We've been here before, in 1824 and 1876, with one major difference this time around: more lawsuits.
16th February 1877: The Electoral Commission of 1877 holds a secret session by candlelight in Washington, DC. The commission was set up to decide the result of the controversial presidential election between Rutherford B Hayes and Samuel J Tilden, and resulted in the 22 contested votes from Florida, Louisiana, Oregon and South Carolina being eventually awarded to Hayes. Original Publication: From Frank Leslie's Illustrated Newspaper. (Photo by MPI/Getty Images)
The U.S. Supreme Court may prefer to avoid wading into yet another presidential race 20 years after Bush v. Gore. It may never hear a Trump v. Biden (or some variation thereof). The election may never be decided in Congress.
But the involvement of state legislatures and President Donald Trump mounting potential a 2024 campaign are not so different from the previous electoral debacles I wrote about in my book Tainted by Suspicion: The Secret Deals and Electoral Chaos of Disputed Presidential Elections.
The Pennsylvania Senate Majority Policy Committee recently held a hearing on the election controversies in the state. Republicans on the Arizona state legislature held a forum in Phoenix—though not a sanctioned hearing—on alleged election irregularities. The Michigan Senate’s Government Oversight Committee held two days of hearings and the Georgia Senate’s Oversight and Judiciary committees each held a hearing looking at allegations.
Rudy Giuliani and others on Trump’s legal team have implored state lawmakers to appoint clean slates of electors, pleading that the supposed fraud is too profound.
While it’s tempting to compare the 2020 dispute with 2000, since most of the players in that drama are, well, still alive, the real parallels are with 1876 and 1824—for different reasons.
Whether there is a similarity with 1824 is contingent on what happens in 2024. Trump has hinted that he will run again. If he does, it will almost assuredly be on a “we was robbed” platform like Andrew Jackson did in 1828. Jackson complained that a “corrupt bargain” had prevented him from winning the White House race four years earlier.
Trump already fancies himself another Old Hickory. Jackson was a disruptor, taking on the Washington establishment and, as he saw it, battling to take America back for the people. He was possibly even more detested by elites than Trump is. Though not impeached, Jackson was censured by Congress.
As for 1876, that election is similar to the 2020 dispute because it’s playing out in multiple states, not just a single recount in Florida. Also, 2020 was much like 1876 in that the early returns were deceptive. And it was that year that states gave competing slates of electors—which is similar to what Giuliani is asking legislatures to do now.
Barring a series of major bombshells that would stun even the most partisan Republican, Joe Biden will win in the Electoral College on December 14 and be inaugurated on January 20, 2021. Another point to note about past disputed election outcomes is that this isn’t a radical departure. The lore about past contests going down to the wire isn’t exactly accurate.
The election of 1800, which went from John Adams versus Thomas Jefferson to Jefferson versus his disloyal running mate Aaron Burr after Election Day, was an anomaly that went into overtime. In a pre-12th Amendment America, the Jeffersonian electors gave an equal number of votes to Jefferson and Burr. The only reason this election was prolonged was because the lame-duck Federalist majority in the House considered making mischief—and they were serious about it, believing Burr a more malleable character than Jefferson. But despite this, there was only an outside chance the House would take such an extraordinary measure in the infant days of the country. This post-election dispute wasn’t so much about a clash between two parties or visions as it was growing pains for a new republic. It was thus different from the others that followed.
Yes, Al Gore had a statistically better chance of winning Florida than Trump has of flipping the two or three states he needs for victory. But the odds were always with George W. Bush.
And whether or not the never-proven “corrupt bargain” occurred, there was almost no chance that a House of Representatives run by Speaker Henry Clay would send the 1824 election to anyone other than John Quincy Adams.
Even in 1876, so divisive that Democrats openly threatened violence in the streets, it was fairly clear Rutherford B. Hayes would be president, as the makeup of the bipartisan Electoral Commission gave Republicans an eight-to-seven advantage. Yet there was at least more uncertainty in the centennial election—which brings us to another similarity to 2020.
In both elections, many Americans went to bed believing one candidate had clearly won only to find out the next morning the election could go the other way. However, in 1876, it was Democrat Samuel Tilden who seemed to be leading. Many of the big daily newspapers reported he had won. Of course, in 2020, it was many Republicans (if they turned in before midnight) who felt that their president was well on his way to being re-elected. Didn’t someone say Florida and Ohio always pick the winner?
Just as Pennsylvania, Georgia, Arizona, Michigan, Wisconsin, and Nevada have been litigated in 2020, in 1876, it was South Carolina, Louisiana, and Florida. Reconstruction-era Republican governors tried to hold these Southern states for Hayes, claiming massive Democratic election fraud when it appeared the vote there had gone to Tilden. Democratic state legislatures and canvassing boards, as well as state courts, tried to intervene until Congress appointed a 15-member bipartisan Electoral Commission with five senators, five House members, and five Supreme Court justices.
(As an aside, Oregon’s Democratic governor tried to name one elector for Tilden despite Hayes winning the state.)
Republicans had the advantage once the Electoral Commission, in a series of eight-to-seven votes, awarded the three Southern states and Oregon to Hayes. Still, with a Republican Senate and Democratic House, both had to approve the decision. So Southern Democrats were able to squeeze Republicans to end Reconstruction in the south with the Compromise of 1877 in order to resolve the stalemate.
As for 2020, no such bargains or compromises will intervene.
The Trump legal team wants court victories or interventions from state legislators—both of which seem unlikely. In that respect, it is more like 2000, where Trump, much like Gore, must win or lose.
The notion of state legislatures appointing new slates of electors should make us uncomfortable, lest it become commonplace. But I strongly suspect that if this were 100 years earlier—perhaps even 70 years earlier—legislatures would likely be the remedy before a political matter was taken into the courtroom. The fact that courts were the driving force in the last two disputed presidential elections has more to do with the litigious era in which we live in than any constitutional or political norm.
Fred Lucas is the chief national affairs correspondent for the Daily Signal, and author of Abuse of Power: Inside the Three-Year Campaign to Impeach Donald Trump and Tainted by Suspicion: The Secret Deals and Electoral Chaos of Disputed Presidential Elections. The views expressed are solely his own. Title and publications listed are for identification purposes only.
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