On January 6, Congress shall meet in a joint session to officially tally the votes of the electoral college. They will do so under the provisions of the Electoral Count Act of 1887, which includes a process for members to challenge the votes of any state. This post provides a historical background of that act in the presidential election of 1876 and the great compromise of 1877. In particular, it explains why Congress rejected the use of ad hoc commissions (as proposed by Senator Ted Cruz et al) in favor of careful state certification subject to a Congressional veto.
The Election Crisis of 1876-77
The presidential election of 1876 was extremely close, with the Democratic candidate, Samuel Tilden, winning the popular vote while the electoral college outcome came down to three contested states: South Carolina, Louisiana, and Florida. In all three states, there were voter intimidation campaigns by southern whites against African-Americans, while Republicans used control of state vote-counting boards to throw out Democratic votes.
As noted by the pro-Trump senators, Congress responded by creating a 15 person commission. The 8 to 7 Republican majority on this commission decided that the Republican candidate, Rutherford Hayes, had won all three contested states.
Some histories of this election end here, but the commission’s decision did not end the controversy. As I discuss in Filibustering (pages 70-71), House Democrats rejected the commission’s seemingly partisan recommendation and began to filibuster the electoral vote count process in the U.S. House by making dilatory motions. Had they continued, they could have blocked the election of Hayes and provoked a constitutional crisis. Their filibuster ended through a combination of backroom deal-making and strong-arm parliamentary tactics by House Speaker Samuel Randall (D-PA), who had the political courage to prioritize the legitimacy of the constitutional process over short-term political expediency. The “deal” was the so-called Compromise of 1877: Democrats would acquiesce to Hayes’ election in exchange for the withdrawal of federal troops from southern states, control of postal service patronage jobs, and support for railroad expansion in the South.* To the extent that Democratic obstruction led to this compromise, it was one of the most consequential filibusters in American history.
The Electoral Count Act
The 1877 filibuster of the electoral vote count exposed a flaw in the presidential election process. Over the next decade, Congress debated how best to fix it, with Democrats arguing for deference to states (including southern states increasingly dominated by white Democrats suppressing black Republican voters) while Republicans sought federal oversight of state outcomes. The Electoral Count Act of 1887 was the result: it provides a presumption of legitimacy to states that have a legal process for guaranteeing election results set in place before election day, while allowing members of Congress to challenge a state’s votes if a House member and senator make the challenge in writing. If a valid challenge is filed, the joint session goes into recess while the two chambers meet separately to discuss the challenge for up to two hours, followed by a simple majority vote. Both chambers must vote to sustain a challenge. The time limit prevents a filibuster of the vote.
The 1877 Commission: Lessons from History
This brief review of the origins of the Electoral Count Act highlights two reasons why Senator Cruz et al’s proposed election commission is not a promising option.
First, just because Congress convenes a “blue-ribbon” panel does not mean that its decision will be accepted by otherwise interested or skeptical politicians. In the current context, anyone who harbors doubts about the legitimacy of Joe Biden’s victory already rejects the judgment of state election officials, dozens of state and federal judges, the recently resigned U.S. Attorney General, and the consensus of election experts who guided media organizations in calling the outcome of state elections, including Fox News. What new collection of “experts” will convince President Trump and his remaining supporters that he has lost?
Second, the 1877 commission was necessary because Congress had never faced a presidential election dispute and had no process in place to make fair decisions. In 2021, there is a process in place, and it is the Electoral Count Act, with Congressional review of state-certified results. Just as we have not adopted bimetallism or cocaine-laced cola to solve our economic and health woes over the last year, it is not clear why Congress would adopt a failed election dispute policy from the past rather than utilize the rules already in place.
* there is some dispute over whether this deal was actually struck, and the extent to which its terms were carried out.
Cover image: “The Florida Case before the Electoral Commission” by Cornelia Adèle Strong Fassett, courtesy of the Senate Historical Office.