“It’s not the voting that’s democracy, it’s the counting.” Tom Stoppard
Recently I had a conversation with a friend about the 2000 presidential election. The issue was whether or not Gore conceded the election for the sake of the political process and an end to a contested outcome. My recollection was that he never actually conceded and certainly not for any “greater good”. At the time we agreed to disagree, but the issue got me thinking whether or not I was having a senior moment, so I read up on Bush v. Gore and discovered that my memory was still functional.
On further reflection I started thinking about the broader historical context of contested presidential elections as so many today think such events are limited to Trump’s contention that the 2020 election was a fraud; actually, there were quite a few such episodes, in fact seven to date, with three of those in the 21st Century.
Following Washington’s presidency in 1800 we had for the first time the opportunity for a peaceful transfer of power from one political party to another. Jefferson and Burr of the Republican Party were tied in the Electoral College with Adams and Pinckney of the Federalist Party. During the bitter debate that followed in the House of Representatives where the deadlock would be resolved, Federalists and Republicans openly discussed preparing for civil war. After 36 votes some of the Federalists conceded to Jefferson, giving him the edge by one vote and avoiding a violent resolution.
Soon thereafter we have what Andrew Jackson claimed was the “The Corrupt Bargain”. In the 1824 election, Andrew Jackson faced a slate of many candidates thanks to changes in how they were nominated and how electors were chosen; there was John Adams, Henry Clay, John Calhoun, and William Crawford, all representing the same party as the Federalist had ceased to be a viable political force. The net outcome was that Jackson drew the most popular and electoral votes, but not the majority of the latter to be elected. Again the decision was deferred to the House of Representatives. During that process bargains were made among the various candidates and their supporters leading to a victory for Adams by one vote.
The worst contested election in our history, what historians call the “The Ultimate Crisis”, was in 1860, when Lincoln faced John Breckenridge, Stephen Douglas and John Bell. Lincoln won the majority of electoral votes, and a plurality but not majority of the popular vote. Many historians attribute Lincoln’s efforts to attract a pro-Union constituency and northern Democrats, promising that he had no intention to abolish slavery where it existed, as an error that cost him a majority of the popular vote as it left abolitionists and others within his own party disillusioned, and that had he not done so he may have averted the Civil War with a more overwhelming election victory. Regardless, his election split the Union and therefore ranks as the most contested to date.
It took the infamous “Compromise of 1877” to finally settle the contested election of 1876. While Samuel Tilden won the popular vote and seemingly the electoral, Rutherford Hayes challenged the count. A “special commission” was formed to review disputed state electoral tallies. In the meantime Hayes made a deal with a Congress whose majority was Southern Democrats, the essence of which was the withdrawal of the last of the federal troops of the Reconstruction from South Carolina, Florida and Louisiana. The Commission found for Hayes; nothing was officially noted about the deal but historical accounts tell a story without the need to read between the lines.
In the 2000 election Gore initially conceded to Bush, but after subsequently learning that Oregon, New Mexico and Florida were too close to call, Gore recanted the concession. Eventually the count came down to Florida, and a recount which led to a Bush victory. The Gore campaign filed suit demanding a hand recount versus the machine one as stated in Florida’s election laws. The Florida Supreme Court ruled in favor of the Gore petition based on the famous “chad” issue. The Bush campaign appealed. Eventually, and for the first time in US history, it went to SCOTUS with both campaigns arguing their case for and against the overruling of Florida’s election laws. SCOTUS narrowly ruled (5-4) that, as election procedures are determined by the states, Florida’s election laws could only be changed legislatively. Further, SCOTUS ruled that there was a constitutionally mandated time limit for recounts and appeals which had already expired. Gore actually never really conceded, but stated that while he disagreed with the SCOTUS ruling, he accepted it.
The 2016 election was not the first time where the winner had the majority of electoral votes but not the popular vote as that has happened nineteen times. While the constitution clearly states that the Electoral College determines the presidential election, Hillary Clinton always refused to rule out challenging its legitimacy even though she admits that such a move would be unprecedented and legally questionable. Clinton dismissed Trump as an “illegitimate president” and stated that he knows that he stole the election. The investigation by special counsel Mueller concluded that Russia interfered in the election to help Trump and harm Clinton, but that he found no evidence that the interference changed the result, and did not establish a criminal conspiracy by the Trump campaign; he did however state that the investigation established obstruction of justice. When asked if she would completely rule out questioning the legitimacy of this election, Clinton has to this day maintained that the 2016 presidential election was not conducted legitimately.
The 2020 presidential election was the first since 1992 in which the incumbent president failed to win a second term. Biden won a hard fought campaign in Georgia and the battleground state of Pennsylvania, reaching 270 votes and securing the majority in the Electoral College; final tally was Trump 232 electoral votes to Biden’s 306. To this day, after countless investigations which all showed that there was no fraud, and after a moronic riot at the capital, Trump still refuses to concede defeat. As the House investigation of the January 6th riots, or insurrection of you prefer, goes on seemingly without end, and apparently with no proverbial smoking gun, a nation has grown weary of the denials and posturing of both parties.
Considering there have been 59 presidential elections so far, with seven contested and the results doing perhaps more harm than good, we should all take a step back and consider Mark Twain’s insightful observation that “If voting made any difference they wouldn’t let us do it.”