It will surprise no student of history that the white supremacists fighting to illegally extend the presidency of Donald Trump with a stunt in Congress on Wednesday, that seeks to overturn the popular and electoral vote in favor of a congressional coup, should turn to the Electoral Commission of 1877 for precedence. That commission, set up by Congress to resolve the disputed presidential election of 1876, led to the Compromise of 1877 that result in the end of the post-Civil War black reconstruction, and the rise of white terrorism and Jim Crow in the South.
“The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. 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.”
Occurring as it did, less than a dozen years after the Civil War, the presidential election of 1876 was still preoccupied with the unfinished business of that great conflict. Democrat Samuel J. Tilden and Republican Rutherford B. Hayes were the main contenders. That year 185 electoral votes were required to win. When they all were counted Tilden had 184 and Hayes had 165 with 20 electoral votes from four states unresolved.
At the time, the roles of the two major parties was in many ways the reverse of what it is today. Then, the Democrats were the party of white supremacy, while the Republican party was still the party of Lincoln. After the Civil War, radical Republicans, together with ex-slaves and some poor whites, advanced a second American revolution in the South that came to be known as black reconstruction. This was largely possible because federal troops stationed in the South after the Civil War suppressed those opposed to the freemen.
Those hoping to overthrow black reconstruction, and return the old capitalist planter class to power in the South coalesced around the Democratic Party. In 1876, Tilden carried most of the South. Sanctions over the use of terrorism to suppress the black vote resulted in two slates of electors being presented to Congress from three southern states—Louisiana, Florida, and South Carolina. In Oregon, there was an issue involving a single elector, but the selection of the president was to be decided in the South.
It was because they were presented with these competing slates of electors that congress passed the Electoral Commission Act which was signed into law by President Ulysses S. Grant on January 29, 1877. As stipulated in the act, a 15-member Electoral Commission was then formed to decide which electors to count.
Congressman James Monroe reported, “It was from the beginning a Democratic rather than a Republican measure." In the October 1893 edition of The Atlantic, Monroe wrote about why he and many other Republican representatives refused to support the bill:
They contended that it was a compromise of principle like that of 1820, which condemned half the country to slavery; like that of 1850, which gave us the Fugitive Slave Law. It belonged to a class of weak concessions which had always injured the country and ruined every party that had touched them.
As many other critics of this goofy demand for an Electoral Commission in 2021 have pointed out, the precedent of 1877 simply doesn't apply because, in this case, nobody is presenting competing slates of electors to Congress. Duh! All electors have already been certified and accepted as of 14 December. There's nothing for an Electoral Commission to decide. Of course it doesn't apply, but I'm more interested in why they find it such an attractive precedent in spite of its in-applicability.
I think they liked the results of the Electoral Commission of 1877. Although it did end up naming Hayes as president, the Democratic friends of white supremacy were able to wring some important concessions from the Republicans, not the least of which was that Hayes would remove federal troops from the South. W. E. B. Du Bois called it “the bargain between Big Business and the South (p. 691)” in his "Black Reconstruction in America 1860-1880." He describes the commissions work:
“Negotiations were entered into and conferences held. On the 26th of February, 1876, there were three conferences. The outcome was an agreement. The Republicans guaranteed that Mr. Hayes, when he became President, would by non-interference and the withdrawal of troops allow the planter-capitalists, under the name Democrats to control South Carolina and Louisiana…This meant that Southern landholders and capitalists would be put in complete control of disfranchised black labor (p. 692).”
86 years after DuBois, long time GOP operative Karl Rove acknowledged the racist aspects of that commission's work on Fox News Outnumbered today:
“Back when we had the commission in 1876/1877 in the election involving Rutherford B. Hayes, the president was sworn-in in March, and the electoral commission of that era was already underway investigating the efforts in the South to wipe out the black Republican votes in states like Florida, and thereby toss those states into the Democratic column.”
The white supremacists planters and capitalists of the Antebellum South had been out of power less than a dozen years before the Compromise of 1876 put an end to one of the great experiments in revolutionary democracy in the United States by bringing them back. As the federal troops receded, the Ku Klux Klan emerged and the terror campaigns against African-Americans multiplied. Measures were taken to effectively disenfranchise the former slaves, and starting in 1876, what became known as the Jim Crow segregationist laws started being passed. Many would stay on the books till 1965.
In a backlash against the rising diversity of American life, we have seen a resurgence of misogyny and white supremacy coalesce around the presidency of Donald Trump. In this last-ditch effort to extend his presidency, they have turned to the example of the Electoral Commission of 1877, not because it is a good fit for the facts of their case, but because they seek a similar outcome, a resurgence of reaction.
While it's not surprising that those seeking a resurgence of white supremacy today should look to the model and law created by those seeking to do the same after the Civil War, they would do well to listen to Du Bois:
“The revolution of 1876 was, in fine, a victory for which the South has every right to hang its head. After enslaving the Negro for two and one-half centuries, it turned on his emancipation to beat a beaten man, to trade in slaves, and to kill the defenseless; to break the spirit of the black man and humiliate him into hopelessness; to establish a new dictatorship of property in the South through the color line. It was a triumph of men who in their effort to replace equality with caste and to build inordinate wealth on a foundation of abject poverty have succeeded in killing democracy, art and religion (p. 707).”
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