Cruz makes ‘historically misleading’ comparison in citing 1876 as precedent for special inquiry on Biden’s electoral win

“In Hayes-Tilden contest, three states sent Congress competing slates of electors. In 2020, all 50 states certified just one slate.

Sen. Ted Cruz speaks during Justice Amy Coney Barrett's confirmation hearing on October 13, 2020.(Pool / Getty Images)

Updated at 7:30 p.m. Monday with new Cruz comments.

Sen. Ted Cruz, demanding an emergency “Electoral Commission” to audit the presidential election and stave off a declaration of victory for Joe Biden for 10 days, cites the 1876 election as a precedent.

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Legal scholars and historians call the comparison way off target.

In that post-Civil War election, three states — Louisiana, Florida and South Carolina — sent competing slates of electors to Congress, forcing federal lawmakers to sort through the mess.

In 2020, no such confusion exists. Every state certified just one slate of electors, and the results add up to a decisive defeat for President Donald Trump, 306-232.

“It’s enough to make one wonder if Ted Cruz knows anything about the 1876 election, beyond there was an electoral commission,” said Mary Stuckey, communications professor at The Pennsylvania State University. “It’s not a good parallel. It’s historically misleading, and I don’t think it’s helpful.”

On Saturday, 11 Republican senators led by Cruz announced they will object to certification of that result when Congress meets Wednesday to review the Electoral College tally — the final formality before Biden’s inauguration on Jan. 20.

The group, dubbed the “Trump Eleven” by detractors, demand a 10-day delay and creation of commission to “audit” results in battleground states where Trump disputes the outcome.

“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,” the senators wrote in a joint statement.

“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 ... to consider and resolve the disputed returns. We should follow that precedent.”

The commission formed in 1877 comprised five senators, five House members, and five Supreme Court justices.

“I think that’s the most apt precedent,” Cruz said Monday night on the Mark Levin Show.

But none of Trump’s claims of voter fraud or manipulation has held up: 60 state and federal courts have rejected his efforts, and the Justice Department has found no evidence of anything other than isolated problems.

“We ought to have a fair inquiry, a fair audit into these results, and we ought to resolve these claims — not just dismiss them out of hand,” Cruz said Sunday on Fox News.

Democrats have blasted Cruz and the others for trying to effectively nullify tens of millions of votes without evidence of fraud or cheating.

Some fellow Republicans have also reacted strongly against his gambit.

Sen. Lindsey Graham, R-S.C., a top Trump ally who chairs the Judiciary Committee, rejected the call for an emergency commission and audit.

“Proposing a commission at this late date — which has zero chance of becoming reality — is not effectively fighting for President Trump. It appears to be more of a political dodge than an effective remedy,” he said Sunday. “They will need to provide proof of the charges they are making. ... They have a high bar to clear.”

Cruz’s former chief of staff, Rep. Chip Roy, R-Austin, effectively debunked Cruz’s comparison to 1876 in a statement issued with six GOP colleagues denouncing efforts to block certification of Biden’s victory.

“As of this moment, not a single state has submitted multiple conflicting slates of electoral votes. In other words, every state has sent either (a) Biden electors, or (b) Trump electors. Of the six states as to which questions have been raised, five have legislatures that are controlled by Republicans,” they wrote.

“Only the states have authority to appoint electors, in accordance with state law. Congress has only a narrow role in the presidential election process. Its job is to count the electors submitted by the states, not to determine which electors the states should have sent.”

Faulty comparison

The consensus among experts is that the election of 1876 makes for a terrible precedent to justify an emergency inquiry.

Democrat Samuel Tilden ran against Republican Rutherford B. Hayes. It was the tail end of Reconstruction, when Black Americans were subject to violent voter intimidation by Democrats in the former Confederacy.

Fraud and voter suppression were rampant. Black Republican men in South Carolina were murdered for trying to exercise their right to vote in several documented instances, said Kate Masur, associate professor of history at Northwestern University.

In South Carolina, Florida and Louisiana, state officials could not agree on a clear winner. All three states sent competing slates of electors to Congress.

“In that election, when it comes to the moment where we are now in terms of the process, there was ambiguity at the state level,” Masur said. “There was not a clear cut result being delivered to Congress of what had happened at the state level, and so that’s why Congress decided it was a huge crisis.”

After months of deliberation, Congress declared Hayes the winner of all three states, just two days before Inauguration Day.

The elections of 1876 and 2020 are hardly comparable, said Stephen Vladeck, a University of Texas at Austin law professor.

First, he noted, this election was not close.

Secondly, Congress made sure that the mess of 1876 would never happen again, passing the Electoral Count Act of 1887. That standardized the Electoral College process and provided procedures to guide Congress when it counts electoral voters.

“The Electoral Count Act is designed to create certainty,” Vladeck said. “There’s a procedure for Congress to follow. When that procedure is done, there’s a president.”

On Sunday, former House Speaker Paul Ryan of Wisconsin railed against attempts to upend the result.

“Efforts to reject the votes of the Electoral College and sow doubt about Joe Biden’s victory strike at the foundation of our republic,” he said in a statement. “It is difficult to conceive of a more anti-democratic and anti-conservative act than a federal intervention to overturn the results of state-certified elections and disenfranchise millions of Americans.”

“The Trump campaign had ample opportunity to challenge election results, and those efforts failed from lack of evidence,” he continued. “The legal process was exhausted, and the results were decisively confirmed. The Department of Justice, too, found no basis for overturning the result. If states wish to reform their processes for future elections, that is their prerogative. But Joe Biden’s victory is entirely legitimate.”

Ryan served as speaker in the first half of Trump’s term, until Democrats regained the majority in the 2018 midterms, and was GOP presidential nominee Mitt Romney’s running mate in 2012.

Romney, now a Utah senator, issued a scathing denunciation of Cruz and his maneuvers on Saturday.

“Members of Congress who would substitute their own partisan judgment for that of the courts do not enhance public trust, they imperil it,” Romney said. “Has ambition so eclipsed principle?”

Cruz makes ‘historically misleading’ comparison in citing 1876 as precedent for special inquiry on Biden’s electoral win