The Washington PostDemocracy Dies in Darkness

The Electoral Count Act is broken. Fixing it requires knowing how it became law.

Trump tried to exploit flaws that were embedded in the law from the start.

Former President Donald Trump prepares to take the stage during his Save America rally in Perry, Ga., on Sept. 25. (Ben Gray/AP)

New revelations that John Eastman, a conservative lawyer and ally of former president Donald Trump, developed a plan using the Electoral Count Act of 1887 to overturn the legitimate results of the 2020 election have spurred more calls to revise the rickety legal infrastructure that guides our electoral process.

Reforming the 1887 Act is essential, but without an accurate understanding of the history behind it, we risk minimizing its core problems. Indeed, the history of the 1876 election and its legal aftermath — which inspired the act — is not as simple as the story of a uniquely nefarious deal by cynical politicians, popularly known as the “Compromise of 1877.” Instead, it is, in many ways, the story of the same issues we confront today: racism, voter suppression and constitutional dysfunction.

For more than a half-century, the standard account of 1876 and its aftermath has been that the election was resolved with a political compromise in which Democrats traded away the presidency in exchange for the end of Reconstruction in the South. That election, which featured Republican Rutherford B. Hayes against Democrat Samuel J. Tilden, was one of the closest in American history. Immediately following the election, it was clear Tilden was in the driver’s seat, having captured 184 of the 185 electoral votes needed to win.

But, contested results in three Southern states threw the outcome into question. When each state subsequently sent two sets of electoral returns to Congress, a constitutional crisis emerged. To solve the dispute, Congress created an unprecedented 15-man electoral commission made up of five members of the House, five members of the Senate and five Supreme Court justices. Representatives from Congress were split evenly between Republicans and Democrats but Republicans had a three-two majority of the justices, and in February 1877 that commission awarded the election to Hayes on an 8-7 partisan vote.

According to this story, which has been repeatedly told and retold in popular news outlets over the past year, once the commission decided in favor of Hayes, bitter Southern Democrats in Congress refused to accept the outcome, threatening to use parliamentary delays to stop Hayes from taking office. To prevent such a cataclysm, congressional Republicans and Democrats supposedly brokered a compromise behind closed doors with Democrats agreeing to accept the commission’s decision in return for, among other things, a promise from Republicans that Hayes would remove the remaining federal troops from the South. Without the presence of federal authorities to stop former Confederates from using violence and racial terrorism to prevent Black Americans from voting, Southern Democrats could recapture control of state governments and restore home rule to White Southerners.

Republicans thus ostensibly sacrificed the fate of Black Americans for the promise of political power. Ten years later, Congress passed the Electoral Count Act of 1887 to address some of the legal loopholes that had led to the election crisis of 1876 and the Compromise of 1877.

The problem with this story? There was no Compromise of 1877.

The argument that a brokered compromise between Republican and Democratic congressmen ended Reconstruction was initially suggested in 1951 by historian C. Vann Woodward. An easy story to tell, Woodward’s thesis was appealing and immediately gained traction, becoming a staple of high school and college history textbooks to this day. It provided a tidy end to the periodization of Reconstruction and a traditional narrative emphasizing the failures and disappointment of the era.

In subsequent decades, however, historians have thoroughly disproved Woodward’s theory. Among other things, they showed that there was probably no congressional negotiation after the Electoral Commission met, and rather than accepting the outcome, Southern Democrats actually continued to push Tilden to challenge the results and protest a Hayes presidency. Finally, while Hayes did remove some troops upon taking office, he did not remove them all, as federal troops in fact remained stationed in the South for several years.

This is not just a harmless myth. The “Compromise of 1877” canard distorts our understanding of Reconstruction by creating an artificial ending point. In actuality, by 1877 Reconstruction was effectively over as Southern Democrats had already regained control of eight of the 11 former Confederate states, and the process of rolling back the rights and protections Black Americans had gained after the Civil War was well underway. The myth also suggests that Northern Republicans cynically sacrificed protections for freed people in return for political power, ignoring the degree to which Republicans continued to advocate for Black rights well into the 1880s.

More importantly, the compromise myth denies the central role Black Americans played in the politics of Reconstruction — before, during and after the election of 1876. It relies on the premise that the outcome was stolen from the candidate who won the most popular votes (Tilden), when in fact the election was marred by massive violence against and disenfranchisement of Black Republicans across the South who would have voted for Hayes. In Florida and South Carolina, for example, groups like the Ku Klux Klan and White League used violence and intimidation to keep Black voters from the polls and in some cases even forced them to switch their votes to the Democrats.

By focusing on White political elites in Washington, the Compromise of 1877 also ignores the essential story of the postwar South, where Black men and women built communities and networks while working to secure political and civil rights wherever possible. That struggle did not end in the 1870s. Black Americans continued to fight against the efforts of White Southerners to terrorize and disenfranchise them.

In short, the standard story of the 1876 election is not just wrong — it fundamentally decenters Black Americans who had the most to lose, both in that election and today.

What’s more is that the Compromise story implies that the Election of 1876 created a unique constitutional crisis in our electoral history. It didn’t. The long sweep of 19th-century politics illustrates how fundamentally unstable the American constitutional system really was; by the 1870s generations of Americans had witnessed repeated examples of electoral dysfunction and had frequently (though often unsuccessfully) tried to reform the electoral system.

In fact, the three presidential elections after Hayes entered office featured increasingly narrow escapes from a repetition of 1876, and yet there was no urgency for reform.

There were a number of reasons it took more than a decade after the 1876 crisis to pass the Electoral Count Act. But a critical one was Southern Democrats, who wanted to make sure that the federal government would not “interfere” with their electoral process, meaning the routine disenfranchisement of large Black populations in their states. And although the 1887 Act supposedly resolved how Congress would evaluate contested returns or multiple sets of electors without the need for another Electoral Commission, both sponsors and opponents realized the bill was not only vague and ambiguous, but a weak constitutional solution. As a result, expected electoral dysfunction and the massive disenfranchisement of Black Americans remained central to presidential elections in the 19th and 20th centuries.

As Trump and Eastman’s efforts show us, the Electoral Count Act of 1887 simply can’t handle the continuing constitutional crises that plague our elections in the 21st century — including continuing Republican efforts to delegitimize the 2020 results and to wrest power from nonpartisan election boards in a bid to control future elections. But the Act wasn’t designed to handle such problems. It was a short-term political fix, grounded, in large part, in the disenfranchisement and racism that had produced the 1876 crisis in the first place. As we address its shortcomings in our attempt to better reform our electoral process, let’s be clear about where that crucial piece of legislation came from, and discard once and for all the myth of the Compromise of 1877.

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