The Legislature of Illinois was at that time engaged in an effort to elect a United States Senator.

The Legislature was composed of about an equal number of Republicans and Democrats,--three Independents holding the balance of power.

The Independents at length presented the name of Justice David Davis as their choice for Senator.
In order to make sure of the defeat of a Republican, the Democrats joined the Independents in the support of Justice Davis, which resulted in his election.

This took place only a few days before the time appointed for the selection of the commissioners.
As soon as it was announced that Justice Davis had been elected to the Senate the Republican leaders in Congress insisted that he was no longer eligible to a seat on the Electoral Commission.

This was at first strongly combated by the Democrats, who contended that the Justice was only a Senator-elect, and that he did not cease to be a member of the Court until he tendered his resignation as such; this he was neither required nor expected to do until shortly before the beginning of his term as a Senator.