The United States isn’t a democracy. We are a constitutional republic. Over all, the system is pretty good and usually works, eventually. Except when it comes to election law and picking a president.
The first time this became apparent, it was 1800. The U.S. was a mere 24-years old. It was only our second real national election because George Washington was selected, not elected. Due to a glitch in the architecture of the electoral college, the Democratic-Republican candidates — Thomas Jefferson, for President and Aaron Burr for Vice — had the same number of electoral votes.
According to History Central:
… no one had the majority of votes, and the election was turned over to the House of Representatives. The House deliberated from February 11th to February 17th and voted 36 times. The Federalists had decided to support Burr … (and) would have won since they were the majority of the outgoing House. However, the constitution called for the election of a President by the House on a state-by-state basis. The Federalists could not carry enough states. On the 36th ballot Jefferson was selected.
That glitch got fixed in time for the election in 1804, but the fun was just beginning. Twenty years later, there was a four-way election starring John Quincy Adams, Henry Clay, William H Crawford, and Andrew Jackson. The electoral vote broke down thusly: Jackson – 99, Adams – 84, Crawford – 41, Clay – 37. The three leading candidates went to the House of Representatives for a final decision. With a little help from media-fueled scandal, J.Q. Adams won on the first ballot of the House … and after taking office, appointed Henry Clay as Secretary of State. Hmm.
This was also the last time the House made the pick. But it wasn’t the last race to be decided outside the ballot box.
In 1876 the Democrats nominated Samuel Tilden while the Republicans nominated Rutherford B. Hayes. Tilden won the popular vote by 250,000 votes (out of approximately 2 million), but the vote was tight in South Carolina, Florida, and Louisiana. Exactly how this got resolved is complicated. Suffice to say, it was a cooperative bag job by Congress and the SJC. The final decision landed Hayes in the Oval Office and brought an end to Reconstruction. Which, oddly, is what the south wanted.
Tilden won the battle. Hayes won the war.
In the election of 1888 Grover Cleveland (incumbent Democratic President) faced Republican Benjamin Harrison. Cleveland won the popular vote, but lost the electoral vote. Harrison became President, but lost to Cleveland in a rematch four years later. Making Cleveland the only president to serve two non-consecutive terms. It’s also the only “disputed” election settled by an election.
In my lifetime, the first memorable election was the very tight race between Kennedy and Nixon in 1960. It was the first election I watched on TV. It went on through the night and was still not decided as the sun rose.
I was 13. I liked Kennedy. He had excellent hair, didn’t sweat, made great speeches, and was cute. He looked honest. The electoral vote was extremely close, but Kennedy held a lead in the popular vote for the entire race. This was the first time I remember hearing everyone say, after Nixon had conceded: “We should overhaul the electoral college.” I’m still waiting.
Thirty-six years later, in 2000, the Supreme Court stepped in and stopped the recount of the tightest election in our history. Just over 537 votes out of more than 6 million separated Gore and Bush. Evidence strongly suggests Gore was the true winner, but the Supreme Court called the play. Which they had — have — no authority to do. The problem is, no one else had (has) the authority to decide a disputed presidential election. What’s a country to do?
There are precedents, but each is a one-off, a Rube Goldberg solution cobbled together to patch up the crack in the liberty bell. If it happens again — we can safely assume it will — a new quickie solution will be thrown together.
When the Supreme Court stopped the recount in 2000 — a vote which was entirely along party lines (party lines don’t officially exist in the Supreme Court), nothing in the Constitution gave the SJC the right to do it. But in the U.S., the Supreme Court is “the final word.” You can’t argue with the Supreme Court, can you? With no precedent for disputing the authority of the Supreme Court, we accept it.
The buck stops there. We grumble, complain, rail, and rant. But no one refuses to obey a Supreme Court ruling.
It’s something to ponder while we watch a terrifying election. Maybe it’s not the most terrifying election ever. As Stephen Colbert noted the other night, “Trump might not actually be the worst ever president. We’ve had some really bad presidents …”
Indeed we have. That’s the awful part of freedom. We are free to be stupid, free to trade our freedom for empty promises. We wouldn’t be the first or last country to choose a terrible leader. I just hope we survive our choices.