A key component of the effort to negate Joe Biden’s Electoral College victory, in the hope that it might somehow lead to a second term for Donald Trump was the submission for congressional consideration of purported electoral votes cast for Trump from seven battleground states. It was, among other tactics, a fool’s errand, since there never was a chance that Congress was going to recognize Trump as the winner.

Joe Biden won the popular vote in all these states, as recounts and lawsuits had uniformly confirmed. The actual electors appointed in these states pursuant to state law, based on the outcome of the state’s popular vote, were those pledged to support Biden, and these electors dutifully cast their ballots for Biden and properly proceeded to send their votes to Congress to be counted on January 6, 2021, as required by the Constitution’s Twelfth Amendment. In contrast, the supposed electoral votes cast for Trump had no official status in any of the states because no institution of state government recognized Trump rather than Biden as having won the popular vote in that state. Mike Pence, as Senate President, would not even let these pro-Trump submissions be opened in the joint session of Congress because, without any claim of any backing from any part of their state’s government, they could not be acknowledged as even asserting to be official electoral votes entitled to be considered by Congress.

Since then, the question has arisen whether anyone should be criminally prosecuted in connection with these submissions of groundless pro-Trump electoral votes. As part of considering this question, it is worth comparing an historical example in which self-proclaimed electoral votes were sent to, and considered by, Congress. The historical episode sheds light on the answer to how the criminal law should be wielded to address the schemes to overturn the 2020 election.

South Carolina in 1876

In 1876, South Carolina was one of three southern states that quickly became disputed after the popular vote had been cast in November. Florida and Louisiana were the other two. The Republican candidate, Rutherford Hayes, needed all three of these states for an Electoral College victory, whereas Samuel Tilden needed just one.

Tilden’s position was strongest in Florida. In fact, an honest count of ballots cast would have shown Tilden the state’s winner. His party’s slate of electors in Florida also met on the congressionally designated day for all electors in every state to cast their Electoral College votes. But unlike in South Carolina, as we shall focus on momentarily, Tilden’s Florida electors were backed by an official of the state’s government: Florida’s Attorney General, a Democrat, who purported to certify Tilden the winner of the state. On the same day, however, Republican electors in Florida voted for Hayes, backed by a certification from the state’s canvassing board that Hayes had won the state (as a consequence of the board’s dishonest counting of the ballots). Later, Florida’s judiciary and legislature would act to undo the canvassing board’s certification in favor of Hayes, and additional official documentation of Tilden’s popular vote victory in the state would be sent to Congress to supplement the Attorney General’s initial declaration of this result.

Tilden’s status in Louisiana was much weaker than in Florida although it was superior to his standing in South Carolina. In Louisiana, there was a dispute not only over who won the presidential vote there but also over who was the lawful governor of the state. The Grant administration was backing the Republican claimant, who certified that Hayes had won the state’s popular vote for president. The Democrat claiming to be governor, by contrast, certified that Tilden won the state.

In South Carolina, by contrast, there was no one with any colorable claim of official authority in a position to certify Tilden the winner. Still, Democrats there were claiming that he had won. Their main argument was that the state lacked a voter registration law, even though the state’s constitution required one. Unlike in Florida, Tilden’s supporters could not reasonably claim that more of the popular votes actually cast in the state were for him rather than Hayes.

Nonetheless, Tilden’s electors met and voted for him on the congressional designated day for Electoral College balloting. They submitted their spurious electoral votes to the Senate President pursuant to the Twelfth Amendment as though they rather than the Hayes electors were entitled to cast the state’s official Electoral College votes. In their submission, which was labeled in the joint session of Congress held to receive the votes in the 1876 election as “Certificate No. 2” from the state (“Certificate No. 1” being the one submitted in favor of Hayes), the Tilden electors declared themselves as “being electors duly and legally appointed by and for the State of South Carolina, as will hereinafter appear.” They acknowledged that their submission was not “signed by the governor” and “the seal of the State as affixed thereto, as required by law, is not attached.” They continued: “its absence is explained by the following statement.” Then they proceeded to recount the grounds on which they thought themselves rather than the Hayes electors entitled to be considered the true electors for the state.

Whatever else was contested during the entire Hayes-Tilden dispute, there was no doubt that the South Carolina electoral votes cast for Tilden were not valid because the individuals who cast them clearly had not been, despite any claims to the contrary, appointed as the state’s electors. The Electoral Commission that Congress created to settle the Hayes-Tilden dispute split 8-7 on most key questions, including whether to count the South Carolina electoral votes cast for Hayes (yes) and whether to count the Florida electoral votes cast for Tilden (no). But the Commission agreed unanimously, 15-0, with the proposition that the individuals in South Carolina who purported to cast electoral votes for Tilden “were not the lawful electors for the State of South Carolina, and that their votes are not the votes provided for by the Constitution of the United States, and should not be counted.”

Despite this unanimity, reflecting the patent invalidity of their claim to be the state’s “duly and legally appointed” electors, none of these South Carolina individuals (as far as I know from my research) were criminally investigated or prosecuted for making this assertion. Even if it would have been possible theoretically for the incoming Hayes administration to prosecute these Democrats for making a false statement to Congress under the precursor statute to 18 U.S.C. § 1001, the political incentives for such a prosecution were lacking because of the compromise between Hayes’s representatives and Southern Democrats that let Hayes become president in exchange for abandoning Reconstruction in the South. Furthermore, a couple of years later, during a congressional investigation, evidence emerged that top participants in the Tilden campaign, including Tilden’s own nephew, had engaged in an effort to bribe local election officials in the disputed Southern states, including South Carolina, to alter the election returns. But even this apparent criminality did not result in prosecutions and convictions of the perpetrators, but instead caused Tilden’s political disgrace, preventing him from returning as the Democratic party’s presidential nominee in 1880 as had been his plan immediately after Hayes was inaugurated.

Vermont in 1876

The South Carolina submission on behalf of Tilden, however, was not the most frivolous one submitted. Rather, as the joint session of Congress approached the end of the Electoral College count, having taken the states in alphabetical order, there was a surprise development concerning Vermont. The Senate president announced that he had received only a single submission of electoral votes from the state, cast in favor of Hayes, who had indisputably one the state’s popular vote. But a Democratic member of Congress, Abram Hewitt, who later would serve as mayor of New York City, claimed to possess a second submission of electoral votes from Vermont.

This package of purported electoral votes was never opened in the joint session. The Senate President refused to accept it, despite protests from hardliner Democrats. He said it had missed the deadline for any such submissions. Although there was a subsequent effort in the House of Representatives to force the joint session to submit Vermont to the Electoral Commission for its consideration, a delay that would have endangered completing the count of electoral votes before the scheduled inauguration of the new president, the Speaker of the House blocked this move even though it was orchestrated by pro-Tilden members of his own party—and even though he had been personally chosen by Tilden to be Speaker in order to represent pro-Tilden interests during the dispute.

The Vermont kerfuffle is not well known even among those who have studied the Hayes-Tilden dispute, and its significance both for how that controversial election ultimately ended and how best to avoid similarly serious disputes in the future is even more poorly understood. For present purposes, however, only this needs to be said: there was never any pretense that Hewitt’s purported package of electoral votes from Vermont had any official recognition from the state’s government. At most, the claim seemed to be that one of the state’s electors who had cast an electoral vote for Hayes was not entitled to serve as an elector as a consequence of being employed by the U.S. Post Office. This federal employment might have served as a basis for disqualifying that elector and replacing him with another, although any replacement elector should also have voted for Hayes given the state’s popular vote. A similar situation in 1876 had occurred in Oregon, and there the Democratic government attempted to abuse the issue in order to manufacture one electoral vote for Tilden. But in Vermont no part of the state’s government had given credence to any claim that Tilden had received one of the state’s official electoral votes. Thus, whatever Hewitt’s unopened packaged contained, it did not contain electoral votes that had been certified by any agency of the state.

Despite the “bogus” status of Hewitt’s purported electoral votes from Vermont—to use the term employed by the leading early historian of the Hayes-Tilden dispute—no one including Hewitt (again based on my research) was ever criminally investigated or prosecuted for attempting to include this groundless submission within the proceedings of the joint session.

Relevance of 1876 for 2020

I raise what happened concerning South Carolina and Vermont as part of the overall Hayes-Tilden fight because of its relevance to the current consideration of whether there should be criminal prosecutions in connection with the submission of purported electoral votes for Trump from several states despite these votes lacking any official backing in any of the states. The argument is that these submissions were false, fake, fraudulent, or counterfeit in ways that violated criminal law, including the crime of making false statements to Congress.

To be sure, some of these submissions contained specific false statements, like asserting to have met in the state capitol building when in fact these individuals did not. Moreover, some signaled their status as contingent on receiving some form of subsequent official recognition, whereas others contained no such qualification. Arguably, the latter should be vulnerable to prosecution for asserting a blatant falsehood—in contrast to the former, which like the Tilden electors in South Carolina, were arguing a proposition of law, however frivolous, rather than making a factual claim that was demonstrably untrue.

Despite these distinctions, there are reasons to be wary of prosecuting any claimed electoral votes sent to Congress. Forgery is one thing (and, indeed, signatures were forged on one of the submissions of electoral votes from Louisiana in 1876). But openly asserting that one is the duly appointed elector of state, even when that claim is utterly without merit—as it was in the case of the supposed South Carolina electors for Tilden, and as it would have been even more so with respect to any Vermont electoral votes purportedly cast for Tilden—is to make an argument about one’s status under the law. It is not an attempt to dupe recipients with counterfeit papers.

Especially in the context of a presidential election, when the goal is to settle the outcome so that the occupant of the Oval Office can exercise executive powers on behalf of Americans as a whole (those who voted both for and against the eventually declared winner), the better course seemingly would be to reject frivolous claims as unworthy of serious consideration—in the manner of the Electoral Commission’s 15-0 rejection of the South Carolina votes for Tilden—rather than by endeavoring to imprison these frivolous claimants for asserting their preposterous arguments.

An exception to this point might be made for the overall enterprise of attempting to seek the opposite result of the election than the one required by the Constitution and applicable laws. What distinguishes the Hayes-Tilden dispute from the “Big Lie” claim of a stolen election in 2020 is that there were plausible arguments to Tilden’s position that he was the candidate that deserved to be recognized the Electoral College winner by the joint session of Congress, whereas there never was any plausibility whatsoever to arguments made on behalf of Trump. Thus, however frivolous the specific assertions by Tilden’s side regarding South Carolina or Vermont, they were components of an overall effort that did not altogether lack some merit. By contrast, every part of the claim that Trump was the rightful winner of an Electoral College majority, and that Biden’s victory was thus wrongful, was utter “rubbish,” as Attorney General Bill Barr and others repeatedly told Trump.

Consequently, one can take the position that the perpetrators of the Big Lie, knowing that it was false and knowing they could not prove otherwise, deserve criminal prosecution for the entirety of their conspiracy to defraud the United States of the correct outcome of the 2020—which is a proposition different from arguing that the individual submission of the electoral votes on behalf of Trump was itself a criminal offense. Indeed, some of those individuals willing to submit electoral votes on behalf of Trump may be more appropriately viewed as victims of the “Big Lie” conspiracy to defraud the electoral process, rather than perpetrators of conspiracy. Which side of this line any particular individual is on should be seen as based on the specific facts concerning that individual’s involvement with the “Big Lie” claims. If, for example, as chair of a state party, a person was actively coordinating with members of the Trump campaign to knowingly convert the falsehood that Trump had won the election into congressional proceedings that would ratify that fraud, then there is a case for that individual to be considered part of the overall plot. But if someone simply signed an alternate slate of electoral votes having been falsely told by others that there were grounds for claiming that Trump rather than Biden had won the state (and in the hope, although farfetched, that the courts or state authorities would later recognize them as such), then this particular individual was among those defrauded by the Big Lie conspiracy.

Here is not the place to say definitively whether anyone, including Trump himself, ultimately should be prosecuted for an overall conspiracy to defraud the United States because of the orchestrated effort to subvert the true outcome of the 2020 election. Rather, the point, for present purposes, is the need to be careful when considering the possibility of any criminal charges in connection with the submission of rival electoral votes. What happened regarding South Carolina and Vermont in the Hayes-Tilden election is reason to distinguish between situations depending upon the character of the dispute as a whole. The Hayes-Tilden controversy was genuine, and the particular details concerning South Carolina and Vermont must be seen in that context. Nothing about Trump’s challenge to Biden’s electoral victory was genuine, and that basic point should make all the difference.

IMAGE: Vice President Mike Pence and Speaker of the House Nancy Pelosi, D-Calif., stand after to reading the final certification of Electoral College votes cast in November’s presidential election during a joint session of Congress, after working through the night, at the Capitol on January 7, 2021 in Washington, DC. (Photo by J. Scott Applewhite – Pool/Getty Images)