Posted: October 27, 2012
How to Avoid Electoral Alarmism: The Relevance of 1884 and 1916
I share the view of Doug Chapin, among others, that the media and the public should not be unduly alarmist about the prospect of the presidential election being “too close to call” on Election Night and therefore going into overtime. As I explained in a previous comment, given the “new normal” of provisional ballots as required by Congress in 2002, it is to entirely appropriate (and thus to be anticipated) that a closely competitive election might need to wait for provisional ballots to be verified and counted. Therefore, neither the term “nightmare” nor some similar label should be attached to such circumstance, without more. If one wants to speculate about a genuine nightmare, then one can consider the possible need of a state, or locality, to reschedule Election Day because of “Frankenstorm”—or potential Equal Protection issues arising from the differential treatment of voters within a state in response to a storm, a scenario we “wargamed” in 2008.
In short, it is important to distinguish “extra innings” as an ordinary part of a well-functioning electoral process from true calamities that deserve to be labeled as such. In this regard, I have written an introduction to “elections in overtime” that is a chapter of a newly published book, LAW AND ELECTION POLITICS: THE RULES OF THE GAME (edited by Matthew Streb).
Meanwhile, as part of the effort to explain why “extra innings” in a presidential election is not necessarily a crisis, I offer this historical perspective.
You don’t remember that it took two weeks to decide the presidential elections of 1884 and 1916? Don’t worry, that’s a good thing.
The point is that a presidential election can remain unresolved for a couple of weeks without a crisis ensuing. The Hayes-Tilden election of 1876 and Bush-Gore election of 2000 ended up in severely protracted disputes lasting much longer than two weeks, with the Hayes-Tilden dispute almost becoming a genuinely disastrous constitutional crisis. But both 1884 and 1916 show that a presidential election can be “too close to call” the morning after Election Day and still be resolved without litigation, pursuant to administrative procedures for canvassing returns, and thus not spill out of control into potentially dangerous confrontation.
In 1884, New York was the “tipping point state” that would determine the Electoral College winner, and initial returns showed Republican candidate James Blaine trailing the Democrat, Grover Cleveland, by about only a thousand votes or so in that state (where Cleveland happened to be the incumbent governor at the time). Both sides had battalions of lawyers scrutinizing the New York returns, with Blaine’s supporters saying that they would go to court to overturn a Cleveland victory if they found that fraud had resulted in a stolen election. (Republicans were specifically concerned that year that Democrats might have transported voters from out-of-state to cast unlawful ballots in New York.) Remember, 1884 was only eight years after Hayes-Tilden, so lawyers for both sides knew how to wage all-out electoral war, just as lawyers today have vivid memories of 2000.
But all-out electoral war did not break out in 1884. Instead, the canvass occurred over a two-week period after Election Day, with each side having two witnesses to observe the process in each electoral district in New York. Sure enough, this process uncovered vote-tabulation errors, some favoring Cleveland and others favoring Blaine. One problem that surfaced on Long Island caused the most consternation: it was alleged that votes for one candidate were wrongly attributed to another. But even if that allegation were true—and it was never proved—it would not have been enough to overturn Cleveland’s victory. At the end of two weeks, when the canvass was complete, Republicans conceded that Blaine had lost the election fair and square. In the works of the New York Tribune, which functioned as something of an official mouthpiece of the Republicans at the time, “the canvass of the returns has been thorough, careful and honest, and leaves no room for doubt as to the result.”
Thus, 1884 was nothing like 1876, and almost no one now is aware that it took two weeks to settle whether Cleveland or Blaine had won. As soon as the vote-counting process was complete pursuant to the necessary administrative canvass, without litigation or other form of a protracted dispute, the nation treated the result as entirely legitimate and appropriate, and history has viewed the 1884 as decided without a dispute just as if a winner had been declared the morning after Election Day. 1884, therefore, demonstrates that a presidential election can go into “overtime” without a significant problem developing.
1916 illustrates the same important point. That year Charles Evans Hughes as the Republican nominee had stepped down from the Supreme Court to challenge the Democratic incumbent, Woodrow Wilson. (Hughes would later be reappointed as Chief Justice.) The initial returns on November 7 showed several states too close to call, including California, which ultimately became the decisive one. The result in New Hampshire actually flipped during the time the nation was waiting to hear from California, and Minnesota also was potentially in play depending on what happened in California.
Amidst initial talk among Republicans of taking the election all the way to Congress (where they controlled a majority of the incoming state delegations in the House of Representatives, which is what matters under the Twelfth Amendment), based on allegations of fraud and vote-buying, Hughes decided to wait for the completion of the official canvass of returns in California before making any concession. Wilson was ahead in the state by just a few thousand votes in the initial returns, with remote localities not yet reporting. As in 1884, the canvass was scrutinized closely by attorneys from both sides and turned up errors. But the errors affected both sides in roughly equal proportions and appeared random. No evidence of fraud turned up, despite the Republicans’ efforts to look for it, at least not enough to overturn Wilson’s 3,420-vote margin at the end of the canvass. After California officially certified this result, Hughes conceded on November 22, roughly two weeks after Election Day.
No one today thinks of Wilson’s reelection in 1916 as in any way tainted by the fact that it took two weeks for his victory to be settled. Unlike Bush’s win in 2000, Wilson’s in 1916 was as good as if it had been declared on the morning after Election Day. Waiting for completion of the ordinary administration of the canvass, which leads to an officially certified result, is worlds apart from going to court to contest that certification, as Gore did in 2000.
It is important, too, to remember that Europe was already fighting the Great War in 1916, with the very real fear that the United States would soon enter that war as a central concern during that presidential campaign. Indeed, the national security threat was serious enough that Wilson had made extraordinary contingency plans to let Hughes assume the office of the presidency immediately, if the result of the election showed Hughes the victor. Yet even in that precarious situation, the nation was able to handle two weeks of uncertainty as to which candidate actually won the election.
If the nation could wait two weeks in 1916, it can also wait that long this year to learn whether Obama or Romney wins. Just as completing California’s canvass did nothing to undermine the legitimacy of Wilson’s eventual victory, so too the mere fact that it might be necessary to complete the canvass in Ohio (or elsewhere) this year before knowing which candidate wins would in no way delegitimize the victory of the eventual winner.
To be more specific, suppose it takes two weeks for Ohio to decide whether Obama or Romney wins the state and, with it, the whole election. Suppose that two-week process is orderly, with attorneys for both candidates closely scrutinizing all aspects of the returns, including the validity of provisional ballots, and no major disputes or lawsuits develop despite all this scrutiny. Suppose, then, after two weeks or so, there is an official certification of the result, with an immediate and gracious concession from the losing candidate according to that certification.
I submit that in this situation history would judge 2012 to be essentially like 2004, and 1916, not like 2000. In other words, a concession at the end of two weeks according to this scenario would be remembered by posterity as essentially equivalent to Kerry’s concession in 2004 (which occurred the morning after Election Day), or Hughes’s concession in 1916 (which, like the hypothetical situation this year, occurred after two weeks). It would not be considered equivalent to Gore’s concession in 2000, after the Supreme Court in December ruled 5-4 to stop recounting ballots, as Gore had so fervently sought through litigation even after Bush’s officially certified victory.
2000, like 1876, was a genuinely and deeply disputed presidential election, in a way that neither 1916 nor 1884 had been. This distinction is worth keeping in mind, as we prepare for the possibility that this year’s presidential election may be unresolved on the morning after Election Day.
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