Posted by: David Offutt | November 22, 2008

Election Crises: 1876 and 2000

With two consecutive presidential elections having questionable vote counts, 2000 and 2004, the U.S. Congress should get serious about dealing with the issue of election reform. History tells us that something should be done. There were 125 years between two elections that were disputed because of questionable electoral votes. The Elections of 2000 and 1876 were resolved by extra-constitutional methods that we never want to see again. Now with our nation so evenly divided and with the probability of very close races continuing into the foreseeable future, something must be done to give the American people assurance that our elections are both fair and accurate. The Count Every Vote Act of 2005 would have done just that, but it was never passed.

Samuel Tilden, 1876 Democratic nominee

In 2000, Democrat Al Gore was running at a time when the nation was benefiting from the Clinton Era’s economic prosperity, budget surpluses, worldwide respect, and relative peace – all now a distant memory. He should have won in a landslide. In 1876, Democrat Samuel Tilden  was running against a party that had just presided over eight years of massive financial scandals that had destroyed the great general Ulysses S. Grant’s reputation. Even Grant himself knew he was leaving office as the worst president in U.S. history up to that time. Tilden, like Gore, should have won in a landslide. However, while each was knowledgeable, intelligent, and qualified, both Tilden and Gore were somewhat challenged in the charisma department. Nevertheless, each of them won the popular vote, but just barely: Gore by 500,000 votes and Tilden by 250,000. The problem was the question of who should receive the electoral votes of certain states.

In 1876, three southern states were still under Radical Republican Reconstruction rule, and Election Day was a disaster in all three: South Carolina (with 7 electoral votes), Louisiana (8), and – you guessed it! – Florida (4). Republican Rutherford B. Hayes needed all three to win, but Tilden won them all!  The Republican National Committee sent telegrams “encouraging” the Republican-controlled election boards to overturn those states’ final votes. Recounts and votes being thrown out resulted in their final popular vote counts being disputed. So each of these states submitted two sets of electoral votes! Which sets would be counted: those submitted by the Republicans or those by the Democrats?  The Constitution does not provide a solution for this.

A special Electoral Commission was established to decide who would be awarded the 19 electoral votes of those three states, and there was 1 contested elector in Oregon. With 185 electoral votes needed to win, Tilden had 184! Hayes had 165 and needed all 20 contested votes. The historical consensus is that Tilden should have won the electoral vote as well as the popular vote.  But the Electoral Commission consisted of eight Republicans and only seven Democrats. So guess what? All 20 electoral votes were awarded to Hayes. It almost brought on a second civil war! The Democrats begrudgingly accepted Hayes’ appointment as President only after he promised to serve only one term and to end the military occupation of the reconstructed post-Civil War South.

Rutherford B. Hayes, 1896 Republican nominee

Tilden believed the election had been stolen from him. Even the Republicans agreed! Hayes tried to be a unifier by doing a fair and commendable job as President and actually reaching across the aisle to work with the Democrats.  This infuriated his own party, which had gone to unscrupulous lengths to get him into office. So even the Republicans began referring to him as “Old Eight to Seven,” “His Fraudulency,” and “Rutherfraud B. Hayes”! The poor guy was glad when his four-year sentence was up!

The Election of 2000 hinged on who would be awarded the electoral votes of Florida. After the polls closed, it was clear that Al Gore had won the state. But as it became also clear that the only way for Republican George W. Bush to win was for him to carry Florida, the vote there changed. Nearly everything about the Florida vote count reeked: the governor was W’s brother, the secretary of state in charge of the election was W’s Florida campaign chairman, eligible voters had been removed from the voting lists, votes were not counted, and more!

This time it was the Supreme Court that determined the winner. Two of the three extreme right-wing justices were Antonin Scalia and Clarence Thomas, whom Dubya had previously proclaimed to be the ones on the court he most admired. Both failed to recuse themselves from the decision, and guess whom they voted for? The only hope was that the only two conservative justices, Anthony Kennedy and Sandra Day O’Connor, would side with the four moderate justices and demand a valid recount of the entire state of Florida – which was not even being asked for. Unfortunately, they joined with Chief Justice William Rehnquist, Scalia, and Thomas and appointed George W. Bush to be President. Those five claimed to believe that democracy was too important to wait for a valid recount!

George W. Bush (2000 Republican nominee) and Al Gore (2000 Democratic nominee)

It was apparent that Gore was robbed. However, in the interest of national unity, no Senate Democrats objected to Gore’s loss of the Florida electoral votes, and no compromises were made. Also, the Republicans never called their winner “Old Five to Four,” “Dubya Shrub,” or “Bush II the Appointed.” Why? Unlike Hayes, Mr. Bush immediately cast aside his campaign pledge to be “a uniter instead of a divider” and “a compassionate conservative,” thumbed his nose at the rest of us, and became President solely for his two bases: the religious political extremists and “the Haves and Have-Mores.” His party loved him!

We should never again allow our president to be chosen in the strictly partisan manner in which they were in the Elections of 1876 and 2000. As long as the electoral vote determines the president, American voters are entitled to know for sure who the winner in each state is.

The only election reform efforts since 2004 have been voter identification laws to prevent so-called fraudulent voting – voters pretending to be someone else! Statistically, this happens so rarely that the issue is essentially non-existent. Voter ID laws have been passed by Republican legislatures only to prevent as many potential Democratic voters as possible (minorities, students, the elderly) from being able to vote. This adds to the problem and does nothing to solve the real issues.

The Count Every Vote Act of 2005 was an excellent election reform bill that still merits our support and should be reintroduced. Among other things, the bill requires that (1) electronic voting machines print a voter-verifiable paper record of each vote cast, (2) there be restrictions on the political activities of those who manufacture the voting machines, (3) there be recounts in 2% of all voting places, (4) there be a minimum number of voting machines at all voting places, (5) important election officials, like Florida’s Secretary of State, refrain from engaging in partisan politics, and (6) Election Day be made a national holiday. Those of us who truly believe in our democratic-republic should demand that our senators and representatives co-sponsor this bill and get it passed.

by David Offutt
This is a slightly revised version of an essay that was published April 1, 2005,
in the El Dorado News-Times as a letter to the editor.

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