On March 1, 1877, the inauguration of the President of the United States was three days away. It was still uncertain who would take the oath. There was speculation Ulysses Grant might continue as president – or as caesar.

Samuel Tilden, the Democrat, had apparently won the popular vote. But results were disputed in several states: Louisiana, Florida, South Carolina, and Oregon. From Florida, for example, three sets of certified results were submitted to Congress: from the state’s outgoing Republican governor, from the incoming Democratic governor, and from the state’s attorney-general.

In Congress, the Democrat-controlled House and the Republican-controlled Senate found no agreement in the disputes – except to form a 15-member commission, comprised of 7 Democrats, 7 Republicans, and a purportedly neutral justice from the Supreme Court, to adjudicate the claims. The commission gave all the disputed votes to the Republican, Rutherford Hayes. Hayes needed all the disputed votes to win.

But another “unofficial” vote mattered to provide for a peaceful transition of presidential power. Samuel Tilden eventually conveyed to the Speaker of the House that he would abide by the commission’s decision. Thus, at four o’clock in the morning of March 2, a joint session of Congress convened to declare the winner. At ten minutes after four, the president of the Senate (the Vice President had died in office), declared Rutherford Hayes “duly elected President of the United States for four years commencing on the 4th day of March, 1877.”

On that day, six Secret Service men walked alongside the presidential carriage carrying Grant and Hayes to the inaugural at the Capitol. The threat of assassination was in the air. Democratic congressmen did not attend the ceremony. Hayes, nonetheless, seemed undaunted. His brief address is most remembered for the statement that “He serves his party best who serves his country best.”

We take comfort in the historical precedent of this peaceful transition of power. It continued the tradition set by Washington, Adams, and Jefferson. But it wasn’t peaceful for the whole nation. Evidence abundantly indicates that the price Democrats extracted from Republicans for not engaging in violence to gain the presidency was a pledge to end Reconstruction. Not long after assuming office, Hayes began ordering the removal of federal occupying troops from the states of the former Confederacy.

As troops left, the Ku Klux Klan terrorized African Americans. All three branches of federal government failed black citizens. The Supreme Court gutted civil rights legislation and in 1896 allowed states to implement “separate but equal” laws to further legitimize the division of the races. By then, lynching of blacks took place by the hundreds each year. Through poll taxes, literacy tests, and worse intimidation, blacks were deprived of the vote.

It took Congress ten years to respond to the constitutional questions posed by the Hayes-Tilden election. Most commentators say that, while Congress may have addressed it, Congress didn’t solve it.

The Electoral Count Act is convoluted legislation essentially unchanged in 145 years.

(One section has within it a single sentence of 265 words!) Among the provisions, it allows a single member of the House and a single member of the Senate, acting together, to call into question the certified returns from any state or territory when Congress jointly convenes to count the Electoral College votes.

Since the turn of this century, disgruntled members of Congress have done just that. In 2001, Vice President Al Gore (who had better cause than Samuel Tilden to think a presidential election had been stolen from him) gaveled down the objection as out of order. In 2017, responding to objections against certifying Donald Trump over Hilary Clinton, Vice President Joe Biden ruled that “there is no debate.”

After the 2020 election, President Trump latched onto a memorandum, prepared by law professor John Eastman, which put forth a scenario by which Vice President Pence could reject enough disputed returns to either give Trump a majority in what remained of the Electoral College or send the election to the House of Representatives where each state delegation would have a single vote to determine the winner.

In the Trump-induced fog in the election aftermath, twenty citizens of Pennsylvania signed their names to a document declaring themselves electors to the Electoral College and assigning their votes to Donald Trump. (Apparently, the Trump campaign convinced them that election fraud would be proven.) This was done in addition to the set of electors duly certified by the Department of the Commonwealth in a document signed by Governor Wolf and delivered to Congress. The Trump-inspired document was reportedly received by the national archivist. It also apparently was the document which Congressman Mike Kelly gave to Senator Ron Johnson whose staff member tried to foist it upon a staff member of Vice President Pence.

The Republican leadership of our state legislature, evidently aware of the intrigue, issued a public letter to absolve themselves of future accountability: “We cannot take steps to appoint electors for this election,” they wrote, “….Doing so would violate our Election Code and Constitution, particularly a provision that prohibits us from changing the rules for election contests of the President after the election. It would also set a precedent that a simple majority of the General Assembly can override the will of the people as evidenced by the popular vote.”

If there remains a critical mass of responsible legislators in Congress, we will see the Electoral Count Act revised before the midterm election. Maybe no legislation can entirely thwart devious hearts, but the endeavor should be made. At the least, the bar needs to be raised to prevent spurious objections to duly certified results. And, John Eastman notwithstanding, it should be made clear that it is not the arbitrary role of the Vice President alone to decide whether certified results should be accepted. Our next presidential election deserves that much.

Hartley is a retired chief engineer in the merchant marine. His 33-year career was on the Great Lakes. Prior to that, he was a steel worker and an officer in the U.S. Coast Guard. He has a bachelor’s degree in English and American literature from Brown University. He is the author of “Christy Mathewson: A Biography,” published by McFarland in 2005. He and his wife Cyd make Corry their home.

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