Early and often?

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Trump or No Trump, Elections Have Been Stolen

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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If Donald Trump loses the presidential race, I hope that he will concede and move on. That’s what democracy demands. But the current histrionics over his insistence that the process is rigged against him are overblown.

We’ve been here before, and the republic has survived. In fact, we have been there recently. I have friends who to this day insist that Al Gore actually won the 2000 presidential election.

In truth, for as long as there have been elections, there have been fears that somebody would steal them. Some scholars even believe that Solon’s edict of the 6th century B.C. requiring Athenians to vote was motivated in part by a determination to ensure that potential tyrants could not steal elections.  On these shores, the same logic was followed in the Virginia Colony, which made voting compulsory largely as a device for preventing fraud.

Accusations of rigged and stolen elections have been a commonplace of U.S. history. In the hotly contested race of 1800, supporters of Aaron Burr insisted that Thomas Jefferson had cheated him out of the presidency. (More likely, Jefferson took delicate political advantage of the cumbersome and clunky constitutional machinery.)

Allegations of fraud similarly plagued the 1824 contest between Andrew Jackson and John Quincy Adams. That year’s race was the only one ever thrown into the House, where Adams prevailed. The conviction of the Jackson forces that the election had been stolen provided momentum that helped propel him to victory in the 1828 rematch -- probably the nastiest race in U.S. history (no, the current campaign doesn’t come close).

In 1864, some Republicans suggested that the election should be postponed because of the Civil War, and Democrats began to worry that President Abraham Lincoln might use the army to remain in power. Wrote a Copperhead newspaper in New Jersey: “We must be prepared to enforce a Constitutional ballot, if need be, by Constitutional bullets.”

Throughout the 19th century, everyone seemed to think that election fraud was widespread. Democrats insisted that Rutherford B. Hayes stole the 1876 presidential race. Republicans said the same about Grover Cleveland in 1884. The frequency of the charges led the Reverend Joseph Cook, a popular speaker and essayist, to lament that democracy was at risk: “If the great parties continue to accuse each other of stealing the presidency, such facts will go far to prove that the domination of political tricksters has begun and that the rights of the people are vanishing.”

But the accusations continued. In 1916, the presidential contest between Charles Evans Hughes and incumbent Woodrow Wilson went unresolved for several days. California, the last state to report, was counting and counting, and Hughes’s Republican supporters fretted publicly about the possibility that the election would be stolen. Hughes, to his credit, did his best to silence them. Even as he steadfastly refused to concede, he insisted that “in the absence of absolute proof of fraud no such cry should be raised to becloud the title of the next president of the United States.” (An attitude from which all partisans can learn.)

Sometimes the accusers were right. Once the votes were counted in that disputed 1876 election, it appeared that Democrat Samuel J. Tilden had won a majority in both the popular vote and the Electoral College. Hayes would not admit defeat, and his backers argued that the vote had been unfair because of massive vote fraud. Black voters had been beaten and intimidated throughout the South. In particular, the Republicans challenged the balloting in Florida, South Carolina and Louisiana.

Recounts were ordered. In South Carolina, the board of canvassers was threatened, and troops dispatched to protect them. The Tilden forces were furious. One Democratic newspaper lamented: “The character of the state government of South Carolina is so notorious that the integrity of this board will be considered absurd.”

Congress finally appointed a committee to adjudicate the matter. When Hayes supporters said the nation should abide by the outcome, whatever it was, the pro-Tilden Cincinnati Enquirer replied angrily that this argument betrayed “ignorance of the law and the Constitution.”

In the end, the committee awarded all the disputed states to Hayes, giving him the presidency by a single electoral vote, and allowing him to go down in history as the man who ended Reconstruction and left the freed slaves to the untender mercies of their former owners.  The Democrats cried foul, and there is ample reason to think they were right. In fact, the battle produced a dismaying symmetry: first Tilden won by intimidation and then Hayes won by fraud.

These instances are hardly the only disputed elections in the nation’s history. Whenever the rhetoric is heated and the margin is small, the losing side will emerge unsatisfied. And we have been speaking here only of contests for the presidency. Charges of fraud further down the ballot are more common still.

The partisan will insist that all of the cases I have mentioned are different from the current political moment. Black voters were intimidated in the South 1876. The Supreme Court did put an end to the Florida recount in 2000. But such nuances miss the point. The principal charge against Trump is that merely suggesting the possibility of unfairness in the election outcome constitutes an offense against our democracy. If that’s so, then lots of us are guilty.

There are plenty of excellent reasons to oppose the election of Donald Trump. Let’s not sit around inventing new ones.

  1. In fairness, I should note that other scholars believe that Solon’s famous law never actually existed.

  2. See chapter 12 of this book

  3. There was also a fascinating legal dispute over one elector in Oregon.

  4. For a partial dissent from the common view, see chapter eight of this book. As the historian James M. McPherson has pointed out (see chapter five of this book), many black leaders of the day supported Hayes’s decision to withdraw the remaining federal troops from the South. One of the new president’s defenders was Frederick Douglass, who had campaigned for him and been rewarded with an appointment to office: “Statesmen often [are] compelled to act upon facts as they [are], and not as they would like to have them.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L. Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Tobin Harshaw at tharshaw@bloomberg.net