It's hardly news that many Americans are nervous about the upcoming election, not merely because of uncertainty about who will win but, more profoundly, because of fears that no clear winner will be determined.
With mail-in voting to be used on an unprecedented scale, there are questions about the timely delivery and the accurate count of the ballots. Phalanxes of attorneys have already lined up on both sides to challenge decisions made by local electoral boards. There seems to be a real danger that some states will be unable to certify a slate of electors in time to meet the deadline for the Electoral College vote, in which case the election would be referred to the Congress, with the House of Representatives choosing the president and the Senate choosing the vice president.
Complicating matters still further is the fact that it's the newly elected House and Senate that are supposed to make this choice, yet it's unclear how the newly elected bodies can assemble if critical ballots remain in dispute. If the Congress manages to work around this issue, the House will choose the president by a vote of state delegations. At present, Republicans control 26 state delegations, giving them the advantage in the current House, though not necessarily in the post-election House. If no president can be selected by Inauguration Day, the Speaker of the House assumes the duties of acting President of the United States. And there are many more complexities and uncertainties.
It would be one thing if all this drama were to play out in an atmosphere of calm deliberation, but – to put it mildly – that seems unlikely. Instead we can probably expect a wave of demonstrations, many turning violent.
To get some idea of what we may be in store for, I recently read Fraud of the Century, by Roy Morris, Jr., which covers the contested election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. It's an exhaustively researched, generally compelling narrative that perhaps offers a glimpse into the events of the next few months.
The election took place eleven years after the end of the Civil War. Antagonisms were still strong on both sides. Racism remained widespread and not at all covert. South Carolina politician Edmund Rhett said openly that the goal of his policies was for blacks to "be kept as near to the condition of slavery as possible, and as far from the condition of the white man as is practicable." Florida governor William Marvin told blacks to return to the plantations where they had been enslaved and "call your old Master – 'Master.'"
In response to such attitudes, the government in Washington had imposed federal troops on the South to protect the civil rights (and the lives) of the black population — the defining feature of the policy known as Reconstruction. Southern whites increasingly chafed under this de facto martial law, and many Northerners had grown weary of policing the region.
The Democratic Party, which had been the party of secession, continued to represent the interests of Southern whites, though some canny Democrats were making inroads with black voters. These inroads were made a bit easier by the widespread corruption of Ulysses S. Grant's presidential administration. Sordid scandals involving patronage and kickbacks had led to resignations and indictments, and had made the hapless Grant a figure of ridicule and contempt.
Corruption was by no means limited to the Republicans. The most notoriously corrupt politician in America was a Democrat, the famous Boss Tweed of New York's Tammany Hall. Morris writes, "With his diamond stick pins, loud checked suits, ruby shirt studs, and bowler hats, the corpulent Tweed was the walking embodiment of big-city corruption." The scale of Tweed's misdeeds is legendary. Morris focuses on the erection of the New York County courthouse, which took ten years to complete:
The building, which was supposed to cost $250,000, wound up costing the city nearly $14 million … Carpenters were paid $2.1 million for $30,000 worth of work; a Tammany Hall [crony] named Andrew Garvey received $1.9 million to plaster the building …; the furniture bill was $1.6 million, including $179,729 for three tables and forty chairs; and the bill for carpeting the courthouse was a staggering $4.8 million – enough to carpet the entire city.
Both Hayes and Tilden ran against corruption and in favor of reform. Tilden in particular had bona fides in this regard. He had been one of the leading voices against Tammany Hall and was instrumental in sending Tweed into exile (eventually followed by extradition and prison).
The presidential campaign was ugly and vicious, as is usual in American politics. The Republican-leaning Chicago Tribune described Tilden as "weazened, and shrimpled, and meanly cute. There is nothing about the man that is large, big, generous, solid, inspiring, powerful, or awakening. He's a small, lazy, odorous, ungainly, trickling stream, winding along and among the weeds ..." and so on. His masculinity was questioned because he was a lifelong bachelor. The political cartoonist Thomas Nast frequently depicted him wearing a skirt. More worryingly, some of Hayes's supporters adopted the tactic of "waving the bloody shirt" – reminding ex-Union soldiers of the wounds they'd won in battle ("Soldiers," Robert G. Ingersoll would declaim, "every scar you have on your heroic bodies was given to you by a Democrat") and exhorting them to "vote as you shot." The attacks went in the other direction as well, of course. One Tilden supporter urged the candidate to pose the question, "Did Hayes shoot his mother in a fit of insanity?"
On election night, it appeared that Tilden had won by a slim but unassailable margin. Republicans, however, immediately focused on three key southern states: South Carolina, Florida, and Louisiana. They asserted that widespread suppression of the black vote in those states had allowed Tilden's victory. Teams of strategists from both parties descended on the states to oversee the certification of the ballots. Though undoubtedly there was some suppression of the black vote, Morris argues that it was insufficient to account for Tilden's margins of victory (I gather that other historians disagree). In any case, hard-working Republican operatives were able to cloud the issue sufficiently that the outcome in all three states remained unresolved.
The general atmosphere of these deliberations was extremely disheartening for believers in democracy. After witnessing some of the behind-the-scenes activities, onetime Union general and Republican politician Lew Wallace, today best known as the author of Ben-Hur, wrote his wife,
I scarcely ever passed a week under such depression of spirits. It is terrible to see the extent to which all classes go in their determination to win. Conscience offers no restraint. Nothing is so common as the resort to perjury, unless it is violence – in short, I do not know whom to believe. If we win, our methods are subject to impeachment for possible fraud. If the enemy win, it is the same thing exactly – doubt, suspicion, irritation go with the consequence, whatever it may be.
This forecast proved accurate. There was never any chance that the eventual winner of the election would be respected by the losing side.
Ultimately, four states submitted multiple slates of electors to the Electoral College. North Carolina, Florida, and Louisiana each offered at least two different slates, reflecting ongoing disputes over whether Hayes or Tilden had carried the vote. A fourth state, Oregon, posed a different dilemma; the state had gone for Hayes by an indisputable margin, but one of the Hayes electors had been retroactively disqualified for being a federal employee, and there was a question of what to do with his single electoral college vote. Should it be awarded to Hayes anyway, or should it go to Tilden, whose elector had received the next-largest number of votes? The matter was more critical than it might appear; Tilden already had a confirmed total of 184 electoral votes, leaving him just one vote shy of the presidency. Should the orphaned Oregon vote go his way, he would be inaugurated.
To resolve these issues, Congress agreed to set up two electoral commissions, later merged into one, comprised of eight Republicans and seven Democrats. The Republicans' one-seat advantage on the commission – a somewhat accidental result of the selection process – proved decisive, as the commission ruled in favor of the Republicans in all four states. By receiving all the disputed votes, including the one in Oregon, Hayes was able to edge out Tilden, 185-184.
The transparently partisan rulings of the electoral commission left the public feeling cheated. The new president was quickly dubbed "His Fraudulency" and "Rutherfraud" Hayes. Although Hayes overcame this bad beginning and ended his single term in office (he did not run for reelection) as a reasonably popular figure, his reputation was forever marked by the dubious circumstances under which he attained power.
Hayes's election is often framed as the result of a "corrupt bargain" in which Republicans agreed to end Reconstruction in exchange for some limited but crucial Democratic support. Morris argues that this is an oversimplification. He points out that the North had already grown frustrated with overseeing the postwar South, and that the policy of withdrawing federal troops would have been implemented no matter who was in power. He also thinks the last-minute "bargain" has been oversold and amounted to little more than a ratification of the inevitable. In any event, Reconstruction did end with Hayes, and for nearly a century Southern blacks were left without federal protection and were reduced to the states of second-class citizens as whites implemented Jim Crow laws and turned a blind eye to lynchings and mob action.
Returning to our present circumstances, it's somewhat reassuring to see that violence in the turbulent post-election atmosphere of 1876 was kept to a minimum. True, there was an assassination attempt against Hayes (an assailant, never apprehended, fired a gun at him through a window of his home), which was hushed up at the time to avoid exacerbating tensions. Even so, the widespread civil unrest that might have been expected did not arise. This was mainly due to the forbearance of Hayes and Tilden, both of whom made every effort to prevent large assemblies that might degenerate into riots. It was also due to the prudence of President Grant, who made sure that Washington, DC, was protected by federal troops to prevent any attempt to seize the White House by force.
Another factor was Tilden's principled decision to abide by the law. Some of his more hotheaded advisers pressed him to take the oath of office in defiance of the electoral commission and set up a parallel government. Tilden steadfastly refused, saying simply that he had "no warrant of authority." Had he taken their advice, he could have been arrested as an insurrectionist and even shot. The potential consequences are appalling. The country would have risked a resumption of the Civil War.
Needless to say, the United States survived the contested election of 1876. There was no mass uprising, no confrontation between protesters and federal troops, no parallel government that might have prompted divided loyalties on the part of the military. Hayes was peacefully succeeded by another Republican, James A. Garfield. Garfield, in turn was assassinated six months into his presidency, but the killing had nothing to do with ideology; the assassin was a mentally ill low-level political operative incensed at not having been appointed ambassador to France.
Looking ahead, it's possible that November's election will be so one-sided (in either direction) that there will be no serious dispute over the outcome. I hope so. Regardless of who wins, I would rather have a blowout that silences all doubts than a squeaker that encourages recounts, litigation, protests, and possibly a spiraling descent into chaos.
If we're not so lucky and we end up with a replay of 1876, we can only hope that the moderation and good sense shown by Hayes and Tilden in restraining their supporters and adhering to constitutional norms will be shown by both of our contemporary presidential candidates and their advisors.
Somehow I'm not optimistic, but when it comes to human nature, I never am.
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P.S. If you're interested in reading Fraud of the Century, I recommend purchasing the print edition, rather than the Kindle ebook. The Kindle is poorly formatted; most of the chapters have the text centered so that it runs down the middle of the page. This makes it almost impossible to read. I don't know if ebook editions other than the Kindle suffer from the same formatting issue, but they might.
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