The scenario is familiar. A presidential election ends with uncertain results. Millions are convinced the election has been stolen. Congress steps in to reassure the nation, picks a president, and opens a wound that just divides the country further.
Welcome to 1876. That was the year Democrat Samuel Tilden won the popular vote and was just one vote short of an Electoral College victory, but somehow lost to Republican Rutherford B. Hayes when the electoral votes of four states were “reconsidered.”
If you think the presidential election of 2020 was controversial, suffice it to say that if half the irregularities of 1876 had been repeated in 2020, America would have been torn apart.
Not only was an Electoral College majority certified for neither candidate, Congress opted in 1876 to invent a wholly novel “solution.” Instead of following the constitutional mandate putting an unsettled election in the House of Representatives to resolve, Congress improvised, passing a law on Jan. 29, 1877 that formed a 15-member Electoral Commission which was authorized to decide for the entire country who had won the election. Not surprisingly, every decision favored the Republicans on an 8-7 party-line vote, and the commission ended up awarding all 20 disputed electoral votes to Hayes. Democrats reportedly allowed Hayes to become president in exchange for his promise that he would end Reconstruction and withdraw federal troops stationed in the South after the end of the Civil War.
Trust me, if there had been an Internet or 24/7 cable news back then, the “Compromise of 1877” probably would have ignited a second civil war instead of putting an unofficial end to the first one. But even without the nonstop blare of social influencers and the Twitter mob, plenty of people knew they were being had.
The Savannah Morning News spoke for many when it opined in its Feb. 24, 1877 edition: “[T]he Democratic leaders in Congress have been bullied, cajoled, betrayed and cheated into a surrender not only of the fairly won victory of the party at the polls, but of the constitutional right of the people to self-government.”
Consider for a moment what that statement means in the context of 2020, when mainstream Republicans were bullied by the mainstream media into abandoning President Trump and his claims of a stolen election. The lesson is clear: If you think the election was not free and fair, if you think victory was stolen from you, then fight for it with all your might. Don’t let anyone talk you out of it. Don’t surrender because someone told you it was a bad look.
As the Savannah editor wrote in the same edition: “A people who can calmly submit to and acquiesce in such a betrayal of their rights and liberties need give to history no better proof of their unfitness for self-government.”
If Twitter had been around in 1877, however, the Savannah Morning News would have been censored. If there had been an equivalent of the Jan. 6 House select committee, the editor would have been subpoenaed, shamed, and possibly prosecuted. As the mainstream media has essentially told us, when it comes to elections: “If you see something, say nothing.”
But just as in 1876, millions of Americans don’t believe what they are being told, and they don’t want to just shut up and go away, which has made them enemies of the establishment. Donald Trump, Mark Meadows, Ginni Thomas and others who dispute the 2020 election results aren’t committing treason; they are committing free thought. And they are being treated as criminals for doing so.
The rest of us are being told to stand down, to acquiesce to the idea that the votes of the American people should never be “overturned” once they are officially recorded. This is ridiculous, both as a matter of logic and as a matter of history.
The logical fallacy is easy to spot. Only a fool would claim that elections are the one area of human experience that is immune from fraud, corruption, or criminal conspiracy. Because so much is at stake in elections, especially the presidential election, we must posit that they would be a most attractive target for subversion. And the more that election data is stored digitally, whether pertaining to votes or voters, the more likely it is that our elections will be hacked. In the Age of the Data Breach, if you declare an election to be the most secure in human history, you have your head firmly tucked between your digital cheeks.
I know it’s impossible to convince a Democrat that election fraud exists unless Donald Trump wins, so let’s just imagine a world where Trump defeats Joe Biden in the 2024 election by as narrow a margin as we saw when Biden was declared the victor in 2020. Do you think for a moment that Democratic Party attorneys like Marc Elias won’t be going to the mattresses to prove that Trump stole the election? Of course, it will be completely hypocritical of them to do so after spending the last two years arguing that shouting fraud in a crowded political theater is an assault on democracy, but when has that stopped them?
Would it matter to Democrats that the Electoral College appeared to confer the victory on Trump if they had evidence that an election was stolen? Of course not. Would they stop fighting simply because the other side called them sore losers? Hell no. And if we mean to take democracy seriously, then we have to be prepared to admit that if an election is found to be corrupt, there is no morally viable solution other than to overturn the result. Again, forget about the 2020 presidential election. This is not an issue that should be decided by whether or not you like Donald Trump.
What we need to ask is how to deal with election fraud when and if it inevitably occurs.
Interestingly, that is just what Congress did following the failed, disputed, disgraced election of 1876. Not right away, but a decade later when the nation had elected its first post-Civil War Democratic president (Grover Cleveland) and it was decided that the nation could not risk another debacle like the un-election of Tilden. Congress passed the Electoral Count Act of 1887 in order to provide a framework for how electoral votes should be counted, in hopes of avoiding another election disaster.
Those hopes were, of course, dashed last year. President Trump had been advised by his lawyers following the election that if there was a controversy regarding the election, it could be addressed with the 1887 law. Some of those advisers went so far as to say that the vice president, in his role as president of the Senate, could reject electors from states if certain conditions were met. It was this legal theory that was the foundation of Trump’s plan to contest the election on Jan. 6, 2021, when Congress met to tally the electoral votes.
Admittedly, it required a creative interpretation of the Electoral Count Act, but it was – as the Republican Party recently declared – an act of “legitimate political discourse” that was not very different from challenges made in previous presidential elections. If Vice President Pence had chosen to follow the plan set out by Trump’s lawyers, he would not have been engaged in an act of insurrection, but rather an act of interpretation, and his decisions would have been subject to oversight by the Congress itself as well as the courts. If the election of 2020 did nothing else, it established once and for all that the nation has no clear mechanism to address allegations of fraud in a presidential election.
Trump’s lawyers, rightly or wrongly, sought to find such a mechanism in the 1887 law. Pence and the Democrats in Congress, as well as many Republicans, declared that the president was mistaken. But Democrats weaken their argument that Trump had no grounds for his challenge when they seek to revise the Electoral Count Act to prevent such challenges, as they are doing now.
As Trump himself noted, “If the Vice President (Mike Pence) had ‘absolutely no right’ to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?”
He’s got a point. So too do the attorneys who say that the Electoral Count Act is itself probably unconstitutional. The best that can be said of the act is the weak praise heaped on it in 1887 by the Cumberland (Maryland) Daily Times: “The Electoral Count bill is a law; and, while not a very good one, is better than nothing.”
Unfortunately, the confusion surrounding the 2020 election suggests that not even this is true. We might have been better off without the Electoral Count Act, which pretends to provide an orderly method of counting the votes but still fails to take into account the possibility of fraud. And it is written so poorly that no one can describe with authority how it is to govern when states provide more than one set of election returns or when, as in 2020, those returns are questioned.
Ultimately, Trump is accused of working to prevent the peaceful transfer of power. But serious inquiries must address the question of whether power should be transferred if the election is fraudulent. Congress should be rewriting the Electoral Count Act, but not to prevent a future candidate from questioning the results. Instead, we need a law that clearly elucidates the mechanism for challenging an election. If necessary, Congress should propose a constitutional amendment to do so. Without a way to overturn fraud, either before or after a president is inaugurated, the country’s free and fair elections are merely an invitation to corruption.
As for the purported mission of the Jan. 6 committee – to investigate the causes of the violence at the Capitol, and prevent a recurrence – maybe Nancy Pelosi and her minions can learn something from the precautions taken for the electoral vote count in 1877.
As reported by the Baltimore Sun on Feb. 2 of that year, “The one hundred special policemen employed for service during the period to be occupied with the electoral count reported at an early hour this morning at the capitol, and under the direction of the sergeants-at-arms of the two houses were posted at various points through the building. Each policeman wore on the lapel of his coat a blue badge with the words ‘special police’ printed across it. … Hundreds of strangers who were in the city, and were very desirous of witnessing the proceedings attending the count of the electoral vote, were bitterly disappointed to learn that they could not be admitted without tickets, and were not at all backward in venting their dissatisfaction and in asserting that as citizens of the United States they had the right to free passage in the capitol building. The only comfort they had was in expressing their opinion.”
Can you imagine if Speaker Pelosi had followed President Trump’s advice and brought in more security to control what was anticipated to be an angry crowd of disgruntled voters? The fact that Pelosi and the lax security are not being investigated at all is one more proof that the Jan. 6 committee is nothing but a political hit job.