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Election Law @ Moritz

Election Law @ Moritz


Waiting for a Presidential Winner: The Lessons of 1884 and 1916

This year is the second presidential election since 2000. 1884 was the second presidential election since 1876. Can we learn anything useful from this historical parallel, as we prepare for Tuesday Night—and potentially beyond—wanting to know who won the presidential election?

As all election lawyers know, and others may recall from their study of history, 1876 was our nation’s first and only predecessor to the debacle of 2000: an all-out brawl over the counting of ballots cast for presidential electors, with the fight not subsiding after the certification of official results by state authorities. Instead, the fight went to Washington, D.C., needing a national institution of government to resolve the bitter dispute, and even the resolution—while decisive in declaring which candidate was entitled to take office—never achieved the key sense of closure that comes from the other side accepting result as a fair resolution.

In the immediate aftermath of 1876, no one wanted a repetition of that situation—in the same way that no one today wants a repetition of what we went through in 2000. But the nation nearly had a repeat situation, at least more nearly than was entirely comfortable at the time. In some ways, the election of 1880 was comparable to the election of 2004. New York ended up being the one swing state in 1880, just as Ohio ended up the one swing state in 2004. And the 1880 presidential election in New York was close: only about 20,000 votes separated the winner, James Garfield, from the runner-up, Winfield Hancock. But it wasn’t close enough to repeat a fight like the one that had occurred four years earlier. It took a few days for Hancock to concede, even longer than it took Kerry to concede in 2004 (because the margin of victory in 1880 was considerably narrower than the roughly 120,000-vote margin in 2000). And even though there were allegations of problems in New York’s voting process that Hancock could have complained about—reports of residents from neighboring states (and even Canadians) coming to New York to cast unlawful ballots there, as well as the claim that 5,000 Hancock ballots had been dumped into the Hudson River—Hancock did not want to put the country through the kind of ordeal that it had suffered in 1876. He and his leading political advisers seriously entertained the idea of contesting the election result in the immediate aftermath of Election Night, but they quickly abandoned that idea.

Four years later, in 1884, New York again was the key swing state, and this time the result was even closer: a roughly 1000-vote margin between Grover Cleveland and James Blaine. Because this outcome was an order-of-magnitude narrower than the immediately previous election, the chance of a contest like the one that had occurred eight years earlier was much greater. Both sides “lawyered up” in 1884, as they had in 1876, as they would do over a century later in 2000, and as they are once again preparing to do this year. Blaine and his lawyers looked for reasons to challenge the result that so slimly favored Cleveland. Bipartisan teams throughout New York reviewed the tallies from each precinct. There was evidence of some problems here and there, including more stories about citizens of other states coming to New York to cast ballots. Ultimately, however, there was not enough evidence of wrongdoing to undermine even the tight 1000-vote margin.

It took two weeks to settle the matter in 1884, an amount of time that might seem like an eternity to us in our era of instantaneous internet and cable news. But it is important to observe that the way in which the election was resolved after two weeks was entirely different from what had happened eight years earlier, in 1876. After the completion of the two-week process of inspecting the vote tallies, Blaine and his supporters accepted the legitimacy of the count. They did not challenge it, claiming that they had been denied their rightful victory, as had occurred in 1876. The dispute, in other words, was not taken to that next, and qualitatively different, polity-wrenching level. That is why, even though the nation retains some historical memory of 1876 (especially after 2000), virtually no one is familiar with the circumstances of the two-week delay in 1884.

Ultimately, it was no big deal: the nation was able to achieve closure successfully, even if took a while longer than would be desirable. This point is significant. It is not merely that a close election of the kind that occurred in 1880 or 2004 is able to be resolved successfully, even when there is no apparent winner on Election Night itself, and it takes a day or so for the concession to occur. The point is rather that even an election as exceptionally close as 1884—where there is but a 1000-vote difference in a single state that will be decisive in determining the Electoral College winner—does not necessarily degenerate into a debacle like the ones that occurred in 1876 and 2000. The two-week delay, while inevitably unsettling at the time, quickly faded into historical obscurity once the concession was made that the count of the ballots was demonstrated to be valid (and thus not susceptible to protracted litigation).

To be sure, there were some Blaine supporters who never accepted the outcome in 1884, just as there may be some partisans who can never reconcile themselves the result this year, whichever way it turns out. But, again, it is an order-of-magnitude point. In 1884, the vast majority accepted the outcome as accurate after the careful two-week scrutiny of the ballots by teams of lawyers on both sides, whereas after 1876 many citizens continued to feel wronged by the eventual outcome, just as would occur again after 2000. Consequently, even if we were to suffer another two-week delay this year (and that scenario does not appear likely as of this writing), it does not need to degenerate inevitably into a repeat of the divisiveness that occurred in 2000. Eight years after 2000, this year could instead be another 1884.

Moreover, it may be of added comfort that 1884 is not the only year in which our nation has avoided the kind of debacle that occurred in 1876 and 2000, despite the exceptional closeness of the vote in a critical swing state. The same sort of situation occurred in 1916. This time the decisive swing state was California. Woodrow Wilson, in his bid for reelection, was ahead of Charles Evans Hughes by about 3000 votes there. Again, it took a couple of weeks to review the counting of the ballots before Hughes issued a concession (on November 22).

If the lawyers had found something to fight over in California, they likely would have—turning that year into another 1876. A recount in New Hampshire had already flipped the state from Hughes’s column to Wilson’s (with him winning it by only 56 votes). And if Hughes had fought over California, Wilson probably would have tried to put Minnesota back in play, where Hughes had won by only 389 votes. But in the end the lawyers couldn’t find enough to fight about. Isolated incidences of counting errors in California were found, but appeared to be random and cancel each other out. Ultimately, California’s electoral process that year was clean and accurate enough to withstand the intense scrutiny of even a 3000-vote margin.

Thus, 1916 was another year (like 1884) in which, despite the considerable delay, the result was an election whose legitimacy and fairness was accepted by both sides. Accordingly, it was another successful closure to the counting process. Hughes’s supporters did not end up feeling like Gore’s supporters, thinking that the wrong candidate was permitted to take office by a system that had failed. As a result, the closeness of 1916 (like that of 1884) is largely lost to history. Given the successful closure, the delay ultimately didn’t matter.

Given this history, two concluding observations. First, it is unlikely that any given presidential election is close enough even to fall into the category of a delayed outcome like the ones of 1884 and 1916. Most close elections are more like 1880 or 2004, if they are even that close. 1948, 1960, and 1976 come to mind as close presidential elections that did not occasion two-week delays before a concession from the losing candidate. Thus, odds are that even if this year ends up being close, there will be a recognized winner within a day or so, with the losing candidate conceding defeat in that quick timeframe.

Second, however, in the unlikely event that we must endure a protracted wait of two or more weeks before knowing who won the presidency this year, as lawyers from both sides review the count of the ballots, it still does not mean that we must suffer a repeat of 2000. Instead, as undesirable as the delay would be, we could hope for a successful resolution along the lines of what occurred in 1884 and 1916. As long as the defeated candidate and the bulk of his supporters accept the review of the count as showing it to be fair and accurate—so that the eventual concession is recognition of the outcome’s democratic validity—then the counting process of 2008 could happily become as historically obscure as these two previous instances of a delayed result.

This piece is drawn from research for a book on the history of disputed elections in the United States that I am writing with my Moritz co-author Steve Huefner.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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