More than a dozen Republican senators plan to object to certifying the election results on Wednesday, raising the specter of an illegitimate election and its logical corollary, an illegitimate presidency. Nothing to fear though, Senator Ted Cruz (R-TX) has come to the rescue with a Goldilocks remedy that’s sure to disappoint both sides.
Cruz says we should replicate what was done in 1877 when widespread voter fraud allegations nearly brought about a constitutional crisis. “Congress ought to do the same thing,” Cruz said on the Sunday Morning Futures on Fox News referring to the 1877 Election Commission. “We ought to have a fair inquiry, a fair audit into these results, and we ought to resolve these claims and not dismiss them out of hand.”
There is only one problem. The Electoral Commission of 1877 wasn’t tasked with assessing voter fraud at all. When Congress wrote the Electoral Commission Act — the bill that would create the Electoral Commission of 1877 — Democrats wanted allegations of voter fraud in Louisiana, Florida, and South Carolina investigated by the congressional tribunal. They claimed that voter fraud was well documented in Louisiana and Florida.
However, Republicans had staunchly rejected the idea of a federal government “going behind the official returns of a state. They argued that the Constitution expressly declared that each state shall appoint its own electors “in such manner as the legislature thereof may direct.” This meant that states had the plenary power to determine how its electors should be chosen, who they were, when they were chosen, and how its findings should be reported. Investigating or “going behind” the returns of the state, possibly going behind the returning boards at the precinct level, was not the right of Congress.
To avoid gridlock, a divided Congress (Republican-controlled Senate and Democratic-held House) wrote a bill with neutral language on whether the tribunal could or could not investigate allegations of voter fraud. If the bill had language that the tribunal could go behind or investigate a state’s official returns, Republicans in the Senate would have rejected it on constitutional grounds. If the bill had language that the tribunal was specifically barred from going behind the state’s official returns, then Democrats in the House would have rejected it.
Since the Republicans, by sheer serendipity, found themselves in a 8-7 majority on the tribunal, they voted along party lines not to take up voter fraud claims in each of the contested states. They voted to accept only the electors specifically certified by the governors and secretaries of state. This ultimately gave Republican Rutherford B. Hayes the win to become the 19th president of the United States.
Of course, Democrats were dismayed. Even though they had voted handily for the bill that gave birth to the tribunal, they threatened to filibuster until March 3, which was the constitutional deadline. This gave rise to the Compromise of 1877, eventually ending the Reconstruction era in the south. Under this arrangement, Republicans would get the president they wanted and the South would no longer have the US military in their backyard.
So, here we are. The party that once argued eloquently that Congress does not have a courtly power to go behind state returns is today using revisionist history as a pretext to create another tribunal. The echo of the Republicans of 1877 can still be faintly heard in the words of Former Speaker Paul Ryan (R-WI) — that the whims of Congress shall not supplant the will of the voters in the states. To do so would not only be anti-conservative, but (to use the words of our Republican forebears) “unconstitutional.”
Republican senators should take a chapter out of American history. We should learn from the acts that lead to the Compromise of 1877 and not create a new Compromise of 2020. Conservative principles dictate that Congress has a narrow role in overseeing elections, a role limited to counting the electors sent by the states, not going behind their certified results.