Sunday, February 5, 2017

Flashback, February 1887: The Electoral Count Act—Suddenly Relevant Again

It took a decade, but Congress finally tried to prevent a repetition of the chaotic Presidential election of 1876 by passing the Electoral Count Act, which provided for rules and procedures for dealing with future objections and disputes. The relative success of the legislation, passed in early February 1887, can be seen in the deadly dull formal electoral counts that occurred over the following century.  The media barely took notice of the rituals mandated by the legislation.

Then, twice in the last 16 years, the intent and content of this legislation became relevant again due to the same type of atmosphere that prevailed in 1876: a perilously partisan divide that left all the old political norms in shards.

In the 2000 election, with the all-important Electoral College outcome famously hanging on “hanging chads” in Florida, the dissenting opinion of Associate Supreme Court Justice Stephen Breyer in Bush v. Gore reviewed the legislative history of the Electoral Count Act to support his contention that it was Congress, rather than the court, which should resolve disputed federal elections. In the past Presidential election, in which another Democrat (Hillary Clinton) won the popular vote but not the Electoral College, the losing side mounted a last-ditch, hope-against-hope effort to persuade little-known electors to ignore their pledge to vote Republican, making the dull procedures heavily watched and even contested for a change.

Problems with voting were apparent all the way to the early days of the republic. Despite vast changes in the composition of the voters, one common belief can be found in the elections of 1800, 1876, 2000 and 2016: that the very legitimacy of the count—and, thus, any government that would form—was at stake. In the first three elections, subsequent legislation took care of some, but by no means all, of the problems:

*Election of 1800: Thomas Jefferson and Aaron Burr, though ostensibly running mates for the Democratic-Republican Party, had ended up with the identical number of electoral votes: 73. The election was thrown into the Federalist-dominated House of Representatives, which, heavily influenced by Alexander Hamilton, gave Jefferson the victory. The Twelfth Amendment solved the easiest problem: holding separate Electoral College votes for President and Vice-President. But it left a source of confusion: While directing the President of the Senate to open Electoral College certificates in the presence of both houses of Congress, it did not spell out if the presiding officer should determine which returns to tally, or what should happen if either the House of Representatives or Senate contested the results.

*Election of 1876: When the votes were counted that November, the Democratic Presidential nominee, Samuel J. Tilden, was only one electoral vote from returning his power to control of the executive branch for the first time in 16 years. But supporters of his GOP opponent, Rutherford B. Hayes, quickly figured out that if their candidate could manage not to lose another Northern state, then run the table by winning the three remaining disputed states—Florida, South Carolina, and Louisiana—he would win. Allegations of fraud and disenfranchisement raged on each side. A divided Congress appointed an electoral commission composed of five Senators, five Representatives, and five Supreme Court Justices. Theoretically it was equally divided between Republicans and Democrats, with Chief Justice David Davis, an Independent, casting the tie-breaking vote. But when the Illinois legislature named Davis to the Senate, his replacement, Associate Supreme Court Justice Joseph P. Bradley, ended up siding with the Republicans. Charges of fraud then descended on him. (Hayes was inaugurated in March 1877 with virtually no time to spare.)

With control of Congress seesawing between the two parties over the next decade, a consensus for changing the electoral procedures was slow in coming. When it finally came, in late 1886, Andrew Caldwell (D-Tenn.), chair of the Select Committee on the Election of President and Vice-President, pointed out in the committee’s report both where ultimate authority for approving the vote lay and the stakes involved for the government:

"The power to judge of the legality of the votes is a necessary consequent of the power to count. The existence of this power is of absolute necessity to the preservation of the Government. The interests of all the States in their relations to each other in the Federal Union demand that the ultimate tribunal to decide upon the election of President should be a constituent body, in which the States in their federal relationships and the people in their sovereign capacity should be represented."

The procedure used to ensure that went like this: By the “safe harbor” provision of the legislation, each state must determine, or ascertain, its electors and electoral results six days before the Electoral College meets in person. In this past election, electors met on Dec. 19 at each state capital to cast their votes. On January 6, the newly elected Congress to ascertain the final vote.

The report of Caldwell’s committee explained the rationale for all of this: "The two Houses are, by the Constitution, authorized to make the count of electoral votes. They can only count legal votes, and in doing so must determine, from the best evidence to be had, what are legal votes .... The power to determine rests with the two Houses, and there is no other constitutional tribunal."

*Election of 2000: Just as the electoral commission meant to decide the 1876 election had ruled in favor of the Republican candidate by a single vote, so did the Supreme Court in Bush v. Gore. One would think that the bitterness surrounding the event would lead to significant bipartisan legislation, but that is not what happened. One obvious solution, suggested by Founding Father James Wilson back in 1787—simply accept the results of the popular vote rather than the Electoral College—was rejected.  An attempt to replace the punchcard voting systems with electronic voting machines came through the Help America Vote Act, passed in 2002. Unfortunately, few at the time appreciated the new systems’ vulnerability to outside electronic interference. An additional problem came through a prerogative the states continued to claim for themselves: determining procedures associated with elections. In a time of hyperpartisanship, the results were sadly predictable, according to a 2006 article by Valentina A. Bali and Brian D. Silver in State Politics and Policy Quarterly:

“States with a divided government or high party competition tended not to adopt several key electoral reforms, while partisanship and the interaction of partisanship and minority representation influenced the adoption of others. Fiscal constraints and institutional arrangements had less impact on reform adoption.”

*Election of 2016: It may take years, if ever, before the full truth comes out about outside interference in the latest Presidential contest. But one fact went largely unnoticed: there were nearly 900 fewer places to vote this time because the Supreme Court significantly weakened the Voting Rights Act of 1965 in its Shelby County v. Holder decision in 2013, according to an article by Ari Berman in The Nation.

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