Reconstruction; qualifications; disability under 14th Amendment; challenge to legislature's authority to elect; Senate refusal to seat losing candidate if winner disqualified.
Memorial presented: Mar. 7, 1871
Referred to committee: Mar. 13, 1871
Committee report: Feb. 28, 1872
Senate vote: April 23, 1872
Result: Abbott not seated
Credentials presented: Feb. 5, 1872
Referred to committee: Feb. 5, 1872
Committee report: April 24, 1872
Senate vote: April 24, 1872
Result: Ransom seated
As the Reconstruction era waned and the dominance of the Radicals declined, Senate Republicans began increasingly to splinter over the treatment of senators elected from the former Confederate states. This factionalism became particularly apparent during Senate consideration of a contested North Carolina election.
New Hampshire native Joseph C. Abbott, a former brigadier general in the Union army and steadfast Republican, settled in North Carolina after the war. When the state first returned to Congress in 1868, he was elected to the United States Senate. A hard-working advocate for North Carolina, particularly for the Wilmington harbor area, Abbott nonetheless had political strength only among the state's black voters. By 1870, white supremacy groups had so far suppressed black suffrage that the state legislature easily chose Zebulon B. Vance (Democrat), who had been the state's governor during the Civil War, over Abbott for the Senate term beginning in March 1871.
Statement of the Case
Abbott immediately challenged the results of the election, pointing out that Vance was still hampered by political disabilities imposed under the Fourteenth Amendment to the Constitution because of his support for the Confederacy. Abbott maintained that, if the electors knew that the winning candidate was disqualified from serving in the Senate, then those votes should be voided and the election granted to the person with the next highest count.
No credentials were presented for Vance, a North Carolinian who had served in the U.S. House of Representatives from 1858 to 1861 and then fought for the Confederacy before being elected governor of the state in 1862. Vance had received a pardon in 1867 under President Andrew Johnson's amnesty program, but the Fourteenth Amendment adopted in 1868 prohibited service in Congress by anyone who had been a member of Congress and then engaged in rebellion against the United States. Vance had not been relieved of this disability at the time of his election.
On March 13, 1871, the Senate referred Abbott's complaint to the Committee on Privileges and Elections, together with contests from three other states.
Response of the Senate
Nearly a year later, on February 28, 1872, a divided committee returned a report recommending that Abbott was not entitled to a seat in the Senate since he had received only a small minority of the votes cast in the state legislature. In the meantime, apparently convinced that Congress would not remove his political disability, Vance had submitted his resignation from the Senate on January 20, 1872.
Abbott and his supporters had drawn upon examples in English law applicable to contested elections, in which the votes for an ineligible candidate were not counted and the candidate with the next highest number of votes was declared elected. The committee pointed out, however, that the practice in the United States was to declare such an election void, rather than to grant the seat to a competitor. In addition, the Fourteenth Amendment gave Congress the power to remove the disabilities from an individual elected to office and thus permit him to take his seat.
As precedents, the majority report cited such previous Senate qualification cases as those of Albert Gallatin and James Shields to show that, when the Senate ruled the claimants ineligible, it called for a new election rather than giving the election to the defeated candidate. Committee member John A. Logan (Republican-IL) noted that, even in the case of David Yulee where Yulee received half of the votes of the Florida legislature and the other half were blank, the Senate refused to seat Yulee and called for a new election. Yulee had claimed victory because he had a majority of the completed votes, but under a rule of the Florida legislature a majority of all the votes was required to elect. Logan also pointed out that, even if the North Carolina legislators voting for Vance knew he was disqualified, they also knew that Congress had removed the disabilities from the state's governor and several other officials after they were elected, and they could therefore reasonably assume it would do the same for Vance. Even John Pool (Republican), the other North Carolina senator, was under the impression that Congress would remove Vance's disabilities.
According to Logan, under the 1866 election law, a candidate must receive a majority of all the votes cast in each house of the legislature, even if some votes were for an ineligible person. Abbott, he declared, had received less than one-third of the votes in the North Carolina house and less than one-fourth of the votes in the senate, and thus clearly had not been elected by the North Carolina legislature.
Abbott supporters Matthew R. Carpenter (Republican-WI) and Benjamin F. Rice (Republican-AR) submitted a minority report, asserting that under federal election law a candidate needed only to receive a majority of the votes cast in each house of the legislature rather than the votes of a majority of the legislators present. Thus, if the votes for Vance were disqualified, Abbott, having received a majority of the remaining votes cast in each house, should be considered elected, even without receiving the votes of a majority of the full legislature as required by the 1866 election law. The minority report dismissed as irrelevant the previous qualification cases cited by the majority, because in the Gallatin and Shields cases the legislators voted for the candidates in the belief that they were eligible. The legislators voting for Vance, however, knew that he was ineligible and thus were deliberately throwing away their votes. The minority report therefore recommended that Abbott be seated.
The debate continued for several days in April, as complex discussions about the meaning of majority and minority candidates, equal suffrage, blank votes, and voided votes frayed senatorial tempers and further divided the Republicans. Underlying the legal arguments was the strong suspicion by some Republican senators, as George F. Edmunds of Vermont complained, that "the Legislature of North Carolina intended to pronounce an insult upon the people of the United States who did not agree with them in politics by electing the particular person the majority voted for." In fact, Matthew Carpenter cited affidavits stating that North Carolina legislators had heard Democratic and Conservative members declare, "We vote for Vance because his disabilities have not been removed; we have eaten dirt long enough." North Carolina Republican John Pool reinforced this view, reporting that "members were allowed seats in the [legislature] who were notoriously and confessedly under the disability imposed by the fourteenth amendment." Many citizens of the state, he believed, would be delighted to have Abbott seated as a rebuke to the legislature, and a number of Senate Republicans agreed.
On April 23, 1872, the Senate finally accepted the committee report, agreeing that, as Joseph Abbott did not have a majority of the votes cast in the North Carolina assembly, he could not claim the seat. The Senate did, however, vote him compensation and mileage for the year he had waited for a decision.
In denying the seat to Abbott, the Senate accepted the premise that, if it chose, it could have removed the disabilities of Zebulon Vance after his election, a procedure that had been followed for officials elected by several other southern states.
On February 5, 1872, while the Senate was still wrestling with the dilemma of turning out the well-liked and effective Abbott, Matt W. Ransom (Democrat-NC) had appeared with credentials for the disputed seat, having been elected to replace Vance. Unlike Vance, Ransom, a former brigadier general in the Confederate army, had not served in Congress before the war and thus was not hampered by the same disability. The Senate referred his credentials to the Committee on Privileges and Elections. On April 24, 1872, the committee reported that Ransom's credentials were in order. He was immediately seated and granted his pay from the beginning of the term in March 1871.
All three of the North Carolina politicians in this case continued to serve in public life. Joseph Abbott, who earlier demonstrated his concern for the harbor at Wilmington, accepted an appointment as inspector of ports under President Rutherford B. Hayes. Abbott died in 1882. Zebulon Vance eventually came to the Senate in 1879 and served until his death in 1894. Matt Ransom remained in the Senate until 1895 and died in 1904.
Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.