What if, on account of the coronavirus, we attempt to hold the 2020 presidential election entirely on-line or through the mail, and it turns into a logistical nightmare? What if a major terrorist attack prevents holding the election on November 3? How about if, on Election Day, destructive weather prevents voting in some states? And what if hackers succeed in changing votes from one candidate to another, calling into question the accuracy of the electoral count?
For obvious reasons, people have begun to raise such questions. But we continue to pay insufficient attention to the over-arching question: Is America prepared for a presidential election crisis? The sobering answer is no.
We actually have a history to look to and learn from, and it reinforces the need to take action now. On four occasions, the nation has awakened the day after the presidential election without knowing who won and without a reliable mechanism for resolving the uncertainty. The election of 1800 produced the first crisis. Thanks to what Alexander Hamilton privately and presciently called a “defect in the Constitution,” Thomas Jefferson and his running-mate Aaron Burr ended up with the same number of electoral votes, sending the election to the House of Representatives. Though everyone understood that Jefferson was the top of the ticket, his Federalist opponents schemed to make Burr president, a result Republicans threatened not to accept. It took 36 ballots for Jefferson to win and crisis to be averted.
While the election of 1800 was not the last presidential election crisis, it was the last time that we learned from the crisis and took significant action: Congress passed and the states ratified the Twelfth Amendment to the Constitution, designed to prevent a recurrence of a tie between a presidential candidate and his running-mate.
Unfortunately, the Twelfth Amendment does not prevent other kinds of crises elections. In 1824, none of the four major presidential candidates received a majority of the electoral votes. The House selected as president John Quincy Adams, even though he had received fewer popular and electoral votes than Andrew Jackson. The outcome was determined by Henry Clay, who received the fourth highest vote total, throwing his support to Adams. Adams subsequently appointed Clay secretary of state, a move widely considered non-coincidental. Jackson’s supporters attacked the “corrupt bargain” between Adams and Clay, and considered Adams an illegitimate president.
We have been reasonably lucky since: Fifty years passed before the next election crisis, and another 124 after that. The elections of 1876 and 2000 bore uncanny similarities to one another. In each case, the election produced a virtual tie, amidst widespread allegations of fraud. In each case, the outcome was not determined for weeks, and then by a single vote. An ad-hoc commission made Rutherford B. Hayes president by an 8-7 vote and the United States Supreme Court made George W. Bush president by a 5-4 vote. Finally, in each case the result was acquiesced in but not accepted by many members of the losing party, who believed the vote to be purely partisan. Democrats referred to Hayes as “Rutherfraud” and “His Fraudulence,” just as many Democrats more than a century later insisted that Bush lacked legitimacy.
If we are smart, we will take appropriate measures before the next crisis. We can take away several key lessons from the past election crises: 1) An impartial decision-making body is essential to public acceptance of the verdict. 2) That body should be established before the election, and given the power and responsibility to resolve controversies.
I have proposed a constitutional amendment creating a permanent Presidential Election Review Board designed to resolve presidential election disputes. But with an election around the corner, and everything from foreign hackers to a nasty epidemic causing us to fear an uncertain outcome, we should not await the passage of such an amendment. Congress can create such a board by statute—now. Why wait until it is too late?