A Look at Election Challenges: 1877 and 2005

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The 1877 Electoral Commission

There are a number of Republicans who wish to challenge the Electoral vote count ostensibly on the number of allegations of voting irregularities and fraud, and Senator Josh Hawley (R-Mo.) raised the objection, apparently on behalf of those who are concerned over these allegations.

Senator Ted Cruz (R-Tex.) and ten other senators have proposed an Electoral Commission, with their joint statement holding that, “In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission — consisting of five Senators, five House Members, and five Supreme Court Justices — to consider and resolve the disputed returns. We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed” (Cruz). They will object to the counts in one to three states.

Critics of these senators regard this as an attack on democracy, presuming that their real aim is to try to hand the election to Trump in a “coup”. Senator Cruz already cited the 1877 commission as a distant precedent and Josh Hawley can cite the 2005 objection as a precedent. I intend to describe how the situations that were present in 1877 and 2005 are like today and how they are not.

1877 Electoral Vote Commission

The 1876 election was an incredibly contentious race. Democrats had their best chance at winning a presidential election in twenty years and they had ammunition to make their case for election. Their nominee, Samuel J. Tilden of New York, was a reformer who tackled Tammany Hall corruption under the notorious Boss Tweed. The scandals of the Grant Administration seemed to provide the perfect contrast for such a campaign. Additionally, in the Democrats’ favor was the increasing vote in the South for them, due in part to whites increasingly unifying behind them and also in part to using means legal and illegal to suppress the black vote. The Republican nominee, Rutherford B. Hayes, was ideal in some ways as well. He had a reputation as a moderate Republican, was not involved with the current administration, and was able to win the 1868 gubernatorial race in Ohio in a year that was tough on the GOP in the state. After Election Day, the results were that Tilden had scored the majority of the popular vote but three states were contested for the Electoral College: Florida, Louisiana, and South Carolina. Oregon was also in play over a disputed elector, although the state was agreed to have been won by Republicans. All Tilden needed was one more electoral vote to secure the win, and accusations flew left and right. Republicans charged Democrats with employing physical intimidation and bribery to suppress black and white Republican votes in those states while Democrats charged Republicans with dirty election tactics of their own, among their claims was that the Republicans deliberately ruined Tilden ballots in Florida by smearing ink on them. Both sides claimed fraud and intimidation generally.

The Electoral Commission was initially a balanced split: seven Republicans, seven Democrats, and one Independent, the latter who sat on the Supreme Court. The Independent was going to be Supreme Court Justice David Davis of Illinois, but he was elected to a Senate seat in Illinois, and his replacement was Justice Joseph P. Bradley, a Republican who had a reputation for being apolitical. The commission’s vote, unsurprisingly, was 8-7 for Hayes. Supposedly Bradley had received a visit the night before from a Republican senator who said to him, “whatever the strict legal equities, it would be a national disaster if the government fell into Democratic hands”, if Democrat Congressman Abram Hewitt’s account is accurate (Digital History). This of course didn’t satisfy the Democrats and talk of a repeat of the War of the Rebellion was at hand, but ultimately a compromise was brokered: they would agree to Hayes as president if Reconstruction was ended, funds were allocated for projects in the South, and a Southerner was appointed to his cabinet. Regarding Reconstruction itself, it likely wouldn’t have mattered if Hayes or Tilden were elected here. Tilden would have without doubt ended Reconstruction as Democrats of the time were unified against it, and the Democratic House would have hamstrung any efforts of the Republican Senate to continue. The nation was by and large tired of trying to get Southern whites to regard blacks as their social and legal equals…that would have to wait 80-90 years. Over the next 20-25 years, the Jim Crow process would be completed in the South. 

The 1876 election had the following official results in contested states for Hayes: Florida, 992 votes (1.97%), Louisiana, 4807 votes (3.3%), and South Carolina, 889 votes (0.49%). By contrast, the 2020 election results were as follows for Biden: Arizona, 10,457 votes (0.31%), Georgia, 12,670 votes (0.24%), and Pennsylvania, 81,660 votes (1.16%). The raw numbers are much lower in the previous case but the percentage difference is on average lower in the latter. The population is simply much, much higher with the states we’re looking at now. However, in raw numbers the highest margin for Hayes, Louisiana, is over 5500 votes less than Arizona, the lowest margin for Biden. It is much easier to mess with smaller numbers of ballots and particularly so in 1876, as fraudulent practices in voting were considerably more common. Also, the notion that there will be any “satisfactory” resolution to an Electoral Commission is wishful thinking at best. The vote was bitterly divided and many Democrats still didn’t accept Hayes as a legitimate president, taking to referring to him as “Rutherfraud” and “his fraudulency” throughout his presidency (Barnard). Senator John J. Ingalls (R-Kan.) reflected in a debate ten years later on the Electoral Count Act, “The Electoral Commission of 1877 was a contrivance that will never be repeated in our politics. It was a device that was favored by each party in the belief that it would cheat the other, and it resulted, as I once before said, in defrauding both” (Bomboy). I think these Republicans just want this commission to be a sounding board for anyone who signed an affidavit to air their grievances on how the 2020 election went, and people won’t change how they felt about the election. This was largely true of feelings of the 1876 election as well.

The vote on the electors has not been cast yet, but when it is some may remember the 2005 vote on the electors. Senator Barbara Boxer (D-Calif.) and Rep. Stephanie Tubbs Jones (D-Ohio) officially objected to the total and cited Ohio. They cited allegations of voting irregularities in the state of Ohio. Although some currently serving senators, such as Dick Durbin (D-Ill.) and Chris Van Hollen (D-Md.) who condemn Hawley’s objection praised Boxer for her objection at the time, she was ultimately the only one in the chamber to vote to object. In the House, 30 Democrats joined Tubbs Jones in her objection. Among those currently serving are Maxine Waters of California, Alcee Hastings of Florida, Ed Markey of Massachusetts (now a senator), and Majority Whip Jim Clyburn of South Carolina (who has condemned the current objection). Waters herself also objected to the count in 2016, and there was an objection in 2000 as well. These two, however, got no Senate support. Presumably, Hawley can make the same claim that Boxer can about his act here. After all, like in 2004, the winner prevailed with both the popular and electoral vote. There is also no question, that staunch Democrats in 2004, like staunch Republicans in 2020, had concerns about the voting process. The difference, however, lies primarily in the thoughts and actions of one man: the man who lost the election.

The objection of Boxer was not pushed for by John Kerry, who had conceded the morning following the election, and Kerry didn’t publicly express that this was his backdoor ticket to the White House. The same cannot be said for Donald J. Trump. Rather than this being an unexpected development on his behalf, Trump has not conceded and has led the push for this objection along with his most vocal supporters in conservative media. They have pushed wild claims about widespread and systemic voter fraud with no greater evidence than interpreting the voting statistics of the year as strange (admittedly true compared to past elections given the high turnout and mail-in ballots) and pointing out that mail-in votes came in overwhelmingly for Democrats, even though Trump himself told his supporters not to vote by mail. Although the vote has not been cast yet on the objection, it is looking like 12-13 senators will vote for it and possibly at least 100 representatives, all of course Republican. This is a major increase from one senator and 31 representatives, all Democrat. While you might argue that the senators who are engaged in this are acting on behalf of their concerned and angry voter base (and in the cases of Cruz and Hawley trying to get their votes for 2024) and are not really intending to overturn the election, the president is saying this is the case. Although the objection is officially about concerns that are very much like those of Boxer and Tubbs Jones in 2005, the leading role he has played here and the scope and magnitude of those objecting are substantive and cannot be ignored. Without Trump at the helm on this, yes, this could be compared well to the 2005 objection, if a bit larger. This objection is only somewhat comparable to the 2005 objection and the implications are far different given the actions and words of Trump, especially now with the infamous Trump-Raffensberger call, which make no mistake, was not made in good faith. If it were, Trump would not have asked Georgia Secretary of State Brad Raffensberger for just enough votes to win. And apparently, he’s engaging in this despite having privately admitted that he’s lost! According to Politico’s Anita Kumar, he wants to keep fighting to keep public attention on him and to please his fans. This makes the Republican senators who go along with this supporting actors in the final episodes of The Trump Show as it approaches the cancellation date of January 20th.

I think the complaint isn’t really at its heart about how the vote went down. Its about the entire political environment of 2020 that brought about the vote: the Trump impeachment, the riots that accompanied the massive anti-racism protests that followed George Floyd’s demise at the hands of the police and the Democrats’ tepid and milquetoast reaction to them, the stark contrast between the media coverage surrounding Trump and that surrounding Biden, the view that elected Democrats granted privileges in the wake of COVID-19 for woke activists and not for common people, and the rising “woke” culture. However, all these things and more cannot be the official reason behind the objection, but the political grievances of 2020 are the real reasons. The environment of 2020 itself was thought to be unfair, and a number of conservatives wish to use the electoral objection as a means to express protest…after all a few congressmen delivering speeches bemoaning the political environment of 2020 isn’t as memorable as an objection. However, other presidents of history could make the claim that the political environment was unfair to them. After all, it’s a damn shame for Herbert Hoover that in 1932 General Douglas MacArthur was far too gung-ho in carrying out his order to clear out bonus marcher encampments, that voters no longer liked his Prohibition stance, and that the Great Depression grew worse. It’s a damn shame for Jimmy Carter that the economy was in the crapper and the whole Iran Hostage Crisis was going on in 1980. It’s a damn shame for George H.W. Bush that despite having a war in Iraq that was by all metrics successful in 1991, economic recovery from a mild recession wasn’t moving along fast enough in 1992 to get him reelected and that Democrats used his willingness to compromise with them on tax increases against him on an election year.

References

Barnard, H. (2005). Rutherford Hayes and his America. Newtown, Connecticut: American Political Biography Press.

Bomboy, S. (2021, January 4). Looking Back: The Electoral Commission of 1877. Interactive Constitution.

Retrieved from

https://constitutioncenter.org/interactive-constitution/blog/looking-back-the-electoral-commission-of-1877

Cruz, T. (2021, January 2). Joint Statement from Senators Cruz, Johnson, Lankford, Daines, Kennedy, Blackburn, Braun, Senators-Elect Lummis, Marshall, Hagerty, Tuberville. U.S. Senator for Texas Ted Cruz.

Retrieved from

Kumar, A. (2021, January 5). Trump privately admits it’s over, but wants to brawl for attention. Politico.

Retrieved from

https://www.msn.com/en-us/news/politics/trump-privately-admits-it-s-over-but-wants-to-brawl-for-attention/ar-BB1cvm9O?ocid=msedgdhp

Olsen, T. (2020, December 31). Democrats who praised 2004 objections to Electoral College certification now slam Hawley. FOX News.

Retrieved from

https://www.foxnews.com/politics/democrats-who-praised-2004-objections-to-electoral-college-certification-now-slam-hawley

The Disputed Presidential Election of 1876. Digital History.

Retrieved from

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