Ringing in the New Year with Confederate Presidential Electors

Gerard N. Magliocca

One claim about Section Three is that the presidency was excluded from the provision's coverage because presidential electors were included. The idea is that disqualifying insurrectionist electors was enough to guarantee that an insurrectionist president would never be elected. There are several problems with this claim, such as (1) nobody said that at the time; and (2) people said the opposite; and (3) electors (then and now) don't act independently.

But let's have some fun by looking at who these "loyal" presidential electors were in 1868. It's easy to look them up by reading newspapers from that election. (A tip of the hat to Michael Rosin for finding some of this information).

What we find is at that at least 25 Democratic electors in the South were Confederate officers. (Some rebel states were not readmitted by 1868 and did not vote in the presidential election. This list does not include the border states, as I'm still going through those.) These electors did not serve in office or as U.S. military officers before the Civil War and thus were exempt from Section Three. Among these officers were:

1. General John B. Gordon (Georgia). Gordon was one of Lee's key commanders in the Army of Northern Virginia, leading troops at the "Bloody Lane" in Antietam, and remained until the surrender in 1865. 

2. General John. D. Kennedy (South Carolina). Kennedy fought in the Army of Northern Virginia at Antietam, Chancellorsville, and Gettysburg and later led forces under General Joseph Johnston in the campaign against Sherman.  

3. General Benjamin Rutledge (South Carolina). Rutledge signed the ordinance of secession for South Carolina, but service in a secessionist convention (obviously) did not require swearing an oath to support the Constitution. (His great uncle was Justice John Rutledge, who was named to the Court by President Washington).

Of course, folks like this would never have voted for Jefferson Davis or Robert E, Lee for president, right?

The upshot is that Section Three's disqualification of electors did no work in preventing an insurrectionist from becoming President. Nor did anyone think so until now.