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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