The Electoral Count Act of 1887 Led to 1/6! (Classic Episode)

Alex will be back tomorrow with a new episode, but for the moment here is a classic episode from back in January of 2022. It looks like Congress may reform the Electoral Count Act of 1887. This is good news because John Eastman and others tried to overturn Biden’s victory by using ideas from this act. 

 

Original episode summary — 

In this episode, Alex takes a deep dive into understanding the Electoral Count Act of 1887. The act was passed by congress in reaction to the Compromise of 1877, and some argue that its existence actually paved the way for the 2020 election chaos and the storming of the capitol on January 6th. 

After President Grant ( a Republican) decided not to run for a third term, the 1876 election cycle was composed of Governor Rutherford B. Hayes of Ohio (Republican) and Governor Samuel J. Tilden of New York (Democrat). The results of this presidential election between Tilden and Hayes became one of the most contested in US history. Tilden was winning the electoral college count with 184 electoral votes to Hayes's 165, yet there were four states that remained unresolved. These four states were Oregon, Florida, Louisiana, and South Carolina. Each of these states responded differently to this situation, each party reported that their own candidate had won, and Oregon even replaced their electors. Eventually, a compromise was made in which Hayes became president and Tilden conceded. The Compromise of 1877 said that all of the remaining 20 electoral votes were given to Hayes. In return, “the Republicans agreed to withdraw federal troops from the South. This is credited with ending Reconstruction.” Ten years later, the Electoral Count Act of 1887 was passed. Unfortunately, it created an environment where if there was a contested election, no matter what the states electors determined, congress could make the final decision. Now there was a designated period that allowed contesting electors to make their case and if there was an issue, the Vice President and Congress would make the final decision. 

Alex argues that this act was poorly created and has existed in limbo ever since this period. Unfortunately, the 2020 election was also close and opportunistic lawyers and state officials used it to their advantage. Alex believes that this act needs to be overturned or reformed (at the least) so that there is a clear understanding of who will determine the legitimacy of an election, even if it is contested.