On January 6, the U.S. Congress will convene to count and certify the results of the Electoral College vote, the last step to formally naming Joe Biden the winner of the 2020 presidential election. But Republican members from both houses of Congress, many with presidential ambitions of their own, have announced they intend to contest the results.
Under pressure from President Donald Trump, and despite the fact that the Department of Justice has found no evidence of voter fraud, one faction of Republican legislators is calling for an investigation into the president’s fraud allegations before the vote is counted—and invoking an extraordinary 144-year-old compromise as a model.
“In 1877, Congress did not ignore those allegations [of fraud],” wrote Texas Senator Ted Cruz and 10 other senators in a joint statement. “We should follow that precedent.”
But what is that precedent, and could it really apply in 2021? To find out means delving into the unsavory history of an election that, until 2020, was deemed the nation’s most divisive—and that led to an unusual compromise with weighty consequences. Here’s what you need to know about the 1876 election and why it still looms large in American history.
A nation united, but still divided
In 1876, the nation was still scarred and divided by the Civil War, which had ended a decade earlier. During the war’s aftermath, approximately four million enslaved people were freed. In what would become known as the Reconstruction era, a Republican-controlled Congress moved swiftly to restore the former Confederacy to the Union, limit the political power of former Confederates, and protect the rights of formerly enslaved people by granting them citizenship and the right to vote.
Newly enfranchised Black voters overwhelmingly supported the Republican Party, the party of President Abraham Lincoln and a critical force behind the Union’s Civil War victory. They registered to vote in large numbers and ran for and were elected to public office.
But as Black citizens gained political and social power in the late 1860s, white Southerners, who largely supported the anti-Reconstruction Democratic Party, resented the federal government’s policies. Reconstruction represented what they saw as the theft of their rightful dominance of the racial, political, and economic hierarchy. In an attempt to wrest back their power, they used intimidation and violence to disenfranchise Black voters.
Then, in the early 1870s, the Republican Party’s popularity took a hit due to an economic depression and political scandals like the Whiskey Ring, a bribery scheme in which federal officials helped whiskey distillers evade taxes. Between the Republicans’ tarnished reputation and the intimidating tactics that allowed white Southerners to suppress Republican votes, Democrats finally saw a path to electoral victory.
A bitter election
Although the stage was set for a dirty election, both 1876 candidates were solid, sensible, and seemingly above reproach. The Republican candidate, war hero and Ohio governor Rutherford B. Hayes, ran on a reform platform, promising to clean up the civil service and serve for only one term. His opponent, Democrat and New York governor Samuel J. Tilden, was known for challenging political corruption.
At the time, though, candidates let their party operatives promote them, and they staged a cutthroat campaign. Tilden’s opponents painted him as a diseased drunkard who planned to pay off the former Confederacy’s debts; Hayes’s enemies claimed he had stolen money from his brothers in arms during the war. Election Day was even worse: Both parties participated in rampant fraud. Republican operatives stuffed ballot boxes, allowed repeat votes, and threw out Democratic ballots; Democrats physically intimidated Black voters in an attempt to keep them from the polls. (Voter fraud used to be rampant. Now it’s an anomaly.)
When the votes were counted, it appeared that Tilden had garnered 200,000 more votes than Hayes. But results were unclear in Florida, Louisiana, and South Carolina, where both parties claimed victory—and alleged tampering. Republican-led state election boards in those three states rejected enough Democratic votes to give Hayes a chance at victory through the Electoral College, despite his opponent’s three-point lead in the popular vote. The states convened dueling slates of electors and sent conflicting returns to Congress.
Meanwhile, in Oregon, where Hayes had won the popular vote, the Democratic governor claimed one of the state’s three Republican electors was ineligible because he was employed by the postal service. (Federal employees are not allowed to serve as members of the Electoral College.) As a result, the state submitted two competing certificates of the final electoral vote tally, one signed by the Democratic governor that showed two votes for Hayes and one for Tilden, and another signed by the secretary of state that showed three votes for Hayes.
A total of 20 Electoral College votes—four from Florida, eight from Louisiana, seven from South Carolina, and one from Oregon—were contested. It would be up to Congress to sort out the mess. (Here’s what happens if there isn’t a winner on Election Day.)
Democrats were furious about what they saw as the Republicans’ theft of the Southern states. Henry Watterson, a journalist and Democratic member of the Kentucky House of Representatives, used his platform to call for a “peaceful army of 100,000 men” to march on Washington unless Tilden was declared the winner, stoking fears of a second Civil War.
Faced with fears of violence and a deadlock between the Democratic-controlled House of Representatives and the Republican-controlled Senate, Congress struggled to find a solution. The Constitution offered no clear guidance about how to deal with a contested electoral vote, and members suggested and bitterly rejected a variety of proposals.
Time was ticking. The inauguration was scheduled for March 5, 1877, and the legislators didn’t hit on a solution until late January. Finally, they reached a compromise: a one-time commission consisting of an equal number of House and Senate lawmakers, four Supreme Court justices, and an additional justice selected by the participating Supreme Court members. Although multiple Republicans objected to the measure, it passed and outgoing President Ulysses S. Grant signed the Electoral Commission Act on January 29.
An unprecedented commission
The electoral commission conducted a court-style tribunal in the Supreme Court chamber in February 1877. Though the Democrats objected to the vote counts put forward by the Southern states’ Republican electoral boards, they were outnumbered by their Republican colleagues by one and were consistently overruled. Each contested state was decided in favor of Hayes. Yet the Democrats refused to accept the results and filibustered in the House of Representatives as fear of civil unrest grew throughout the nation.
It would take a backroom deal—and a momentous political compromise—to settle the election. During a series of secretive meetings, Southern Democratic lawmakers promised to call off the filibuster and concede the election in exchange for an end to Reconstruction. Though the terms of the informal agreement remain unknown, it is thought to have included the withdrawal of all federal forces from the former Confederacy, increased federal funds for Southern states, the construction of a transcontinental railroad through the South, and the appointment of a Southern Democrat to Hayes’s cabinet.
In the wee hours of March 2, 1877, a mere three days before the scheduled inauguration, Congress completed the electoral vote count. Hayes won by a single electoral vote. Amid fear of assassination, he was sworn in during a secret ceremony the next day.
The controversial Compromise of 1877 was lauded by many at the time as a move that preserved the fragile Union and allowed the country to move forward as one. But it had disastrous consequences for Black Southerners. Without federal oversight, states created harsh “Jim Crow” laws that reestablished a brutal racial hierarchy in the South and effectively disenfranchised Black citizens. (Voter suppression has haunted America since it was founded.)
A decade after the Hayes-Tilden election was finally decided, Congress passed the Electoral Count Act of 1887 in an attempt to avoid further electoral chaos by providing a consistent system for the delivery of electoral votes.
The law, which still stands today, provides a mechanism by which Congress can determine whether electoral votes are legal: During the joint session of Congress on January 6, members can object to the votes of individual electors or states’ overall returns. For an objection to be formally considered and voted upon, it must be lodged by both a member of the House and the Senate. That has only happened twice in history, and both objections failed.
Is it precedent?
Will Republican lawmakers’ calls for an 1877-style commission change the outcome of the election? Don’t count on it, say legal and historical experts. The 2020 election didn’t result in a close electoral vote. More than 50 court actions challenging the legitimacy of the returns have been rejected. And though the Republican Party has attempted to submit a dueling slate of electors in five states, they were not certified and thus were not passed to Congress as official electoral slates.
Although Congressional Republicans have sufficient numbers to object to the returns and force a debate on the issue, their effort is destined to fail. Enough of their Republican colleagues have signaled their opposition to the last-ditch effort to overturn the electors’ votes, and are expected to vote in favor of certifying the election.
Nor is a proposed gambit for Vice President Mike Pence to overturn the election results likely to succeed. Though President Trump falsely claims that Pence, who as president of the Senate will preside over the count, has the power to reject “fraudulently chosen” electors, the vice president in fact lacks that power. As president of the Senate, his job is merely to count the electoral votes—whether the President likes the outcome or not.