The 1876 election pitted Republican Rutherford B. Hayes (above) against Democrat Samuel Tilden. Trump lawyer cites 1876 crisis to rebuke Electoral College suit

Donald Trump's attorney is pointing to a near-insurrection after the 1876 presidential election to argue against a lawsuit filed by a member of the Electoral College aimed at disrupting Trump's path to the presidency.

In a filing with a federal court in California, Trump attorneys Brian Selden and Chad Readler reference the turmoil caused in 1876 after "disputes concerning electors from multiple states dragged out for months after Election Day."


"The resulting political uncertainty provoked a constitutional crisis, with many Democrats crying 'Tilden or Blood!' and Kentucky preparing 100,000 men to march on Washington," the lawyers, both of the firm Jones Day, argued, citing a book on the 1876 election called "Fraud of the Century." "The uncertainty also sapped the legitimacy of the ultimate victor, President Hayes, whom Democrats thereafter called 'Rutherfraud' and 'His Fraudulency.'"

The 1876 election, which pitted Republican Rutherford B. Hayes against Democrat Samuel Tilden, hinged on disputed results in Florida, Louisiana and South Carolina, as well as a dispute over one elector in Oregon. The election was not resolved until March 2, when Hayes was deemed a 185-184 winner; two days later, Hayes was inaugurated. Hayes repaid the Southern states by essentially ending Reconstruction, giving those states the ability to treat African-Americans as they saw fit.

The attorneys noted that the outcome of this controversy was a law called the Electoral Count Act of 1887, which required disputes among electors to be resolved at least six days prior to the Electoral College vote — which this year is scheduled for Dec. 19, just five days away.

But it also captures the outrage some of Trump's allies have expressed that continued efforts by Democrats protest Trump's election are intended to undermine Trump's legitimacy as he prepares to take office.

The lawsuit, filed by California elector Vinz Koller, is part of a coordinated plan with electors in other states to invalidate 29 state laws that force electors to back the winner of their state's popular vote when the Electoral College meets Monday. Though in Koller's case, he's required to support Hillary Clinton, he's hopeful that a legal victory will gut similar laws in states won by Trump, freeing Republican electors to break from their candidate and support an alternative.

Similar suits have been filed by Democratic electors in Colorado and Washington state, but in both cases, judges denied their pleas to block the enforcement of laws that require them to support the statewide popular vote winner. Trump and his attorneys intervened in both of those lawsuits as well, but the California suit is the first time they presented a substantive argument against the effort.

The Trump lawyers' remarkable filing — which was joined by the California GOP —compares Koller's effort to an Iranian-style government, in which a council of autocratic clerics is "empowered to reject candidates for public office regardless of their degree of democratic support if the clerics deem the candidates unfit." The filing cites the Iranian Constitution to make the argument.

Kanye West, who met with Trump on Tuesday, also makes an appearance in the filing. Selden and Readler note that Trump's opponents are attempting to convince presidential electors to support an alternative Republican candidate — and some of them have eyed Ohio Gov. John Kasich as that alternative.

"But he was no more a candidate during the general election than was Kanye West, meaning these electors now seek the right to vote for anyone they see fit, not just candidates on the November ballot," Trump's attorney argued.

The lawyers' primary argument against Koller is that he simply filed his lawsuit too late, though it was clear in July that either Clinton or Trump would win California, he argues, and Colorado became an elector candidate in September, he waited to file suit until a month after Election Day.

"Plaintiff knew then that California law precluded him from conspiring with other electors to thwart the will of California voters (by refusing to vote for the state winner) and indeed the nation as a whole (by instigating a plot to elect neither Clinton nor Trump)," they argue. "Plaintiff missed opportunity after opportunity to file this lawsuit."

The 538 members of the Electoral College are due to gather in their respective state capitals on Monday to cast the official vote for president. Trump won the popular vote in states that include 306 electoral votes. Clinton won in states that include 232 electoral votes.

Koller and his allies on the Electoral College are hopeful to persuade at least 37 Republicans to ditch Trump, which would block his immediate election and send the final decision to the House of Representatives in January.

Selden and Readler, in their filing, argues that the effort "threatens our nation as a whole" in part because it disrupts Trump's transition to power.

"For weeks ... the President-Elect and his Transition have been reviewing potential appointees, preparing draft legislation, and coordinating efforts with President Obama, Congress, and dozens of federal agencies — all in reliance on state laws guaranteeing that electors will vote on December 19 in accordance with their States’ popular votes," he wrote. "Plaintiff seeks to upset the deep reliance interests of the people who have proceeded with their affairs — business, political, and social — upon the assumption that the election is over.”

