On the night of November 7, 1876, as the results of the Presidential election between Samuel Tilden, the Democratic governor of New York, and Rutherford B. Hayes, the Republican governor of Ohio, began to come in, America, in its centennial year, was barely holding together. Reconstruction was faltering. The economic collapse that followed the Panic of 1873 had left millions out of work, and provoked strikes and labor unrest across the nation. The outgoing Republican Administration of Ulysses S. Grant had been embroiled in a series of corruption scandals. A few months earlier, Sioux warriors had defeated General George Custer and his troops at Little Bighorn. Hayes, whom Henry Adams described as a “third-rate nonentity,” had earned the Republican nomination, in large part, by being the one candidate all factions of the Party could agree on. Tilden and the Democrats seemed poised for an easy victory. As the historian Eric Foner writes in “Reconstruction,” his history of the period, “political corruption and the depression became Tilden’s watchwords; issues many Republicans feared would suffice to carry the election.”
Before Election Day was over, it was clear that Tilden, who, in his previous career as a Gilded Age corporate lawyer and reorganizer of bankrupt railroad lines, had earned the nickname the Great Forecloser, would comfortably win the popular vote. He needed only a single vote in the Electoral College to put him over the top, and results were outstanding in Florida, South Carolina, and Louisiana, where white citizens routinely used violence, intimidation, and fraud to keep their Black neighbors, most of whom were loyal to the Republican Party of Abraham Lincoln, from voting. With the prospect of Democrats taking the White House through disenfranchisement at hand, Republicans moved to steal the election outright. “With your state sure for Hayes, he is elected,” Party leaders said in an Election Night telegram to their cronies in the three Southern states. “Hold your state.”
In Florida, the two Republicans on the three-person election board—Samuel McLin, the Florida secretary of state, and Clayton Cowgill, the state comptroller—systematically approved and rejected results, district by district, to swing the election in their party’s favor. “If the canvassing board had simply accepted all the local returns, Tilden would have prevailed by 94 votes,” Edward Foley, an election-law professor at Ohio State University, writes in “Ballot Battles,” a survey of disputed American elections. “In its decisive 2–1 rulings, however, the board selectively invalidated Tilden-favoring returns because of technicalities, while refusing to invalidate Hayes-favoring returns despite clear evidence of actual fraud.” In this way, a narrow Tilden lead was transformed into a narrow Hayes lead. Similar events unfolded in South Carolina and Louisiana. “The result was manufactured by a deliberate manipulation of the count,” Foley writes.
Democrats were outraged. What ensued is a mostly forgotten episode of American misgovernment that has lately been haunting Foley and other academics, as well as a loose network of bipartisan ex-officials, activists, and think-tank types, who are now contemplating the potential for a disputed election in the present day, at our own fraught political moment. The three Southern states in 1876 each sent Congress two pieces of paper, one from Republican electors certifying that Hayes had won the election, the other from Democratic electors certifying that Tilden had. The crisis these pieces of paper provoked, as Congress tried to reconcile their competing claims, pushed America’s constitutional order to its breaking point—or perhaps, looked at from another angle, it was a reflection of an order that had already broken down.
The Twelfth Amendment, which lays out the procedure for electing the President and Vice-President, says nothing about what Congress should do in the event that states send competing election certificates. Republicans controlled the Senate, and Democrats controlled the House. The two chambers established a commission to try to break the impasse. The dispute went on for months. (Back then, Administrations were inaugurated in March.) With Inauguration just days away and the prospect looming of a country with two people claiming the Presidency and no actual President, House Speaker Samuel Randall presided over a debate described decades later in a history of the crisis as “probably the stormiest ever witnessed in any House of Representatives.” Congressmen reached for their revolvers, and women in the gallery, “fearing a free fight,” ducked out of the chamber.
The tension broke only after William Levy, a Democratic representative from Louisiana who had been in on negotiations between the Southern states and Hayes’s camp, finally signalled that a deal had been struck. Tilden and the Democrats would concede the White House to Republicans, allowing Hayes to effectively steal back the election. Rising to speak in the House chamber, Levy called upon his fellow-Democrats “to join me in the course which I feel called upon and justified in pursuing.” The price that Democrats exacted from Republicans, though, was incalculably high: the drawdown of federal troops in the Southern states, the end of Reconstruction, and the consignment of Black citizens to a century of violent repression. “The negro will disappear from the field of national politics,” The Nation wrote at the time. “Henceforth, the nation, as a nation, will have nothing more to do with him.”
The Hayes-Tilden crisis was resolved, Foley told me recently, “at the expense of America’s commitment to its own citizens.” Unlike the 2000 election, between George Bush and Al Gore, where the dispute was contained in the courts, the 1876 dispute spilled out into the broader political system, and its outcome was openly determined by a naked struggle for power between the two ruling parties. “Because many of us have a living memory of 2000, we think that any election dispute is going to look like 2000,” he said. “Where, in fact, I think that kind of gives us a false sense of what might happen. I think there are now conditions in place that may cause this year’s election to be more like 1876.”
It has been difficult, throughout Donald Trump’s Presidency, to immediately know which of his declarations represent constitutional danger and which are merely attention-seeking bluster. “I think mail-in voting is going to rig the election,” Trump told Fox News’s Chris Wallace during a recent White House interview. When Wallace asked if the President was suggesting that he might not accept the results, Trump, with hands raised, replied, “I have to see. I’m not going to just say yes.” The President’s intermittent musings about postponing the November election have so reliably set off rounds of breathless news coverage that Marc Elias, one of the Democratic Party’s go-to election lawyers, was compelled to write a blog post in March titled “No, Trump Cannot Move the General Election.” Similarly, in response to the persistent speculation that an electorally defeated Trump would spend Joe Biden’s Inauguration Day holed up in the Lincoln Bedroom like Tony Montana at the end of “Scarface,” the Biden campaign in July issued a pithy statement saying, “the United States government is perfectly capable of escorting trespassers out of the White House.”
But Trump’s threats about rejecting the results come November are not idle. In 2016, Trump disputed the results of an election he won, ludicrously claiming that his popular-vote shortfall was the result of illegitimate ballots cast by millions of undocumented immigrants. Four years later, the President is at the head of a concerted effort to undermine public confidence in the upcoming election. Trump has denounced efforts to expand the mail-voting systems that will allow millions of people to cast their ballots safely in this pandemic year. He has ignored calls to provide election administrators with much-needed additional funding to safeguard voters, staff, volunteers, and the vote-counting process. And he has overseen the crippling of the U.S. Postal Service at a time when its work will be critical to the success of the election. “It’s just a question of overload,” Richard L. Hasen, a law professor at the University of California, Irvine, and the author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy,” said. “We have problems with voting machines; we have problems with incompetent election officials. There is foreign interference. Layer on top of that the COVID-19 crisis. Layer on top of that a President who is a norm breaker.”
In June, the Transition Integrity Project, a newly formed group devoted to evaluating how a disputed election might unfold, hosted a series of “war games” to play out various scenarios for what might happen on and after November 3rd. Zoe Hudson, a former Open Society Foundation analyst who serves as the director of the project, told me that the idea was to “socialize” potential risks. “Surprise doesn’t work for us,” she said. “We really need people to understand that this will be an unusual election year.”
More than a hundred people participated, most of them prominent names in academia, politics, and the media—Foley was there, as were the former Hillary Clinton campaign chairman John Podesta, former Michigan governor Jennifer Granholm, and former Republican National Committee Chairman Michael Steele. Participants assumed roles as members of the Trump or Biden campaigns, state officials, and the media. The games, which were played under the Chatham House rule—participants are allowed to discuss what happened as long as they don’t reveal who in the room said or did what—proceeded by turns, with certain developments determined by dice rolls. “One of the big takeaways on all sides is that what you have here potentially is a situation where neither side accepts a loss,” Adam Jentleson, a former aide to Senate Majority Leader Harry Reid who participated in the war games, told me. “And that’s a very difficult circle to square.”
While Americans have grown accustomed to Election Nights that unfold like Super Bowls—tune in at 5 P.M. for the pregame and turn off the set at midnight after one side or the other hoists the trophy—the surge in absentee voting brought on by the coronavirus pandemic will likely frustrate that expectation this year. Counting absentee ballots is a slow, laborious process, and, in a number of states, the counting cannot begin until the election is over. In primary elections this spring and summer, states without past experience counting large numbers of absentee ballots have struggled to process them. In New York, the state Board of Elections took six weeks to declare Representative Carolyn Maloney the winner of the congressional Democratic primary in the state’s Twelfth District. Her challenger in the race, Suraj Patel, filed a lawsuit, citing a number of issues with the count, including thousands of mail-in ballots being disqualified and tens of thousands being sent out too late for voters to realistically return on time. Maloney suggested that Patel was playing into Trump’s hands by questioning the legitimacy of an election. Patel and his campaign understandably bristled at the charge. Count every vote, they have insisted. Address the problems now so that they don’t plague us in November.
It’s one thing for an election dispute to play out in a little-noticed congressional primary. When similar disputes broke out in the Transition Integrity Project’s games, with the future of the entire country on the line, the effect was pure mayhem. In the first scenario, the results from three states—North Carolina, Michigan, and Florida—remained too close to call for more than a week. On Election Night, Trump’s campaign called on Biden to concede, citing in-person-voting returns, which looked good for the President. But as the absentee ballots in these states were counted, the numbers swung toward Biden. This was “blue shift,” a phenomenon observed by Foley and other academics in recent elections, wherein in-person-vote totals have tended to skew Republican, while absentee voting has skewed Democratic. Blue shift is what kept the Democratic House wave in 2018 from being immediately apparent on Election Night—the mail votes cast in California that fall took weeks to count, an outcome that former House Speaker Paul Ryan, a Republican, described at the time as “bizarre.” This year, with Trump explicitly making mail voting a partisan issue, the blue shift is likely to be especially pronounced. And Trump is, in turn, expected to denounce this easily explainable phenomenon as nefarious.
As the votes were being tallied in the game, Trump pounced. The team playing as his campaign called on the Justice Department to use federal agents to “secure” voting sites and tried to enlist state Republican officials to stop the further counting of absentee ballots. The Biden team, in response, called for every vote to be counted and urged its supporters to attend rallies calling for the same. During subsequent turns, Trump tried to federalize the National Guard, and both parties sought to block or overturn results in key states. Eventually, North Carolina was declared for Biden and Florida was declared for Trump, leaving Michigan as the deciding state—there, a “rogue individual” destroyed ballots believed to be favorable to Biden, leaving Trump with a narrow lead. Michigan’s Republican-led legislature certified Trump’s victory, but the state’s Democratic governor, Gretchen Whitmer, refused to accept the result, citing the sabotage, and sent a separate certification to Congress.
It was 1876 all over again. Both campaigns called for their supporters to take to the streets. Trump invoked the Insurrection Act. Republicans in Congress declared that Vice-President Mike Pence, as president of the Senate, was entitled to choose which certification from Michigan to accept as legitimate. Democrats, of course, rejected that argument. “There was no clear resolution of the conflict in the January 6 joint session of Congress,” the game summary reads. “The partisans on both sides were still claiming victory, leading to the problem of two claims to Commander-in-Chief power (including access to the nuclear codes) at noon on January 20.” The game ended there.
Another scenario, in which Trump won a clear victory in the Electoral College but lost the national popular vote by an even wider margin than in 2016, also ended in chaos. Biden withdrew his Election Night concession and asked the Democratic governors in Wisconsin, Michigan, and North Carolina for recounts. The governors in Wisconsin and Michigan took the 1876 course again, sending a slate of electors to Congress that conflicted with those sent by their states’ Republican-controlled legislatures. Republicans, unsuccessfully, tried to cajole moderate Democrats to break from their party and back Trump’s victory. “At the end of the first turn,” the summary reads, “the country was in the midst of a full-blown constitutional crisis.” Congress, once again, failed to resolve the standoff before Inauguration Day. “It was unclear what the military would do in this situation,” the transcript says. According to the Times, near the end of this scenario, Podesta, the former Clinton campaign chairman, called on California, Oregon, and Washington to secede from the Union.
Even a scenario that led to a peaceful transfer of power was, at certain moments, politically perilous. In one game, Biden won the election by a narrow but clear margin. Trump’s campaign persuaded the Republican-controlled legislatures in Michigan and Pennsylvania to send Congress conflicting election certifications. Attorney General William Barr announced that the Justice Department would begin investigating “voter fraud” and took steps to stop ballot counting. But, as the game went on, Senator Mitt Romney convinced three of his fellow Republican senators to break ranks and support Biden. A dice roll determined that four million people would participate in pro-Biden street demonstrations. The Joint Chiefs of Staff discussed resigning in protest at Trump’s increasingly desperate behavior, and those discussions were leaked to the press. As power began to slip away from the President, right-wing media turned increasingly toxic, and his Administration devolved into a frenzy of document destruction and corrupt pardonings. Biden called on the House and Senate Intelligence Committees to investigate foreign interference in the election and announced that moderate Republicans, including the governor of Massachusetts, Charlie Baker, would serve in his Cabinet. The game ended with the Democratic Party beginning to investigate Trump and his family.
These war games were hypothetical imaginings of extraordinary circumstances. But an election in a pandemic year with a President declaring in advance that the vote will be rigged are extraordinary circumstances. “One big takeaway is that leaders really need to know what exactly their powers are, and what the powers of others are, and think through some of these options in advance,” Rosa Brooks, a law professor at Georgetown University who helped convene the Transition Integrity Project, told me recently. “Because if things go bad, they’ll go bad very quickly, and people will have to make decisions in an hour, not in a week.”
The contours of the upcoming election are already being fought over in the courts. Since the 2000 election, with its hanging chads and butterfly ballots, America has seen an explosion of election-related litigation, from an average of ninety-four lawsuits a year to an average of two hundred and seventy a year, according to an analysis by Hasen, the author of “Election Meltdown.” This year, there have already been some two hundred election lawsuits filed over COVID-19-related issues alone. In May, the Trump campaign and the Republican National Committee doubled their legal budget, to twenty million dollars. “Bush v. Gore exposed shortcomings in our system in a very visible way,” Rebecca Green, an election-law professor at William & Mary Law School, said. “And so people started pushing back and testing it.” This isn’t necessarily a bad thing, Green said. “We do disputed elections in this country. We have processes in place. We have law. It’s not the Wild West where we’re left without direction on how this should unfold.” She added, “I really worry about public confidence being undermined by this constant drumbeat of meltdown.”
The biggest cases so far have centered on mail voting. At the state level, efforts to address this year’s unprecedented voting challenges have largely been bipartisan efforts—as many as forty-five states will allow voters to mail in their ballots for the November election. But in the courts, the two parties’ overarching national positions come down to this: Democrats are trying to make voting by mail as easy as possible, and Republicans are fighting to prevent that. Caught in the middle are election administrators, the local officials tasked with organizing and processing our voting systems. The Brennan Center for Justice at N.Y.U. has estimated that administrators would need an additional four billion dollars in funding to safeguard the vote during the pandemic. In the Coronavirus Aid, Relief, and Economic Security Act, Congress allocated four hundred million dollars for election preparations. The shortfall will likely mean, in many cases, fewer polling places, longer lines, and slower processing of absentee ballots. Administrators have also reported trouble recruiting volunteers—the battalion of retirees that normally mind our polls and count our ballots—because many of them are wary of exposure to the virus. In normal years, election administrators and the volunteers they rely on are prone to mistakes. This year, all these issues make slow counts and frustrated voters even more likely—and create the conditions for one side or the other to dispute the outcome.
Of course, Trump has increased the chances for such a dispute by undermining public trust in the system itself. Nowhere has this dynamic been more insidious than with the Postal Service. Conservatives have been targeting the agency for cuts for years, and recent Trump Administration decisions—spearheaded by the new Postmaster General, Louis DeJoy, who is a major Trump donor—have caused a mail slowdown around the country. Those efforts have collided with an election that will rely on the Postal Service more than any in American history. Trump has made the connection explicit. “They want three and a half billion dollars for something that’ll turn out to be fraudulent,” he said earlier this month, about the Democrats’ position in the latest round of negotiations over pandemic relief. “They need that money in order to make the Post Office work so it can take all of these millions and millions of ballots.” The fear and distrust that Trump has sown has meant that, when the Postal Service recently sent a letter to states warning that some of their absentee-ballot application and filing deadlines were “incongruous with the Postal Service’s delivery standards” and too close to Election Day to guarantee timely delivery—a concern that independent election experts have raised for years—state officials grew worried that the federal government was preëmptively preparing to blame them for problems in November. “I think that many people were surprised by the tone of the letter,” Tammy Patrick, an adviser at the Democracy Fund who previously served as an election administrator in Maricopa County, Arizona, said. “I have never seen the Postal Service throw a customer under the bus before—and certainly not when the votes of American citizens are on the line.” (On Friday, DeJoy is scheduled to appear at hearings before congressional Democrats.)
After Election Day, the lawsuits are expected to shift to questions about ballot counting. Absentee ballots present bureaucratic problems in ways that in-person voting doesn’t. Even in normal election years, a large number of absentee ballots are disqualified. The reasons range from signature matching, a notoriously unreliable process, to disputes over “voter intent,” where individual ballots are evaluated for stray markings, and ballots that arrive after the deadline. “In a lot of cases, the law does give judges leeway,” Green said. “And the unenviable place where they end up is, do I stretch the law to enfranchise as many people as I can, or do I read the law strictly and end up disenfranchising people?” Already this year, the disqualification rate seen in some states during the primaries has been alarming. “The biggest potential disaster is that one candidate wins because so many votes are thrown out,” Hasen told me. “More votes are lost to incompetence than anything else.”
Rachana Desai Martin, who is leading the Biden campaign’s voter-protection efforts, told me that the campaign’s energy was currently focussed on voter education. “We want to make sure that we’re doing everything we can to put out correct information about how to vote, and that means both by mail and also in person, early and on Election Day,” Martin said. (Hasen, for his part, recently made a recommendation on Twitter. “FLATTEN THE ABSENTEE BALLOT CURVE,” he wrote. “If voting by mail request your ballot as soon as you are able and return it as soon as you can.”) Outside progressive groups, though, are preparing for all contingencies. Indivisible, the Trump resistance group founded in the wake of the 2016 election, recently paired up with Stand Up America and other progressive organizations to form Protect the Results, which will strive to get millions of people into the streets in the case of a disputed outcome. “We have to prepare for mobilization immediately,” Ezra Levin, Indivisible’s co-founder, said in a recent interview.
American elections are always messy. The Constitution does not guarantee candidates or voters the right to perfect electoral outcomes. But even a President cannot overturn an election on his own. An 1876-like scenario relies on lawmakers at the state level being willing to potentially buck the will of the voters. In this way, the days after November 3rd may offer an early clue about whether Trumpism will endure in the Republican Party. How far will state lawmakers be willing to go to keep him in office, or to back him up if he declares victory based on the vote totals before the absentees are counted, or disputes the total counts after they are? And if partisans at the state level kick the dispute up to Congress, as happened in 1876, would congressional Republicans, led by Mitch McConnell, follow their lead? “That’s the key question,” William Kristol, the former editor of The Weekly Standard and a prominent Never Trump Republican, said. (Kristol played Trump in two of the Transition Integrity Project’s games.) Even if Trump can’t successfully fight an election outcome, Kristol said, if the Republican Party goes along with his protests, they’d potentially be associating themselves with “a false and dangerous stabbed-in-the-back narrative” that could define the Party for years to come.
There are other nightmare scenarios. Foley, in particular, fears that counting delays will lead to states missing the December deadlines by which elections need to be certified to Congress. There are those who fear that Trump will exploit COVID-19 to mandate emergency stay-at-home orders in Democratic-leaning cities in the final days or weeks of the campaign. There are others who point to a recently lapsed judicial-consent decree that, for decades, prevented the Republican Party from sending “poll watchers” out to intimidate voters in nonwhite neighborhoods. (“There is this real concern that officials who have been engaged in voter suppression as an electoral tactic can now weaponize COVID to push that further,” Vanita Gupta, the former head of the Justice Department’s Civil Rights Division, who participated in the Transition Integrity Project, said. “Frankly, it’s all of a piece.”) And there are fears about the Portland or Lafayette Square-style deployment of federal agents across the country. Lawrence Wilkerson, a retired Army colonel and former chief of staff to Secretary of State Colin Powell, who sat in on two of the Transition Integrity Project’s games, told me that he couldn’t rule out Trump trying to drag the military into a postelection dispute. “That’s what worries me about this,” he said, “that anybody who told Trump that some action they were going to take was conducive to his retention of office would be told immediately, ‘Go do it.’ ”
As he has in other areas of American self-government, Trump has revealed how much of our democracy rests on norms rather than enforceable laws. Ultimately, the one norm that has been crucial to the resolution of past disputes is the one that Trump is perhaps least likely to observe: conceding defeat. In 1876, Tilden, from the start of the crisis, was privately prepared to concede and ultimately did so. And while the Supreme Court is popularly remembered as the decisive actor that handed the 2000 election to George W. Bush, it was Al Gore’s decision to concede, and to not pursue additional legal options, that really ended matters. In November, if Trump loses and refuses to concede, he may live up to one of his favorite boasts. No one will have ever seen anything like it. When I asked the Trump campaign what preparations it was making for the possibility of counts coming in slowly, or being too close to call, on and after Election Day, Tim Murtaugh, Trump’s campaign communications director, told me in an e-mailed statement, “We don’t know what kind of shenanigans Democrats will try leading up to November. If someone had asked George W. Bush and Al Gore this same question in 2000, would they have been able to foresee the drawn out fight over Florida? The central point remains clear: in a free and fair election, President Trump will win.”
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