Ted Cruz is wrong about the 2020 election

Last week, in a joint statement repeating false allegations of voter fraud in multiple states, Ted Cruz and several of his Senate colleagues called on Congress to appoint an electoral commission to adjudicate the 2020 election. Cruz cited the bipartisan Electoral Commission of 1877 as a historical precedent for contesting the election — but this comparison makes little sense. Congress created that commission after the election of 1876, when several states submitted multiple election returns; this year, however, there are no states in which the electoral vote is legitimately in dispute.

But beyond the faulty comparison to another close contest, it is deeply ironic that Cruz and other Republicans would cite the aftermath of the 1876 election as a precedent for 2020, when Cruz and his allies more closely resemble the losing party in 1876 — the Democrats — than their Republican forebears. During the 1877 commission, it was Democrats who pursued claims of fraud. Republicans warned that their opponents’ continued efforts to overturn the election results could cause massive civic unrest and that any claims of fraud were offset by Democrats’ massive campaign to suppress Black votes throughout the South.

Far from resembling these 19th-century Republicans, today’s GOP (Cruz included) has pushed for greater restrictions on voting rights that disproportionately affect Black communities, including strict voter ID laws and fewer polling locations. The Trump administration’s campaign to overturn the 2020 results has identified cities with majority Black populations as the source of fraud, echoing how 19th-century Democrats questioned the legitimacy of Black voters. In other words, Cruz and his allies look nothing like the Republicans who sat on the 1877 commission; those men self-consciously promoted greater democratic participation, not less.

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Congress created the 1877 commission to resolve a legitimate crisis over the 1876 results. As in most presidential elections, the 1876 contest unfolded in individual states, and results were certified by state election boards and governors, both controlled by political parties. But unlike most elections — including last year’s, which resulted in a clear and legitimate outcome in every state — in 1876 it was unclear who had won in three states. In Florida, South Carolina and Louisiana, both political parties sent their own set of electoral votes to Congress — one set of votes for Republican Rutherford B. Hayes and another for Democrat Samuel J. Tilden.

The commission — which consisted of five members of the Republican-controlled Senate, five members of the Democratic-controlled House and five Supreme Court justices — spent February 1877 hearing arguments about the returns from these three states. Tilden’s advocates argued that the commission should “go behind the returns” to investigate voter fraud during the election. Unlike the 2020 election, there was ample evidence of fraud (not uncommon in 19th-century elections), although neither party gained a clear advantage.

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Hayes’s Republican supporters argued against reopening the returns in favor of letting the commission vote on the evidence in front of them. Republicans knew they had the votes to secure Hayes electors in these states because of the partisan makeup of the commission, but their main concern was that if the commission were to investigate all the allegations of fraud, the election disputes could go on for weeks, if not months. They feared widespread violence and perhaps even a second civil war — not such a far-fetched prospect, just 12 years after the war’s end — if no decision were made before the inauguration, which was held in March at the time.

But Republicans were also quick to point out that if the commission really started digging into the election, fraud was not the only problem they would find. As one Hayes commissioner argued, the Tilden electors in Louisiana had been “obtained by intimidation produced by murder, violence, and the most dreadful crimes.” Across the South, and especially in the states with contested returns, Democrats had used extensive violence and intimidation to prevent Black men from voting. (Women of any race weren’t allowed to vote in most of the country.)

In Florida, for example, in counties with roughly equal numbers of White and Black voters, Democrats armed with guns and rope attacked Black men in the middle of the night, telling them, “We ain’t going to be done with you tonight” until they promised to abandon the Republican Party and vote Democratic. According to one Black voter who testified before Congress, he and others were forced through intimidation and violence to switch their votes to the Democrats: “If I would not do it, they would kill us sure.”

Voters always imagine fraud. Politicians usually don’t go along with it.

White Democrats also executed a campaign of organized terrorism and violence using paramilitary groups such as the Ku Klux Klan and White Leagues to intimidate Black men throughout the South ahead of the elections. In July, a white supremacist group called the Red Shirts attacked the town of Hamburg, S.C., a center of local Black political power in a state with a sizable Black majority. Following a dispute over road access between local farmers and Hamburg’s Black militia, hundreds of gun-toting Whites from South Carolina and nearby Georgia descended on the town, executing members of the militia and ransacking Black homes and shops. In November, Red Shirt poll managers used violence to prevent Black men from casting their votes; in one Black-majority district, the vote was 211-2 in favor of the Democrats.

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These examples of violence and intimidation clearly offset many of the Democrats’ claims of fraud. But even that massive program of voter suppression didn’t prompt the Republicans to agree to reopen the returns, and Republican members of the commission feared the effects of a prolonged national struggle over these individual states. Reinvestigating the returns would have the effect of creating more civil unrest, not less. Ultimately, Republicans understood that ensuring the contested votes were awarded to Hayes implicitly meant safeguarding the votes of Black men in the South.

An old story holds that Hayes won the White House through a brokered compromise wherein Republicans agreed to abandon Black voters in the South by removing federal troops and ending Reconstruction, effectively guaranteeing Democratic control of state governments. But this supposed Compromise of 1877 is largely a myth, debunked by historians decades ago. In reality, some troops remained even after Hayes took office (while others had been removed long before), and Republicans continued to advocate for Black rights well into the 1880s. Most important, Black men and women continued to fight back against the efforts of Southern Democrats to create a republic for White men only.

Republicans are right; election fraud is real. They are perpetrating it.

Like the Democrats of the 19th century, today’s Republicans have continually tried to restrict the right to vote, systematically targeting communities of color. And while there is thankfully no modern parallel to the violence of the 1870s, Republicans have endorsed voter intimidation through organized activities such as sending “poll watchers” to monitor elections.

In refusing to accept the legitimate results of the 2020 election, Cruz and his colleagues argue that an Electoral Commission of 2021 would “dramatically improve Americans’ faith in our electoral process.” But just like the losers of the 1876 election, the only Americans who concern the party that lost last year’s presidential election are the White ones.

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