Cruz makes a “historically misleading” comparison by citing 1876 as a precedent for a special investigation into Biden’s electoral victory

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

Law scholars and historians consider the comparison very wrong.

In that post-Civil War election, three states – Louisiana, Florida and South Carolina – sent lists of competing voters to Congress, forcing federal lawmakers to resolve the mess.

In 2020, this confusion does not exist. Each state certified only one electoral ticket, and the results add up to a decisive defeat for President Donald Trump, 306-232.

“It’s enough to ask us if Ted Cruz knows anything about the 1876 election, other than that there was an electoral commission,” said Mary Stuckey, professor of communications at Pennsylvania State University. “It is not a good parallel. It’s historically misleading and I don’t think it’s useful. “

On Saturday, 11 Republican senators led by Cruz announced that they will oppose certification of this result when Congress meets on Wednesday to review the Electoral College count – the final formality before Biden’s inauguration on January 20.

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

“The most direct precedent on this issue came in 1877, after serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. Specifically, elections in three states – Florida, Louisiana and South Carolina – were allegedly conducted illegally, ”wrote the senators in a joint statement.

“In 1877, Congress did not ignore these claims, nor did the media simply dismiss those who raised them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission … to consider and resolve the disputed results. We must follow this precedent. “

The commission formed in 1877 was composed of five senators, five members of the Chamber and five judges of the Supreme Court.

But none of Trump’s allegations of fraud or voter manipulation remained: 60 state and federal courts rejected his efforts, and the Justice Department found no evidence of anything but isolated problems.

“What I am advocating is that Congress should do the same thing,” Cruz said on Sunday on Fox News, again citing the 1876 election as a precedent. “We must have a fair investigation, a fair audit of these results and we must resolve these complaints – not just dismiss them.”

Democrats criticized Cruz and the others for trying to effectively annul tens of millions of votes without evidence of fraud or cheating.

Republican colleagues also invested in his move.

Senator Lindsey Graham, RS.C., an important Trump ally who chairs the Judiciary Committee, rejected the request for an emergency and audit committee.

“Proposing a commission on this late date – which has a zero chance of coming true – is not effectively fighting for President Trump. It seems to be more of a political escape than an effective remedy, ”he said on Sunday. “They will need to provide evidence of the charges they are making … They have a high standard to be resolved.”

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

“To date, no state has submitted several conflicting plates of electoral votes. In other words, each state sent (a) Biden voters or (b) Trump voters. Of the six states about which questions were raised, five have legislatures controlled by Republicans, ”they wrote.

“Only states have the authority to nominate voters, according to state law. Congress has only a narrow role in the presidential election process. Its function is to count the voters presented by the states, not to determine which voters the states should have sent. “

The consensus among experts is that the 1876 election is a terrible precedent for justifying an emergency inquiry.

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

Voter fraud and suppression were excessive. 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 have not reached an agreement on a clear winner. All three states sent lists of competing voters to Congress.

“In that election, when it comes to the moment we are now in terms of the process, there was ambiguity at the state level,” said Masur. “There was no clear result being delivered to Congress about what happened at the state level, which is why Congress decided it was a major crisis.”

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

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

First, he noted, this election is not over.

Second, Congress ensured that the 1876 mess would never happen again, by passing the 1887 Electoral Counting Law. It standardized the Electoral College process and provided procedures to guide Congress in counting voters.

“The Electoral Counting Law was designed to create certainty,” said Vladeck. “There is a procedure to be followed by Congress. When this procedure is done, there is a president. “

On Sunday, former mayor Paul Ryan of Wisconsin criticized attempts to change the outcome.

“Efforts to reject the votes of the Electoral College and sow doubts about Joe Biden’s victory in the founding 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 deprive millions of Americans.”

“The Trump campaign had ample opportunity to challenge the election results, and these efforts failed due to lack of evidence,” he continued. “The judicial process was exhausted and the results were confirmed in a decisive way. The Justice Department also found no basis for overturning the result. If states want to reform their processes for future elections, that is their prerogative. But Joe Biden’s victory is entirely legitimate. “

Ryan served as a speaker in the first half of Trump’s term, until Democrats regained a majority in mid-2018, and was running mate for Republican presidential candidate Mitt Romney in 2012.

Romney, now a Utah senator, made a strong denunciation of Cruz and his maneuvers on Saturday.

“Members of Congress who would replace their own party trial with that of the courts do not increase public confidence, they put it at risk,” said Romney. “Did ambition eclipse the principle so much?”