This was written before November 3rd, so if you’re wondering why I didn’t address some travesty or other, that is why. At the time of its posting, Joe Biden has been declared President Elect, but Trump continues refusing to concede, which unfortunately has ensured the continued relevance of this episode's subject matter.

Prominent conspiracy theorist Donald Trump has long been casting doubt on the legitimacy of presidential election results. The most obvious early example of this was his claim, made very vocally in media appearances during Barack Obama’s 2011 reelection campaign, that Obama was not born in America, which if it were not completely false, would have made the 44th President illegitimate. Audio clips Then in 2015, when he was running for President, he made baseless claims about widespread voter fraud and election rigging and refused to commit to a peaceful transition of power. Audio clips Even after he won the office of President, he continued to claim that widespread voter fraud was the only explanation that he hadn’t won the popular vote, even going so far as to form a voter fraud commission to investigate. Audio clips Finding no evidence of widespread voter fraud, his commission was short-lived, and he quietly dissolved it without its having any effect on election law. Considering this background, it should have come as no surprise this year, during his reelection campaign, that he would again cast doubt on the legitimacy of the election before results were even determined. Audio clips Despite his claims, expert after expert have confirmed the security of mail-in ballots, which have long been used by absentee voters. But doubling down on his conspiracy theory, Trump went so far as to recommend that his base engage in voter fraud in order to counteract the voter fraud he suspected would be taking place. Audio clips And this wasn’t the only measure he took. It is one thing to expect election results not to be satisfactorily determined by the end of election day during a pandemic when many mail-in ballots have yet to be counted. It is quite another to hatch plans to contest the election results when polls are showing you trailing. Alarm bells rang earlier this summer when Trump appointees on the US Postal Service Board of Governors installed a new Postmaster General who began sweeping cost-cutting measures that some feared were designed to slow mail delivery ahead of the election, though it may be just as likely that these measures were an effort to make the USPS fail in order to justify its privatization, or that they were indeed earnest if misguided attempts to restore the agency’s solvency. Some of these may be conspiracy theories, and I recognize that, but Republicans certainly aren’t making it easy to disbelieve such claims. Here in California, the Republican Party got caught and admitted to placing more than 50 drop boxes om public that they had fraudulently labeled “official ballot drop off box[es].” Then there are the troubling inroads they’ve made with the Supreme Court, which Trump has had the opportunity to pack with conservative justices specifically sympathetic to his brand of authoritarian executive privilege because of the unfortunate recent deaths of sitting justices, and because of Republican obstruction during Obama’s final term and Senate hypocrisy in ramming through a nominee just days before the election. It is this conservative-packed Supreme Court bench that could be called upon to determine the outcome of a contested election, which seems more and more likely since all it would take would be for Trump’s sycophantic Attorney General to make some claims election fraud, and we have already seen that Bill Barr is willing to undertake whatever baseless investigation into political rivals that his boss requests. Already, without the benefit of having the latest Trump-nominated justice on the bench, this Supreme Court has decided that in Wisconsin, mail-in ballots that were postmarked by election day will not be valid if they are not received before the end of the day. In other words, voters who did everything they were supposed to do, and got their ballot in the mail in time, or even early, might have their ballots thrown out depending on the speed with which the postal service processes their ballot—a clear victory for Republicans, who have established themselves as the party of voter suppression. With the new justice Amy Coney Barrett on the bench, it would seem the circumstances favor Trump in the seemingly unavoidable event of a contested election. Indeed, by the time this episode releases, I anticipate that it will be well underway, unless one of the candidates wins by an inarguable landslide. It all seems rather chaotic and messy, not politics as usual… but is this really such an unusual scenario? What can American history tell us about how we deal with contested elections?

As I write this, less than a week remains until election day, but I do not anticipate that by election day we will know the results of this election. Indeed, I expect the results to take some time to calculate based on the delayed return of mail-in ballots, and then I assume we will see some kind of challenge to the results, whether that be from Trump claiming fraud or from Biden citing voter suppression. So by the time I publish this, the issue may still be foremost on American minds. Of course, I may be wrong, and there may be a landslide victory such as cannot be denied, such that contesting the results reported by any one state wouldn’t make a difference, but I doubt it because of how close elections have been in recent elections. In 2016, it was close enough that Trump won without earning the largest number of votes. And similarly, in 2000, George W. Bush also won the Electoral College vote but not the popular vote, and that election ended up being decided by the Supreme Court—not because Bush’s rival Al Gore had earned more votes, but because of voter irregularities in Florida that cast doubt on whether Bush should have taken its electoral votes. Who can forget the ceaseless jabbering of cable news talking heads about the Florida punched card ballots, which apparently presented a lot of clarity problems when their chads not completely punched, resulting in “fat chads” and “hanging chads” that weren’t properly counted by vote tabulating machines. While this ballot system was discontinued in the U.S., Trump’s recent grumblings about ballot security may portend another long battle looking endlessly at the ballots used certain states. Again, if I’m wrong, great! Even so, a close look at the history of our presidential election process seems warranted, and we must start with the Electoral College, which caused much upset and debate in the aforementioned elections of 2000 and 2016.

Punch card chads, photo by Marcin Wichary, licenced under Creative Commons (CC BY 2.0)

One delegate at the Constitutional Convention of 1787 described the issue of how to decide presidential elections and “the most difficult…on which we have had to decide.” The sovereignty and factionalism of separate states in the Union required an arcane and unique system. In seeking a historical precedent for the electoral college, one would have to look to the Holy Roman Empire, whose emperor was chosen prince-electors, or the Roman Catholic Church, whose Pope is selected by a College of Cardinals. This is especially ironic given the Founding Fathers’ feelings about royal governments and papistry. The idea, though, was to preserve the union by assuring small states that they too had a stake in the election of the chief executive. Thus, while electors, or representatives appointed to cast a vote for the president, were apportioned based on population, every state would receive at least two electors automatically. And in the event of no single candidate earning a majority of electoral votes, which the Framers expected would usually be the case, the contest would be decided by the House of Representatives, in which case each state would receive one vote only, completely equalizing populous and less populous states. And all states would enjoy the freedom to determine how they would select each of their districts’ electors, whether it be by popular vote or caucus. Almost immediately problems with the system arose, the first being that the number of electors apportioned to Southern states would be inflated by their slave population, who were not permitted to vote. Their notorious compromise to address this problem at the convention was that slaves would only count as three-fifths of a person with regard to not only number of electors apportioned but also House representation and taxation. The next complication was the emergence of partisan politics. By the original design, the runner-up would be installed as the vice-president, but in 1796 this resulted in an administration of bitter rivals, with John Adams as president and his opponent Thomas Jefferson as vice president. Imagine for a just moment if Hillary Clinton had been installed as Trump’s Vice President. Then in the election of 1800, during the Illuminati scare that I spoke so much about in a recent episode, the Democratic-Republicans nominated Jefferson for president and Aaron Burr as their choice for Vice President, but the two of them tied for electoral votes, which cast the contest into the House of Representatives to decide who would be President. Since electoral votes for not a particular office, Burr had as legitimate a claim to the presidency as Jefferson, despite being his party’s second choice. In fact, as every state had equal say in the House contingency, their Federalist rivals, bitter over their recent defeat, tried to vote Burr in to spite Jefferson, and it took more than thirty votes ending in an impasse with no clear majority until a single representative from Delaware final broke the deadlock and gave the majority to Jefferson. Thereafter, the Twelfth Amendment was ratified, requiring electors to cast different ballots for the offices of president and vice president.

This was by no means the end of the issues with the Electoral College system the Framers had settled on. As indicated, the Framers actually expected that presidential candidates would rarely earn a majority of electoral votes, which would mean that elections would typically be decided by the House contingency of one vote per state. It ended up being quite the reverse, though. The last time there was no electoral majority and the House contingency decided an election was in 1824, and it was far from a neat solution. The old political party system, of First Party System, had been in decline for a decade, with American politics now dominated by the party of Jefferson, the Democratic-Republicans, and in 1824, four candidates vied for the highest office all under this party’s banner: Henry Clay, William Crawford, John Quincy Adams, and Andrew Jackson. You may remember Donald Trump declaring early in his presidency that he believed himself to be very much like Andrew Jackson, an assertion that promptly drew criticism because of Jackson’s atrocities against Native Americans. Maybe Trump was referring to the way Jackson was not taken seriously early in his campaign, but more likely he meant Jackson’s reputation as a populist president, wrongfully denied the office he had earned through popular support when a rigged system gave the election to John Quincy Adams instead, afterward leading to his indisputable populist victory in the next election cycle and earning him the nickname King Mob. Indeed, this is a view of the election of 1824 promulgated by many historians, for although Jackson did not win a an electoral majority, he won a plurality, meaning he won more electoral votes than any other candidate, and unlike Trump, he also appears to have won the popular vote. Nevertheless, the House of Representatives voted in John Quincy Adams, which on its surface certainly does seem like a miscarriage of national politics, as they gave the office to a candidate with both fewer electoral votes and fewer votes generally. In reality, though, it’s not so clear that Jackson won the popular vote. Then, as today, it appears that many votes were suppressed, as entire counties worth of votes were not counted because they arrived late, or because when they did arrive, a certain seal that was required was missing. Furthermore, a lot of tallies of Jackson’s lead in the popular vote are calculated by which electors people voted for, that that is unreliable, as many electors appear to have been pledged to other candidates, like Clay or Crawford, but only gave their vote to Jackson later, which certainly doesn’t mean the people in those districts were voting to Jackson. And remember that number of votes from Southern states that supported Jackson are exaggerated by the Three-Fifths Compromise. Furthermore, the popular vote figures commonly cited today don’t even include states whose electors were chosen directly by their legislatures, including the extremely populous New York, which likely would have increased the popular vote count for John Quincy Adams since support for Jackson in New England was non-existent. So the idea that Andrew Jackson was such a clear winner may be something of a myth. But that’s not really the issue. Even if he were the clear winner of the popular vote, the fact that he didn’t get a majority of electoral votes meant that the House got to decide, in the proverbial smoke-filled room, with one vote per state, regardless of the will of the people. That’s how the Constitution was written, and that’s the problem.

This perceived “corrupt bargain” contributed to Jackson being swept into office in the next election, as depicted in the above public domain illustration.

The further problems with the Electoral College were apparent by this election of 1824. The Framers had expected states to choose electors on a district by district basis, such that not all electors in a state would vote for the same candidate, thus better representing the “sense of the people” as Alexander Hamilton put it, but many chose instead to use a winner-take-all system instead, and by 1836, all but one state had followed suit. The clear incentive to the winner-takes-all method was that a state’s influence in the Electoral College would be diluted if they allowed their electors to vote for various candidates. Then, of course, winner-takes-all politics contributed to the stranglehold of a two-party system, which in turn guaranteed that there would always be an electoral majority. After 1824, it has happened again four more times that a candidate won the office of president without receiving the most votes, and since the two most recent instances, 2000 and 2016, many have called for getting rid of the Electoral College. Predictably opposed to such a change, Constitutional purists, as always, tout the wisdom of the Framers of the Constitution, but in truth, the Electoral College did not turn out how the Framers envisioned. They did not anticipate winner-takes-all politics or a two-party system as we have it now, and further, they did not anticipate the apportionment of electors eventually providing an advantage to less populous states, such that now, per capita, voters in populous states like California have less clout than voters in, say, Wyoming, based on number of electors per voting-age citizen—about 200% less clout in fact. And the winner-takes-all system means empowers so-called “swing states,” encouraging candidates to cater to the issues of small populations just to ensure electoral college victory, while taking “safe states” for granted. Then of course there is the feeling of powerlessness in safe states when voting for a different candidate than most of the state. But getting rid of the Electoral College is more difficult than it sounds. It can’t be done by executive order, or ratification by the House or Senate alone. In fact it would take ratification by two-thirds of both houses of Congress, and then further ratification by 38 states! There are alternatives, though. Some states are entering into a compact to pledge their electors to whichever candidate wins the popular vote. If enough states entered this compact, it would eventually make the Electoral College something of a dead letter. Another option is ranked-choice voting, which, if states allowed it, could make it possible for third-party candidates to get a foothold and break through this two-party system.

Finally, as our last historical example of a contested American presidential election decided in an honest to God smoke-filled room, let’s look to 1876, the first incident of a candidate winning the popular vote but losing the election after 1824, for this was by far the most acrimonious and bitterly fought election in our history, and came close to ending in national chaos. The specter of the Civil War still haunted the country, with the surrender at Appomattox only a decade earlier and the chance at a peaceful reconciliation killed with President Lincoln at Ford Theater. Since then, the Radical wing of the Republican party had reigned supreme, controlling the North and also the South through Federal troops stationed there during Reconstruction, Northern opportunists called carpetbaggers who went South to profit from Reconstruction, and emancipated slaves. During this decade of punishment, white Southerners of the Democratic Party strove slowly but surely to wrest back political control of Southern states, in in 1876, it looked like they had a fighting chance. Ulysses S. Grant was concluding a final term marked by scandal and corruption, and for their candidate, the Democrats nominated Samuel J. Tilden, a Governor of New York known for fighting corruption and famously bringing the corrupt politician “Boss” Tweed to justice. The Republicans, perhaps seeing the writing on the wall, ended up running a more moderate candidate, Rutherford B. Hayes, the Governor of Ohio, whose nomination might be looked at as a concession to the South that had suffered under the Radical wing of their party. At this point, I would be remiss if I didn’t address the elephant in the room. At this time, the two-party system of Democrats and Republicans was in full swing, but it must be recognized that the parties then were entirely different than the parties now. This is a common bit of Historical Blindness we see paraded about quite often, such as when people say the Democratic Party of today is the party of the KKK and for proof they show pics of Southern Democrats in the late 19th century, or when Republicans today brag about their party being founded by Abraham Lincoln. Audio clips In fact, if you were comparing Lincoln to the modern Republican Party, one would have to say he was Republican in name only. You see, a funny thing happened about 20 years after this election, when the Democratic Party nominated William Jennings Bryan unsuccessfully three times, undergoing an ideological shift that focused more on economic populism, decrying the abuses of the wealthy against poor workers and farmers and seeking solutions through government intervention. This was the birth of the modern Democratic Party, and simultaneously, Republicans gained a foothold in the South, where they had long been seen as the party of carpetbaggers, such that complete reversal in the electoral map occurred in the early 20th century, with almost all the states that previously went to one party now being taken by the other. So don’t let the names fool you, the Republicans and Democrats of 1876 were not the R’s and D’s of today.

Public Domain portrait of Abraham Lincoln, perhaps the most well-known RINO in American history.

Outside of the names of the parties, though, there were some real parallels with the current election. The corruption of the incumbent was a central issue, and fake news played a major part. Republicans distorted the facts to damage Tilden’s reputation, suggesting he had actually been colluding with the racketeer “Boss” Tweed, and that he’s been a proponent of Confederate secession, when neither of these was the case. Dirty tricks were also rampant, such as Republicans printing ballots in some states that placed a Republican symbol above the names of Democratic candidates hoping to trick illiterate voters. Come election day, though, it appeared that Tilden had won regardless, with a confirmed 184 electoral votes to Hayes’s 166. Rutherford B. Hayes actually went to bed that night conceding his defeat to his advisors, though, importantly, not making a public concession. Overnight, however, Republican strategists saw a path to victory in the remaining 19 electoral votes of three Southern states, Florida, Louisiana, and South Carolina. After a series of telegrams to the Republican canvassing boards, who had the power to throw out ballots and certify votes. When these three states declared for Hayes, the Democrats asserted fraud and certified their own electors. The Senate would decide which votes were legitimate, but the Senate was controlled by Republicans and refused to let the Democrat-controlled House of Representatives have a say. It appeared to many that Republicans were in the process of stealing the presidency, and another civil war loomed. Militias mustered, performing drills and parades, and Democratic governors discussed the possibility of commanding their National Guard troops to install Tilden in the White House by force, while President Grant sent troops into Southern state capitals and prepared to send the Army against the forces of any rebel states. Thankfully, some cooler heads prevailed. Recognizing that neither a Senate nor a House decision in the matter would be satisfactory, an Electoral Commission was formed consisting of five Senators, five House representatives, and five Supreme Court Justices. They voted strictly along party lines and found in favor of Rutherford B. Hayes, 8 votes to 7. This might have done nothing to head off the conflict, if it hadn’t been for Tilden’s acceptance of the decision, and most historians agree that he only accepted it because of some private dealings in a smoke-filled room at the Wormley Hotel in Washington. There, a negotiation took place that conceded much to Southern Democrats if they would accept Hayes as their President, the foremost of these concessions being a promise to recall Federal troops from the South and effectively end Reconstruction.

There was even more to this so-called Compromise of 1877, including tacit promises to fund a railroad, appoint a Southern Postmaster General, provide financial assistance for Southern states, and, ominously, to let the South deal with its own problems of race. Historians like C. Van Woodward and others have questioned the importance of the meeting at the Wormley in the resolution of the election or have suggested that the compromise has been exaggerated by historians, especially since Southern Democrats might have gotten all they wanted with Tilden as President and since it seems Hayes ended up not keeping up his end of this bargain in several respects. But whatever was the case, we can certainly see that politicians of the day worked to avoid absolute catastrophe. I look back on this episode in history with some hope. If, God forbid, a modern election resulted in such an impasse, with questions of fraud, legitimate or fabricated, casting such doubt on the results that violence or disunion appear imminent—and make no mistake, with Qanon conspiracy theorists ready to declare revolution against an imaginary Deep State and white nationalist militias demonstrating their lack of compunction about storming capitol buildings with firearms, it is a real possibility—with a packed Supreme Court being so clearly partisan and the Senate and House dominated by different parties, I would hope that those with the reins of government will actually do their jobs and find a peaceful solution. While an Electoral Commission like that of 1877 is not strictly Constitutional, there is historical precedent for it, and it helped to give at least a semblance of impartiality to the resolution of that election. And if those who govern the people have to make shadowy dealings in a smoke-filled room in order to avoid bloodshed, as distasteful as that may be, it may still be preferable to the alternative.

When I wrote this, I was feeling more pessimistic than I feel now. My rather obvious prediction that Trump would contest the results with lawsuits that he hopes to bring before his Supreme Court has proven accurate, but now, with Biden declared President Elect by credible news outlets as well as by partisan networks, I am feeling more confident about a peaceful transition, regardless of Trump's tantrums. So far, threats of violence or disunion appear subdued and relegated to the fringe. This could change of course, but as it stands now, rather than hoping for some arcane bipartisan arbitration, I'm hopeful that Trump's baseless claims of election fraud will not be seriously entertained. And so far, this seems to be the case even among many who have previously enabled such rhetoric. One further concern could be faithless electors, that is electors who are pledged to give their Electoral College vote to a certain candidate but give it instead to another--yet one more serious problem with Electoral College. This leeway was meant to allow the wiser among us to prevent the election of demagogues that rise on a cult of personality, but clearly that check wasn't used in 2016. There was a record number of faithless electors that year, but some of them gave their vote to the demagogue when they were pledge to the other candidate! Some states have laws preventing the validation of faithless electoral votes, but many don't. Nevertheless, with the electoral lead that Biden has...is poised to have, the number of validated faithless electoral votes would have to be record-breaking--far more than the already historic 7 electors that defected from their pledged candidates in 2016. But while there may still be rocky shoals to avoid, it appears the ship of state has successfully entered safe harbor. Now it's time to reconcile with each other.

The Smoke-Filled Room: Contested Elections in America

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