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Mile End Institute

History Shows How Trump Could Overturn Biden’s Victory – Dr Richard Johnson

Donald Trump’s pronouncements challenging the 2020 election results have been met with derision by most media commentators. For historians of American politics, Trump’s claims cannot be brushed off so easily – not because they have validity but because wild claims of ‘fraud’ have been used by politicians and judges to overturn legitimate election results at other intervals in US history.

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Image showing the map of the Electoral College in the 2020 US election.

Photo by Clay Banks on Unsplash

Disputed Elections in American History

Losers’ consent is a hallmark of a vibrant democracy, yet it was in short supply in late nineteenth-century America. The period provides many unfortunate examples of election losers refusing to accept defeat. Partisan judges, corrupt local officials, and political violence were deployed to overturn valid election results through trumped-up claims of fraudulent voting. Between 1861-1899, 262 elections in the US House of Representatives were challenged, usually on spurious claims of ballot fraud. These disputes were resolved by the House Committee on Elections, usually according to partisan advantage rather than any relevance to the facts of the cases.

The Disputed Presidential Election of 1876

At the presidential level, the clearest example of a disputed election took place in 1876. After northern battleground states swung to the Democratic candidate Samuel Tilden on election day, Republican candidate Rutherford Hayes conceded the election. A winning candidate needed 185 electoral votes to win. Tilden had 184. The 19 outstanding votes were in the otherwise solidly Democratic South: South Carolina, Florida, and Louisiana. Drawing a reasonable projection, the New York Tribune declared Tilden the winner. But the Republican editor of the New York Times John Reid still saw a path for Hayes. Teaming up with the head of the Republican Party, Zachariah Chandler, they sent telegrams to the three outstanding southern states, asking local Republicans to ‘hold’ their states’ electoral votes from being certified for Tilden.

These states’ canvassing boards were controlled by Republicans. It was their responsibility to certify the vote and to reject any dubiously cast ballots. In Louisiana, Tilden was leading by 6,000 votes. The state canvassing board threw out 13,000 Tilden votes, compared to only 2,000 Hayes votes; switching the state to Hayes’s favour. The pattern was repeated in South Carolina and Florida, where the state canvassing boards tossed out ‘irregular, false or fraudulent’ ballots, tipping victory to Hayes over Tilden. In the end, Hayes carried 185 electoral votes to Tilden’s 184. Initially resisted by Congress, this tally was ultimately allowed to stand after review by a congressional commission.

It must be noted that Democratic dominance in the southern ballots was a product of racialised voter suppression and disenfranchisement. So, while Republicans were corrupt in the certification process, Democrats behaved appallingly in blocking African Americans from getting to the polls in the first place. In this instance, neither side was a good-faith actor, and it could be argued that the Republicans should be forgiven for trying to ‘correct’ the situation by throwing out Democratic ballots. Yet, what this episode shows is that a media ‘declaration’ for candidate or even a seemingly ‘final’ vote tally is not by itself sufficient to ensure that such a candidate becomes president.

What This Means for 2020

The certification of the 2020 presidential election is a laborious process, which takes two months between the casting of popular votes in early November, the appointment of electors and meeting of the electoral college in December, and the certification of the winner by a joint session of Congress in January. Each step along the way provides an opportunity for malevolent political actors to block legitimate election outcomes. In other words, Donald Trump has several opportunities over the coming weeks to block Joe Biden from becoming president. We should not rule them out as possibilities until Trump does.

We are already seeing the Trump campaign operate by this historic playbook: contest the validity of ballots in key states; place pressure on local officials to overturn the result. If these efforts fail in overturning a state’s popular vote, the legitimacy of the results may be thrown into such dispute that state legislatures may feel compelled (or empowered) to decline to submit electors to the electoral college at all, potentially depriving Joe Biden of the 270 minimum electoral votes that he needs to be the undisputed winner of the election. This would throw the election to Congress, where the House chooses the president on a one-state-one-vote basis. Even though Democrats control the House, Republicans control a majority of state delegations, ensuring a Trump victory.

Some commentators have argued that state legislatures cannot ignore their states’ popular votes in the appointment of their electors, but I believe it is premature to rule out this possibility. Ultimately such an action would be subject to a court challenge. The US Constitution states, ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors’. It would be naïve to assume that the US Supreme Court, under its current partisan composition, would not take a convenient ‘strict constructionist’ reading of the election clause and defer to a state legislature’s decision, regardless of state or federal statutes to the contrary. In the 2000 US presidential election, the Republican House of Representatives in Florida appointed their state’s 25 electors to George W Bush before the counting of votes had even finished. Had Gore won the recount, Florida would potentially have had two disputed sets of electoral college electors.

Even if these circumstances do not arise, the electoral vote certification process in January can be interrupted. Legally speaking, the next president of the United States will be certified on 6th January 2021. On this day, the US House of Representatives and the US Senate will meet in joint session to review the electoral college votes. It takes just one member of the House and one member of the Senate to challenge the certification of a state’s electors. In 2000 and 2004, members of the Congressional Black Caucus challenged the certification of George Bush’s electoral votes from Florida and Ohio, respectively, but because they lacked any support in the Senate, the challenges were overruled. Can we be certain that a Republican senator would not object to the certification of Pennsylvania’s electoral college votes this time around? Should a key state’s electoral votes be successfully challenged, it could deprive Biden of the 270 threshold.

While any of these steps would represent an extraordinary breach of the democratic process, the US presidential election system is extremely fragile and depends on the goodwill of a variety of political actors. It is not clear that this good faith – whether from state legislators, judges, or members of Congress – can be assumed.

Dr Richard Johnson is a Lecturer in US Politics in the School of Politics and International Relations at Queen Mary University of London.