Was the Disputed 1876 Presidential Election Valid Precedent for January 6th Fake Elector Scheme?

Where did the Republicans get the idea that they could appoint an alternate slate of electors and throw the 2020 Presidential Election into the House of Representatives, so Donald Trump could continue his Presidency?

Did they view the contested Presidential Election of 1876 as political precedent, where both parties selected a slate of electors in the disputed states of Florida, South Carolina, and Louisiana?

What was John Eastman thinking? Eastman was the Republican attorney who hatched the Electoral College, attempting a legal coup to nullify the results of the election, keeping Trump in power by throwing the election to the House of Representatives. Since each state has one vote, the Republicans have the advantage.

Did he think that since nobody was indicted for election law violations in 1877, that nobody can be indicted for election law violations in 2023?

We are reviewing Chief Justice William Rehnquist’s book, Centennial Crisis, the Disputed Election of 1876, shortly after the Supreme Court stopped the Florida recount in Bush v Gore, awarding the 2000 election to George W. Bush.

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This blog includes footnotes and Amazon book links:
https://seekingvirtueandwisdom.com/1876-contested-presidential-election-precedent-for-january-6th-elector-scheme/

We also reflect on:
• Biographical sketches of the two candidates, Rutherford B Hayes and Samuel Tilden.
• Background of the Civil War, Reconstruction, US Supreme Court, and rise of Jim Crow and segregation after the Compromise of 1877.
• The Fifteenth Amendment which guarantees black suffrage.
• Appointment of Electoral Commission to resolve controversy, appointment of Justices David Davis and Joseph Bradley to commission.
• Disputed electors from Florida, South Carolina, and Louisiana.
• How the future Justice John Marshall Harlan would be known as the Great Dissenter, dissenting on many civil rights cases.
• Electoral Count Act of 1887, and Electoral Count Reform Act of 2022 that amended the original act.

2. Where did the Republicans get the idea that they could appoint an alternate slate of
electors and throw the 2020 Presidential Election into the House of Representatives,
so Donald Trump could continue his Presidency?
Did they view the contested Presidential Election of 1876 as political precedent,
where both parties selected a slate of electors in the disputed states of Florida,
South Carolina, and Louisiana?
What was John Eastman thinking? Eastman was the Republican attorney who
hatched the Electoral College plot, attempting a legal coup to nullify the results of
the election, keeping Trump in power by throwing the election to the House of
Representatives. Since each state has one vote, the Republicans have the
advantage.
Did he think that since nobody was indicted for election law violations in 1877, that
nobody can be indicted for election law violations after 2020?

3. Please, we welcome interesting questions in the comments. Let us learn
and reflect together!
We are reviewing Chief Justice William Rehnquist’s book, Centennial
Crisis, the Disputed Election of 1876, written shortly after the Supreme
Court stopped the Florida recount in Bush v Gore, awarding the 2000
election to George W Bush.
Please feel free to follow along in the PowerPoint script we uploaded to
SlideShare, which includes illustrations. Our sister blog includes
footnotes, both include our Amazon book links.

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7. The disputed Election of 1876 is part of a long history of struggle
over civil rights for blacks, and the conviction that over the long
run, the civil rights of blacks can only be guaranteed by granting
blacks the right to vote, which is why this right was guaranteed
by the fifteenth amendment. The Lost Cause narrative claimed
that the low point of the post-Civil War era was the
empowerment of civil rights of blacks, while the history of Black
Reconstruction by the black historian, WEB Du Bois, articulates
the narrative that this era was a highpoint of American
democracy, and that the participation of the Negro was key to
the North wining the Civil War.

8. https://youtu.be/kmLg8CDjOOY
https://youtu.be/89ulb20cy8Q
https://youtu.be/f5nPNnvDBCY https://youtu.be/JeRCM4PAqPk

9. What confuses many when first studying this history is how political
allegiances have changed over this issue. When the Republican Party
under Abraham Lincoln fought for the end of slavery and the
championing of civil rights, the newly enfranchised blacks voted
Republican, whereas whites in the Confederate states voted for the
Democratic party that supported Jim Crow segregation laws. After
Reconstruction, neither party was enthusiastic about civil rights, until
the Democratic party under FDR, then Harry Truman, started the
process of protecting the civil rights of blacks. After the passage of the
Civil Rights legislation of the Sixties, Southern whites started changing
their allegiance to the Republican Party after they were courted by
politicians like Richard Nixon, Barry Goldwater, and Ronald Reagan.

10. https://youtu.be/GQesHoV5IdI
https://youtu.be/weGmYOe0Lyg
https://youtu.be/CK4V3e-TPFU https://youtu.be/UciDV5laOLg

11. Even with the Confederate states being compelled to vote for the
Reconstruction Amendments before rejoining the Union, these
amendments were ratified with difficulty. Northern Republican voters
were tiring of paying for US Federal troops stationed in the former
Confederate states to guarantee civil rights for blacks and to put down
white supremacy terrorist gangs like the suppressed KKK.
Then came the Financial Panic of 1873, which was the greatest recession
before the Great Depression of the Thirties. That with the many financial
scandals of officials in the Grant Administration sparked a resurgence of
the Democratic Party in the Northern states.

12. Great Financial Panic of 1873 - Closing the
door of the Stock Exchange on its members.
Great Financial Panic, 1873 - View in Broad St., near the
Stock Exchange, after the closing of the Exchange doors

13. Panic of 1873

14. Sensing this weakness of the Republican Party, and
the reluctance of many Northerners to firmly support
black suffrage, white supremacists in the South
suppressed the black vote with increasing violence
and intimidation, and successfully and dramatically
prevented many blacks from voting. Although the
political parties were corrupt, the two candidates
were actually reform candidates.

15. Political cartoon
"Of Course He
Wants To Vote The
Democratic Ticket"
(October 1876),
from Harper's
Weekly, showing
Democrats in
Tennessee
intimidating a
voter into voting
for the Democrats
under duress at
gunpoint.

16. Rutherford B Hayes, Republican Candidate

17. The Republican candidate, Rutherford B Hayes, was born in Ohio in 1822. After
attending college, he attended Harvard Law School and was an early supporter of
Abraham Lincoln, fighting as an officer in an Ohio Volunteer regiment. He was first
elected to Congress while he was a soldier in 1864.
Hayes ran for governor of Ohio in 1867 and won, waving the bloody shirt,
denouncing his Democratic opposition of supporting the secession of the Southern
states before the Civil War. He won a narrow victory, though Democrats won control
of the state legislature. Hayes supported a referendum allowing black suffrage in
Ohio, but that also failed. In his second term, Ohio ratified the Fifteenth
Amendment, guaranteeing the right of blacks to vote.
Hayes returned to private life in 1872 but was renominated for Governor for a third
term and again won by a small margin in 1875. The Republican primary was hotly
contested by six candidates, including Hayes. Not initially favored, he was
nominated on the seventh ballot.

19. Samuel Tilden, Democratic Candidate

20. Samuel Tilden, born in New York in 1914, was a delicate but precocious youth,
reading books well beyond his age level. Like Hayes, Tilden was interested in both
politics and the legal profession, practicing law in New York City, where many
citizens sympathized with the Southern cause.
Martin Van Buren was a friend of the Tilden family, and they supported him in his
winning 1836 Presidential campaign. Tilden continued to be active in both law and
politics, but after the Confederates fired on Fort Sumter, he decided to support the
Union cause as a Northern Democrat, although he did not fight in the war.
After the Civil War, Tilden opposed the corrupt Boss Tweed machine in New York
City after they stole somewhere between thirty and two hundred million dollars
from city coffers. He was nominated and elected as governor of New York, where
he successfully fought corruption in the expensive maintenance of the Erie Canal.
These reform efforts were a welcome contrast to the corruption by President
Grant’s underlings, and he won the Democratic nomination on the first ballot.

21. Presidential Campaign of 1876

22. National politics was rough and tumble, even violent, before, during, and after the
Civil War. This did not affect the Presidential candidates directly, they were not
expected to travel the country campaigning, they campaigned from their front
porch, occasionally issuing statements to newspaper reporters. This created
distance between the Presidential candidates and the political campaigns run on
their behalf, as both candidates in the 1876 election were reform candidates.
Northern voters were tiring of stationing federal troops in Southern states to
preserve the civil rights of blacks. There was never monolithic support of civil rights
for Negroes in the North, racist attitudes were prevalent in many states, particularly
in the Midwest states. Although Hayes supported civil service reform, where lower-
level federal offices were filled by merit without regard to political affiliation, he
was less enthusiastic about civil rights.

23. Rehnquist notes that during the campaign, Hayes
released a statement “recognizing the need for
Southerners to control their own affairs but calling
for respect for the constitutional rights of all
citizens,” a promise made by Southerners that they
never intended to keep. Hayes tried waving the
bloody shirt during the campaign, which was a
tactic of accusing your opponent of supporting the
secessionist Confederacy, but that was not that
effective, since Tilden a New York Democrat, he
was over the mandatory draft age during the Civil
War, as he was then in his mid-forties. Everyone
expected that the vote would be close in this
Presidential election.
Puck depicting Rep. John Sherman
waving a 'bloody shirt’, 1887

24. Counting Close Election Votes by Telegraph

25. The advancing technology of the telegraph enabled
party officials and newspapermen to quickly tabulate
the election results soon after the polls closed.
In the 1874 Midterm Congressional elections, the
Republicans lost a significant number of seats in both
the Senate and the House but still retained a healthy
majority in the Senate. But the Democrats won
control of the House of Representatives with a solid
majority for the first time since the Civil War.

27. In the 1876 Presidential election year, the
Republicans lost some states in the Senate contests,
but still retained control of the Senate. But although
the Democrats lost a significant number of seats in
the House, they still retained their control of that
chamber.

29. In the 1876 Presidential Election, the Republicans lost support in
most states, but still carried all the New England states except
Connecticut, and also New Jersey and Tilden’s home state of
New York. But since more and more blacks were discouraged
from voting in the South, the Republicans only hoped to gain the
Southern states of Florida, South Carolina, and Louisiana, where
President Grant had recently sent troops. Although Tilden won
the popular vote, Hayes would win the Presidency if won the
votes of these three states in the Electoral College. And, of
course, Hayes would have won handily if black voters had not
been intimidated in the Southern states.

30. Governor Tilden in
his parlor on
election night.

31. Under the rules in effect
in 1876, Rehnquist notes
that “when there was a
dispute as to which
candidate had won the
popular vote of a state,
there was a possibility
that two competing sets
of electors, one from
each party, will each cast
votes for their
respective presidential
candidates,” which is
exactly what happened.

32. The Constitution states that the electors
will transmit their sealed votes to
Congress, and then “the President of
the Senate shall, in the Presence of the
Senate and House of Representatives,
open all the certificates, and the Votes
shall then be counted.” Rehnquist
notes, “The Constitution was silent as
to who would do the counting.” The
Electoral Count Act of 1887 removed
this doubt, stating that the Vice-
President would open the certificates in
a ceremonial role, making it more
difficult for both parties to send ballots
for dual slates of electors.

33. Under the rules in effect in 1876, the newly elected President was
scheduled to be inaugurated on March 4, 1877, so there were a few
months to resolve this issue. The Twentieth Amendment to the
Constitution, adopted in 1933, changed the inauguration date to
January 20
th
.
Republicans visited the three contested states of Florida, South
Carolina, and Louisiana, and it was clear that Hayes would have won in
these states had there been no vote counting irregularities, without
even considering whether the white supremacist terrorists prevented
blacks from voting. In particular, in South Carolina blacks outnumbered
whites by a ratio of five to three, the Republicans would have swept
any fair election free of white terrorist intimidation. These challenges
generated many legal challenges in these states.

34. FIFTEENTH AMENDMENT
The text of the 15
th

Amendment,
guaranteeing all citizens
the right to vote, is as
follows:
The right of citizens of the
United States to vote
shall not be denied or
abridged by the United
States or by any State on
account of race, color, or
previous condition of
servitude.

35. Electoral Commission Appointed
Florida Case before the Electoral Commission, by Cornelia Adèle Strong Fassett, 1800's

36. On Monday, December 4
th
, 1876, the states selected their electors,
including the dual dueling electors from both parties from Florida, South
Carolina, and Louisiana. In addition, there was a legal problem with one
elector in Oregon, which was significant due to the close nature of the
vote. Congress agreed to appoint an Electoral Commission to resolve the
conflict, composed of five House members, five Senate members, and
five members from the Supreme Court. After much discussion, it was
decided that two Democratic-leaning justices and two Republican-
leaning justices would be appointed, and they would select the fifth
member. Everyone anticipated they would select Justice David Davis.
Everyone considered Davis to be independent, so he would be the swing
vote.

37. The Democratic-controlled State Legislature of Illinois decided to
influence his vote by appointing him to the US Senate, as this
was before Senators were elected by popular vote. David Davis
thanked them for the appointment, and promptly resigned from
both the Supreme Court and the Electoral Commission! His
independence meant he was elected president pro-tempore of
the Senate in 1881. The four justices then selected the
Republican-leaning Justice Joseph Bradley, who was definitely
not independent, and who would experience hostility for his role
on the commission.

38. Electoral
Commission
holding a secret
session on the
Louisiana
question,
2/16/1887

39. What was the new procedure? In the
legislation setting up the Electoral
Commission, Congress mandated that, as
Rehnquist recounts, that “first, the President
of the Senate would open the certificates
from each state.” “If a senator or
representative objected to the certificate
from that state, the question would be
submitted to the Electoral Commission,” who
“would consider the matter and report back
its decision to Congress. The decision of the
Commission would be final, unless
overridden by” both the House and the
Senate, which was unlikely since control was
split between the two parties.

40. Of course, the ballots from the three
contested states were sent to the Electoral
Commission. The main issue was the scope
of the Commission’s inquiry. Rehnquist
states that the question was this: “Could
the Commission ‘go behind’ the certificates
sent to the President of the Senate and
determine for itself whether the electors”
“were properly chosen? Could it go even
further beyond the certificate and decide
whether voters in a particular state had
been intimidated and prevented from
casting their vote as a result?” Could the
Commission hear witnesses and examine
documents from the states? Portrait of Samuel Tilden, 1870

41. After much complicated wrangling over several months, the
commission voted eight to seven, in a straight party vote, to
approve the Hayes electors. As expected, the Republican-
controlled Senate voted to sustain the decision, and the
Democratic-controlled House voted to reject the Commission’s
decision. In speeches by Republicans in Congress, the Southern
states were reassured that they would henceforth be able to run
their own internal affairs, ending Reconstruction. This meant that
the decision of the Commission stood, and Rutherford B Hayes
was deemed to be elected President on March 2
nd
, two days
prior to his Inauguration.

42. A truce - not a
compromise,
but a chance
for high-toned
gentlemen to
retire
gracefully
from their
very civil
declarations
of war, by
Thomas
Nast,Harper's
Weekly, Feb.
17, 1877

43. Dilemmas Faced by President Hayes

44. Rutherford B Hayes assumed the Presidency of a
bitterly divided nation, with many Democrats
considering him to be an illegitimate president.

45. Rehnquist describes the many dilemmas he
faced: “Hayes had never explicitly approved
the commitment made by his lieutenants to
remove federal troops from Louisiana and
Florida. Grant had begun the process just
before he left office, but postponed further
actions at Hayes’ request. The new President
wished to extract from the Democratic
governors” “that they would respect the
rights of blacks under the Civil War
amendments to the Constitution. The
governors duly promised, and the troops
were removed shortly after Hayes took
office. But the promises were” never kept.

46. Rehnquist continues, “Hayes had
little choice in the matter.
Democrats in the House had already
refused to appropriate funds for the
continued use of troops” to ensure
civil rights for blacks in the South.
“Northern public opinion had, over
time, swung against the use of
soldiers” “in the South. Hayes had
been criticized for the withdrawal,
but he had no” practical choice. But
he did have success in promoting
civil service reform.

47. Was There a Backroom Deal in Congress?

48. The narrative that I have heard is that there was a backroom deal
in a smoke-filled cloakroom in Congress where the Republicans
promised the Democrats that they would withdraw Northern
troops from the former Confederate states in exchange for
accepting the Republican Rutherford B Hayes as President.
Although this was what in effect happened, and there likely were
discussions in the cloakrooms of Congress, the Compromise of
1877, in William Rehnquist’s account, evolved organically over
many months of political wrangling.

49. Tilden or
Blood
Compromise -
Indeed!, by
Thomas Nast,
Harper's
Weekly, 1877

50. What was the source of this narrative? Dr Wikipedia notes that the historian C
Vann Woodward published a book in 1951 that claimed there was a series of
high-level secret meetings in Wormley’s Hotel in Washington, DC, to hash out
an agreement between the two political parties, covering not only the
electoral commission and the ending of Reconstruction, but also internal
improvements such as the Trans-Continental Railroad, and other matters.
Many historians accept that there was an informal agreement at these
meetings, but how much these meetings influenced events, and how much
events influenced these meetings, is difficult to determine. But the simple fact
that during the election Hayes released a statement promising to allow
Southern states to assume control over their own internal affairs suggests that
these meetings were more about problems facing the upcoming Congress.

51. https://en.wikipedia.org/wiki/Compromise_of_1877

52. The unfortunate ending of Reconstruction paved the way for
the Southern states to deny the vote to their black citizens
and pass oppressive Jim Crow segregation legislation, as well
as tolerating lynchings and denying due process under the
law to blacks. Ironically, the justice Rutherford B Hayes
appointed to the Supreme Court as a compromise to
Southerners, the former slave-owning Kentuckian John
Marshall Harlan, became known as the Great Dissenter,
writing many lone opinions defending civil rights in the
separate-but-equal opinion of Plessy v Ferguson, and other
civil rights cases.

53. https://youtu.be/UciDV5laOLg

54. Electoral Count Acts of 1887 and 2022

55. The one underlying question in both the 1876 and 2020 elections is
whether blacks should be denied the right to vote, or whether they
should be discouraged from voting. There were very few irregularities in
the 2020 elections: the Republicans lost 62 court cases claiming voter
fraud, with only one partial victory. In contrast, there was rampant
electoral fraud in the 1876 Presidential election on both sides, though
electoral fraud was by Democrats was more prevalent.
The Electoral Count Act of 1887 tightened up the counting of votes by
the states to minimize the possibility that Congress would need to
investigate the validity of the electoral college votes.

56. https://en.wikipedia.org/wiki/Electoral_Count_Act

57. This act was revised by the Electoral Count Act of 2022,
resolving many ambiguities, and clarifying that the role of
the Vice President in counting the electoral votes is
ceremonial. Under the 1887 act, only one Senator and one
Representative was needed to challenge the electoral
votes of a state, the 2022 act amended this so that one-
fifth of Senators and Representatives would be needed to
challenge the vote of a state, and the grounds for
objecting were greatly limited.

58. https://en.wikipedia.org/wiki/Electoral_Count_Reform_and_Presidential_Transition_Improvement_Act_of_2022

59. William Rehnquist and Bush v Gore 2000
Justice William Rehnquist is sworn in as Chief Justice by his predecessor, Warren Burger as
Judge Antonin Scalia, his wife, and President Ronald Reagan look on.

60. This book was written in 2004 by Chief Justice William Rehnquist, one of the
Republican-appointed justices who were part of the majority opinion in Bush v
Gore, which enabled the Republican George W Bush to win the electoral college by
one vote. The Florida vote was very close, the Florida Supreme Court mandated a
recount of 61,000 undervotes that were not tabulated by the voting machines. The
Supreme Court halted this recount in a five to four decision. Media accounts later
concluded that if the Florida recount had been allowed to continue, Al Gore would
have won the election.
Richard Nixon had nominated William Rehnquist for Associate Justice in 1971. He
took a narrow view of the Fourteenth Amendment, that it should only apply to race
as it was passed after the abolition of slavery and held a broad view of state power.
Rehnquist was conservative, but not ideological, concerned with preserving
precedent. Rehnquist was nominated as Chief Justice of the Supreme Court by
Ronald Reagan in 1986, he died from cancer in 2005, shortly after publishing this
book.

61. Discussing the Sources

62. DISCUSSING THE SOURCES
William Rehnquist not only has written an excellent history of the
disputed election of 1876, but he has also written an excellent
introduction on the events framing this crisis in American
democracy, going back to our country’s founders. This includes
background on not only the biographies of the candidates, but
also the other participants in this drama, including the members
of the commission, and also the history of the Supreme Court
itself.
There is also an online version of the book:

63. https://archive.org/details/centennialcrisis00rehn/mode/2up

64. We also highly recommend Eric Foner’s book on the Second
Founding, a history of the Reconstruction Amendments, the 13
th
,
14
th
, and 15
th
amendments abolishing slavery, guaranteeing due
process under the law for blacks, and guaranteeing blacks the
right to vote.

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my blog to see the referenced
footnote.
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and lectures mentioned, please
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