Past contested elections resolved in ways that might not work now, says Stanford historian

This year, as voters across the United States begin to cast ballots, the very real prospect of a contested election hangs over the presidential race. Unlike his modern predecessors, who have agreed to accept the election results, President Donald Trump has repeatedly stated that he may not do so. His comments have prompted many to wonder what will happen in the case of a hotly contested election and whether one of our nation’s democratic pillars, the peaceful transfer of power, might fall.

“Many have claimed that nothing is more essential to our democracy than the peaceful transfer of power. Democracies derive strength from this fundamental practice – when one side loses it concedes defeat, thus legitimizing the winning side,” said Jonathan Gienapp, assistant professor of history in the School of Humanities and Sciences.

“If we are ever forced to endure one party’s refusal to transfer power peacefully to their rival, it is hard to believe that such an event will not cause lasting damage,” added Gienapp, who is a scholar of the early U.S. republic and the political culture that shaped our understanding of our Constitution. “For these reasons, and many others, it is understandable why so many Americans are so wary of what the coming months might bring.”

We talked with Gienapp, who shared with us lessons about contested elections from our history and our Constitution and discussed what the ramifications of a new disputed election would be for our nation and democracy.

We talked with Gienapp, who shared with us lessons about contested elections from our history and our Constitution and discussed what the ramifications of a new disputed election would be for our nation and democracy.

How would you describe the history of contested elections in this country?

Thankfully, we have not had many contested presidential elections, and those we have had have been resolved without resorting to bloodshed. Apart from the lead up to the American Civil War (obviously a major caveat), Americans have always managed to move from one presidency to the next without the constitutional system breaking down. There have been times when that seemed uncertain, most recently in 2000 when the Supreme Court was essentially forced to declare a winner, but it also occurred in 1800 and 1876.

But each time a particular candidate was awarded the office of the presidency, the result was accepted. We have never faced the nightmare scenario of having two different individuals claiming to be president.

What might make 2020 different?

What could make this year much different is that one of the two major-party candidates has indicated that he may not accept the results if he loses. We might be faced with a scenario where one candidate has won by any reasonable measure, and yet the sitting president refuses to concede the race, citing widespread fraud and irregularities. Depending upon what others do, that could plunge the nation into crisis and put stress on state officials, Congress and potentially the courts. That situation would be novel.

At the same time, if there is a contested election this year there are likely to be some similarities to past disputes. If the vote is close in certain states, there likely will be calls for recounts and litigation. It might, as in 2000, end up in the Supreme Court. Given widespread voter suppression, there will also be anger that the ballots deemed valid are an inaccurate representation of the legitimate democratic will.

What constitutional safeguards, if any, exist to ensure a peaceful transition of power?

In a certain sense, none.

We have institutions that can be called upon to arbitrate disputes or deny unlawful usurpations of power, but the safeguards that will decide matters are more political than constitutional. It may fall to elected political leaders, as it did in 1876-77, to work out some sort of compromise. Or, if necessary, the people will need to exercise their fundamental right to assemble and protest in an attempt to bring about resolution.

The closest the nation came to the constitutional cliff was in 1876 when Republican Rutherford B. Hayes and Democrat Samuel Tilden vied for the presidency. Tilden won the popular vote and only needed to win one of three remaining states (Florida, South Carolina or Louisiana) to earn a majority of the electoral votes. In each state, however, the Republican-controlled canvassing boards manipulated the count.

That election exposed the flaw that still remains in the Constitution: The Constitution is silent about what to do when states send conflicting certificates of electoral votes to Congress.

The Constitution stipulates that “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” Notice the passive voice. Who actually counts? Our disjointed electoral system, which is unclear about who has authority to count the electoral votes sent by the states to Congress, has never been sufficiently stress tested. The same might be said about our Constitution’s capacity to deal with one party’s refusal to transfer power. Should that happen, we will be in uncharted territory.