Avoid a F*ked up Election

America has had many close elections, but two of the most consequential — and most screwed up — were 1876 and 2000. 

They were botched and stolen elections that changed the course of history. Had they turned out different, we might have better racial justice and a solution to climate change. Seriously. Two of the most urgent crises of today would be better if we had better election systems.

I bet you never thought you might need to know something about the election of 1876. Rutherford B. Hayes and Samuel Tilden were names I never thought I’d have to remember from history class. It turns out that they matter.

Al Gore and George W. Bush and the election of 2000 on the other hand, are etched into our current collective memory. The narrow loss by Al Gore in 2000 was a wake up call for me. I didn’t do anything to help Al Gore win. Yet he was an example of how one person can change history. It made me realize that elections matter and I have to do what I can to put the people with my values in office. 

Imagine a Gore presidency. He would have done something about climate change. People forget that in 2000 it was not such a polarized topic. George W. Bush vowed to address climate change, just like Al Gore. But he and his vice president, Dick Cheney, were beholden to the oil industry and nothing happened – worse, they expanded fossil fuel use and exploration. When 9-11 happened on their watch, they used it as a pretext to invade Iraq. Al Gore would not have been under those neocon illusions. We are living the consequences of that election with unabated global warming and a failed Iraq. 

The choice of Rutherford B. Hayes (hint, he won the election of 1876) was consequential too. In order to secure his win, he made a compromise with southern Congress members to end reconstruction and pull federal troops out of the former Confederate states. In return the Southerns promised to honor the voting rights and provide equal education to former slaves. We all know how that turned out. Jim Crow laws started in the South soon afterward and didn’t end until 1965. What if Hayes wasn’t forced to make that compromise? We might have a more fair, slightly less racist country if the South had been forced to allow the formerly enslaved to have power. 

The Election of 2000

You probably know the election of 2000 was a mess. Al Gore won the popular vote across the country, but the winner was decided by Florida’s electoral votes, which was so thin we had multiple recounts. There were many court cases and procedural disputes by local boards responsible for the counts. In the end the US Supreme Court took the unusual step of intervening in a state decision and ended a recount process. It had the effect of declaring Bush the winner with a margin of only 537 votes out of a total of almost 6 million cast.

The Election of 1876

In 1876 the country was celebrating its 100th birthday, and still recovering from the Civil War. On election night, both sides went to sleep thinking the next president would be Samuel Tilden, the Democrat. The next morning, however, it was clear that Tilden was one electoral vote shy of winning. Meanwhile, dozens of electoral votes were in dispute from Oregon, South Carolina, Louisiana, and Florida (always, Florida!). 

The Republican side realized that if they could win the disputed votes, Hayes would be president. Thus began a partisan fight to swing the election that made 2000 look like a friendly game of poker. Activists on both sides swung into action using courts, political pressure, procedural maneuvering, violence and bribery to get their way. 

The result was a mess. Oregon was the simplest of the problems. One elector had been disqualified and the replacement voted for Tilden instead of Hayes, who had won the state’s popular vote. South Carolina had ballots that amounted to 101 percent of the voters in the state. Louisiana and Florida each submitted multiple slates of electoral votes. Florida, ever the special case, submitted four. 

The Constitution is not specific on how to resolve this dispute. It instructs, “the President of the Senate shall, in presence of the Senate and House of Representatives, open all the [electoral] certificates, and the votes shall then be counted.” What exactly was the role of the Senate and House of Representatives? Were they to simply be present? Or were they meant to be active in the process? And what does it mean to “be counted” when there are multiple slates of votes from the same states? The questions were compounded because Republicans controlled the Senate and Democrats the House. Naturally Republicans argued for the Senate President to decide which slates were valid. And Democrats argued that since the election was in dispute the House should resolve the question. 

The compromise was to create a new entity, a fifteen-member election commission with five members each from the Senate, House, and Supreme Court. It ended up having a Republican majority of one. They voted along partisan lines to award all the disputed votes to Hayes, making him the president. Since the House had to vote on the results, the final result was passed only after a last minute deal with Southern Democrats who could have blocked the result. Their price was ending reconstruction and pulling federal troops from southern states. In return they promised to maintain voting rights and educational opportunities for African Americans. Hayes kept his promise after becoming president. Southerns broke theirs beginning a brutal system of “separate but equal” that did not end until the 1960s.

What are the lessons from these two contested elections? 

The meek loose. In both contests the Democratic candidate was reluctant to engage in the brass knuckled political fight. Tilden and Gore were more concerned with the appearance of propriety and had greater faith in the process. Hayes and Bush — more important their henchmen — were willing to make the process political, not just legal. Pressure from protests and partisan loyalties secured the presidency for both Republicans. 

It takes a long time. In 1876 the election result was not finalized until 48 hours before inauguration! Since then we’ve moved inauguration from March to January, so there is even less time today to resolve disputes.  In 2000, the Supreme Court took a surprising step and intervened in the election process. Some speculate that the justices sought to avoid a long process like 1876. (BTW, Chief Justice Renquist happened to author a history of the 1876 election that I’ve read.) Even with that, it took more than a month after election day.

The Constitution is vague. The vagueness helps us sometimes, allowing courts to adapt it to our changing circumstances. With an election, however, specificity is important. In 1876, Congress invented a new system to resolve the election. In 2000, the Supreme Court intervened in state-level decisions, against most expectations. 

How do we avoid screwing up this election if it is close?

The opportunities for a contested election are greater than any time in recent memory. There may be claims ranging from foreign interference, mail system slow downs, failure to prepare adequately for  COVID-19, and even the potential for voter intimidation by militias. And there might be kooky claims because, you know, Trump. He lied in 2017, claiming millions of illegal aliens voted in the 2016 election. Who knows what he might invent this time. 

One solution is to think through how we solve potential problems now. Mike Pence, as President of the Senate, will be responsible for counting the electoral votes. It is not a stretch to imagine him throwing out some votes, allowing Trump to be the winner. We can hope that Republicans in the Senate would object, but their supine history suggests otherwise. Nancy Pelosi could counter by refusing to assemble the House to count the votes, a requirement of the Constitution. Representative Ro Khanna and law professor Bruce Ackerman have proposed a good idea to avoid this scenario. They recommend Congress appoint an Election Commission now that would consist of Supreme Court justices. It would have the added advantage of a quasi-judicial process to bring complaints of election fraud. 

A lesson from 1876 is that compromise was pushed by commercial interests. Like always, business wants stability and the turmoil of that election threatened to literally begin another civil war. Business leaders should be ready to stand up and speak for a stable transition of power, rule of law, and democratic traditions.

What can we all do?

The #1 thing we can do is educate everyone. Everyone, especially the media, need to prepare for a long counting process and no result for days, maybe weeks. You can play a role in your own conversations with friends and family.

#2 is to win big. If Democrats  have an overwhelming majority win in the key swing states, it will be harder for Trump to claim he won. (I don’t think it will stop him, just make it harder.) So donate your time and your money to Democrats all up and down the ticket.

A #3 priority is to make sure we have the lawyers and street demonstrators at the ready to make sure the election is not stolen by partisans at the local level. Organizations like the Brennan Center and the ACLU are focused on making sure elections are fair. And every Democrat needs to stand ready to fly to a swing state if necessary to defend democracy and the right for your vote to count. We can not afford to be meek.

Photo by Josh Carter on Unsplash