The Dangerous Historical Precedent for Ted Cruz’s Shameless Electoral College Gambit

The Dangerous Historical Precedent for Ted Cruz’s Shameless Electoral College Gambit thumbnail

One hundred and forty-five years ago, the United States was locked in a constitutional crisis. Bloodshed and intimidation against Black voters and their white Republican allies in the South had suppressed their turnout in the 1876 presidential election. Some local Democratic officials stuffed ballot boxes to bolster Samuel Tilden’s chances against his Republican opponent, Rutherford B. Hayes. On election night, the disputed returns appeared to favor Tilden’s victory.

“Thus, sixteen years after the secession crisis, Americans entered another winter of political confusion, constitutional uncertainty, and talk of civil war,” wrote Eric Foner in his seminal book Reconstruction: America’s Unfinished Revolution. “Predictably, Republican election boards in Florida, South Carolina, and Louisiana invalidated enough returns from counties rife with violence to declare Hayes and the party’s candidate for governor victorious. Equally predictably, Democrats challenged the results. Rival state governments were assembled in Louisiana and South Carolina, and rival electoral certificates were dispatched to Washington.” Florida’s new Democratic governor also appointed a new state canvassing board and sent a separate slate of electoral votes to the capital.

With those three states in dispute, neither Tilden nor Hayes had a majority in the Electoral College. The two sides began negotiations among themselves and with each other. Congress, seeking a way out, passed a law creating a 15-member electoral commission with five members of the House, five members of the Senate, and five Supreme Court justices. The crisis ended when the commission approved the Hayes delegates by one vote. Democrats acquiesced to the result when Hayes and other Republicans allowed Democratic governors to take power in Louisiana and South Carolina. Republicans also adopted a policy of noninterference in Southern affairs, curtailing federal enforcement of civil rights for Black Americans throughout the region.

Historians now generally recognize the 1876 crisis as the moment when white Northerners effectively abandoned multiracial democracy for the next 90 years. Reconstruction had ended; the long night of Jim Crow had begun. For Texas Senator Ted Cruz and several of his Senate colleagues, however, the moment also serves as a useful precedent. On Saturday, these senators called for another electoral commission to be created to investigate the false voter-fraud claims raised by President Donald Trump over the past two months.

“Accordingly, we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given’ and ‘lawfully certified’ (the statutory requisite), unless and until that emergency 10-day audit is completed,” they explained. The proposal is nothing more than political cowardice and illiberal cynicism. It’s also a fitting reminder of how Reconstruction actually ended in 1876, as well as a sign of how some Americans remain hostile to multiracial democracy just 56 years after it was restored to American political life.

Cruz is proposing a solution in search of a problem. There is no evidence of serious or systemic voter fraud anywhere in the Union, let alone any fraud that would have altered the election’s outcome. Every federal court in the nation that has examined the “evidence” from Trump and his allies found it unpersuasive at best and deceptive at worst. Those rulings have come from judges appointed by every president, including Trump himself. Even Lou Dobbs, one of Trump’s most shameless devotees, complained this week that they “still don’t have verifiable, tangible support for the crimes that everyone knows were committed.” The irony of his statement appears to have eluded him.

So why push forward with an electoral commission if there’s no evidence to justify one? Cruz and the other senators noted that, well, actually, many Americans feel strongly that such evidence must exist. They highlighted a Reuters poll that found 39 percent of Americans and 67 percent of Republicans think the election was “rigged.” The senators cited this figure to show why more scrutiny is needed. “Whether or not our elected officials or journalists believe it, that deep distrust of our democratic processes will not magically disappear,” said the senators, sowing that very distrust. “It should concern us all. And it poses an ongoing threat to the legitimacy of any subsequent administrations.”

How could four in 10 Americans reach such an alarming conclusion? Cruz and the other senators say they have lost their faith because “the allegations of fraud and irregularities in the 2020 election exceed any in our lifetimes.” The word “allegations,” as opposed to “evidence,” is crucial here. I’ll concede there have been more allegations of voter fraud in the 2020 election than any other in modern history, mainly because Trump and his allies won’t stop making them without any proof. It also doesn’t help that other Republicans—including every senator who signed this statement—have chosen to encourage those claims instead of refuting them.

“The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race,” the senators wrote. “Specifically, the elections in three states—Florida, Louisiana, and South Carolina—were alleged to have been conducted illegally. 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,” the senators went on. “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’s proposal completely misunderstands how the 1876 commission actually worked. In that crisis, rival state governments in the disputed states sent two sets of electors to Congress, which deadlocked on their legitimacy. The 1876 commission then decided whether to seat the Hayes electors or the Tilden electors. But there are no rival slates of electors this time. Cruz instead wants the commissioners to conduct an “emergency 10-day audit” to uncover potential evidence, which Republican-led state legislatures could then use to justify creating alternative slates of electors. The commission’s purpose wouldn’t be to resolve a disputed election but to throw a legitimate one into chaos.

Indeed, it would appear that the senators haven’t thought through the actual mechanics of their proposal. All of this is constitutionally dubious at best, and the Supreme Court justices might decline to participate on those grounds alone. And even if state lawmakers choose alternative slates of electors, Congress would still have to hold a January 6–style joint session where House Democrats would have zero incentive to count their electoral votes. It’s also telling that neither Cruz nor any of the other senators have introduced legislation to actually establish this commission and lay out its functions, with less than 24 hours to go before the electoral votes are counted.

It’s almost as if this is a performative stunt instead of a serious proposal.

What’s deeply troubling, however, is that any senators besides Cruz, for whom political stunts are his stock-in-trade, would consider it in the first place. Other Republican senators, such as Nebraska’s Ben Sasse, have publicly indicated that their colleagues know Trump’s claims are baseless but support them anyway, out of political expediency and raw ambition. But a significant number of Republicans appear to openly believe that Democratic electoral victories are inherently corrupt and that only their party can legitimately hold and wield power. The Washington Post’s James Hohmann noted on Monday that most of the senators backing a commission are newly elected freshmen, and none served before the 2010 midterms brought the Tea Party faction into Congress. This turn toward illiberalism didn’t begin with Trump, but it rapidly accelerated under his leadership.

As I noted last month, there’s also a stark racial undercurrent to Trumpworld’s claims of voter fraud in large urban areas. Trump and his legal fixer, Rudy Giuliani, routinely derided the vote counts in major cities as corrupt and untrustworthy, mirroring the rhetoric Trump had used against Black lawmakers like Elijah Cummings and his native city of Baltimore. In Michigan, local GOP officials tried to block certification of the votes for Wayne County, which includes the majority-Black city of Detroit. One of them even proposed only certifying the votes from surrounding rural areas in the county, whose residents happen to be mostly white. From trying to tilt the census in favor of white rural areas to a relentless spree of partisan gerrymandering over the past decade, this is nothing new in Republican politics. It’s just getting worse and less subtle.

These efforts appear set to fail this time. Too many Republican state officials were unwilling to try to overturn a presidential election on Donald Trump’s behalf; too few House and Senate lawmakers are willing to reject the Electoral College counts—and the voters themselves—to deny Biden the presidency outright. But the nation may have simply been lucky this time: lucky that Democrats controlled the House and key state offices in the Midwest, lucky that GOP officials in multiple states didn’t violate their oaths of office, and lucky that the president wasn’t slightly smarter or more subtle about his plan to overthrow American democracy. Those who oppose multiracial democracy will try again to usurp it, and those who support it should be ready.

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