If Trump Disputes the Election, We Have No Good Way Out

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History suggests we’ve been lucky to avoid a full-blown crisis after contested elections. Whose fault is it? Start with the Founders.

Will this year’s presidential election be rigged, as Donald Trump has predicted?

It’s highly unlikely, and that’s true whether we’re talking about scary new threats, like cyber-hacking by the Russians, or old-fashioned ballot-box stuffing of the sort that ostensibly has led Trump to recruit his own poll watchers. We’re much more likely to see the kind of unintentional ineptitude that plagued the 2000 presidential race. As an old adage, often invoked by election scholars, goes: “Never attribute to malevolence what is explicable by incompetence.”

But this is not to say that American democracy is immune to allegations of ill-willed vote rigging. Even if Trump said in the first debate that he would support Hillary Clinton “if she wins,” he and his supporters could very well be convinced in their own minds that she did not. Then what happens? Consider Pennsylvania, a crucial swing state and the one I worry most about this year, since it uses electronic voting machines without paper backup. Suppose that on Election Night, Pennsylvania’s secretary of state announces that Clinton has won the state, and with it the presidency, but Trump says, “Prove it.” The secretary of state responds, “That’s what the machines tell us.” Trump responds, “Well, how do I know that the machines weren’t hacked?” What is the secretary of state supposed to say then?

“Trust me” won’t work. Pennsylvania’s secretary of state is a Democrat, appointed by the Democratic governor. We can’t expect any Republican candidate, not just Trump, to trust a Democrat to administer a state’s elections fairly. Remember Katherine Harris, Florida’s secretary of state in 2000? She was a Republican ally of Jeb and George W. Bush, and Democrats back then would not have trusted her to say what time the sun would rise. It would be the height of hypocrisy, with the shoe on the other foot, for Democrats now to claim that a partisan secretary of state was perfectly trustworthy.

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In fact, America has run into this problem before—more than once—and we’ve actually been lucky to have avoided a serious breakdown in the constitutional order. The problem is that the U.S. government, for all of American history, has put partisans in charge of running elections—a system akin to picking as a Super Bowl ref the coach from just one of the two contending teams. As a result, the government’s capacity to dispel allegations of vote rigging has been a major blind spot throughout U.S. history, sowing confusion, conflict and even violence since the country’s founding—and potentially to this day.

That means that if Trump loses, and he and his followers genuinely dispute the election, there’s no guarantee we would have a path out. The first recourse is to partisan state appointees; the next is to courts that can be partisan themselves, and don’t always even have jurisdiction. We can’t even look back to what the Founding Fathers would have wanted: On this front, they actually knew they had failed.

 

Other countries have figured out how to administer elections in a nonpartisan way, but not the United States. And for that, we can blame the electoral system set up at this country’s birth, when the Founding Fathers made two crucial—and mistaken—assumptions. First, they thought they could prevent political “factions” from coalescing into two stable and antagonistic political parties that might find themselves directly at odds over an election and its results. Second, the Founders were unfamiliar with chief executive elections; the British king had appointed most colonial governors, so the Founders only had experience with disputes over elections to the British parliament or their own colonial legislatures. Because a fight over a single legislative seat was relatively inconsequential, the Founders decided to leave claims of fraud in congressional and state legislative elections up to those respective chambers to resolve. They also, regrettably, assumed that Congress could handle disputes in presidential elections, and state legislatures in gubernatorial elections.

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Were they ever caught by surprise! As early as 1792, two opposing political parties already had formed: the Federalists and the Jeffersonians (sometimes called Democrats or Republicans or Democratic-Republicans). The competition between these two teams played out in both national and state politics that year. The first major allegations of vote rigging after the adoption of the Constitution were in New York, where the Federalists had convinced John Jay to run for governor in an effort to unseat the Jeffersonian incumbent, George Clinton. Jay, one of the authors of the Federalist Papers, at the time was serving as the first chief justice of the United States. (His willingness to give up that position in order to be governor of New York illustrates the relative importance of the two jobs at the time.)

The gubernatorial election was exceptionally close, and it turned on disputed ballots from Cooperstown, which was then controlled by William Cooper himself, an ardent Federalist. Naturally, the Jeffersonian party thought Cooper and his cronies had tampered with the ballots from his town. Senator Aaron Burr organized the Jeffersonian legal defense, which included the first attorney general of the United States, Edmund Randolph. The Federalists counterpunched, with Alexander Hamilton and his lieutenants orchestrating the legal effort. (It was something of a prelude to the Burr-Hamilton duel a decade later.) The issue was that Cooper had kept the ballot boxes in a store he owned, before having one of his Federalist flunkies deliver the ballots to New York’s secretary of state. The Federalists, however, argued that the seals on Cooperstown’s ballot boxes had remained intact, so the ballots inside could not have been altered.

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What really made the Federalists livid, however, was the institution created to decide the dispute over the Cooperstown ballots: a “canvassing committee” set up by the state legislature, which the Jeffersonians controlled. The 12-member committee was stacked with nine Jeffersonians and only three Federalists. On a party-line vote, the committee disqualified the disputed ballots, citing the potential for fraud even if none actually had occurred. The Federalists felt the rigged committee had robbed Jay and them of a victory that rightfully was theirs.

Having been revolutionaries only a few years earlier, Jay and his supporters took to the streets and threatened to rectify the wrong through force. Historians have described the entire state of New York in the following weeks as being on the brink of “anarchy” and in the midst of a “constitutional quagmire.” The protests threatened to get ugly and spin out of control. Some shots were fired, and some partisans injured. Ultimately, Hamilton convinced Jay to back down, and wait until the next election. Jay did exactly that, and won by a much wider margin, becoming New York’s governor in 1795. In quest of a fairer tribunal, New York then replaced the canvassing committee with a new board consisting of the secretary of state, treasurer and comptroller, but in 1893 these three statewide officers, being partisans themselves, were caught falsifying vote tallies in an effort to keep control of state government. The election adjudication problem was here to stay.

Other states adopted a wait-and-see attitude on the question of adjudicating disputes, only to find themselves caught up in a series of chaotic and violent incidents over the course of the 19th century. Pennsylvania suffered its “Buckshot War” in 1838, when the incumbent governor attempted to cling to power through the manipulation of election returns, and the two opposing parties at the time—Whigs and Democrats—fought over the state legislature seats that would determine which party had the power to settle the disputed gubernatorial election. Arkansas experienced even worse violence over a similar dispute in its own “Brooks-Baxter War” of 1872. But that was nothing compared to the all-out civil war that erupted over electoral returns in Louisiana that same year—the “Colfax Massacre.” As forces on both sides struggled for control over the governorship, a band of militant “Redeemers,” who sought to end Reconstruction in the state, slaughtered scores of African-Americans—maybe more than 100. In 1879, the “Twelve Days that Shook Maine” was what local residents called the period when the threat of civil war loomed in the state, as control of both the governorship and the state legislature was ensnared in allegations over electoral fraud. Only the intervention of Joshua Chamberlain, the hero at Gettysburg, prevented opposing militias in the state, one Democrat and the other Republican, from waging a battle on the grounds of the state capitol. Twenty years later, Kentucky was not so lucky. As Democrats and Republicans armed themselves to fight over allegations of fraud in the state’s 1899 gubernatorial election, the Democratic candidate for governor was assassinated on the grounds of the state capitol, by a bullet shot from a window in the offices of the secretary of state, a Republican.

As time went on, the states began to turn to their courts, instead of their legislatures, for the resolution of ballot-counting disputes. This shift immensely reduced the risk that electoral disputes would turn violent, even if it didn’t do much to put such disputes to rest. In 1856, for example, as armed conflict was imminent over a gubernatorial election in Wisconsin, the state’s supreme court stepped in to rule against the incumbent governor, because the returns that purported to show him reelected had been fabricated. With Wisconsinites embracing the judicial decree, a peaceful transition of power ensued. A century later, Minnesota perfected the impartial tribunal: For its disputed 1962 gubernatorial election, the chief justice of the state supreme court ordered the two opposing candidates to agree on a panel of three judges to settle the dispute. The candidates, not surprisingly, picked one Democratic judge, one Republican and one with an impeccable reputation of being truly independent.

But state courts are not always purely impartial institutions. State judges, after all, are often elected themselves and sometimes display partisan allegiances. Federal judges would seem to present a less partisan option for adjudication since they are of course appointed, not elected. But for much of the 19th century there was no need to resort to them. Although several presidential elections sparked allegations of fraud in the era of Tammany Hall-style vote-buying—1844, 1880, 1884, 1888—the number of votes in question wasn’t large enough to threaten instability, and the charges of rigging soon dissipated. The disputed presidential election of 1876 was also resolved without resorting to federal court, though five Supreme Court justices served on a congressionally created commission to assist with the dispute. That move was controversial precisely because, sure enough, they split 3-2 along party lines. Rutherford B. Hayes was inaugurated to derisive cries of “His Fraudulency” and “Rutherfraud.”

In the 20th century, federal courts were actually barred from scrutinizing a state’s vote-counting procedures. At the end of the 19th century, in litigation over the 1899 Kentucky gubernatorial election, the U.S. Supreme Court expressly precluded the federal judiciary from becoming involved in these disputes. No matter how egregious the stuffing of the ballot boxes might have been in that election, the majority proclaimed that the Constitution left the federal judiciary powerless to entertain any claim of a constitutional violation. It was an essential feature of state sovereignty built into the architecture of the U.S. Constitution that the states would have to police these frauds, or alleged frauds, themselves.

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J. C. W. Beckham

The court’s ruling in the Kentucky case, Taylor v. Beckham, had major consequences in the 20th century—most notably in 1948, when electoral fraud not only occurred but shaped history. The scene was Alice, Texas, and after the polls had closed in precinct 13, 200 fake votes were added for U.S. Senate candidate Lyndon Johnson, as Robert Caro and Robert Dallek have documented in their biographies of Johnson. His opponent, former governor Coke Stevenson, went to federal court in an effort to remove the fraudulent votes from Ballot Box 13. Since Johnson’s margin of victory was only 87 votes, deducting the 200 fabricated votes would reverse the outcome. But before a federal judge in Texas could complete an investigation of the evidence, an emergency decree came down from Supreme Court Justice Hugo Black, resting on the precedent from Taylor v. Beckham, and ruling that the federal court had no jurisdiction. No matter the truth of the ballot-boxing stuffing perpetrated on behalf of Johnson, federal judges were powerless. “Landslide Lyndon,” a nickname Johnson himself would embrace, went to the Senate, where he quickly became majority leader and, in 1960, John F. Kennedy’s running mate.

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The 1960 presidential election itself involved allegations of fraud, again in Texas and also in Illinois. There were suggestions, corroborated by later scholarship, that Republican nominee Richard Nixon might have been robbed of 100,000 or more votes in Texas, where Kennedy had been declared the winner by only half that number of votes. In Illinois, Kennedy’s margin was much lower—only 8,858—and a partial recount of a down-ballot Cook County race in the same election indicated that Democrats might have manufactured about the same number of votes (8,875), though it remains debatable whether down-ballot fraud would also be reflected at the top of the ticket. Whether or not there actually was enough wrongdoing to account for Kennedy’s victory, one thing is clear: Nixon had no remedy. The 1948 dispute had confirmed that it would be futile for the Republican to file suit in federal court. As for state court, that was pointless, too, since Texas courts at the time were thoroughly controlled by the Democratic Party. Nixon, however, undermined the outcry by publicly conceding defeat. As he later wrote, “[T]here was no procedure whatever for a losing candidate to get a recount in Texas.” Even so, many Republicans ever since have believed that the 1960 election was stolen.

Bush v. Gore was, in effect, payback for 1960. The Republican majority on the U.S. Supreme Court was not going to let the Democratic-dominated Florida judiciary, which had ordered a recount, steal the election for Gore. Bush was going to get the hearing in federal court that Nixon never had. Relying on precedents from different areas of election law, the Supreme Court repudiated the position it had taken in Taylor v. Beckham and decided that the Florida secretary of state’s original vote count could stand. But as a consequence of the 5-4 split among the justices in Bush v. Gore, the U.S. Supreme Court now looked just as partisan as the Florida Supreme Court it was overruling. America still lacked an impartial institution for ballot-counting battles, just as it had in 1792. Bush took office with many Democrats still insisting, as Spike Lee’s film succinctly put it, “We Wuz Robbed.”

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Toward the end of his long career, James Madison had a premonition that something like 2000 would occur. After himself serving as president, he reflected on the possibility that a presidential election might become engulfed in the same kind of vote-counting controversy that New York had experienced in 1792. This he knew would be a real disaster. “In arranging the delicate task of appointing a President, as little room as possible ought to be left for abortive or controvertible results,” he wrote to a friend in 1826. But in another letter, he acknowledged that designing the procedures for presidential elections had been the weakest point of the Constitutional Convention during the summer of 1787. Those particular deliberations “took place in the latter stage of the Session,” he ruefully reminisced, and thus were “not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies.”

There you have it from the primary author of the Constitution himself: a late-in-life confession that he, and his fellow Founding Fathers, blew it. They did not think through the need to build into the architecture of the new Constitution a mechanism for coping with claims of electoral fraud affecting the outcome of a presidential election. We have been living with the original omission ever since, as the Constitution—so difficult to amend—has never been fixed to add the missing institution.

So who will resolve the conflict if Trump loses Pennsylvania and insists on seeing proof, and the state can’t provide it? The Pennsylvania Supreme Court, despite being dominated by Democrats? The U.S. Supreme Court, despite being hamstrung by a vacancy and thus at risk of a 4-4 split? Congress, paralyzed by partisan gridlock? Can we count on Donald Trump to take the advice, coming across the centuries from Alexander Hamilton, that Trump (like John Jay) should concede defeat rather than risk violence in the streets, even if he firmly believes he was robbed? Jay managed to be magnanimous, despite his own experience with taking up arms against tyranny. Nixon conceded and, after losing in court, Gore did, too.

Thankfully, there is a way out of this predicament. Just because we don’t have a constitutional mandate for it doesn’t mean we can’t build an evenly balanced tribunal, controlled by neither party, to investigate and resolve all claims of electoral fraud that might arise in a presidential election—the kind of institution that Madison himself came to recognize as missing. We would join Canada and Australia, countries that also inherited their legal systems from Britain, in creating such a body.

In fact, even for this election, it’s not too late: Much like Minnesota did, the U.S. Supreme Court could create special three-judge panel, ideally agreed to by both candidates, that could advise the court in any case involving the presidential election. Long-term, we could put this kind of impartial tribunal on a more permanent footing by means of a constitutional amendment. As difficult as that would be, the legitimacy of the highest office is at stake.

 

Edward B. Foley, professor of law at The Ohio State University, is author of Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016).

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