The Electoral Count Act is Broken; History Shows it Always Has Been

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.