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For twenty-eight years there was only one Dakota. When the territory was formed in 1861—the final vestige of the land obtained under Thomas Jefferson’s Louisiana Purchase to be formally organized—no one could have foreseen its eventual admission into the Union as two separate and distinct states. Named for the Dakota branch of the Native American Sioux tribe, and including much of the modern-day states of Montana and Wyoming, Dakota was the most remote and sparsely populated of the U.S. territories of the mid-nineteenth century. Indeed, at the time of the 1860 census, only 1 percent of the American population lived in the territories in their entirety, including a mere 2,405 in Dakota. But all of that was about to change.
Within a year of the Dakota Territory’s formation, Congress finally passed Andrew Johnson’s Homestead Act to promote territorial resettlement. This was no doubt to his great satisfaction, although having been tapped as military governor of Tennessee earlier that year, he was by this time no longer in the Senate to see his longtime dream realized. Now, in return for a small filing fee, any free American could lay claim to a 160-acre plot of public lands on the western frontier. Signed into law by Abraham Lincoln as the Civil War raged, the legislation sought “to elevate the condition of men, to lift artificial burdens from all shoulders and to give everyone an unfettered start and a fair chance in the race of life.”
Westward expansion, Lincoln argued, was essential to the nation’s health and vitality. “The wild lands of the country should be distributed,” he proclaimed in an 1861 speech in Ohio, “so that every man should have the means and opportunity of benefiting his condition.” What followed was a massive population exodus from east to west. More than 4 million homestead claims were filed, and the deeds to 1.6 million lots were eventually distributed under the program.
Most of those who flocked to Dakota over the subsequent two decades would settle in the south, particularly in the areas around Sioux City. Southern Dakota, connected by the railroads to the major urban centers of the Midwest—particularly Chicago, which boasted a population of more than 112,000 at the time—proved more popular with homesteaders and farmers. The north, whose transit links from Fargo and Bismarck intersected with the much smaller and more isolated city of Minneapolis, grew more slowly and relied heavily on cattle ranching and fur trading, leading to frequent clashes with the indigenous Sioux population. Even with the lucrative incentives of the Homestead Act, population growth in the Dakota Territory was slow.
At the time of the 1870 census, South Dakota had reached 11,800 inhabitants, while North Dakota still lagged behind at 2,400. This left the territory far short of the numbers that would be necessary to even entertain the possibility of statehood. Resentment between the regions also began to fester. As the University of North Dakota history professor Kimberly Porter puts it, “The south half did not like the north half.” By the 1880 census, however, population growth had begun to take off. Close to 100,000 people now lived in the south, a more than 700 percent increase in only a decade, compared with 37,000 in the north, representing a staggering 1,400 percent growth.
With these increased numbers, the demand for statehood also began to grow. At stake in Washington were the seats in the U.S. Senate that would follow Dakota’s admission to the Union, with powerful incentives thereby existing for the Republican Party, which dominated the territory’s politics. As it happened, the party already had a road map for how to gerrymander the boundaries of newly admitted states to artificially increase their Senate representation. It came from one of the unlikeliest of sources: Honest Abe himself.
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America’s greatest president was certainly not unfamiliar with or naive about the use of creative line drawing as a tool of political manipulation. In fact, he himself had been a victim of gerrymandering earlier in his political career. In 1850, the Democrats in the Illinois state legislature, facing an electoral climate that was rapidly becoming inhospitable to their cause, had redrawn their districts in a desperate effort to preserve their dwindling majority. Lincoln, having served in the state legislature himself from 1834 to 1842, and then in the U.S. House of Representatives from 1847 to 1849, was an ambitious and upwardly mobile politician. He had by now set his sights on a higher office: the U.S. Senate. But the Democratic majority in the state legislature, which at the time was responsible for choosing senators, proved to be a thorn in his side. After an unsuccessful Senate bid in 1854, in which Lincoln had thrown his support behind the antislavery Democrat, Lyman Trumbull, to prevent a pro-slavery candidate from winning election, he ran again in 1858.
“A house divided against itself cannot stand,” Lincoln declared in his speech accepting the Republican nomination, and it was clear that the issue of slavery would dominate the campaign. This time, his opponent was the Democratic incumbent, Stephen A. Douglas, and the election is remembered primarily for their famous series of debates on the values of republicanism, popular sovereignty, and liberty. But when the votes were in, despite Republican candidates’ winning a clear majority statewide, the gerrymander was sufficient to preserve Democratic control in Springfield. The legislature dutifully reelected Douglas to his Senate seat. Stung by the loss, Lincoln decided to skip the Senate entirely and instead run for president in 1860. The Democratic attempt to sideline this rising star in the Republican Party was thwarted.
Would he still have mounted a presidential campaign if he had been less than two years into a six-year term in the Senate? It’s impossible to know, but once again a gerrymander had fundamentally altered the career trajectory of a man who later became president of the United States. On such seemingly insignificant details, the fates of empires turn. And while Lincoln, despite this earlier run-in with the subversion of democracy, would go on to endorse the Republican state-stacking gerrymander of the Civil War era, its architect had been someone else: an obscure Ohio senator by the name of Benjamin Wade.
The history of the American presidency is marked with examples of almost presidents. Men (and occasionally women) who came agonizingly close to ascending to the nation’s highest office, but due to bizarre or unlikely circumstances, last-minute changes of heart, or cruel twists of fate never quite made it. Al Gore’s loss in the 2000 presidential election to the Texas governor, George W. Bush, came down to a disputed 537-vote margin out of almost 6 million ballots cast in the state of Florida, amid numerous election irregularities stemming from voter purges, butterfly ballots, and hanging, dimpled, and even pregnant chads. Eventually, a 5–4 decision by the U.S. Supreme Court in the case of Bush v. Gore finally put the controversy to rest, although the question of who really “won” the 2000 election, however one may choose to define that, is unlikely to ever be definitively resolved.
Two centuries earlier, Aaron Burr faced a similar protracted wait to discover if he would be elected as the nation’s third president. Burr had technically been Thomas Jefferson’s running mate in the 1800 contest against the incumbent John Adams. But under a quirk of the original Electoral College system—which until corrected by the Twelfth Amendment allowed each elector to cast two votes for president—he ended up tied 73–73 with Jefferson, with each ahead of Adams, who received 65 electoral votes. The plan had been for one of the Democratic-Republican electors to abstain, putting Jefferson one vote ahead of his running mate, who would then be elected vice president. But due to a breakdown in communication that has never been satisfactorily explained, the plan failed. No one abstained.
This triggered a contingent election, under which the House of Representatives would decide the next president. After thirty-five consecutive ballots resulted in no majority for either Jefferson or Burr, Alexander Hamilton stepped in. The arch-Federalist, who had been George Washington’s Treasury secretary, finally persuaded enough members of his own party to either abstain or vote for Jefferson—whom he viewed as “by far not so dangerous a man” as Burr—to carry him to victory on the thirty-sixth ballot. Hamilton’s warning about Burr’s temperament turned out to be prescient. Less than four years later, Burr shot and killed him in a duel in New Jersey, while still serving as Jefferson’s vice president.
And beneath these infamous and high-profile examples, there lurk a number of almost presidents whom most people have never heard of. Names that are largely absent from the history books, whose major claim to fame is that they almost, but not quite, made it to the Oval Office. Prior to the ratification of the Twenty-Fifth Amendment in 1967 (which codified the tradition that the vice president assumes the full powers and office of the presidency in the event of a presidential vacancy, rather than merely serving as acting president until a new election could be held) and the Presidential Succession Act of 1947 (which fleshed out the remainder of the line of succession: vice president K Speaker of the House K president pro tempore of the Senate K secretary of state K secretary of the Treasury, and so on), the specifics of what actually happened when a president died, resigned, was removed from office through impeachment, or was otherwise incapacitated were somewhat murky.
When President William Henry Harrison passed away from pneumonia in 1841, only thirty-one days into his term, his vice president, John Tyler, boldly declared that he was now assuming the full powers and title of president, although nothing in the Constitution clearly provided for this. Even more unclear was the question of what would happen if the office of vice president was also unoccupied. The terms of the Presidential Succession Act of 1792 suggested that the president pro tempore of the Senate, the second-highest-ranking official in the chamber behind the vice president, would become acting president in that eventuality, but this was far from settled law. The question was of no mere academic concern. Between 1800 and 1900, there were ten separate occasions on which the office of vice president became vacant for one reason or another.
Less than three years after John Tyler assumed the presidency following the death of William Henry Harrison, and with no mechanism in place at the time to appoint a replacement for him as VP, Tyler himself was very nearly killed in an explosion aboard the USS Princeton. Had things gone slightly differently that day, Willie Person Mangum—the North Carolina senator whose main claim to fame was having won eleven electoral votes as one of four Whig candidates for president in 1836—would have assumed the office. President Tyler (acting president according to his opponents) had been attending a demonstration cruise down the Potomac River in Washington, D.C., to celebrate the launch of the powerful new warship. Joining him on the cruise were some four hundred other dignitaries and guests that included several members of his own cabinet, as well as James Madison’s widow, Dolley. Eager to show off the vessel’s twelve-inch, twenty-seven-thousand-pound Peacemaker cannon, the largest in the world at the time, Captain Robert Stockton fired off several volleys from the enormous gun along the way, to the delight of those on board.
As the ship turned for home, Secretary of the Navy Thomas Walker Gilmer—brushing off safety concerns and overruling the gun’s designer, John Ericsson—ordered one final volley from the cannon in the direction of Mount Vernon as a salute to George Washington. When Captain Stockton pulled the firing lanyard, the Peacemaker exploded, spraying hot metal shrapnel into the assembled crowd. Tyler himself was halfway up the ladder to the upper deck when the explosion occurred. He had paused there for a moment to raise his champagne glass for one last toast, and so escaped unharmed. Eight people were killed in the explosion, including Secretary Gilmer and Secretary of State Abel P. Upshur. Dozens of others were wounded.
Though the explosion aboard the Princeton had been an accident, two other relatively obscure individuals would join the ranks of the almost presidents by virtue of failed assassination attempts. In February 1933, only twenty-three days after the Twentieth Amendment went into effect—which provided that the vice president elect would assume the office if the president-elect were killed—an Italian immigrant and anarchist named Giuseppe Zangara decided to put it to the test. Armed with a .32-caliber revolver, he approached a car containing President-elect Franklin Roosevelt and Chicago’s mayor, Anton Cermak, during a rally in Miami, Florida. Zangara fired five shots into the vehicle, reportedly shouting “I hate all presidents!” and “too many people are starving!” before being restrained by onlookers.
Roosevelt, the intended target of the assassination, was unharmed. Cermak was not so fortunate. Gravely wounded in the attack, he died less than a month later, exactly two weeks before Giuseppe Zangara’s date with the electric chair. Had the bullets found their mark that day, Vice President elect John Nance Garner would have assumed the office of president. “I’m glad it was me, not you,” Cermak apparently told Roosevelt from his hospital bed after the shooting. The line was later engraved on his tomb.
Almost seventy years earlier, Senate president pro tempore Lafayette S. Foster had also missed being catapulted to the presidency only because of an assassination that went wrong. But on that occasion, it was very much overshadowed by an assassination that went right. The plot to murder Abraham Lincoln in 1865 involved conspirators besides John Wilkes Booth. One of these was George Atzerodt, whose role in the plot was to assassinate Vice President Andrew Johnson, while Booth took care of Lincoln. Atzerodt even went so far as to rent a hotel room at the Kirkwood House in Washington, directly above the one being occupied by Johnson. But after a last-minute attack of nerves he decided to go drinking at the hotel bar instead of following through with the plan. Atzerodt, along with three other members of the conspiracy, was hanged in Washington, D.C., three months later. It is into this same category of almost presidents, along with the names of Burr, Foster, Garner, and Mangum, that Benjamin Wade may also be placed. Three years after Lincoln’s assassination, Wade would come within a single vote in the Senate of replacing Andrew Johnson as president.
A native of Springfield, Massachusetts, Wade had worked as a laborer on the Erie Canal before trying his hand at politics. Like Lincoln he had been a member of the Whig Party before joining the Republican ranks upon its demise. After moving to Ohio initially to practice law, he was elected to the state senate in 1837. He served in that capacity until early 1842, leaving only months before the attempted Democratic gerrymander later that year, narrowly missing out on his former Whig colleagues’ adventures with the Licking Water-whelp and friends. A strong advocate for women’s suffrage, trade unions, and both the abolition of slavery and the extension of civil rights to African Americans, Wade quickly developed a reputation as one of the most radical American politicians of the era.
Photograph of Benjamin Wade by Mathew Brady, circa 1865.
He was elected to the U.S. Senate in 1851, where he opposed both the Fugitive Slave Act and the Kansas-Nebraska Act. And along with colleagues such as Thaddeus Stevens and Charles Sumner, he emerged as one of the leaders of the Radical Republican faction in Congress. When the Civil War broke out, Wade was almost captured by Confederate forces on the way back to Washington, D.C., having witnessed the Union defeat at the First Battle of Bull Run. As the war progressed, he became a vocal critic of Lincoln’s pragmatic approach to the slavery question, opining somewhat uncouthly that the president’s views “could only come of one born of poor white trash and educated in a slave State.”
But one thing on which he and Lincoln saw eye to eye was the question of territorial expansion. Both men recognized the opportunity it created for bolstering the Republicans’ control in Washington. Aside from the destruction of the institution of slavery, it was probably the number one item on the Radical Republican agenda. And Wade had a plan.
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The Constitution places relatively few restrictions on the admission of new states. Article IV merely stipulates, “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” When it comes to the granting of statehood to existing territories, therefore, Congress has almost unilateral discretion to dictate the terms, provided of course that the president is prepared to sign the legislation into law.
The rule of thumb that was used prior to the Civil War was a simple one. When and if a territory’s population grew to the point that would warrant the granting of a seat in the U.S. House of Representatives, Congress would consider its petition for statehood. In 1860, that number stood at around 127,000 residents. But while conflict over slavery had dominated the congressional debates over admission during the antebellum period, the growing prospect of war saw partisan considerations rise to the forefront. Nowhere was this calculus more evident than in the Nevada Territory, which did not even exist as an independent entity when Abraham Lincoln defeated his two Democratic opponents in the 1860 presidential election. One of those opponents was none other than Stephen A. Douglas, the same man who had denied him a Senate seat two years prior.
In the four months between the election and Lincoln’s inauguration, amid the chaos of the Confederacy secession crisis, Wade and the Republican majority in the House of Representatives sensed an opportunity. Though they had lost control of the Senate to the Democrats in 1858, the departure of the Democratic senators from the seven states that had seceded from the Union as of February 1, 1861, suddenly turned their thirty-eight-to-twenty-five deficit in that chamber into a twenty-six-to-twenty-five majority. In the two weeks before Lincoln took the oath of office on March 4, the Republican Congress passed, and in a decision he would surely have regretted if he’d lived to see its effects, the outgoing Democratic president, James Buchanan, signed into law, two seemingly innocuous pieces of legislation, known as Organic Acts.
Organic Acts are used by Congress to convert an existing tract of federal land into a formal U.S. territory, while Enabling Acts provide the vehicle for those territories to later obtain statehood. The first Organic Act, signed on February 28, carved off the western part of the Kansas Territory, the southwestern corner of the Nebraska Territory, and a small northern strip of the New Mexico Territory to form the brand-new Colorado Territory, population 34,277. The second, on March 2, the same day that the bill creating the Dakota Territory became law, divided the remainder of the Utah Territory in half along the thirty-ninth degree of longitude west from Washington, and designated the western portion as the Nevada Territory, population 6,857.
Around the same time, the remaining eastern portion of the Kansas Territory was admitted to the Union, in another bill signed by President Buchanan. On April 4, the new state of Kansas sent two additional Republican senators to Washington for the beginning of the Thirty-Seventh Congress. Once Lincoln took office, he and Wade wasted little time following through with the rest of the plan. What followed over the next three years was an unprecedented flurry of territorial reorganization and statehood admission that created the geographic blueprint of the western United States as it exists today. Additional Organic Acts were passed that created the territories of Arizona (February 1863; population 9,658), Idaho (March 1863; population 14,999), and Montana (May 1864; population 20,595). Each was passed through Congress during the Civil War, with the absence of the Democratic representatives who had left Washington to join the Confederacy, giving Lincoln and Wade unfettered control over the nation’s legislative agenda. The dramatic effects of these changes to the geography of the United States can be seen in the accompanying maps, which depict the nation in 1860 and 1865.
Map of the United States, 1860.
Map of the United States, 1865.
These reorganizations were merely the opening gambit in a longer game of territorial chess, one that the political scientists Charles Stewart and Barry Weingast refer to as “America’s rotten boroughs.” By dividing the western territories into smaller and smaller geographic units, the Republicans would be able to later admit them as states. This process contributed in no small part to their dominance of national elections throughout the late nineteenth century. But the initial plan had more immediate goals. For Lincoln, in the midst of a brutal conflict that was already turning against the Union forces—as Robert E. Lee’s Army of Northern Virginia drove first into Maryland, with shots being fired only miles from Washington, D.C., and then later into Pennsylvania—there were more pressing concerns than his party’s future electoral fortunes.
The election of 1864 was fast approaching. The possibility of his losing either his majority in Congress or the presidency itself, further crippling the war effort, was a very real concern. Even after the Union victory at the Battle of Gettysburg, and Lee’s subsequent retreat to Virginia, began to turn the tide of the war in his favor, Lincoln remained restless. In his mind, securing his power in Washington, and indeed his own reelection, became synonymous with winning the war and saving the Union. It was the only way he could justify to himself what followed. To fully bolster the Republican electoral prospects, additional new states would have to be admitted. Two of the most attractive prospects were West Virginia and Nevada.
In a referendum held on October 24, 1861, the people of the pro-unionist western counties of Virginia had voted overwhelmingly in favor of breaking away from the Confederacy and forming their own state. They began sending representatives to Washington who purported to speak for the people of Virginia as a whole. Momentum for admission also began to build among congressional Republicans, with Benjamin Wade leading the charge. There was a major obstacle in the way of this plan, however: the Constitution explicitly forbids new states to be created from within the boundaries of existing ones without their consent. Such consent from Virginia, it goes without saying, was unlikely to be forthcoming.
The validity of the secession vote itself was also significantly in doubt. West Virginia was under Union occupation at the time, and rumors that troops had been stationed at polling places to prevent Confederate sympathizers from voting were swirling. Many Republicans privately conceded that the ordinance of secession was likely illegal. But they nevertheless moved forward with a bill to admit the territory that had seceded from Virginia, which had in turn seceded from the Union, secession apparently being quite in vogue during the early 1860s. On December 21, 1862, despite his own reservations, Lincoln signed the Enabling Act that was sent to him by Congress. In June of the next year, West Virginia was formally admitted as the thirty-fifth state.
“The division of a state is dreaded as a precedent but a measure expedient by a war is no precedent for times of peace,” Lincoln wrote, in an apparent acknowledgment of the tenuous legality of the admission. “It is said that the admission of West Virginia is secession,” he continued, “and tolerated only because it is our secession. Well, if we call it by that name, there is still difference enough between secession against the constitution and secession in favor of the constitution. I believe the admission of West Virginia into the union is expedient.” Quite. It was not the only time that Lincoln’s quest to save the Union would be predicated on, to put it mildly, a somewhat tortured reading of the founding document. Representative Thaddeus Stevens of Pennsylvania, while voting in favor of admission, stated it even more bluntly: “I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding.”
When West Virginia’s two senators arrived in Washington that August, Senator Garrett Davis of Kentucky objected strenuously to their seating. “I hold that there is, legally and constitutionally no such state in existence as the state of West Virginia,” he opined on the Senate floor, “and consequently no senators from such a state.” But his Republican colleagues overruled him. The question of West Virginia’s legitimacy eventually precipitated a protracted legal battle that would not ultimately be settled until 1870, long after the war, Lincoln’s presidency, and, courtesy of John Wilkes Booth’s bullet, also his life had come to an end. In the aptly named case of Virginia v. West Virginia, the U.S. Supreme Court gave at least an implicit endorsement to the secession, ruling 6–3 that the breakaway counties had indeed received the necessary consent to be lawfully admitted as a state.
If the admission of West Virginia was constitutionally unusual, the process by which Nevada became a state broke even more dramatically with the norms and traditions of statehood politics. The Union push into Louisiana in the Red River Campaign began to stall in the spring of 1864, followed soon after in June by what would ultimately prove to be the last major Confederate victory of the war at the Battle of Cold Harbor. And with Sherman’s famous March to the Sea and the fall of Atlanta still many months in the future, the need to admit Nevada became all the more pressing. Its carving off from the Utah Territory in 1861 had been driven both by the silver rush of 1859, which saw prospectors flock to the Comstock Lode in search of a cheap buck, and by a desire on the part of Republicans in Washington to blunt the influence of the heavily Democratic Mormon areas around Salt Lake City. The push for statehood, however, which was again spearheaded by Benjamin Wade and endorsed by Lincoln, was explicable only in terms of partisan politics.
Under any reasonable metric, the population of the Nevada Territory fell far short of what would be necessary to even consider an application for statehood. Fewer than seven thousand people lived in Nevada, then part of the Utah Territory, at the time of the 1860 census. Even by 1870, six years into statehood, its population had increased only to slightly more than forty-two thousand. “It was the most egregious effort in the nation’s history to disregard population and economic criteria in order to admit a state for political reasons,” write Stewart and Weingast. “Had Nevada waited until the standard population criterion had been met,…it would not have entered the Union until 1970.” “Members of Congress were being asked to admit a state…with virtually no population,” they conclude, “a violent and corrupt history, an unstable economy based on mining, and little prospect for the development of a strong agricultural base.”
But admit it they did. With little debate and no recorded roll-call vote, the Nevada Enabling Act was passed by Congress and signed into law by President Lincoln on March 21, 1864, four days before the Confederate victory at the Battle of Paducah. Nevada officially became the thirty-sixth state on October 31, narrowly in time for the November elections. Two Republican senators and three electoral votes for Abraham Lincoln would swiftly follow.
What drove Lincoln, a passionate defender of both the Union and the Constitution itself, to resort to these extraconstitutional shenanigans? In one of the most definitive studies of U.S. territorial expansion, the political scientists Nolan McCarty, Keith Poole, and Howard Rosenthal make a compelling case in defense of Lincoln’s actions. They argue that cynical political opportunism was not the sole motivation behind the apparent Republican power grab. After all, the very nation itself was in the process of coming apart at the seams. When the votes creating the state of Kansas and the Nevada and Colorado Territories were held, war seemed imminent. And by the time West Virginia and Nevada were admitted to the Union in the run-up to the 1864 election, it was in its full throes.
“Winning the war,” they write, “involved not only preservation of the Union but also the faithful implementation of Republican policies in its aftermath.” This course of events was far from guaranteed as the election approached. “Even after the secession of eleven states who had cast very few Republican votes in 1860,” they continue, “Lincoln gathered only 55% of the 1864 vote in spite of a dramatic pro-Union turn in the tide of the war. As a concession to its uncertain electoral situation, the party went so far as to give the second position on its national ticket to Andrew Johnson, a slaveholding Democrat from a border state.”
But was it actually necessary? Lincoln would still have won reelection by a landslide, and with a comfortable Republican Senate majority to boot, even without the votes of the newly admitted states. And the statehood gerrymander left a stain on his administration that would embolden his Republican successors to undertake far less justifiable power grabs. The actions taken during Lincoln’s first term to shore up the Republican strength in the House, Senate, and Electoral College were at the very least, as in the case of Nevada, a radical departure from established procedures. And when it came to West Virginia, they arguably represented a flagrant violation of the Constitution. But what might seem inconceivable in peace can come to be regarded as unavoidable in war. Even when hostilities ceased, admission could still be justified by the necessity of protecting the integrity of Reconstruction once the states of the former Confederacy began the process of rejoining the Union. What followed over the subsequent decades, however, is far less defensible as a matter of expediency, particularly with regard to the splitting of Dakota.
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The two decades between the Civil War and the omnibus statehood debates of the late 1880s were relatively quiet on the state-stacking front. But statehood gerrymandering still had a decisive effect on at least one presidential election during this period. By now, Wade had set his sights on two new territories that he hoped to add to the Republican column: Colorado and Nebraska. His designs on Colorado were thwarted on two separate occasions, first by the people of Colorado itself and then by the veto pen of Lincoln’s successor, Andrew Johnson.
Congress had passed the first Colorado Enabling Act in 1864, hoping to move forward with admission before the election that November. But when a referendum was held in the territory on the question of statehood, a majority of voters rejected the idea. Three years later, another Enabling Act was passed but was vetoed by Johnson, and the Republicans fell three votes short of forcing an override. A similar effort was undertaken to admit Nebraska that was pocket vetoed by Johnson in 1865. Two years later, the Nebraska Enabling Act was back before Congress, and after Johnson vetoed it again, this time his veto was overridden. This made it the first and to date only state to join the Union through that particular legislative procedure, and the fourth new state during the 1860s. The campaign to admit Colorado, however, quickly found itself eclipsed by more urgent matters. Matters that would soon catapult Benjamin Wade into the ranks of the almost presidents.
Johnson’s political capital was already rapidly dwindling. Wade and the Radical Republicans in Congress were growing increasingly frustrated with his obstructionist stance toward both their statehood gerrymandering and the cause of Reconstruction. Johnson himself did little to assuage the growing anger on Capitol Hill. In one of his first actions after assuming the presidency, he granted amnesty to many former Confederates. Then he drew further ire by labeling the Radical Republican leaders as traitors and vetoing several bills attempting to impose more stringent readmission requirements on the southern states. Things came to a head in early 1868, when Johnson attempted to dismiss Secretary of War Edwin Stanton. This was a violation of the 1867 Tenure of Office Act, which the Republicans had passed over Johnson’s veto. That legislation, almost certainly itself unconstitutional, was a blatant attack on the president’s authority over the executive branch, requiring as it did the Senate to consent to any removal of a cabinet-level official. Three days later, the House voted 126–47 to approve articles of impeachment.
While the Republican majority in the Senate was sufficiently large to convict Johnson and remove him from office on a party-line vote, the major obstacle to the impeachment effort turned out to be the identity of the man who would replace him. In 1867, by virtue of his status as an elder statesman and a leader of the Radical Republican faction, Wade had been elected by his colleagues as president pro tempore of the Senate. This largely ceremonial position came with the added perk of placing him next in line for the presidency, since the office of vice president had been vacant since Lincoln’s assassination. For the more moderate Republicans in the Senate, the prospect of a Wade presidency was a bridge too far.
“It was believed by many at the time,” wrote John Roy Lynch, the first African American to be elected to the House of Representatives from the state of Mississippi, “that some of the Republican Senators that voted for acquittal did so chiefly on account of their antipathy to the man who would succeed to the presidency in the event of the conviction of the president.” While they certainly despised Johnson, Wade was, again in the words of Lynch, “the sort of active and aggressive man that would be likely to make for himself enemies of men in his own organization who were afraid of his great power and influence, and jealous of him as a political rival.” When the trial was held, ten Republican senators sided with Johnson, enough for his impeachment to fail by a single vote. An editorial in The Detroit Post probably summed it up best: “Andrew Johnson is innocent because Ben Wade is guilty of being his successor.” And when Wade himself retired from the Senate the following year, his Republican brethren were more than willing to take up the state-stacking mantle that he had previously worn.
A renewed push for Colorado statehood was instigated in the mid-1870s by the Republican territorial representative Jerome Chaffee, whose lobbying campaign to Congress was prefaced on the audacious claim that the territory now had a population of 150,000. Given that there were fewer than 40,000 inhabitants at the time of the 1870 census, this notion can at best be filed under “wildly implausible.” An enterprising land speculator who had been a teacher and small business owner in Michigan before heading west to make his fortune in the mining industry, Chaffee was nothing if not an opportunist, as his later political career would soon demonstrate. Wade had attempted a similar gambit with Nevada in 1864, citing the “unexampled rapidity” with which the territory’s population was growing. “I venture to predict,” he boldly continued, “that in one year from this time there will be more than one hundred fifty thousand inhabitants in the Territory.” His prediction was off by roughly eight decades; Nevada would not hit 150,000 residents until the 1950 census.
Notwithstanding the wildly inflated population estimates—that particular precedent having after all been unceremoniously jettisoned with the admission of Nevada—the push for Colorado statehood found a surprisingly receptive bipartisan audience in Washington. While Republicans controlled both the Senate and the presidency, the Democratic majority in the House remained a potential stumbling block. But Colorado’s Democratic territorial representative to Congress, Thomas Patterson, managed to win them over with the somewhat optimistic assertion that his party would be able to successfully compete for the Centennial State’s votes. A parallel effort to admit New Mexico fell one vote short of successfully passing the House, an outcome that many historians attribute to prejudice toward the territory’s Hispanic majority. President Ulysses S. Grant signed another Colorado Enabling Act on March 3, 1875, eleven years after Lincoln had initially done the same. The people of the territory voted overwhelmingly in favor of statehood the next summer, and it was admitted as the thirty-eighth state on August 1.
Just in time, too. Ohio’s Republican governor, Rutherford B. Hayes, was in the midst of a closely contested battle for the presidency with the Democrat Samuel Tilden. The election appeared to be going down to the wire. As politicians of both parties eagerly waited on the returns—including Jerome Chaffee, who had returned to Washington as one of Colorado’s two new Republican senators—Tilden appeared to be heading for victory. When it emerged that he had won the popular vote with 52 percent to Hayes’s 48 percent, Tilden’s supporters began celebrating their triumph. But like other Democratic hopefuls who would come after him, the Electoral College proved to be his downfall. Having determined that there was insufficient time to organize a statewide election, the Republican majority in the Colorado legislature simply voted to appoint their own slate of electors, who dutifully cast their ballots for Hayes. Those three electoral votes proved to be decisive. Hayes went on to capture the presidency with a 185–184 Electoral College majority, the smallest margin in U.S. history.
That result had itself been intensely controversial. The initial count of Electoral College votes gave Tilden 184 to Hayes’s 165, with the votes of four states, totaling 20, still unresolved. Amid widespread reports of fraud and violent threats against Republican voters, Florida, Louisiana, and South Carolina sent competing Republican and Democratic slates of delegates to their respective capitals, each claiming that their candidate had won the state. The situation quickly reached an impasse, and as the weeks dragged on, Inauguration Day was now rapidly approaching.
The crisis was resolved when the parties entered into the Compromise of 1877, hashed out in the smoke-filled rooms of the Washington political establishment. Under the terms of the deal, the Democrats agreed to award the disputed electoral votes to Hayes, and in return the Republicans agreed to withdraw the remaining federal troops from the South. This brought Reconstruction to an end and ushered in the era of Jim Crow racial discrimination and the widespread disenfranchisement of African American voters. Not the nation’s finest hour. Had Colorado not been admitted prior to the election, Tilden’s 184 electoral votes would have constituted a majority even without the disputed states, and he would have become president. Add another name to the almost-presidents roster.
By the 1880s, the effects of the Republican statehood gerrymander were also being acutely felt in the Senate. From 1876 to 1888, the four states admitted in the preceding two decades—Kansas, Nevada, Nebraska, and Colorado—selected an almost-unbroken slate of Republican senators. The lone exception was the Democrat James G. Fair of Nevada, who served from 1881 to 1887. Their votes would prove crucial to maintaining Republican control of the chamber, which they held from 1877 to 1879 and again from 1881 to 1889, despite Democratic majorities in the House throughout most of these years.
With a strong demand for statehood now emerging in many of the new territories that had been created in the lead-up to the Civil War, divided government proved a stumbling block to any further admissions. But as the 1888 presidential election approached, a bipartisan push reignited the statehood debate in Washington. As it turned out, the Democrats and Republicans had very different ideas in mind as to exactly which states they thought should be admitted.
Utah, New Mexico, and Montana appeared to be the most fertile candidates for the Democrats, while Dakota and Washington were targeted by the GOP. Partisan differences stalled any real progress until Election Day, when the Republican Benjamin Harrison narrowly defeated the Democratic incumbent, Grover Cleveland. More significantly, the Republicans also captured narrow majorities in both the House and, thanks to the votes of Colorado, Kansas, Nebraska, and Nevada, the Senate. When the new administration took office the next year, the Republican Party would enjoy unified control of both the executive and the legislative branches for the first time since Reconstruction.
This put the Democrats in an extremely tough position. If they ran out the clock on the Fiftieth Congress, the incoming Republican majority would surely move to admit only those states whose Senate seats and Electoral College votes they could be reasonably sure of controlling. But on the flip side, any deal that they might be able to strike during the lame-duck session would surely come at a steep price. The Republicans had little incentive to compromise, particularly in the case of Utah, whose continuing embrace of plural marriage in contravention of federal law was a major impediment to statehood. The Democrats’ sole remaining bargaining chip was Dakota, and it was from these last-minute negotiations that the two Dakotas were born.
The possibility of admitting Dakota as two separate states had already been floated prior to the election. For obvious reasons, the Democratic majority in the House had consistently opposed the idea. While the political leanings of Washington and Montana were at least somewhat up in the air, Dakota represented a home run for the Republicans. The territory was virtually certain to elect four Republican senators if admitted on their terms, and the south’s burgeoning population would also provide a bonus boost for their prospects in the House of Representatives and Electoral College. The Democrats’ opening salvo in the negotiations was to propose an omnibus bill admitting Dakota and Washington in the Republican column, balanced out by Montana and New Mexico on the Democratic side. Utah, seen as a lost cause, would have to wait.
All four of these candidates met the population threshold for admission, and they gambled that an omnibus approach would appeal to their opponents’ desire to paint themselves as the party of inclusive statehood. Even these concessions were considered unpalatable by many within the Democratic caucus. The Florida representative Charles Dougherty was one of the most vocal opponents. “If I were in charge of this measure the plan I would pursue would be to exclude the Republican Territories…and admit all the Democratic Territories,” he complained to his colleagues on the House floor. “Let in Arizona, and Utah; they will both be Democratic states. New Mexico will also be Democratic.”
His frustration is certainly understandable. Had the senators from Nevada and Colorado, both admitted prematurely considering their populations, not been present in Washington, the Democrats would have had the votes to do precisely what Dougherty urged. But even this compromise omnibus bill was dead on arrival. The Republican counterproposal dropped New Mexico from consideration, gave the Democrats Montana as a concession, and called for North and South Dakota to be admitted separately. Sensing defeat, the Democrats capitulated. With forty-six Democratic representatives, almost a third of their caucus, failing to show up for the vote, the House passed this revised omnibus statehood bill by a 148–103 margin. Twenty Democrats crossed party lines to vote in favor of the bill, while one Republican voted against it. North Dakota, South Dakota, Washington, and Montana were all admitted to the Union in November 1889.
Nor were the Republicans finished with the process when they ate the Democrats’ lunch during the lame-duck session. Once Benjamin Harrison took office, Congress moved forward with enabling bills for Wyoming and Idaho, each of which passed along strict party lines. Their populations at the time of admission, sixty-two thousand in the case of Wyoming and eighty-eight thousand in the case of Idaho, were smaller than every state to join the Union after 1860 other than Nevada.
The Republican statehood gerrymander saw eleven new states admitted between 1860 and 1890, representing twenty-two seats in the Senate (25 percent) and forty-eight votes in the Electoral College (11 percent). It was an unprecedented flurry of territorial reorganization and state creation that defined the outline of the United States as it exists today. What began with Lincoln’s noble attempt to safeguard the Union and win the Civil War devolved into a cynical scheme to preserve Republican hegemony in Washington. That the residents of the states in question had themselves supplied some of the impetus for admission provided cover for the Republicans’ actions, but not justification. Residents of territories that leaned Democratic, like Utah and New Mexico, though equally deserving of representation and no less eager to see that dream realized, were left out in the cold. Abe might still have been able to lay a legitimate claim to his honesty, but those who came after him certainly could not.
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Some might argue that the admission of new states, even in the service of partisan purposes, does not strictly meet the criteria for gerrymandering as I’ve defined it in this book. And they would have a point. But what is clear is that the artificial manipulation of territorial boundaries, most notably with the creation of Nevada and Colorado in the 1860s and the splitting of Dakota in the 1880s, does meet the standard of the intentional manipulation of political boundaries with the view toward influencing subsequent election outcomes that was established in the introduction. And in contrast to the largely ineffectual earlier gerrymanders that have so far been discussed, the electoral effects of the Republican statehood gerrymander of the second half of the nineteenth century were both significant and long lasting. The New York Democratic representative Francis Spinola surmised as much when he lamented that in accepting the 1889 compromise, his party was “[putting] the Senate of the United States where the Democratic Party can not regain control of it for the next quarter of a century.”
The Republican state-stacking gerrymander was only made possible by the significant malapportionment of the U.S. Senate, a malapportionment that was enshrined in the Constitution itself. With every newly admitted state bringing with it two senators regardless of its population, Senate malapportionment created powerful political incentives for both parties to selectively admit states based on their perceived partisanship. By virtue of circumstance and the opportunities that it created, the Republicans were dramatically more successful at doing this, but not through any lack of trying on the part of the Democrats. Equal representation in the Senate had been a vital point of compromise at the Constitutional Convention in Philadelphia, not only to appease the states’ rights contingent, but also to balance out the proportional representation of the House, threading the needle between large-state and small-state interests in order to make ratification possible.
So strongly did the Framers feel about this particular provision that they made it the only one to be permanently entrenched against future amendment. “No state, without its consent,” concludes Article V, after outlining the various amendment procedures, “shall be deprived of its equal suffrage in the Senate.” Left unresolved is the interesting question of whether this provision itself could be subject to amendment. Some legal scholars have argued that a “two step” or “double amendment” process could be employed to reapportion the Senate. The first of these would explicitly repeal the shielding clause in Article V, while the second, ratified either contemporaneously or at a later date, could amend Article I to allocate Senate seats on the basis of each state’s population. Others have argued that the equal suffrage provision could only be constitutionally amended after obtaining the unanimous consent of the states.
While these arguments may seem academic, the malapportionment of the Senate continues to be a point of partisan contention to this day. As the urban-rural divide between Democrats and Republicans in national elections becomes even more pronounced, winning an overall Senate majority may become as taxing for the Democratic Party of the twenty-first century as it was for their late nineteenth-century forebears. In the wake of the reapportionment revolution of the 1960s, which is discussed in the next chapter, the U.S. Senate remains the only significantly malapportioned legislative chamber in the United States.