On Friday, former President Trump asked a federal judge in Florida to restore his Twitter account. Trump was banned from Twitter after the January 6th incident at the U.S. Capitol. Trump is asking for a preliminary injunction allowing him back on the platform, arguing he is likely to succeed on the merits of the case when it is heard in full.
Trump is not the only one arguing in recent months the big social media platforms are not private companies but have become, at least in some instances, state actors. As extensions of the government, they are subject to free speech requirements under the First Amendment, the argument goes. [see The Daily Skirmish for 7/7/21].
Trump’s court filing cites previous cases establishing the state actor doctrine where private defendants act in concert or in agreement with government entities to deprive people of their constitutional rights. [pp. 12-13]. So it’s a valid theory. The question is whether or not Trump can make out a case on the facts that Twitter became a state actor by banning him from its platform. Trump argues the Biden administration and Democrat members of Congress encouraged and even coerced Twitter into banning him. We’ll see if Trump can prevail when his case is tried on the facts. [pp.8-9]
Meanwhile, other allegations of social media platforms colluding with government officials to deny free speech have surfaced in recent weeks.
Twitter blocked a story about Hunter Biden’s laptop after receiving information from U.S. intelligence officials, but the Federal Election Commission found Twitter blocked the story for commercial, not political, reasons. Senator Rand Paul said YouTube censored him because it was falling in line with Anthony Fauci’s approach to COVID, an approach Rand Paul has criticized repeatedly. A watchdog group found Facebook and the CDC closely coordinated to block information about COVID. Facebook is coordinating with the White House on this subject, too. The Surgeon General also wants Big Tech to block information about COVID he doesn’t want people to see. New York’s new Governor asked Facebook to censor information she didn’t like about the new abortion law in Texas. A consortium of tech companies is using lists produced by government intelligence agencies to police posts by white supremacists, militias, and other extremist groups.
Maybe suppressing information about COVID and white supremacy sounds like a good idea to you, but we’re not getting the straight story from government officials about either one. We need other information not filtered through government about both so that we, the sovereign people, can decide for ourselves what is true and what is not. Besides, Big Tech censorship doesn’t stop with these two subjects. Investigators found that Hunter Biden asked Facebook executives to take down accounts that presented unflattering information about him. Moreover, they found collusion between the Biden family and Facebook going back for more than a decade.
There is no reason unfavorable information about Hunter Biden should be suppressed, and no reason he should be in charge of what the public can and cannot see about him. I can’t think of anything worse than Hunter Biden being placed in charge of a Ministry of Truth about Hunter Biden. This is why social media companies that filter information for the government should be treated as state actors subject to the First Amendment, not purely private entities answerable to no one but themselves and insulated by law, unlike newspapers, from all legal liability for their editorial decisions. That’s too good a deal and the state actor theory might succeed in bringing it to an end.
The Independence Day weekend brought a bizarre video from Mark Zuckerberg waving the American flag while riding a hydrofoil surfboard. The video has been widely reported and mocked, with no real suggestion it might be fake, begging the question, ‘What’s that flag for, Zuck?’ This country was founded on individual rights, including freedom of speech. Yes, I know Facebook is a private company and not subject to the First Amendment, but there is a distinct lack of fidelity at Facebook and other Big Tech companies to underlying values of free expression. Facebook bans people when Zuck doesn’t like what they say. Facebook has interfered with my accounts, warning people that my posting of official CDC numbers of COVID vaccine deaths is an affront to decency and good order. Twitter shut down two of my accounts completely - because the Tea Party is such a threat to national security, like we shut down interstate highways, or something. I won’t be back to Twitter. They suspend people for stating the obvious biological fact that men cannot give birth. Amazon removed a book taking a dim view of anti-science transgenderism. Pravda has spoken.
Free expression is under assault from several directions, not just woke tech companies playing footsie with their authoritarian pals in government who want to shut down the political Right.
Joe Biden tore up a Trump presidential order that tried to combat online censorship.
A Democrat-controlled House committee asked cable news providers to stop carrying news networks Democrats don’t like. They can call it ‘misinformation’ and ‘encouraging violence’ but that doesn’t cover up the fact the authoritarian Democrats in the House simply do not like free expression or hearing anything that contradicts their party line. Their authoritarian friends at CNN offer elaborate justifications for why their rivals should be silenced. The New York Times wants the federal government to get into the business of deciding what is true and what is false, what speech is worthy and what is not. A truth commission or ‘reality czar’ - more bad ideas from the Big Media wing of the authoritarian Left.
A public school system in Massachusetts encourages kids to rat out other kids for supposed bias and microaggressions. Call your principal ‘crazy’ and you’ll get a visit from the goon squad, ahem, ‘bias response team’. The idea of turning kids into spies is spreading.
IMF researchers have called for your Internet search history to be tied to your credit score. Banks would be given authority to track everyone’s search history and somebody somewhere would be given the authority to decide whether visiting your favorite websites disqualifies you from getting a car loan. What could possibly go wrong?
Late last year, the UN General Assembly adopted a Pakistani resolution condemning blasphemy in the name of countering Islamophobia and promoting interfaith dialogue. Ah yes, nothing promotes dialogue like ‘shut the hell up or we’ll behead you.’ You might not think the UN matters, but Hillary Clinton and others on the authoritarian Left have already tried to bring Islamic speech codes to the U.S. through the UN. Canada has those rules and, presumably, they would stop you from expressing your opinion about Islamic militias that shut down highways because, to do so, would be a hate crime, you see.
Connect the dots, and it’s a worrisome picture. There are reasons why America is supposed to protect free speech and underlying values of free expression. Here are just three: First, and foremost, in America, the people are sovereign and need free speech to discharge their sovereign duties. Second, President McKinley’s assassin came from a country that did not have free speech, narrowing his view of how to petition government for redress of grievances to firing a gun. Shut down free speech, and bad things are going to happen - it’s foreseeable. Finally, free speech protects your private life and all your personal relationships. Imagine not being able to express our ideas to each other. All human bonding would be destroyed and isolation would be all that would be left. Zuck really should bone up on why we have free expression, if we can get him off his surfboard and to stop mindlessly waving the flag around.
Yesterday, the Supreme Court delayed the Harvard affirmative action case, asking the Biden administration for its views on the use of race in college admissions. The plaintiffs argue Harvard intentionally discriminated against Asian-American applicants in its admissions process. The problem is too many Asian-American students are excelling so, if only merit were considered, there wouldn’t be enough blacks and students of other races to make up a diverse student body, so Harvard says. All bow down to the god of diversity and to hell with merit and other supposedly white constructs - or is that Asian constructs? I’m getting mixed up.
Let’s go back to the beginning. There was a civil rights movement in the ’60s in this country to redress real grievances, achieve simple justice, and bring about true equal protection under the law. No more standing in the school house doorway. I’m a simple guy; I like simple justice. But then came the first departure from simple justice - affirmative action. It also used to be called ‘compensatory equal protection’ to make up for past grievances - reparations, if you will. How that can be squared with the plain meaning of the 14th Amendment equal protection clause, I don’t know, but the important fact to remember is that affirmative action was supposed to be temporary. And here it is over 50 years later and affirmative action is still around. It’s made things worse, not better.
Then came systemic racism, which I was writing about 10 years ago when the professional Right was asleep at the switch. I warned that people with influence needed to stand up against the idea or it would take over popular thought and public policy in a few short years. And here we are, at each other’s throats. Systemic racism is all the rage, the chattering classes can’t stop talking about it. Meanwhile, people all whipped up into a frenzy with race hatred are out shooting people. Systemic racism has been followed by white privilege, microaggressions, antiracism, and critical race theory - each new departure from the simple justice of the civil rights movement more toxic, more divisive, and creating more resentment than the last. These things are not helping, except to provide livelihoods to race hustlers who are making a fine living and Building Large Mansions peddling this stuff. All bow down to racial centralism - the crazy notion that the only thing in the whole wide universe worth talking about is race.
The Asian-Americans I know teach their kids to excel. They are a model to the rest of us. They don’t like being told to sit in the back of the bus. Some of them were mad enough to sue Harvard. In my local area, many are upset that admission to a magnet STEM high school with a supercomputer will no longer be on the basis of merit. Standardized tests are out and socioeconomic status, a sanitized proxy for race, is in. Litigation, again on behalf of Asian-Americans, is pending. All bow down to diversity, because that’s the important thing - right? - not academic excellence, the best qualifications for the job, being able to compete in the world economy, or any of those other pesky competing policy considerations that might upset the diversity-industrial complex. Unless, of course, you like the people flying your plane being chosen on the basis of their skin color, not merit. Safe journey.
It’s time to end the tunnel vision of racial centralism and the exclusion of competing values. It’s time to stop having a one-track mind about diversity. And it’s time to end affirmative action which, I remind you again, was only supposed to be temporary. The Harvard case is an excellent opportunity for the Supreme Court to go back to the plain meaning of equal protection. The Justices can end affirmative action without being accused of being white supremacists - a better opportunity will not soon arise. And it’s time to stop believing black people can’t make it without the government handing them a crutch. I can’t think of anything more racist.
Finally, it’s time to stop punishing people who excel. No more standing in the schoolhouse doorway, Harvard.
Race relations are getting worse in this country and I blame the Left.
First, for trying to do away with the equal protection clause. The latest example is the Biden administration trying to prioritize COVID grants to restaurants based on race and gender. Earlier examples include Washington state denying COVID vaccines to white people to favor non-whites, Oakland denying low income grants to whites to favor blacks, the Biden Education Department approving racially segregated affinity groups in schools again and, of course, Harvard discriminating against Asians to favor blacks in college admissions. You can yak all you want how all this is compensation for past wrongs, but segregation is segregation - poisonous and ruinous to race relations. You can’t cure racism with more racism. It sets up an endless cycle of accusation and retribution. Tell me that’s a step forward.
Second, the Left thinks minorities are too stupid to engage the world on equal terms and we need to lower the bar to accommodate their stupidity. Calling voter ID laws racist with no basis in fact is one example, but there are others. Oregon schools don’t want to require coming up with the right answer in math class because that would be racist. Boston shut down its advanced classes in public grade schools because there were too many whites and Asians in the program. What a tragic loss for the other kids in the program - not only did they lose advanced content but also the chance to rub shoulders and start making deeper connections with a set intelligent peers who are more likely than average to go places later in life. Anybody who has seen ‘Stand and Deliver’ - a movie based on the true story of minority students in L.A. excelling in math - knows the Left’s belief that minorities are stupid is just plain wrong. If believing minorities are stupid and can’t take care of themselves isn’t racist, I don’t know what is.
Third, the Left keeps moving the goal posts, redefining racism, and spinning ever-more poisonous racial theories. A Nevada school teaches its students that "people of color CANNOT be racist," which is obviously crazy. Bitter Democrat demagogue Maxine Waters declared that police in America believe “their greatest challenge and their greatest chore is to keep black people in their place.” Not helpful, Maxine. Merriam-Webster has redefined ‘color-blind’ as racist for refusing to address inequities in society.
Speaking of ‘equity’, it has replaced ‘equality’ as the Left’s guiding light, but what it really means is redistribution of everything by an increasingly authoritarian government that can only start by taking people’s stuff away by force. Economic egalitarianism isn’t equality before the law under the equal protection clause; it’s “legal plunder” in Frederic Bastiat’s elegant phrase. We’ve gone from equality under the law in the 14th Amendment and the civil rights era to an increasingly poisonous parade of theories that stand equality on its head - affirmative action, systemic racism, antiracism, and so forth until we arrive at critical race theory which is, undeniably, Marxist in origin. None of this helps race relations in this country. All these theories do is cause resentment and keep different groups at each other’s throats. Don’t believe me? Ask the Asian-Americans suing Harvard for discrimination and condemning critical race theory as hateful, divisive, and manipulative.
Finally, I blame the left-wing professional race hustlers for pushing all this poison on the country. They’ve whipped people up into a frenzy, like the Black Lives Matter protester near Seattle who said, “I can’t wait until black people lynch white people!” BLM is a group of self-admitted trained Marxists, pushing race hatred for its own purposes and financial gain. And get a load of the youthful beliefs of Kristen Clarke, Joe Biden’s nominee to run the Civil Rights Division of the Justice Department: the human brain is structured in such a way as to make black people superior to white people; and blacks have superior physical, mental, and spiritual abilities. Black supremacy - ye gads!
Race hustlers also tell people, ‘You’re a victim and, no matter what you do, you can’t change your circumstances,’ a poisonous and false message if I’ve ever heard one. But here’s the kicker: They go on to say, ‘You need us professional race hustlers to intercede on your behalf; otherwise you’ll have nothing.’ Another manifestly untrue statement, spreading the poisonous dynamic of learned helplessness. And for what? So the professional race hustlers, critical race theory trainers, and all the others who make up the leftist Race-Industrial Complex can make a buck and advance their careers. Follow the money, folks, and you can’t help but be cynical about the increasingly poisonous messages they offer. Whatever sells.
The Democrats predictably called for more gun control after the Atlanta and Boulder shootings, like they always do. But their proposals, by and large, would not prevent future mass shootings.
Let’s look at the Boulder case. Gun control started ramping up in Colorado after Columbine, but it’s as useless there as it’s proven to be in Chicago where wholesale slaughter still occurs on a weekly basis. Colorado already has universal background checks, large-capacity magazine bans, and a ‘red flag’ law. But none of these restrictions stopped the Boulder attack. The ‘red flag’ law had no effect in this case, despite the fact the family knew he had the rifle and his older brother said the suspect was mentally ill. “Colorado has every gun law known to this country … but that didn’t prevent this incident,” a former FBI official told Fox News. More gun control measures already under consideration in Colorado before the shooting would tighten gun-storage rules and require reporting of lost or stolen firearms. Based on what we know so far, neither of these proposals would have had any bearing on the shooting.
The shooter had an AR-15 style rifle and a semiautomatic pistol. He bought them on March 16th despite a juvenile guilty plea to assault in 2017. Juvenile records are typically sealed, and for good reasons. Boulder had an assault weapons ban until March 12th when it was temporarily blocked by a judge in a gun rights case. Some say keeping the ban in place would have stopped the shooting, but the suspect didn’t live in Boulder; he drove in from another town. Moreover, Boulder apparently wasn’t enforcing its assault weapons ban, anyway.
Gun control is an invitation to endless whack-a-mole. Whenever a law doesn’t work as advertised, there are calls for more laws. If the laws aren’t enforced, well then maybe we need to force officials to enforce the unenforced laws more. If shootings continue after all that , then we need a federal universal background check, even though a study showed the vast majority of the guns used in almost 20 mass shootings were purchased with a federal background check. The shooters in Orlando and Las Vegas passed their background checks. All these laws can be evaded by straw purchases, where individuals ask other people to buy guns for them. Even if you were to write an entire Napoleonic Code to cover every conceivable situation, you would still have knife attacks with multiple victims as occurred on the London Bridge in 2019. It’s a fool’s errand; the problem needs to be solved some other way.
It’s being argued that a federal assault weapons ban would put a stop to all mass shootings like the one in Boulder. Maybe, but ask yourself some questions: How authoritarian do you want to get? How does taking guns out of the hands of law-abiding citizens reduce crime? Why take away rights from all Americans when only a tiny handful poses any problem?
H.R. 127, introduced in Congress in January, would, among other things, mandate a federal gun license, start up a national gun registry, require a mental health exam for ALL gun owners, and require every gun owner to purchase liability insurance. This flips the Constitution on its head. Instead of being born with a right to bear arms, everyone would have to petition the government to grant them the privilege of gun ownership. There are good reasons not to turn our rights into privileges the government can take away at any time. Think about free speech, for example. What if you had to get a federal license before you could post on social media, and the government official handling your request didn’t like your politics? Natural unalienable rights or government privileges - to me, the choice is clear.
The people in government predictably calling for more gun control at the moment are authoritarians to their fingertips. They want ALL my rights, so I’m not willing to give them ANY of my rights. They won’t stop with a federal assault weapons ban or a gun registry, just ask them. They won’t be satisfied until nobody has a gun. I’m sorry, but they are precisely the kind of people - unapologetic power-hungry authoritarians - that the Second Amendment is meant to protect us from.
Twenty Republican state attorneys general sent a letter to House and Senate leaders yesterday warning states will sue if Congress passes H.R. 1, the Democrats’ elections modifications bill. H.R. 1 would federalize state elections, violate the Constitution in numerous ways, and strip away existing safeguards leaving elections more vulnerable to fraud.
The Constitution gives exclusive responsibility to specify the manner of holding presidential elections to the states. Congress only has power to “determine the Time of chusing the Electors.” The framers set things up this way so presidents would not be dependent on Congress for their authority. Because states have exclusive power to prescribe the method of choosing electors, legislation would be unconstitutional if it forces states to permanently adopt presidential voting by mail.
The Constitution gives primary responsibility for specifying the manner of holding congressional elections to the states, giving lesser authority to the federal government. H.R. 1 is unconstitutional because it would make the federal government the primary regulator.
H.R. 1 is also unconstitutional, the signers say, because it tells the states what to do and forces them to devote resources and personnel to implementing federal mandates. States are not supposed to be commandeered in this way.
The mandates in H.R. 1 are objectionable, the letter goes on to say. Doing away with voter ID and allowing voters to self-certify they are eligible to vote strips away any assurance voters are who they say they are. Nationwide automatic voter registration and same-day registration open up too many avenues for fraud by noncitizens and others ineligible to vote. Preventing states from cleaning up their voter rolls - removing dead voters and the like - by requiring mountains of proof in every individual case before a single person can be removed, effectively means voter lists cannot be maintained at all. Putting congressional redistricting in the hands of independent commissions may sound good, but it would mean state lawmakers could not be held accountable for the inherently political decisions the so-called experts would make.
The letter closes with the problems caused by requiring any group expressing political opinions to disclose their donor lists. As others have noted, this would open up individuals and groups to harassment, doxing, and retribution. A lot of people would simply pull out of the political process altogether to avoid these problems, and we would have a lot less free speech and information about issues and candidates, as a result. Critics have also noted H.R. 1 would make the Federal Election Commission hyper-partisan and turn it into a weapon the party in power could use against its political opponents. There would also be new year-round rules limiting what almost every group of citizens - not just super PACs in election season - could say about politics and public issues through radio, TV, newspapers, and the Internet.
H.R. 1 is a hydra-headed monster, another power grab, another overreach by Washington. Let’s hope it dies in the Senate. If it does become law, let’s hope the 20 state attorneys general prevail in court for that is, surely, where they will go.
Pushback: Pennsylvania Lieutenant Governor Conjures Up Fantasy First Amendment
Impeachment: Alan Dershowitz - impeaching President Trump after departure from office is clearly unconstitutional
RFRA: Catholic entities not bound by Obamacare transgender mandate, federal court in North Dakota rules
2A: BATF withdraws costly pistol brace guidance
2A: Smith & Wesson sues to quash subpoena regarding advertising practices; subpoena part of New Jersey’s anti-gun agenda
Electoral College: National Popular Vote compact would turn America into the Hunger Games - rural citizens and small states would be turned into serfs to feed their masters in distant large cities
263 Muslim public officials and candidates were asked whether they support the U.S. Constitution and the results are disturbing
The Democrats’ elections bill, H.R. 1, has been reintroduced [unofficial bill text here - section summaries here]. It’s similar to last year’s bill, a sprawling 791-page hydra-headed monster that touches on everything from voter rolls and redistricting commissions to campaign finance and beyond. Tonight, I will barely scratch the surface on just one aspect of the bill, its threats to free speech.
According to the Institute for Free Speech, H.R. 1 “would institute sweeping new limitations on speech about campaigns and public affairs. This radical bill would, in fact, greatly harm the ability of the people to freely speak, publish, and organize into groups to advocate for better government.”
The Chair of the Federal Election Commission would become a powerful ‘campaign speech czar’. The FEC currently functions in a bipartisan manner, with six members - three Republicans and three Democrats. The commissioners select the chair who serves for a one-year term. Under H.R. 1, the FEC would become a partisan agency with five members and a chair appointed by the President. Whereas things are now done by bipartisan agreement, the chair would have the power to prepare the budget, issue subpoenas, compel testimony, and appoint a powerful General Counsel and Staff Director, both of whom would have enforcement powers. Enforcement priorities and the selection of campaigns and campaign finance entities to investigate would become partisan exercises. Regardless of your political leanings, do you really want your worst political enemies to have that kind of power over you?
H.R. 1 would also replace the current rules against coordination between political candidates and super PACs. The new rules would apply year-round, not just to campaign season and, if taken literally, would prevent almost every group of citizens - not just super PACs - from communicating about politics and public issues through radio, TV, newspapers, or the Internet. The only ones left who could participate freely in public debate would be the candidates and political parties themselves - plus anyone that a newly partisan FEC decides not to enforce the rules against.
We are staring down the barrel of a Biden administration with the Democrats in control of the House, the Senate, and the White House. It’s a good bet H.R. 1 will get farther this year than it did last year when it died in the Republican-controlled Senate. I’ll have more to say about H.R. 1 on future webinars.
Last week, I told you about the contested election of 1876, which was only resolved with the creation of a 15-member Electoral Commission. The Electoral Count Act was passed in 1887 to prevent another election debacle like 1876. Today, Representative Mo Brooks, Republican of Alabama, is hoping to use the Electoral Count Act this January 6th to get Donald Trump declared the winner of the 2020 election. Brooks said he wants to get the Electoral College votes of five states - Arizona, Pennsylvania, Nevada, Georgia, and Wisconsin - thrown out for voting irregularities.
To go down this path, Brooks has to find a senator willing to co-sign the challenge. Rand Paul indicated he might do so. Ron Johnson is also receptive, but wants to see what transpires at his hearing this week on election irregularities before committing to Brooks. If Brooks can get a senator to sign on, each house of Congress would go to its own chamber for a two-hour debate and then a vote on whether to disqualify the electoral votes of one or more states. Both houses would have to agree. If one house wants to throw out votes and the other does not, the votes remain valid and the process goes from there. But if votes are tossed, one possible outcome is that neither candidate achieves a majority of electors, throwing the election into the House of Representatives where a majority of state delegations picks the winner under the 12th Amendment. However, that’s not the only possible outcome. The Electoral Count Act has so many confusing, ambiguous, and contradictory provisions it makes your head spin. For example, it’s ambiguous, in the case of multiple slates of electors from one state, as to whether the slate certified by the Governor should be counted or no slate is counted at all.
That’s not even the worst of it. The process under the Electoral Count Act is supposed to be completed by the time the term of the outgoing president ends. Under the 20th Amendment, that’s set hard and fast at noon on January 20th. The process might not be concluded by then because the two houses of Congress might disagree whether the electoral count has been completed, or disagree that a new president has been selected. There could be two people claiming to be president at noon on January 20th. If the process is not concluded by that time, then the Speaker of the House - Nancy Pelosi in this case - is sworn in as acting president under the 20th Amendment and the Presidential Succession Act.
They say Congress is where the sausage is made. Not pretty, is it?
The U.S. House of Representatives has been involved in deciding three presidential elections in our history - in 1800, 1824, and 1876.
The election of 1800 has been called ‘recognizably modern’. John Adams and his Federalist Party favored a strong central government, while Thomas Jefferson and the Democratic-Republican Party wanted lower taxes and more federalism. Mr. Jefferson’s party also denounced John Adams’ Alien and Sedition Acts which made it harder for immigrants to become citizens and punished people who criticized the national government. Under the rules before the 12th Amendment, Jefferson and Aaron Burr who was in the same party tied in the Electoral College, each receiving 73 votes. Adams was third with 65. The tie threw the election into the House of Representatives where nobody came out on top in 35 ballots. Jefferson prevailed on the 36th ballot after getting the support of Alexander Hamilton.
In 1824, Andrew Jackson won a plurality of both the electoral vote and the popular vote. But because no candidate got a majority of the electoral vote, the election went to the House under the terms of the 12th Amendment which had been ratified in 1804. Henry Clay had come in fourth in the Electoral College and was eliminated. He threw his support to John Quincy Adams who won the election in the House on the first ballot after getting 13 state votes out of the 24 states America had at the time. This was a big shock to Andrew Jackson who had done the best in both the Electoral College and the popular vote. Jackson had the last laugh, however. There were accusations Henry Clay gave his support to John Quincy Adams in exchange for being named Secretary of State. Clay did in fact become Secretary of State under Adams. Jackson campaigned on it for four years, helping him defeat Adams in the 1828 rematch.
There was high drama again in the 1876 election when Democrat Samuel Tilden won a majority of the popular vote, but came up short in the Electoral College, 19 votes ahead of Republican Rutherford B. Hayes. There ensued a long, drawn-out and controversial post-election process. Twenty electoral votes from four states were contested. There were allegations of election fraud on the part of Democrats and threats of violence against Republican voters in Florida, Louisiana, and South Carolina. Republicans dominated the electoral commissions in those states and awarded their electoral votes to Hayes. In Oregon, the results favored the Republicans, but the state’s Democratic Governor claimed that one of the Republican electors was ineligible, having held office as postmaster. The two Republican electors presented three votes for Hayes, signed by Oregon’s secretary of state. The newly installed Democrat elector reported one vote for Tilden and two for Hayes, signed by the Governor and attested by the secretary of state. Oregon’s votes were eventually awarded to Hayes and the Democrats claimed fraud.
The dispute moved to Congress with Republicans saying the President of the Senate should count the votes and the Democrats arguing no disputed vote should be counted without the concurrence of both houses. The Democrats wanted to block the vote of one state in the House where they held a majority. This would have swung the election to Tilden. This was an unprecedented constitutional crisis which was resolved when Congress passed a law creating a 15-member Electoral Commission to settle procedural disputes and decide what to do with double sets of electoral college votes from states. In closed-door meetings, a grand bargain was struck: Hayes would get the 20 disputed electoral votes he needed to make him President, in exchange for the Republicans ending Reconstruction and withdrawing federal troops from the South. So it was the constitutional crisis of 1876 was resolved, but the resolution came at the price of disenfranchising black voters throughout the South for nearly a hundred years.
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