Hayes could still win if he gained those twenty electoral votes. As the Constitution did not provide a method to determine the validity of disputed votes, the decision fell to Congress, where Republicans controlled the Senate and Democrats controlled the House of Representatives. In late January 1877, Congress tried to break the deadlock by creating a special electoral commission composed of five senators, five representatives, and five justices of the Supreme Court. The congressional delegation represented both parties equally, with five Democrats and five Republicans. The court delegation had two Democrats, two Republicans, and one independent—David Davis, who resigned from the Supreme Court (and from thecommission) when the Illinois legislature elected him to the Senate.

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