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Ted Cruz's proposed election commission can only hurt the country

Sen. Ted Cruz, R-Texas, on Saturday in Cumming,

Sen. Ted Cruz, R-Texas, on Saturday in Cumming, Ga. Led by Cruz, a number of Senate Republicans announced that they will object to the certification of state electoral college votes. Credit: AP/Brynn Anderson

Republican attempts to reverse the results of the 2020 election have entered their final, desperate stage. Led by Sen. Ted Cruz, R-Texas, a number of Senate Republicans announced that they will object to the certification of state electoral college votes and recommend a special congressional commission to investigate alleged electoral fraud. They cite the precedent of 1877 when Congress appointed an electoral commission to determine the winner of a deadlocked presidential election.

But Cruz and his allies have badly misread this history. The 1877 electoral commission was simply part of larger, longer-lasting, unsuccessful Democratic effort to reverse the results of the 1876 election. More relevant than the commission, in fact, is another aspect of that push: the little-remembered congressional Potter Committee, which reveals how these efforts blew up on their Democratic sponsors. While the committee was formed to investigate Republican corruption, it soon found itself exposing Democratic fraud.

To understand the aftermath of the 1876 election, one needs to understand the context in which the election took place. A lingering economic depression, rampant corruption and scandals in Washington and white supremacists threatening violence against African Americans in the South gave Democrats a real chance to capture the White House for the first time since 1856.

Republicans nominated the outwardly bland Ohio Gov. Rutherford B. Hayes, a dark-horse chosen because, as one journalist noted, he was "obnoxious to no one." His rival was the cold, uncharismatic New York Gov. Samuel J. Tilden. Tilden's lack of the common touch made him distinctly unsuited for politics. But Democrats welcomed his money and organizational acumen after 16 years out of power.

The election followed the familiar contours of Civil War era politics. Republicans accused Democrats of being traitors and rebels, while Democrats condemned Republican oppression of Southern Whites. However, by 1876 the issues of the war had begun to recede in political importance. Tilden's denunciation of Republican corruption and promises of reform resonated among voters eager to defeat a tired Republican establishment.

The result was the dirtiest election in American history. Relying on fraud and violence to suppress the mainly Republican African American vote in the South, Tilden swept most of the region and gained several key northern states. Hayes ran up the score in the Midwest. Tilden was confident of victory on election night, and even Hayes went to bed thinking he had lost.

Hayes's operatives, however, were not so pessimistic. They realized the election would come down to the three southern states still under Republican control: South Carolina, Florida and Louisiana. To win, they would fight fraud with fraud. Using political pressure and Republican control of the election returning boards, they would throw out Democratic ballots and swing all three states to Hayes, giving him the election by one electoral vote.

When Democrats in Oregon invalidated one of Hayes's electors, the contest became stalemated at 184 votes apiece. The situation was exacerbated by a divided Congress, with Democrats controlling the House while Republicans controlled the Senate. Congressmen and senators argued over which would choose the next president. Fears of violence flourished, with prominent Democrats threatening to raise troops, march on Washington and give Tilden the presidency.

To forestall such violence, Congress set up a commission to settle the dispute. More importantly, Republican and Democratic power brokers retreated behind closed doors and hammered out the Compromise of 1877. Democratic leaders agreed to accept Hayes as president, in return for the withdrawal of the remaining federal troops from the South. To retain the White House, Republicans abandoned African American voters who consistently supported them despite facing violence and intimidation at the polls.

Yet, many Democrats continued to regard Hayes as an illegitimate president. When two members of the Louisiana returning board were indicted in June 1877 for altering election returns, Democrats took it as proof that Hayes's election had indeed been fraudulent.

Tilden himself weighed in during an October 1877 speech. He declared the outcome fraudulent. "I did not get robbed - the people got robbed," Tilden cried. "It was a robbery of the dearest rights of an American citizen."

Tilden's speech prompted action. In May 1878, Rep. Clarkson N. Potter. D-N.Y.. introduced a resolution to investigate the "alleged false and fraudulent" elections in Louisiana and Florida. Potter had an ulterior motive: He coveted the governorship of New York, and knew he needed Tilden's support to win it. The House adopted Potter's resolution and set up an 11-man committee consisting of Democrats and anti-Hayes Republicans.

The committee quickly heard bombshell testimony: James E. Anderson, the supervisor of election registrations in East Feliciana Parish, La., claimed he had been promised a patronage job if he ensured that the parish election results were "fixed" for Hayes. Anderson proffered a copy of a letter signed by Treasury Secretary John S. Sherman attesting to the deal.

But Anderson's testimony soon unraveled. He had a reputation for drinking and admitted that he had perjured himself during earlier testimony in New Orleans, damaging his credibility. Committee members also discovered that the Sherman letter had been forged. "[Anderson] has made a most humiliating exhibition of himself, and demonstrated the weakness of the revolutionary cause he has been brought in to sustain," wrote the Republican-aligned New York Tribune.

By contrast, Hayes and his administration fully cooperated with the committee, releasing all requested documents. Hayes's openness, combined with Anderson's unimpressive testimony, undermined the legitimacy of Democrats seeking to reverse the election results.

Within a month, the Potter Committee had turned into a farce, spending days focusing on minute details in depositions. Several Democrats, embarrassed by the entire process, joined with Republicans to pass a resolution denying that Congress, the courts or any tribunal could reverse the 1876 election results.

Everything changed when new revelations about corruption emerged — but not of the sort the committee had hoped to find. The 1877 commission formed to decide the election had subpoenaed copies of over 30,000 telegrams, many of them written in cipher. Roughly 750 of these telegrams found their way into the hands of Whitelaw Reid, the Tribune's editor.

Reid deciphered the telegrams, which revealed Democratic efforts to bribe election officials. The most shocking discovery was that these telegrams originated from the Democratic Party headquarters at 15 Gramercy Park, New York — which also happened to be Tilden's home address.

When the Tribune published the deciphered telegrams, the House ordered the Potter Committee to investigate. Although no evidence of actual payments was uncovered, it became clear that Tilden's agents had considered bribery as a way to win Florida and South Carolina. This revelation embarrassed Democratic members of the committee.

Events came to a head on Feb. 9, 1879, when the committee cross-examined Tilden. Asserting his innocence, Tilden claimed that he knew nothing about the proposed bribes, but admitted that when he found out about the activity of his agents he immediately ordered them to stop. These revelations did immeasurable damage to his reputation.

Tilden had played the wounded martyr kept out the White House by Republican corruption. Now it appeared that his hands were just as dirty as everyone else's.

The committee quickly faded from the spotlight and is mostly forgotten today as yet another sad episode in an era where election fraud was rampant. In attempting to reverse the results of the 1876 election, the Potter Committee unwittingly gave the public a glimpse of the corruption and graft which flowed through American political life.

In the aftermath of the Potter Committee, few Republicans and Democrats could continue to slander their political opponents as fraudulent. But the committee's findings fueled public cynicism about the political process.

If Cruz and his Republican allies were truly interested in making elections fairer and more democratic, they would avoid using one of the most corrupt and fraudulent eras in American politics as a precedent. If anything, the Potter Committee history shows that any proposed investigation might well produce conclusions that Republicans dislike. It also almost certainly would further damaging cynicism. In short, all Americans would lose.

MacKay is a historian of the Republican Party, who is currently working on a book about the party during the Civil War era. This piece was written for The Washington Post.