorneys in the Middle West to be on the alert for evidence of suspicious behavior at the polls. The Washington Post reported that 'Attorney General Gregory, in addition to general instructions recently given to federal district attorneys in advance of the election' had 'ordered a special inquiry into complaints that colored men are being sent in great numbers to doubtful states under promises of work at high wages.' The Justice Department alleged that it had information 'that within the last three months approximately 60,000 negroes have been transported from certain Southern States to Northern and Western States mainly to Middle Western states, particularly Ohio, Indiana and Illinois.' Worse yet was the fact that 'a number of these negroes have registered in violation of the laws of the States to which they have gone and have expressed the intention of voting in those states.'...

"All the Democratic alarmism about the prospect of fraud through black voters in the Middle West was finally too much for the leaders of the Republican campaign. Through Representative Thomas Miller of Delaware, the party's congressional campaign committee called the administration's charges 'too preposterous for answer.' Miller asserted that circumstances 'brand the story as false and as a means to deceive the voters of the country in the closing hours of the campaign.' Pointing out the logistical problems the Republicans would have confronted had they endeavored to relocate 60,000 black men from the South, Miller added that 'it looks like another attempt to use the executive department for partisan purposes, for if the Department of Justice had such information as they claim to have about this matter, why did they wait until the closing hours of the campaign to spring something which cannot be proved, but which they know can probably be used to the detriment of the Republican party, untrue as it may be?'

"Nothing ever materialized to show the validity of the fears of the Justice Department. Illinois and Indiana would go Republican in the election without reliance on black votes, while the Democrats would carry the key state of Ohio..."

One thing to remember: this was prior to the Twentieth Amendment, https://en.wikipedia.org/wiki/Twentieth_Amendment_to_the_United_States_Constitution so it would be the outgoing 64th Congress (with clear Democratic majorities in both houses) https://en.wikipedia.org/wiki/64th_United_States_Congress that would certify the election...
 
Last edited:
Very interesting, I wonder how President Hughs would handle World War One?

Oh, we've been through "Hughes wins" scenarios plenty of times. The point of my post was to suggest a situation where it is not clear who won--and this at a time when (unlike the last disputed presidential election in 1876) the US is facing a world war that threatens to engulf it as the Germans prepare to resume unrestricted submarine warfare.
 
One thing to remember: this was prior to the Twentieth Amendment, https://en.wikipedia.org/wiki/Twentieth_Amendment_to_the_United_States_Constitution so it would be the outgoing 64th Congress (with clear Democratic majorities in both houses) https://en.wikipedia.org/wiki/64th_United_States_Congress that would certify the election...

Ah yes, but under the Twelfth Amendment, the House of Representatives votes for President by State Delegation, not individual Members. In the 64th Congress, he Republicans had a plurality in 25 state delegations, the Democrats in 20, and the two parties were tied in 3.
 
Ah yes, but under the Twelfth Amendment, the House of Representatives votes for President by State Delegation, not individual Members. In the 64th Congress, he Republicans had a plurality in 25 state delegations, the Democrats in 20, and the two parties were tied in 3.

There's a difference between the House's choosing a president (by delegations) if no candidate gets an electoral-vote majority and Congress certifying in a joint session just who (if anyone) did get an Electoral College majority. https://www.nbcnews.com/politics/co...ess-certifies-donald-trump-s-election-n704026
 
Oh, we've been through "Hughes wins" scenarios plenty of times. The point of my post was to suggest a situation where it is not clear who won--and this at a time when (unlike the last disputed presidential election in 1876) the US is facing a world war that threatens to engulf it as the Germans prepare to resume unrestricted submarine warfare.

I can imagine that such a situation would be similar to Bush 43's presidency - his first term at least. His election and inauguration would be extremely controversial (and many would still argue that the Democrats had actually won), but that would quickly be overshadowed by foreign policy and divisive social issues at home.
 
What happens if the situation is still unresolved on March 4?

The Constitution empowers Congress to provide for the death, resignation, removal or inability of both POTUS and VP, but makes no mention of a failure to elect. The 20th Amendment now empowers it to provide for the case where neither a POTUS nor VP has qualified, but that wasn't enacted until 1933.

So what happens? About the only thing I can come up with would be for both Wilson and VP Marshall to develop a diplomatic illness in the final week of their current term, and authorise Secretary of State Lansing to exercise Presidential powers. Since he is entitled to act "until the disability be removed or a President shall be elected" he could arguably carry on after March 4 until the situation was resolved.

Alternatively, is there any power given to Congress which could be considered to imply a power to deal with this situation?
 
What happens if the situation is still unresolved on March 4?

The Constitution empowers Congress to provide for the death, resignation, removal or inability of both POTUS and VP, but makes no mention of a failure to elect. The 20th Amendment now empowers it to provide for the case where neither a POTUS nor VP has qualified, but that wasn't enacted until 1933.

So what happens? About the only thing I can come up with would be for both Wilson and VP Marshall to develop a diplomatic illness in the final week of their current term, and authorise Secretary of State Lansing to exercise Presidential powers. Since he is entitled to act "until the disability be removed or a President shall be elected" he could arguably carry on after March 4 until the situation was resolved.

Alternatively, is there any power given to Congress which could be considered to imply a power to deal with this situation?

There is no way the situation remains unresolved. The outgoing Congress declares that Wilson won, and that's the end of it.
 
There is no way the situation remains unresolved. The outgoing Congress declares that Wilson won, and that's the end of it.
It would rather be for the Congress to refuse certifying Indiana's electoral votes; which would make none of the candidates at a majority of the college and throw the election to the House as per the 12th amendment if that's what you meant.
Independently of how votes the House, Marshall would be reelected by the Senate and become acting president if ever needed.

In the worst case scenario, there is still the possibility of a special election, though I hardly see how this would come around. I read a 1905 on constitutional theory some time ago that argues that though the succession act of 1886 removed the special election, the constitution's language as per original intent allowed for congress to provide for such election.
https://www.jstor.org/stable/1323239?seq=1#page_scan_tab_contents
 
It would rather be for the Congress to refuse certifying Indiana's electoral votes; which would make none of the candidates at a majority of the college and throw the election to the House as per the 12th amendments


Would it?

The Constitution requires the winner to receive "a majority of the total number of Electors". If Indiana's vote is rejected, won't that mean she doesn't have any lawfully chosen Electors? If so, then Wilson wins 264-252.
 
I think, @David T , you should go forward with this scenario even if it is ultimately for a short jaunt, as I imagine it is largely unheard of on this board. Certainly there have been a score of scenarios based around the specifics of Hughes winning the 1916 Presidential election and an air of illegitimacy because of a failure to surpass Wilson in the popular vote, but never have I seen one where a specific challenge such as this is levied against the results, and one that could potentially upend the entire election.
 
Top