Ted Cruz Wants to Copy the Corrupt Process That Killed Reconstruction

Tone deaf? Dog whistle? The Texas senator invokes the terrible electoral commission of 1877.

Sen. Ted Cruz keeps his eye on Sen. Josh Hawley. (Tom Williams / CQ-Roll Call / Getty)

Political campaigns always wind up getting messy, and the campaign to be MAGA’s favorite lawmaker in the post-Trump presidency GOP is no exception. Senator Josh Hawley jumped out to the early lead last week by announcing that he intended to object to the counting of the Electoral College votes that will take place in Congress on January 6. (For an objection to be heard, it must have at least one representative and one senator supporting it.) Hawley said he was objecting because he believes that the state of Pennsylvania broke its own laws in how they conducted voting and that Facebook and Twitter unduly influenced voter attitudes by allowing misinformation to be published unchecked on those sites.

Not to be outdone at the hands of a freshman lawmaker (and potential future presidential rival), Senator Ted Cruz enlisted ten of his GOP Senate colleagues—both the usual suspects, like Ron Johnson, John Kennedy, and Marsha Blackburn, and four newbies, including former college football coach Tommy Tuberville—to release a joint statement indicating that the group intends to do more than simply object to the counting of votes on January 6. The Gang of 11 intends to make a motion that Congress appoint an electoral commission to conduct “an emergency 10-day audit of the election returns in the disputed states.” (They do not indicate which states they consider “disputed.”)

The senators’ press release states, “By any measure, the allegations of fraud and irregularities in the 2020 election exceed any in our lifetimes,” which is an interesting way to frame their argument in light of the fact that GOP claims of fraud and irregularities have been accompanied by few if any factual assertions by which to “measure” those claims.

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The release goes on to posit how “ideally, the courts would have heard evidence and resolved these claims of serious election fraud. Twice, the Supreme Court had the opportunity to do so; twice, the Court declined.” The first part is false in that numerous state and federal courts across the country did hear the complaints brought forward by the Trump campaign’s legal team (remember the “Kraken” of Giuliani, Powell, and Ellis?) and all of them were dismissed on the grounds that there was no evidence to back up their claims of massive voter fraud. The second part leaves out the fact that, while the Supreme Court did decline to intervene (in one case because the plaintiffs lacked standing), even if it had agreed to hear the cases the justices would likely have not been convinced by Team Trump’s stew of conspiracy theories, hearsay, and innuendo, and presented without accompanying facts.

But, alas, the joint release boldly continues like a Ted Cruz filibuster, unbowed by a paucity of merit, citing the election of 1876 as historical precedent:

The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. Specifically, the elections in three states—Florida, Louisiana, and South Carolina—were alleged to have been conducted illegally. In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission—consisting of five Senators, five House Members, and five Supreme Court Justices— to consider and resolve the disputed returns. We should follow that precedent.

It is worth noting what’s left out of the description of the election that Cruz et al. invoke as precedent: the messier details of the election of 1876. Specifically, the close race between Democratic candidate Samuel J. Tilden and Republican candidate Rutherford B. Hayes was punctuated by bloodshed in South Carolina and claims of Democratic party intimidation and bribery of African-American voters in Florida, Louisiana, and South Carolina. The resultant election dispute was convoluted and intense enough for Congress to establish the electoral commission in January 1877.

Illustration showing the electoral commission holding a closed-door meeting by candlelight on February 16, 1877. (Library of Congress)

The commission’s deliberations were accompanied by sidebar negotiations between Hayes loyalists and moderate southern Democrats. Those negotiations led to the infamous Compromise of 1877, which tipped the Electoral College vote to Hayes with the promise that once he became president, he would remove federal troops from southern statehouses.

President Hayes made good on his promise, which gave Southern states the maneuvering room to break the big promise they made at the end of the Civil War about how they’d treat their black citizens. The corrupt bargain marked the de facto end of Reconstruction, ushering in the beginning of the Jim Crow laws that required “persons of color” to remain separate from whites on public transportation, in parks, schools, restaurants, theaters, and elsewhere. Basically, all the civil rights gains that had been made over the 12 years since the end of the war were erased. Still worse, violence against blacks at the hands of the KKK and other racist organizations intensified and lasted well into the next century when Martin Luther King and other civil rights leaders finally convinced President Lyndon Johnson to enact the Civil Rights Act of 1964.

It’s unclear whether, when they decided to cite the election of 1876 in their joint release as a historical precedent, Senator Cruz and the other ten knew the details of the election and the resultant compromise that stalled racial justice in the South for another nine decades. In light of the death of George Floyd and the resurgence of the Black Lives Matter movement and urban strife nationwide in 2020, evoking the specter of that era would seem, at best, tone deaf, and, at worst, like using a dog whistle.

Regardless, Cruz knows that simply following the Constitution and the law on January 6, even if the proceedings include Republican senators objecting to the counting of the Electoral College votes, won’t be enough of a spectacle for the MAGA faithful, not to mention Donald Trump himself. No, Cruz wants another ten days to conduct an audit—which is to say ten days to go on Fox News, Newsmax, and OAN to throw out the same disproven red-meat conspiracy theories that will further erode the public’s trust in our democracy. In the process, Cruz will regain his title of “Guy Who’s Willing to Break Things” that he so loved wearing during the heyday of the Tea Party.

The joint release ends with a flourish: “We are acting not to thwart the democratic process, but rather to protect it. And every one of us should act together to ensure that the election was lawfully conducted under the Constitution and to do everything we can to restore faith in our Democracy.”

You’d be hard pressed to find a more disingenuous precedent for that statement in the history of American politics.