Juking the Vote: How to Steal a Presidency

Samuel Tilden won the popular vote for president in 1876. But Republicans were unwilling to accept the results and disputed the returns in Florida, South Carolina, and Louisiana. It was the start of a struggle that ended post-Civil War Reconstruction and demonstrated big business domination of the national power structure.

In 2024, the response if Trump loses is likely to be a variation, possibly preventing enough states from certifying the results of close races that no one gets enough electoral votes to win.

By Greg Guma 

Overturning the “will” of the voters, especially in a presidential election, is routinely described as anti-democratic and unprecedented. Unfortunately, that’s only half-right. A race for president has already been stolen in the US, and it could happen again. 

The precedent was set in 1876. Ulysses Grant had been persuaded not to seek a third term. That was possible until a Republican Congress passed the 22nd amendment in 1947, less than two years after Democrat Franklin Roosevelt — elected four times — died in office.

After Grant stepped down, Sen. Roscoe Conkling of New York was so confident he would be the next Republican nominee that he prematurely picked Ohio Governor Rutherford B. Hayes as his running mate. The party chose Hayes instead, while the Democrats nominated another New Yorker, Samuel Tilden, governor and persistent reformer.

Tilden won the popular vote, but Republicans were unwilling to accept the results and disputed the returns in Florida, South Carolina, and Louisiana. It was the start of a struggle that ended post-Civil War Reconstruction and demonstrated big business domination of the national power structure.

Samuel Tilden                                      Rutherford Hayes
         won the vote.                                        became the president.

The similarities between those deceptive 1876 maneuvers — athletes and cops call it “juking” —  and what Trump attempted are clear. But the Electoral Count Act didn’t exist until 1887. One of its goals was to minimize the role of Congress, placing most responsibility on the states. As long as enough states resolved disputes, certified results, and forwarded them to Congress in time, the results were supposed to be final.

But what if that doesn’t happen? In 2020, Trump’s Republican accomplices in seven swing states created and submitted fraudulent certificates, claiming that Trump rather than Biden won the electoral votes. In 2024, the response if he loses is likely to be a variation, possibly preventing enough states from certifying the results of close races that no one gets enough electoral votes to win. An effective third candidate makes it more likely. In fact, it’s what the “no labels” movement hopes to do.

If that happens, it becomes a “contingent election,” the fallback created by the 12th Amendment. The House of Representatives picks the president; the Senate chooses the vice president. But there’s a twist: House delegations from each state have a single vote, so the presidency goes to the candidate whose party controls 26 or more states.

If no decision is reached by Inauguration Day, the vice president becomes acting president. If the senate can’t choose a VP, the job goes to the House Speaker, next in the line of succession. Who gets that job depends on which party holds a House majority after the 2024 elections.

As Gore Vidal described the aftermath of the Tilden-Hayes election in his novel, 1876, “The United States is now on the verge of civil war.” Tilden had 184 electoral votes and Hayes was sure of 166. but 19 remained “in doubt.” News reports “excite the people dangerously,” he wrote. “There is talk of a march on Washington. The south is reported to be arming.” 

Although Republican, Conkling declared Tilden the victor, but warned “that desperate Republicans may yet steal what is not theirs.”  

On Dec. 6, the electors met. As expected, Republicans in four states (Oregon had joined the revolt) sent two sets of returns, one fraudulently favoring Hayes. Six weeks later, Congress worked out a compromise: a 15-member electoral commission that included five members of the Supreme Court. Although Congressmen would be on the commission, Vidal described it as a “novelty” that would “exist outside the Congress, as well as outside the Constitution.”

According to William Doyle, Vermont historian and a former state senator, the legislation that set up the commission was sponsored by a Vermonter, US Sen. George Edmunds. Republicans were so pleased with his work that they honored him with symbolic nominations for president in 1880 and 1884. 

Not everyone was favorably impressed. Charles Francis Adams, brother of Henry Adams, a railroad reformer, called Edmunds an “ill-mannered bully” and “the most covertly and dangerously corrupt man” he had seen in public life. Edmunds was apparently angry that the Union Pacific railroad had refused to put him on the payroll,” Adams claimed, so he blocked every effort to reach an agreement over the railroad’s government debt.

Railroad interests orchestrated the outcome of the electoral dispute, according to historian Michael Hiltzik. In his railroad history, Iron Empires, he explains that Tom Scott, head of the Pennsylvania Railroad, “greased the path to compromise” in order to draw the south back into national politics to fulfill his dream of a transcontinental line.” At the time his railroad’s huge profits made it the most powerful US corporation. Scott monitored the process, got Pennsylvania’s delegation to support the compromise, and provided the private train car that brought Hayes to Washington for his inauguration. 

In what was called the Compromise of 1877, “Democrats agreed to throw their support behind the man ever after known as Rutherfraud B. Hayes,” writes Jill Lepore in These Truths, her US history. Hayes became president “in exchange for a promise from Republicans to end the military occupation of the south. For a minor and petty political win over the Democratic Party, Republicans first committed electoral fraud and then, in brokering a compromise, abandoned a century-long fight for civil rights.” 

The Electoral Commission meets

In the end, it came down to one vote — Joseph P. Bradley, appointed to the Supreme Court by Grant “after a long and somewhat shady career as a railroad attorney,” as Vidal put it. At first it looked like he would break for Tilden. But when the commission met, he went the other way.

The media was divided. While The Times praised Bradley, Vidal wrote, The Sun hinted at “money changing hands” and reminded readers that “when he was a West Texas circuit judge, he was bought by the railroad interests.” The Texas Pacific had awarded the presidency to Hayes, The Sun concluded.

Hayes steals a ride.

Abraham Hewitt, New York Congressman and Tilden ally, claimed that Bradley was visited before the vote by a Republican member of the commission. “Whatever the strict legal equities,” he allegedly argued, “it would be a national disaster if the government fell into Democratic hands.”

After the decision, Hewitt called the commission a fraud. But he had to admit that a prolonged crisis was disrupting American business and the economy. In other words, Vidal concluded, Hewitt and others felt “four years of Hayes is better than four years of civil war.”

How about the next four? In less than 14 months, Congress and the country may face a similar choice.