Past contested elections resolved in ways that might not work now, says Stanford historian

A willingness to concede and compromise has helped resolve past election disputes, but that option may not be available this year, Stanford historian Jonathan Gienapp says.

By Sandra Feder

This year, as voters across the United States begin to cast ballots, the very real prospect of a contested election hangs over the presidential race. Unlike his modern predecessors, who have agreed to accept the election results, President Donald Trump has repeatedly stated that he may not do so. His comments have prompted many to wonder what will happen in the case of a hotly contested election and whether one of our nation’s democratic pillars, the peaceful transfer of power, might fall.

“Many have claimed that nothing is more essential to our democracy than the peaceful transfer of power. Democracies derive strength from this fundamental practice – when one side loses it concedes defeat, thus legitimizing the winning side,” said Jonathan Gienapp, assistant professor of history in the School of Humanities and Sciences.

“If we are ever forced to endure one party’s refusal to transfer power peacefully to their rival, it is hard to believe that such an event will not cause lasting damage,” added Gienapp, who is a scholar of the early U.S. republic and the political culture that shaped our understanding of our Constitution. “For these reasons, and many others, it is understandable why so many Americans are so wary of what the coming months might bring.”

We talked with Gienapp, who shared with us lessons about contested elections from our history and our Constitution and discussed what the ramifications of a new disputed election would be for our nation and democracy.

How would you describe the history of contested elections in this country?

Thankfully, we have not had many contested presidential elections, and those we have had have been resolved without resorting to bloodshed. Apart from the lead up to the American Civil War (obviously a major caveat), Americans have always managed to move from one presidency to the next without the constitutional system breaking down. There have been times when that seemed uncertain, most recently in 2000 when the Supreme Court was essentially forced to declare a winner, but it also occurred in 1800 and 1876.

But each time a particular candidate was awarded the office of the presidency, the result was accepted. We have never faced the nightmare scenario of having two different individuals claiming to be president.

What might make 2020 different?

What could make this year much different is that one of the two major-party candidates has indicated that he may not accept the results if he loses. We might be faced with a scenario where one candidate has won by any reasonable measure, and yet the sitting president refuses to concede the race, citing widespread fraud and irregularities. Depending upon what others do, that could plunge the nation into crisis and put stress on state officials, Congress and potentially the courts. That situation would be novel.

At the same time, if there is a contested election this year there are likely to be some similarities to past disputes. If the vote is close in certain states, there likely will be calls for recounts and litigation. It might, as in 2000, end up in the Supreme Court. Given widespread voter suppression, there will also be anger that the ballots deemed valid are an inaccurate representation of the legitimate democratic will.

What constitutional safeguards, if any, exist to ensure a peaceful transition of power?

In a certain sense, none.

We have institutions that can be called upon to arbitrate disputes or deny unlawful usurpations of power, but the safeguards that will decide matters are more political than constitutional. It may fall to elected political leaders, as it did in 1876-77, to work out some sort of compromise. Or, if necessary, the people will need to exercise their fundamental right to assemble and protest in an attempt to bring about resolution.

The closest the nation came to the constitutional cliff was in 1876 when Republican Rutherford B. Hayes and Democrat Samuel Tilden vied for the presidency. Tilden won the popular vote and only needed to win one of three remaining states (Florida, South Carolina or Louisiana) to earn a majority of the electoral votes. In each state, however, the Republican-controlled canvassing boards manipulated the count.

That election exposed the flaw that still remains in the Constitution: The Constitution is silent about what to do when states send conflicting certificates of electoral votes to Congress.

The Constitution stipulates that “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” Notice the passive voice. Who actually counts? Our disjointed electoral system, which is unclear about who has authority to count the electoral votes sent by the states to Congress, has never been sufficiently stress tested. The same might be said about our Constitution’s capacity to deal with one party’s refusal to transfer power. Should that happen, we will be in uncharted territory.

What role did compromise between the two parties play in resolving the cliffhanger of 1876?

In 1876, the Republicans claimed that the president of the Senate (a Republican) had the right to count the electoral votes; Democrats claimed that, in that instance, the House of Representatives (controlled by Democrats) should count, because the House ultimately decides elections in which no candidate receives a majority of the electoral votes.

Moderates in each party worked toward a compromise, eventually agreeing to set up a special Electoral Commission, which would consist of 15 members (five senators, five representatives and five Supreme Court justices). Unexpectedly, Republicans came to command a majority on the commission (one of the justices Democrats had assumed would be picked removed himself from consideration). With an 8-7 Republican majority, the Commission awarded all of the disputed electoral votes to Hayes.

Before the commission even completed its work, Democrats in the House, feeling the commission was unfair, claimed they would in fact decide on the final count. This prompted a last series of negotiations between Democrats and Republicans and a final resolution since dubbed the Compromise of 1877.

Democrats promised to respect the commission’s ruling, allowing Hayes to become president, while Republicans agreed to withdraw the remaining federal troops from the South, which had been there since the end of the Civil War to enforce Reconstruction. The compromise enabled white southerners to fully reestablish control throughout the South and exploit that power to strip African Americans of their political and civil rights.

This was the closest the nation has ever come to having two presidents, or no president at all, come inauguration day. We might take comfort that cooler heads prevailed, but the commission’s decision was only respected because one party was willing to concede the presidency in exchange for a bargaining chip that they considered of equal, if not greater, value: the end of Reconstruction and the restoration of white rule in the South.

In more recent history, the contested election of Bush v. Gore was decided by the Supreme Court. What might the Supreme Court’s role be this time?

If the election is contested this year, and the Supreme Court ultimately adjudicates it as it did in 2000, it is hard to believe the result will be as readily accepted. Given the current depth of distrust on each side of the partisan divide and how politicized the Supreme Court appointment process has become in just the last five years, it will be difficult for the Court to assert itself without compromising its standing.

A significant portion of the public might simply refuse to accept their decision. Bush v. Gore damaged the Court in the eyes of many respected observers. It is hard to believe that this time around a similar decision would not compound the sense of crisis.

What guidance does the Constitution provide that might be helpful as we navigate a potentially new post-election landscape?

One lesson the Constitution contains is that our constitutional system is only as good and strong as our commitment to its deeper ideals. If our institutions are rotten, if our norms are broken, if our sense of democratic commitment is abandoned, it does not much matter what the Constitution specifies or what precedents it has seemingly established.

Americans often venerate the Constitution out of a misconceived desire to locate determinate rules that might give us final answers on deeply contested questions. But what we ought to venerate is our long-running capacity to work within the framework of the Constitution to maintain our republic. The Constitution is not a thing outside of us that can save us from ourselves; it is only as good or useful as we allow it to be. If we find ourselves in a moment of genuine crisis, we will have to appreciate that lesson perhaps more than ever before.

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