Was Rutherford B. Hayes a criminal?
“I think we are defeated.” So said Rutherford Hayes to reporters days after the election of 1876. Later, in a letter to his son, Hayes took solace in his defeat. “We escape a heavy responsibility, severe labors, great anxiety and care,” he said.
President Grant, who had hoped Hayes would succeed him, had the same view. The day after the election, following a briefing by Republican leaders, all of whom thought Hayes had lost, Grant declared, “Gentlemen, it looks to me as if Mr. Tilden [the Democratic nominee] is elected.”
Compare Hayes’ understanding of the outcome of the 1876 election with Donald Trump’s understanding of the 2020 outcome. Hayes thought he had lost. There is no evidence — or at least none contained in the Trump indictment — that suggests Trump believed he had lost.
Under accepted understandings of what it meant to be elected president, Hayes and Grant were right. Hayes had been defeated.
It was true that three southern states — South Carolina, Florida, and Louisiana — had not finalized their counts. But even without these returns, Tilden was only one electoral vote short of victory.
Moreover, Hayes trailed Tilden by around 7,000 votes in Louisiana. That’s not a big margin these days, although I can’t recall one of that size being overcome in a recount. However, fewer than 150,000 Louisianans voted in the presidential election of 1876. Thus, “finding” the votes (as Trump would say) to overcome a 7,000 vote deficit seemed nearly impossible absent fraud on behalf of Hayes.
But Hayes did not give up. Like Trump all those years later, Hayes’ team alleged fraud in the three disputed southern states.
Undoubtedly, voter fraud had occurred in all of them (and in other states, as well). But was there fraud that would have changed the outcome in any state where Hayes trailed Tilden?
In particular, was there evidence of fraudulent counting that would have changed the outcome in Louisiana where, as noted. Tilden led by 7,000 votes? I don’t think so. Nowadays, the claim that Hayes actually won more votes than Tilden in Louisiana would be characterized by pro-Democrat newspapers as “unsupported,” if not “baseless.”
Nonetheless, the Republican governor of Louisiana, William Kellogg, set out to “find” 7,000 votes for Hayes. He set up a bogus election board, consisting exclusively of Republicans. It found so many Hayes votes (and/or excluded so many votes for Tilden) that the 7,000 vote deficit became a 5,000 vote surplus.
Governor Kellogg, a northerner, was a corrupt figure. One respected reporter described him as “utterly unscrupulous, thoroughly corrupt and full of wiles.” Bret Baier, in his treatment of the 1876 election, says that “falsifying records and persuading others to lie [were] all in a day’s work for Kellogg, and this was widely known.”
President Grant was among those who knew it. He had installed Kellogg as governor by executive order following a disputed election in 1872, but was consistently disappointed in Kellogg’s performance.
Abram Hewitt, chairman of the national Democratic party, said that during a meeting with Grant, the president told him he had little confidence in Louisiana’s election board and wondered whether the state’s result should be declared invalid. Hewitt publicized this statement and, though, it caused tension between Grant and Hayes, the president apparently never denied making it.
A Nineteenth Century Jack Smith appointed by a Democratic president would have had no difficulty finding that Gov. Kellogg defrauded the voters of Louisiana and, by extension, the American electorate.
I won’t get into the weeds of how Hayes eventually became president despite having lost the popular vote by three percentage points and likely coming up short on electoral votes absent fraud in Louisiana. The election was decided by a national election commission that was supposed to consist of seven Republicans, seven Democrats, and a non-partisan Supreme Court Justice, David Davis. But when Davis resigned from the Court to become a member of Congress, he lost his eligibility to serve on the commission. He was replaced by Justice Joseph Bradley, a lifelong Republican.
Bradley broke the tie in favor of Hayes. In doing so, he concluded that Congress could not look behind the determinations of state election boards. Thus, Bradley would not consider evidence as to whether these determinations, including Louisiana’s, were valid or fraudulent.
Behind the agreement to have the race decided by the commission were promises made by leading representatives of the Republican party in a smoke-filled D.C. hotel room. The Republicans at the meeting included future president James Garfield. Hayes wasn’t present but certainly knew about the meeting and what was agreed to.
The Republicans agreed that the Hayes administration would permanently withdraw federal troops from the south, thereby ending Reconstruction. The government would also recognize the legitimacy of Democrat governors in South Carolina and Louisiana where the gubernatorial races were still in dispute. In return, the Democrats would accept the legitimacy of the electoral commission and accede to a Hayes presidency.
Let’s return to the question I started with: Was Hayes a criminal? I don’t think so and history has not adjudged him to be — though he was stuck with the nicknames “Rutherfraud B. Hayes” and “His Fraudulency.”
But under the theory being used to prosecute Donald Trump in connection with the 2020 election, Hayes might be considered a criminal. He contested the outcome of a presidential election even though he thought he had lost it.
In contesting the outcome, he and others on his behalf had to “find” 7,000 votes in Louisiana. The votes were found by a sham election board which likely committed fraud. Hayes did not participate directly in this fraud, but a creative lawyer might argue that it was part of a conspiracy initiated by Hayes to overturn the apparent outcome of the election.
To be fair to Hayes, he had some equity (in the true sense of the word) on his side. It might well be the case that without the suppression of the black vote in Louisiana (and elsewhere), Hayes would have carried the disputed southern states beyond dispute. But this is speculation, not fact.
Trump can say that had the voting rules not been changed by Democrats in key states, he would have carried enough states to defeat Joe Biden. However, you can’t fairly compare voter suppression, which is clearly unlawful, with lawful procedural changes that make it easier to vote. If I’m not mistaken, only in Pennsylvania were the changes ruled unlawful. Trump would not have won the election even if he had carried Pennsylvania.
In terms of criminal justice, though, it seems to me that, if anything, Hayes may be on weaker ground than Trump. Both contested an election they apparently had lost. Hayes thought he had lost. Trump didn’t.
Both took the kinds of action one needs to take to contest an election. Both alleged fraud. Both went hunting for votes. Both presented Congress (or in Trump’s case tried to present it) with electors prepared to vote for them in the disputed states.
Hayes’ side very likely committed actual voter fraud in Louisiana. Trump did not commit such fraud in any state. In Georgia, he did push the Secretary of State to find thousands of votes. However, the Secretary did not comply. Nor is it clear that Trump was asking him to find them through fraud, as opposed to a more accurate counting.
Trump should not have been indicted in connection with the 2020 election. A losing candidate has the right to claim he won, and to contest the outcome through measures that are not, in themselves, unlawful. While losing candidates should not exercise that right beyond a certain point in time, the criminal code should not be stretched to prosecute those who go beyond that point.