Through the years President Trump has been in office, Americans have grown accustomed to hearing of “norms” ignored and “guardrails” broken. Trump has fulfilled his supporters’ desire for an unconventional leader unbound by the sort of unwritten rules other presidents have followed.
Yet nothing may have prepared the nation for the prospect of a presidential election in which an incumbent refuses to acknowledge an apparent defeat. Nor are Americans ready for an election where no clear winner can be determined in a timely fashion and the constitutional processes for resolving the issue prove insufficient.
That scenario seems increasingly plausible, given the pandemic’s impact on the voting process, the president’s stated attitude and the current state of the laws governing the election of the president.
This past week, the president several times took questions about the American tradition of “peaceful transfer of power” when a president loses a bid for re-election. On Wednesday, he declined to commit to leaving office. “We’ll have to see,” he said, before launching an attack on the legitimacy of mailed ballots. This year, the COVID-19 pandemic has record numbers of voters planning to do so by mail. Many states may not have counted all their legally submitted ballots by Election Night, or even the day after. But the president has insisted any delay past that night will be evidence of fraud.
On Thursday, Senate Majority Leader Mitch McConnell and several other senior Republicans said they expected a normal, peaceful transfer of power if the president lost. The White House said Trump would respect “a free and fair election.” But on Friday night, at a campaign rally, Trump assured his supporters that no controversy needed to arise. “We’re not going to lose this,” he said, before adding: “Except if they cheat.” That caveat recalled his frequent assertions in 2016 that the election that year would be “rigged,” unless he won.
The president’s comments – to reporters as well as rally crowds – have greatly expanded public wariness about what could lie ahead. Even as Trump was ramping up his threats of post-election resistance, The Atlantic was releasing an online version of a major story from its November issue by reporter Barton Gellman. A veteran of many years with The Washington Post, Gellman also relied in part on a 55-page article published in 2019, in the Loyola University of Chicago Law Review. It was written by Edward B. Foley, a law professor at Ohio State’s Moritz School of Law.
The articles together detail how Trump, if he had a modest lead in the vote count on Election Night in one or more decisive states, could declare himself re-elected and resist any further accounting for the rest of the ballots by challenging those processes in the courts.
Remembrance of Troubles Past
The word “unprecedented” has been used so often in the Trump era as to lose its meaning. But at, a minimum, the president’s remarks can stir bad memories.
In truth, there are stories of uncertainty and narrow escapes in several U.S. elections in the past. But none may offer an adequate model, or much useful guidance at all, given the magnitude of this year’s election problems and the apparent determination of the incumbent to resist any adverse results.
The previous episodes include past presidential elections in which the candidate who finished first in the voting was not inaugurated. Five times, the clear winner of the popular vote did not win the Electoral College.
There have also been times when a candidate who could have challenged the results well past Election Day chose not to do so, at least in part to avoid a confrontation that could have harmed the nation.
Let’s look at the cases in reverse chronological order, so as to begin with those that Americans alive today remember.
The election of 2016. Democrat Hillary Clinton defeated Trump by 2.8 million votes four years ago, by far the largest popular vote victory for anyone who did not get to be president. But her vote was concentrated in California and a few other populous states. The Electoral College gives an edge to voters in less populous states because each state’s electoral vote equals the number of seats it has in Congress, including an automatic two in the Senate (regardless of population). So while Trump lost the popular vote, by winning more states he ran up a good score (306-232) in the Electoral College.
The latter institution was created in the Constitution by founding fathers who feared “tumult and disorder” might prevail among the general run of the voting citizenry. So, 233 years later, voters on Election Day are only choosing which set of electors will gather in their state capitol roughly six weeks later to make the official choice.
The Florida recount and the delayed results of 2000. “We don’t want another Florida” is a common refrain among election watchers old enough to remember. Unresolved for five weeks before the U.S. Supreme Court ordered a stop to recounts, the outcome in Florida was crucial because the state’s 25 electoral votes would determine the outcome in the Electoral College — which had its closest vote since the 1800s.
But determining who had won in Florida was difficult because the margin was so infinitesimal, officially 537 votes out of more than 5.8 million. Various problems also emerged regarding the counting or disallowing of imperfect voting cards (“hanging chads”). Democrats tried to force recounts in parts of the state. These were stopped by a federal lawsuit filed on behalf of Republican candidate George W. Bush, who was declared the razor-thin winner by state officials – including his brother, Jeb, and one of his statewide campaign chairs. Although Democrats had some success in the Florida state courts, Bush v. Gore was ultimately decided by five of the nine Supreme Court justices. Democratic nominee Al Gore, who had a nationwide lead of about half a million votes, could have pressed his case further – including to the new Congress in January — but he decided against it.
The close elections of 1968 and 1960. President John F. Kennedy, who was assassinated in 1963, remains among the most popular presidents in memory today. Few recall now that he won by only about 100,000 votes nationwide. Had he lost Illinois, where a big Democratic vote from Chicago carried the day, he would have lost the Electoral College.
Many urged the Republican nominee, then Vice President Richard Nixon, to contest the Illinois count – in part because Chicago’s Democratic Mayor Richard J. Daley was thought to have had a hand in it. But Nixon decided a protracted fight would be futile and might damage the country.
Nixon had another close election eight years later, winning the popular vote nationally by less than a percentage point. The Electoral College was also close because 46 electoral votes went to third-party candidate George Wallace, the segregationist governor of Alabama. So Nixon needed the motherlode of electoral votes from California to secure an outright majority in the Electoral College (as the Constitution requires).
That would have thrown the election to the House of Representatives, where each state would have one vote (another provision of the original Constitution) and where the outcome might have favored the Democratic nominee, then Vice President Hubert Humphrey.
The ouster of Grover Cleveland in 1888. Cleveland was the first Democrat elected president after the Civil War, ending a drought for the party that lasted a generation. After four years in office, he was able to attract half a million more voters than he had in 1884, winning the popular tally over his Republican challenger, Benjamin Harrison of Indiana. But this time around Cleveland was not able to win his home state of New York, which meant the switch of a whopping 36 votes in the Electoral College and a term in office for Harrison. Four years later, in 1892, Cleveland came back to win his home state and widen his margin in the popular vote and dominate the Electoral College, making him the only president to serve two non-consecutive terms.
The disputed election of 1876. The third election after the Civil War showed just how badly divided the country remained – and would remain. The popular vote winner by three percentage points was a Democrat named Samuel Tilden, who not only managed an outright majority of the popular vote but carried his home state of New York and its neighbors Connecticut and New Jersey. He also won the border states (Maryland, West Virginia, Kentucky and Missouri) and Indiana – in addition to most of what had been the Confederacy. But with all that, Tilden came up one vote shy of an outright majority in the Electoral College.
Republican nominee Rutherford B. Hayes, however, could not count on the votes of three Southern states (Louisiana, South Carolina and Florida), where the delegations were in dispute. That meant neither candidate had a majority of the Electoral College on the appointed day, and the stalemate continued. Finally, well into the new year of 1877, two weeks before Inauguration Day (which was then in March), a compromise gave Hayes the electoral votes of the disputed states with the understanding that, in exchange, the federal government would withdraw its occupation troops throughout the South.
That augured the end of the Reconstruction era, the recapture of state and local governments by the old power structure of white Southern Democrats. That soon led to the passage of “Jim Crow” laws oppressing formerly enslaved people and the de facto nullification of voting rights supposedly secured by three amendments to the Constitution. That state of affairs largely prevailed in the region until the 1960s, with after-effects that are still felt today.
The “corrupt bargain” of 1824. Long before the media echo chambers of our time, a phrase emerged that captured the sense of injustice felt by supporters of Andrew Jackson in his first bid for president. In a four-way contest, Jackson won a plurality of the popular vote (as best it could be determined at the time) and of the Electoral College as well. There was every reason for the war hero from Tennessee to expect to win the vote in the House of Representatives. But his rivals conspired against him and one of them, the legendary Kentuckian Henry Clay, got House members from his state and two neighboring states to throw their support to John Quincy Adams instead. Clay would later become Adams’ secretary of state, prompting the accusations of “a corrupt bargain.” But Jackson would have his revenge relatively soon, prevailing easily over Adams in the next presidential cycle (1828) and winning re-election four years after that.
The wildly contested election of 1800. George Washington was twice elected without opposition and then retired in 1796, leaving his vice president, John Adams, to hold the fort. Adams, from Massachusetts, ran as the favorite of a party calling themselves the Federalists. Thomas Jefferson of Virginia was the nominee of what were then called the Democratic-Republicans. The voting took place over a month, with each state setting its own date. The states split about evenly between the candidates, and electors from four states divided their votes. Adams emerged the winner in the Electoral College by just three votes (71 to 68).
But if that seemed messy, it was a model of tidiness compared to what happened four years later when Adams sought a second term. Although he once again swept New England, he lost New York, in part because Jefferson had a New Yorker named Aaron Burr as his running mate. The Jefferson-Burr ticket had a clear 73-65 majority in the Electoral College, dismissing the incumbent. But a dispute arose regarding which end of the ticket was up. Burr maintained that he had received as many electoral votes as Jefferson and that the House of Representatives should decide which of them should be president. (The Constitution would be amended a few years later to make sure this confusion did not recur.)
In the wild weeks that followed there were charges and counter-charges of vote buying and bribery in the House, and some Federalists who were vehemently opposed to the Virginian swung their support to Burr, whom they regarded as the lesser threat. So of the House delegations for the 16 states in the Union at the time, Jefferson could only count on eight. Over seven days in February 1801 the House conducted 35 ballots, reaching the same 8-8 deadlock each time.
In the end, the decisive influence was that of another New Yorker, Alexander Hamilton. While he disagreed with Jefferson on a host of issues, Hamilton had no use at all for Burr and feared him as a un-principled demagogue. So he mounted one of his furious writing campaigns on behalf of Jefferson (“by far not so dangerous a man”).
On the 36th ballot, the New York delegation finally turned on Burr and switched its vote to Jefferson, who would take the oath the following month. Hamilton was not a member of Congress, and in fact never came to Washington in his life. But as a delegate to the Constitutional Convention in 1787 he had argued for the Electoral College as a means of restraining the excesses of democracy. His abhorrence of Burr is depicted dramatically in the Broadway musical Hamilton – albeit with some dramatic license – and their rivalry finally ended when Burr fatally shot Hamilton in a duel in 1804.