How to avert a U.S. election-night disaster

As our neighbour to the south heads toward November 3, experts say we should keep in mind some lessons from 144 years ago
By Steve Paikin - Published on Oct 14, 2020
Supporters of presidential candidates Donald Trump and Joe Biden in Erie, Pennsylvania, on October 10. (Carolyn Kaster/ AP Photo)

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A year ago next week, Canadians went to the polls and elected MPs to represent us in our 43rd Parliament.

Do you remember election month? No, of course you don’t. Because we don’t have election months in Canada. We have election nights. Even when unusual things happen in a Canadian election — such as the Conservatives winning more votes but fewer seats and the Liberals retaining the right to govern in a minority parliament — it’s all over but the shouting on election night.

We do elections well in Canada. People almost always know before they go to bed who’s going to form the next government, despite the fact that we’ve had plenty of hung parliaments.

Americans should be jealous. They don’t have election night. They have election month, because their rules are so bloody arcane, they can make you weep.

“I’d prepare for the worst,” said Nathaniel Persily, professor of law at Stanford Law School and a constitutional and election-law scholar, during an election-themed webinar last weekend. “We should inoculate the public that this is going to be an election unlike any other, because it’ll take a week or a month.”

Persily pointed to numerous reasons for this: as much as half of the public is expected to vote by mail (thanks to COVID-19), millions of ballots will come in after November 3 (election day), and states have different rules about whether ballots received after election night count. His advice to the television-network pundits: “Resist the temptation to call it on election night.”

America’s biggest problem, of course, is that it’s really not holding a national election. It’s holding 51 regional elections — one for every state and the District of Columbia. And it’s the states that make the rules, some of which are downright baffling.

If you follow this stuff, you may know that many experts are talking a lot about a previous election because it created precedents that could be useful to know for next month. Believe it or not, that election happened in 1876.

You read that date correctly.

In 1876, America was as badly divided as it is today. The Civil War was only a decade in the rearview mirror. Election day was a mess, replete with fraud, violence, and intimidation against Black people trying to vote in the South.

The contest featured a showdown between two governors: Republican Rutherford B. Hayes, of Ohio, and Democrat Samuel Tilden, of New York. In a smaller America, it took only 185 electoral votes to win (rather than the 270 of today). After the counting was done, Tilden had 184 electoral votes, and Hayes had 166. But the counts in three states were disputed, and both parties claimed victory.

Strangely enough, according to Michael Holt, historian at the University of Virginia, the sainted U.S. Constitution was mum on how to proceed. What happened next was a lot of figuring it out on the fly. This would all be arcane history if not for the fact that it established important precedents that could be resurrected 144 years later.

Holt says the legislatures in the three disputed states — all dominated by Republicans — insisted that the electoral votes be awarded to Hayes. The Democrats objected and sent their electors to the U.S. House of Representatives, demanding that the outgoing Democratic majority there validate Tilden’s win.

Things got so heated, Democratic supporters threatened to march on Washington, despite Tilden’s admonitions that they cool it. President Ulysses S. Grant even called in troops to protect the capital, just in case.

No one knew how to resolve the crisis. November gave way to December and then to January. (The new president didn’t take over until March back in those days.) Finally, the House passed a bill (which President Grant signed) establishing a 15-member federal-electoral commission to resolve the dispute. Ten members — five Republicans and five Democrats — came from the House and Senate. The remaining five were members of the Supreme Court.

That commission voted 8-7 in all three states to give the disputed 20 electoral votes to Hayes. And, with that, the Republican became the 19th president by an electoral-college count of 185-184. Some Democrats wanted the House to challenge the result, but Tilden demurred. He remains the only presidential candidate in American history to have won a majority of the popular vote without then assuming office.

The 1876 election raises a host of important issues for Donald Trump vs. Joe Biden, starting with this key question from Holt: “When is an election truly over?” He added: “Republicans said, ‘When the Electoral College met.’ Democrats said, ‘When the Congress declares a winner.’ But no one said it was over election day.”

One thing today’s Democrats fear is the possibility that the Trump campaign will steal a chapter from 1876 and demand that a state’s electors endorse Trump even if the popular vote goes to Biden. There’s nothing in American law that obliges a state’s electors to give their votes to the candidate with the most popular support — it’s just always happened that way. Trump has already exploded myriad political norms, and plenty of people fear he wouldn’t hesitate to break more if it would mean staying in the White House. So, if Trump were to demand that Republican state legislatures award electoral votes to him, even if he lost those, might those legislatures just do it?

Answer: Democrats fear they just might. After all, the states choose the electors. It’s only convention that says all the electors go to the candidate with the most votes.

So what might election day look like? “My biggest fear is interference by private militias,” said Andrew Schapiro, the American ambassador to the Czech Republic from 2014 to 17. “It could get messy.” The Republican Party has called for 50,000 election “observers” to descend on polling stations. The Democrats smell threats and intimidation. With estimates that mail-in ballots could favour the Democrats by as much as a two-to-one margin, the Republicans have already got lawyers fanning out all over the country to challenge those ballots.

“They’re gumming up the works in the service of ‘1876’ on steroids,” said Schapiro.

The big fear for election night is that Trump will lead the Electoral College count and declare victory before many of the absentee ballots have been counted.

“The information void will be filled by malicious actors,” said Persily. “The television networks have to be honest about what we know.”

The experts agree that probably only one thing could avert a potential election-night catastrophe. “Hopefully, the margin will be large enough on Election Night so it’ll be clear,” said Holt.

Persily was more blunt: “I’m hoping, please God, don’t let it be close.” 

In Canada, we don’t worry about close. Because we know how not to turn election night into election month.  

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