1876 and All That

We’re skeptical of the House Committee that has been investigating the events on January 6 at Capitol Hill. We’ve already marked what seems to us an attempt by the committee to breach our separated powers and break President Trump’s executive privilege. Now the committee — which has but two Republicans, one of whom is not standing for re-election — wants to rewrite the law that Congress follows to count the votes of the presidential electors.On January 6, when the Congress gathered along with Vice President Pence, president of the Senate, to tally the Electoral College votes, they were taking steps laid out in the Constitution and the Electoral Count Act of 1887. The day’s chaos, which temporarily stopped the counting, has been pinned in part on the procedural law itself. Representative Liz Cheney of Wyoming, the committee’s vice chairwoman, says the “Electoral Count Act is directly at issue.”Representative Adam Schiff, Ms. Cheney’s committee colleague, rates it “a very poorly written, ambiguous and confusing statute.” Calling it a “complex and little-known law,” the New York Times reckons “the ambiguity of the statute puts democracy itself at risk.” A lawyer for Mr. Trump proposed using the law’s procedures to defy the actual electoral count, according to a book by Bob Woodward and Robert Costa, but Mr. Pence declined to engage in such constitutional chicanery.The law was a product of the 1876 election, which had yielded a near-deadlock in the Electoral College. Democrat Samuel Tilden led Republican Rutherford Hayes, yet stood one vote shy of the required majority. Worse, “there were disputed returns from three states,” historian Eric Foner notes, with “two reports of electoral votes each claiming to be official from the states.” An electoral commission settled the dispute, naming Hayes president two days before his inauguration.The “Fraudulent President,” this newspaper’s 19th century editors called him. The Sun, which had backed New Yorker Tilden, editorialized that if Hayes imagined that he could “profit by the most infamous of political crimes,” he was “the victim of self-delusion.” Added the Sun: “We can assure him that there is a political hereafter, and, moreover, that judgment day begins for him the very hour he is inaugurated.”Hayes’ presidency resulted from, as Mr. Foner puts it, “a deal involving the abandonment of Reconstruction,” ending federal efforts “to protect the rights of black citizens.” The commission was condemned as “a contrivance,” as Senator Ingalls of Kansas described it then, “favored by each party in the belief that it would cheat the other,” yet in the end “defrauding both.” The 1887 counting law was meant to avoid a repeat of the commission debacle.For nearly a century, the law guided the Congress’ electoral counting process, without incident. Then, in 1969, two Democrats — one senator and one representative — invoked the law to challenge North Carolina’s electoral votes. This concerned a so-called “faithless elector” who had voted for George Wallace instead of Richard Nixon. Following the law’s procedures, the House and Senate both rejected the cavil, and the electoral counting proceeded.During the count in 2001, Congressional Black Caucus members tried to object to Florida’s electoral votes, but they lacked the required support of at least one senator. In 2005, two Democrats, one from each house, challenged Ohio’s electoral votes, but the House and Senate disagreed. In 2017, House Democrats raised objections during the counting of six states’ electoral votes, yet no senator rose in support, and no action resulted.So the old electoral law — even if “rickety,” as the Washington Post has called it — has worked. January 6 brought closer scrutiny. The Wall Street Journal has urged the law’s repeal to rein in “Congress’s increasingly destabilizing role in presidential elections.” The Journal reckons that the law “clashes with principles of federalism and the separation of powers.” The Journal would bank on the courts to adjudicate election cases.Speaker Pelosi’s machinations are another matter. She has allowed that she’ll “never forgive” Mr. Trump, “and his lackeys, and his bullies that he sent to the Capitol, for the trauma.” Never mind that Mr. Trump was acquitted in the Senate of the charges the House brought. Where, in any event, is the logic of Congress railing at doubting congresspersons for using on January 6 the very law Congress itself enacted?_______Image of the 1877 Electoral Commission courtesy of Library of Congress.

1876 and All That

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