As the 2020 election approaches, this week we hosted a program about the history of presidential elections. Experts Franita Tolson of USC Law, Edward Foley of Ohio State Law, James Ceaser of the University of Virginia, and Robert Lieberman of Johns Hopkins University joined National Constitution Center President and CEO Jeffrey Rosen to discuss the most contentious elections in American history—including one of the first controversial elections, 1800, pitting Thomas Jefferson against Aaron Burr; the election of 1860 which set the stage for the Civil War; and the 2000 election which led to the Supreme Court case Bush v. Gore. The panelists also explore the questions: How might controversy arise in the 2020 election, and what can we learn from history to try and avoid it?
If you enjoyed this conversation, please check out last week’s episode to learn more about one of the elections covered in this conversation: The Hayes-Tilden Election of 1876.
This program was presented in partnership with the SNF Agora Institute at Johns Hopkins University.
FULL PODCAST
Or, listen on Apple Podcasts or Google Podcasts.
PARTICIPANTS
James Ceaser is Professor of Politics at the University of Virginia, where he has taught since 1976. He has written several books on American politics and political thought, including Presidential Selection, Liberal Democracy and Political Science, Reconstructing America, and Nature and History in American Political Development. Ceaser has held visiting professorships at the University of Florence, the University of Basel, Oxford University, the University of Bordeaux, and the University of Rennes. He is also the co-author of Defying the Odds: The 2016 Elections and American Politics, a frequent contributor to the popular press, and he often comments on American Politics for the Voice of America.
Edward Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. His new book is Presidential Elections and Majority Rule and he is also the author of Ballot Battles: The History of Disputed Elections in the United States. During his fellowship at Stanford University’s Center on Democracy, Development, and the Rule of Law, Foley wrote Due Process, Fair Play and Excessive Partisanship: A New Principle of Judicial Review of Election Law, which was cited in briefs in Gill v. Whitford and Benisek v. Lamone (the Supreme Court gerrymandering cases). Foley is a reporter for the American Law Institute’s Project on Election Administration and co-hosts an election themed podcast, Free and Fair with Franita and Foley.
Robert Lieberman is Krieger-Eisenhower Professor of Political Science at Johns Hopkins University. His most recent book is Four Threats: The Recurring Crises of American Democracy, co-authored with Suzanne Mettler. He is also the author of Shifting the Color Line: Race and the American Welfare State and Shaping Race Policy: The United States in Comparative Perspective, and the the co-editor of Democratization in America: A Comparative-Historical Analysis, Beyond Discrimination: Racial Inequality in a Postracist Era, and The Oxford Handbook of American Political Development. Lieberman is a co-convenor of the American Democracy Collaborative.
Franita Tolson is Vice Dean for Faculty and Academic Affairs and professor of law at University of Southern California Gould School of Law. Tolson has written for or appeared as a commentator for various mass media outlets. She has testified before the House Judiciary Committee regarding the reauthorization of the Voting Rights Act. She has also authored a legal analysis for an amendment to the U.S. Constitution, introduced by Senator Elizabeth Warren and Senator Richard Durbin, that would explicitly protect the right to vote. Tolson currently works as an election law analyst for CNN and co-hosts an election themed podcast, Free and Fair with Franita and Foley.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was engineered by Greg Scheckler and produced by Jackie McDermott, Lana Ulrich, and Tanaya Tauber.
ADDITIONAL RESOURCES
Presidential Elections and Majority Rule, Edward Foley
Ballot Battles: The History of Disputed Elections in the United States, Edward Foley
Four Threats: The Recurring Crises of American Democracy, Suzanne Mettler and Robert Lieberman
Elections Clause Explainer by Frantia Tolson and Michael Morley, Interactive Constitution
VIDEO: For Debate: Should the Electoral College Be Abolished? with James Ceaser and Jesse Wegman
PODCAST: Should We Abolish the Electoral College? with James Ceaser and Alex Keyssar
Stay Connected and Learn More
Questions or comments about the show? Email us at [email protected].
Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.
Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
Please subscribe to Live at the National Constitution Center and our companion podcast We the People on Apple Podcasts, Stitcher, or your favorite podcast app.
To watch National Constitution Center Town Halls live, check out our schedule of upcoming programs. Register through Zoom to ask your constitutional questions in the Q&A or watch live on YouTube.
TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to live at the national constitution center. The podcast sharing live constitutional conversations hosted by the national constitution center. I'm Jackie McDermott, the show's producer. As election 2020 approaches, this week we're sharing another program about the history of presidential elections.
Last night, experts Franita Tolson, Ned Foley, James Caesar, and Robert Lieberman joined NCC president Jeffrey Rosen to discuss the most contentious elections in American history and what we can expect if election 2020 resembles those contentious elections. Here's Jeff.
Jeffrey Rosen: [00:00:36] Ned, let's start with you. We have so much to discuss and our goal is just to learn as much from the history of disputed elections, as we can to understand our current vexations and what a close election today might produce.
So, tell us about the thesis of your book, "Ballot Battles: the History of Disputed Elections." You note that disputed elections in the founding era didn't begin with the famous election of 1800, but proceeded it. And questions about how to count votes fairly were endemic from the very beginning of the Republic. What can those founding era lessons teach us today?
Ned Foley: [00:01:13] Yeah. Thanks Jeff. And thanks for this great program. I'm delighted to be here. the founders struggled with all the issues that we're struggling with this year. This year, there's a big question all around the country about absentee ballots and whether or not voters will be tripped up by the rules. They'll submit ballots, but maybe there'll be disqualified for missing a witness signature or being late or some error that will cause them to be, thrown out. Well, that same type of issue, was at the Founding. There was a New York governor's race in 1792. One of the authors of the Federalist papers, John Jay, was running for governor. He was willing to leave being chief justice of the United States Supreme Court to run for governor of New York, different back then than it is today, but the same basic question, whether or not election dispute should be handled through strict interpretation of the rules or leniency to protect voters from disenfranchisement-- that philosophical debate was on both sides of that dispute, and it's been on both sides of almost every dispute since then. And the founders realized that their democracy, they're young democracy was an experiment. And it was, it needed more institutional development that they gave it because they realized they had not created the perfect institution for adjudicating a dispute with this kind of clash. And we still see that today.
Jeffrey Rosen: [00:02:41] Thank you very much for summing up that clash so well. James Cesar, you've written about this basic change in the concept of elections from one designed to protect the Republic from populous demagogues to one that became increasingly democratic. tell us about that change and, and how the founding era relied on those sort of sober checks to resolve disputed elections.
James Ceasar: [00:03:08] Well, I believe in the founding year, the most significant point is the Constitution didn't envision that there would be political parties or nominations. So, the electoral college was supposed to handle the entire choice of president from beginning to end. And the first, election we look at today in some depth is the election of 1800, which is one of the fiercest partisan struggles we've seen in the United States.
So things change very quickly and, that, that, that created problems. Of course, when you get to the 20th century, you have the opening up of things into a primaries and nomination by, an effect by the people and therefore to an extended period, in which the various candidates can and do-- can and do --exercise all sorts of means to try and get themselves elected. Beyond the control, even, of their political parties, as we saw in 2016 in an effort to become the nominees and to open the system up to demogagic appeals, which are, I think, endemic to our system today and likely to remain endemic, in the future for as long as the, as the Republic, lasts. I also think going back to 18 hundreds since that's one lecture where we, we look at, beyond the question of mechanics, that is the great question of whether people will accept the outcome of an election, even when the, the formal, factors that are clear, who should win, will people accept it?
And one of the amazing things that comes out of the election of 1800, you might've expected the two sides to square off in something more than an election at the end with neither side willing to accept it, and eventually they did. I think that election in a way, set democracy on a somewhat successful, course by the two partisan sides at the end of the day, trying to cheat and in every way to get their candidate, elected. but they finally accepted the outcome of that election.
Jeffrey Rosen: [00:05:03] Thanks very much for that. And that question of whether the losers accept the result is crucial and, and Ned has noted that, in 1884 and 1916, it was important that although the loser didn't immediately concede, the system held strong.
Franita, I can't wait to read your book about congressional enforcement of voting rights from the founding era to the Jim Crow era. to what degree was Congress involved in resolving disputed election in the founding era, and having put this question of partisan polarization on the table, were the founders prepared to deal with this rise of political parties?
Franita Tolson: [00:05:39] So, I think that it depends on which level of elections we're talking about to some extent. So, one thing that strikes me about this history is the fact that the Congress and, political parties, no one is ever quite ready for the level of partisanship. And so in my mind, we just kind of go along from one election to another hoping for the best.
And then we have a controversy that is an opportunity for us to revisit our system. And we never really do quite satisfactorily. Like, for example, with the 12th amendment. That was in some ways a missed opportunity, right? They basically, it was a technical fix to some extent, right? The president is on one ballot. The vice president is on another ballot in response to the election of 1800. but in other ways it did not, and could have, set a standardized system for allocating elections electors instead of leaving it with the state legislature, which would have alleviated at least some of our problems. but as so often happens with our elections, we try to do the bare minimum in order to get us to the next point until things kind of blow up again. And it really is a system that is governed by chaos. but I do think that, there are some, notable exceptions that suggested there are people who tend to rise above the chaos.
Right? So John Adams, he wasn't a terrific president, but he did leave. Right. And that's probably his, his largest contribution to our system of democracy. He lost the election and he stepped down. The same could be said for Al Gore in 2000. Right. He, the Supreme Court ruled in Bush versus Gore against him, and he accepted it.
And so while concessions have no legal effect, it does mean something in our system. And it's tied to this larger question that James raises about people believing in the system and questions about legitimacy. When a loser concedes, it says something about the legitimacy of our elections and the health of our democracy.
And so I think one of the things about these, these early elections and, and indeed, you know, even in disputed elections it is important that the loser stepped down in a way that was good for our system of government. with respect to Congress, I think Congress, although Congress does have a role to play with respect to contested presidential elections, right, if there isn't a majority vote winner, a person who wins the majority of the electors that goes to the House of Representatives and so on, Congress also plays a very important role in other federal elections and under Article One, Section Five, Congress weighs in on the elections of its membership.
and so it's also a way for Congress to, weigh in on the health of our democracy. Cause, their power under Article One, Section Five, they, they basically can decide if an election is legitimate or not. They can look at disputed, ballots and determine if the vote should count. They can call for a new election. so Congress actually has quite a bit of power to, influence our system of elections in a way that I think is, can be productive because during Reconstruction, Congress played a pretty, important role in weighing in on some congressional elections where there was substantial racial discrimination, where there was substantial violence, as an attempt to try to, at least on the back end prevent those who benefited from such violence and discrimination from having a seat in the House or the Senate.
Jeffrey Rosen: [00:08:44] Thank you for that memorable a description of the Adams presidency--he didn't, he wasn't a great president, but he did lead by accepting the results-- of that description, organized chaos for the whole system, and also the role of Congress in regulating its own elections, Rob Lieberman in your book, "Four Threats: the Recurrent Crises of American Democracy," you note four critical threats where American democracy has seemed fragile: political polarization, racism, and nativism, economic inequality, and access of executive power. And you identify the presence of those threats in the 1790s and the 1850s leading up to the Civil War in the gilded age, in the GreatDepression, in the seventies. I've just summarized your really important book.
And there's much to say about it, but what can the, did, American democracy deal with those threats in different ways in each of the areas you identify or were the gems of the problem obvious in the founding era itself?
Robert Liebermann: [00:09:37] Well, it's a, that's a great question. as you say, the four threats that you just identified, Jeff, What we discovered is that they come and go and combine and recombine in various ways in these periods in American history.
And often these contested, or, elections are really symptoms of other, threats that cause democracy to become, fragile. and, and often, the resolution of these threats, is not really heroic or, or not necessarily even forward looking or forward moving. Often resolutions have revolved around, some kind of democratic backsliding, to take the 1800 election, for example, that we've just been talking about, my colleagues are right, that the 1790s leading up to the 1800 election was really the first period of intense polarization in American history. And even though, as Jim rightly says, the Founders didn't mean for this to happen, and didn't really approve of it, some of the same people who wrote the Constitution were involved in the polarizing politics of the 1790s. the, you know, and sometimes for legitimate reasons: they had different visions about policy and different visions for the future of the country and felt that elections were and government government, were a reasonable way to contest these contrasting visions.
And this was a period when people really feared that if the other side took control that something would go wrong, that something would, would, would, would slide backward. and it was a period of violent conflict, and, the election was really remarkable moment as Franita says, when, when Adam stepped down, and allowed the outcome of the election, to go forward. And Jefferson became president. One thing I will point out, though, about the 1800 election, is that the reason it was contested in the first place had to do with the three-fifths clause of the Constitution, which gave the Southern States an extra, power in the electoral college by counting three-fifths of the enslaved people and, and using that number as the basis for apportioning representatives in Congress and in the electoral college. Without those votes, some historians have argued, Adams might very well have won the election and we wouldn't have ended up in this contested election in the House between Burr and Jefferson.
so the, the whole, kicking off of democracy in the United States, has a lot to do with the presence of slavery and what the overrepresentation of the slave States and the original, in the original Republic.
Jeffrey Rosen: [00:12:17] Thank you very much for that. And for emphasizing the importance of slavery in so many of these disputes. Ned, in your book, you note that, although many of the disputes you discussed took place in times of peace, that was different, of course, in the Civil War era and your chapter, counting votes in times of crisis, identifies a series of elections starting in 1855, and going past the Civil War, where the vote counting problems were special. You and Franita joined us last week for a phenomenal podcast, and program on the election of 1876. So, let's not talk as much about that one cause we, we, we learned so much last week, but what can we learn from 19th and early 20th century efforts to resolve disputed elections about our current fixations?
Ned Foley: [00:13:06] I do think it's true that when, the stakes seems so existential-- we hear that word today-- both candidates in our current presidential election are saying that the country, that they perceive as our country, will be lost if the other candidate wins. When you elevate the stakes that high, it's very hard to reach closure. It's hard to get the concession speech that Franita was talking about. But every election has to have a winner or loser. In a way, the election of 1860 Lincoln won properly, according to the electoral college mechanism. He actually... he wins according to the philosophy of the 12th amendment, as I articulate in my new book, he wins a majority of the electoral votes in the electoral college by being the majority winner in all the States that give him those electoral votes, but he doesn't win in the South.
And so the South walks away, giving us the Civil War. We saw precursors of that in "Bloody Kansas." You know, the, the lead up to the Civil War was showing us that as they were fighting over Kansas, neither side was willing to accept defeat. They wouldn't accept the result of the ballot box, so, and they were resorted to violence. and then the violence went, went nationwide. Picking up on Franita's theme of congressional elections, the, the disputes over the congressional elections of 1862, I think are some of the most interesting stories about congressional races. Lincoln was very afraid that he might lose the Congress and with losing the Congress to the democratic party, he might lose the war because the Democrats might not be willing to fund the war.
so that's a fascinating story. And as we've all been saying, all of these stories are caught up in America's tragic circumstances with the issue of race, because without going into the details of, of Hayes Tilden, if we just combine that story with Bleeding Kansas, with the Civil War, you know, the existential nature of what is America is in part, you know, who is America and who does America count for? so our elections got wrapped up in the biggest questions about our nation.
They did indeed,
Jeffrey Rosen: [00:15:29] very well put. James, in your piece with Andrew Bush, in the Claremont Review, "The Perfect Tie," you put Bush v. Gore in context by noting previous extremely close elections.
And in particular, you call out the elections of 1800 and 1876 as, ones that were among the closest in American history, as well as 1916. What can you tell us about those 19th and early 20th century elections? Why were they so close and how, how were they resolved?
James Ceasar: [00:16:05] Well, you know, a close election can still have a, a fair outcome. so, but the problem, I think, in, in the war and the case in 2000 is that the election was not only close, but disputed. And that's another point: that you can have close elections that somehow aren't disputed. usually that's the case that they're not disputed in one state, but they're, they're close in, in a nationwide context.
but, it was, events in Florida put everything in the, in the context of one state, in which it wasn't clear what happened in one state, who was the actual winner in that state. And that gave that state a particular procedural animosity, which differentiated it from, from some, some of the others, not 1876, but, some, some of the other ones.
So, you look back over the course of American history and find out many, many elections are astounding, close, within a few points to a single point, but not contested. So that, that, that I think makes that election, unique and interesting and, in some ways, I guess, tragic for Al Gore who couldn't quite get a victory out of it.
I do think in, in looking at, the election, what's amazing looking at it from all of them is, how much, some people are willing to engage in a kind of mischief, but a mischief that's within the law. And how difficult it is for the law, meaning the law and now of the original constitutional scheme and the 12th amendment, how difficult it is for the law to foresee all these sorts of mischief.
For example, in 1800, why do Burr and Jefferson ended up tying in their election? They ended up tying because a couple of people in, in, in, Jefferson's own party, contrived to make sure that the, the vote between them ended up as a tie. most of the Republican Democrats knew that Jefferson was the presidential nominee. Most of the people knew he was the presidential nominee, but some people, instead of one person throwing away his vote, so that the winner got one more vote then the vice president, they can try to obscure that and to give them both the same vote. And then the, going further, the Federalists could have really upset that election as they wanted and made, Burr the president with, with ease. They were attempted to do so.
And that gives the other side. With the mischief, sometimes there's something nice that shows up. Hamilton, who was so much the enemy of, of Jefferson, hated him, as he said. Nevertheless, in this case, called off the dogs and persuaded some of the Federalists to allow the election to go to Jefferson, as it should have, on the, on the thesis that this in a way was the best for the country.
And that, that was a pretty interesting view. So, we see this contention going on the effort of the law to try and control, mischief. The difficulty of doing so, the willingness of so many people to use their position, to engage in more mischief and it goes on and on. If they should come up in this election, I think it'd be especially painful. I doubt that it will, but, always a possibility.
Jeffrey Rosen: [00:19:12] Thank you for that. And thanks for that helpful distinction between close elections, where people are willing to accept the result, and those that are not. So, in that sense Franita, although we cast so much light on the election of 1876, last week, why was it a hundred years between 1876 and 2000 -- more and more, more than a hundred years, of course-- that, an election got so legalized and ended up in the courts or in Congress? Compare 1876 and 2000. And why was it that the close elections in between like 1960, for example, that didn't lead to litigation?
Franita Tolson: [00:19:51] So, I think it goes back a little bit to my earlier point about having people who are willing to, transcend partisanship. Because, if you look at 1960, one of the interesting things that I've always thought about that particular election between Kennedy and Nixon is the fact that Nixon was the Vice President opening the, doing the count, like overseeing the count in Congress in January, and he could have made it a big deal about Hawaii's electoral votes, but he didn't.
and I just imagine what would have happened if we would've had Nixon circa 1972 as opposed to Nixon circa 1960, right. I think it could have been a different outcome there, and so I think one can say that some of the things about the election of 1876, you had a speaker of the house who was not willing to engage in the type of shenanigans that could have prolonged the outcome where it ran into situation where we had dueling inaugurations, right? So, in some of these disputes, we have people who are willing to rise above partisanship, but I do think that there's a key distinction between what happened in 2000 and prior contested elections. I don't think we should, understate the involvement of the Supreme Court, right?
That's really notable, noticeable, notable, excuse me. That's really notable that the Supreme Court involved themselves, in, in that dispute. And I don't know if I should. As someone who really loves the Warren court era, I don't know if I should blame Warren for this, but I kind of want to, right? Because, you know, the, the cases we think about with the court entering the political thicket, Reynolds' versus Sam's, Harper versus State board of elections, and so on are all cases that sort of laid the foundation for the judicial policing of the political process.
so in some ways, Bush versus Gore, although a lot of people were upset about judicial involvement, I wonder if the stage was set for this 50 years ago. but it also makes it very different from a lot of the other contestant presidential elections. I mean, can you imagine, you know, I don't know, Andrew Jackson going to the court and saying I should win the election of 1824? No, right? Because it wasn't, even with respect to contested congressional elections, you know, Article One, Section Five, when, when, when Congress stepped in and resolve those disputes that was it. and so, you know, we, we live in a different time now where a lot of contested elections end up, in front of the courts in ways that I think have been largely bad, for our democracy.
Jeffrey Rosen: [00:22:11] That's a fascinating point and you're of course, absolutely right that it was decisions by the liberal Warren Court, Harper and so forth, that the conservative court and Bush v. Gore relied on, in ways that for an originalist were hard to defend. So, Rob, is that a fundamental change that Franita identifies, the judicial-ization, judicialization of, voting rights, which really accelerated in the 1960s has, has it in fact, led to more litigation over elections in the late 20th century? Or are you finding that some of the same four factors that you identified earlier are holding fast?
Robert Liebermann: [00:22:53] I think, I think that's, I think that's a fair point. I think it's right. That certainly Bush V Gore was, different from the way we, resolved these contested elections in the past. you know, going back again to the 19th century, we also write in our book about the election of 1860 and Bleeding Kansas, in much the same way that Ned described. This is a rehearsal, Kansas is a rehearsal for the Civil War in a sense, in which two sides are just irreconcilably opposed over this critical issue. And the, the resort that they have is not to the courts but to, you know, to all kinds of electoral chicanery, and fraud, and ultimately violence. I mean, you have in, in for awhile in Kansas, you've got, two dueling constitutions. You have the free state and the pro-slave people with their own constitutions and separate state legislators, and ultimately violence. and, and the same thing essentially repeats itself on the national stage in the election of 1860, which is really two elections. Right. You have a break, you have Abraham Lincoln and Stephen Douglas running against each other in the North and John Bell and John Breckenridge running against each other in the South. Lincoln isn't even on the ballot in 10 Southern States. so, Southeners wake up after that election and find that the new president is someone they didn't even have the opportunity to vote for. but then again, the resort is, is not to the courts, or litigation, but to, but to succession and violence, and that's an extreme case, but again, it follows this period of intense polarization, intense undermining of the idea of, of a legitimate opposition that we can disagree and be partisan opponents without enemies -- the kind of intense partisanship that Franita was talking about earlier. and, and that pattern and repeats itself in the 1890s, not in presidential elections, but in some local elections that we describe in the book of North Carolina.
so I think the, the I guess, the judicialization or legalization of these election disputes as an advance, but it's not always the most satisfactory way to resolve these disputes.
Jeffrey Rosen: [00:25:03] That's a very interesting suggestion that the judicial position might itself be a kind of safety valve that would avoid succession or violence. our Q and A box of course, wants to, learn about the lessons of the past for the present and Bonnie Margolis asks: so, to jump to a question on everyone's mind, two weeks from the 2020 election day, what precedents will impact, how results are counted are one counted and verified; two, the potential for a contingent election scenario, despite potential overwhelming votes for one candidate; three, the role of the Supreme Court; four, the future of the electoral college.
Great question, Bonnie. I know Ned could field them in turn, but why don't we take Bonnie's question as an invitation for you to identify what the legal scenarios are after election day that you are most concerned about.
Ned Foley: [00:25:54] Yeah. Thanks, and I do want to pick up on this point about what should the role of the court be. Because, this is a question that America is confronted with. What, again, what is the right institution for handling an intense partisan dispute? We can only have one winner. The other side has to lose. The takeaway, one takeaway from my study was that the 19th century was, beset with violence not just surrounding the civil war and Bleeding Kansas, but there was some violent incidents in the 1890s, as we just talked about. The 20th century was marked, in contrast, by mostly peaceful means because courts got involved, not necessarily the federal court, but disputes tended to go to court as opposed to in the streets and that seemed to be a better way. More rule of law oriented, more fair play, due process. Interestingly, a hundred years before Bush versus Gore, the great dissenter of the Supreme Court, the first John Marshall Harlan, writes a dissent in a case out of Kentucky, which is one of the ugliest disputes in American history cause it involved, tragically, the assassination of one of the candidates for governor, in the context of the vote counting dispute, so violence of the ugliest form. And then, but there was an effort to go to court. The Supreme Court turned it away under the so-called political question doctrine saying, the 14th amendment doesn't apply to these political controversies.
John Marshall Harlan dissents: oh yes, it should. We're talking about the fundamental principles of fair play in a democracy. Stuffing the ballot box is the worst violation of the liberties to be protected by the 14th amendment, but he was the sole dissent. Like he was in Plessy versus Ferguson, a lonely voice.
And yet his principal is the one that gets vindicated a century later in Bush versus Gore, when the 14th amendment is used to constitutionalize these issues. Now, as Franita said, that's building on Warren Court precedents in a different context of election law, but applying them to vote counting disputes.
So, is that bringing it into the right forum? Or, cause right now the new court is very conflicted. The current Supreme Court is not enamored of the Warren Court precedents. The current Supreme Court wants to revert to the political question doctrine as it did in the gerrymandering case. So, if this Supreme Court gets another vote counting dispute, like Bush versus Gore, it's going to have a clash of constitutional values and a clash of precedents in terms of what to do. I don't know which way it's going to go. I think that's very much up in the air and that's a big picture point that could apply to any of the details that we might talk about, going forward tonight.
Jeffrey Rosen: [00:28:52] Fascinating! James, in your book, "The Perfect Tie: the true story of the 2000 presidential election," you examine the factors that led to a near perfect tie in 2000 and in a more recent piece, "What if they tie: a nightmare election for November 2020," a nightmare election scenario, you suggest that in the case of a really close election, it might not be the courts that decide, but the House of Representatives, and you suggest that things there could get pretty complicated. So, tell us about what that nightmare scenario is, how might or might not the House decide it, and whether you think the courts could or should get involved.
James Ceasar: [00:29:32] On the courts getting involved. I think the Supreme Court ended up getting involved in this because of the Florida Supreme Court. This issue was taken over by a judicial branch at the state level.
And what I believe is the most outrageous part of the whole thing, that behavior of the Florida Supreme Court. And, since it was already in the judicial arena, therefore it was raised to the federal judicial arena. I, my own opinion was it would have been better to have done it without the courts and have let the political process go on its own track.
I don't think the courts would ever gotten involved in it, whether the Supreme Court should have gotten involved. I don't know. It could've let it g, and it would've gone to the House and Bush would have won anyhow in the House, if you look at the thing. So, that's kind of how I look at that: that they were, they were forced to get it, and it wasn't a great decision, but the, the thing about the election of 2000, it had to end somewhere. I guess the Court decided that was the place to end it for good or for ill. For the current election, for this to get into the courts, in some way, there's going to have to be something, technical and judicial about it.
Otherwise, it will be settled politically. We have political mechanisms for handling this. What the, the, governors and state legislatures do, normally the state legislatures can step in at any point and choose a new slate of electors and those will be counted or what Congress would finally do, using its, its powers, to decide it.
So, I lean much more to the political side and I guess I regard 2000 in a way as an accident that the court became so involved. That's a technical answer, but that's, that's more or less how I feel.
Jeffrey Rosen: [00:31:11] Thanks. Thanks for that. Franita, do you think it was an accident and that this court is unlikely to want to repeat the example of Bush v. Gore? And, maybe, because you raised this really provocative question, what would you say to those of us -- and, in an age when I was allowed to have constitutional opinions, I was a critic of Bush V Gore on constitutional grounds-- those of us who thought the decision was poorly reasoned in retrospect, is there a case to be made that better the Supreme Court than the political system to avoid violence or on-balance, do you think the court should stay out of it this time?
Franita Tolson: [00:31:46] I think that it depends. So, so one distinction that I will make is that, even though the 1960s were a time of great social unrest, that it had pretty low partisanship in terms of... it wasn't as politically polarized as other eras.
So, in the 1950s, in particular, you had the, I believe it was the American Political Science Association, claiming for stronger--making claims for stronger, more politically, ideological parties. And leading into the 1960s, you had Republicans who signed onto the Civil Rights Act, you know, you had both Republicans and Democrats, and so you have more, bipartisanship.
And so, maybe we are okay with court involvement at times where there's not high levels of political polarization, because there's less risk that the court itself will be tarred with the brush of being a partisan actor. I think that the question we face in 2020 as to whether or not this is preferable for the court to resolve it or for it to stay with the political branches depends on that very thing as well. Right? We're at a time of really high partisan polarization. And, and I do think the chief justice has internalized the lesson of 2000. So, to some extent, I, I think that the conservative justices who weighed in on Bush versus Gore, they felt justified for many of the reasons that James identifies.
Right. They felt like the Florida Supreme Court was a runaway court that was making all of these crazy decisions and they felt like they had no choice, but to step in. And so, you know, regardless if you disagree with that or not, the fallout was that it was a time of increasing polarization because polarization substantially increased over the 1990s, particularly with the election of the Republicans taking over the House in '96. So, it was a different time then, you know, 40 years ago when the Supreme Court was deciding to enter the political thicket. So, the misfortune is the fact that the Supreme Court weighed in on a contested election at a time in our history of increasing partisan polarization, and also in a way that was pretty unprecedented for the court itself.
Right. So, you have the chief justice, probably looking at all of this, trying to figure out ways to avoid the Supreme Court weighing in on anything that happens to bubble up to the Supreme Court this time around, because our polarization is arguably much worse now than it was 20 years ago. So, but, but ultimately this question of whether or not we prefer the court to be involved, cannot be divorced in my mind from where we are at in our politics.
Jeffrey Rosen: [00:34:10] So interesting. And that point that the people are more likely to accept judicial decisions when the courts themselves are less polarized is crucial. Robert, whether or not the court intervenes this time, either decision will provoke controversy. Even the principle that the Supreme Court is applying in recent election cases, the Purcell principle, which disfavors last minute, judicial intervention to change election rules, itself obviously has partisan results. In light of your study of how the many eras in which American democracy has seemed at the risk of backsliding, will judicial intervention or not be decisive in whether or not America emerges from this election if it's close intact? Or are there broader factors like political polarization, racism, nativism, economic inequality, and excessive executive power more important, then what the courts decide to do?
Robert Liebermann: [00:35:11] I think the, I think the broader factors are, or will, turn out to be a more important. I mean, there may come a scenario, and I'll leave this to my legal scholar colleagues to ponder, but there may come a scenario where the court has to make a decisive ruling one way or the other that will help us determine the outcome of this particular election.
But, I don't think that that will get rid of the challenge that's posed by the confluence of all these four threats right now. They'll still all be there. We'll still be as polarized as we were, you know, on January 21st. Racial conflict will still be a serious problem in the United States Economic inequality. An extremely powerful presidency coupled with gridlock in Congress. So, all of the conditions that make for democratic fragility will still be there. So, you know, I think, and I think that, you know, I think if I were on the court, I would, for the reasons my colleagues have already suggested, be wary about stepping into that, although their hands might be forced by a case that that comes to them. And we, you know, we know the president expects this to happen cause he said so, as part of his justification for the recent nomination. But, but I think that the deeper conditions underlying the challenge that we're facing now, are what I really worry about and what I... what really keeps me up nights is that, you know, the way this election goes, whether it happens in the courts or not, will undermine our sense that we have free and fair elections in the United States, will further errode the idea that I mentioned before of a legitimate opposition, the idea that we can be opponents or electoral antagonists without being enemies, and will and will further degrade the integrity of the sort of basic rights that we depend on to keep the democracy viable.
Jeffrey Rosen: [00:37:03] Thank you for raising that distressing possibility, which, which is indeed one for concern. In this round, we have lots of great questions about particular crises that might arise. I'll note a few of them that just to put them on the table. Colin Tibaud asked: would state legislatures have the power to reject the popular vote of the people in their state and be able to present electors of their choice, people have their own party?
Rod Kavanaugh asked: to help prevent contested elections, what are the most important reforms Congress could enact to prohibit states from engaging in selective voter suppression and force them to conduct elections that meet international standards? Rather than directing any particular question at you Ned, you can take up one of those or just tell our listeners what's keeping you up at night? What are the scenarios you're most concerned about and what should we be looking for from history about how to resolve them?
Ned Foley: [00:37:58] Sure. I do think. You know, once we get past this election, I really hope that Congress takes up reform, including some of the procedures involving, the possibility of another disputed election.
Because if we escape the frailty and the vulnerabilities that exist in my judgment now, right. That'll be a good thing, not escape, but it doesn't mean those frailties and vulnerabilities. Aren't there. They're still there. And, they've been there for a while. It really ever since 1876 and the electoral count act that was adopted in 1887 and, to, to try to have a better statute, but it's not perfect.
So that's what keeps me up at night that, that we will have, I have a dispute this year that will replicate the Hayes Tilden dispute structurally. And what that will look like picking up on the question that you, you raised. It would be this company, Keating submissions from the same state, whether it's Pennsylvania or Wisconsin or Florida, it could be the legislature setting itself up in opposition to the secretary of state and the governor.
It might be the governor setting him or herself up in opposition to what the state Supreme court does perhaps in Michigan or Wisconsin. But if you get. Simultaneously conflicting submissions of electoral votes from the state. That's the circumstance of Hayes Tilden. And then it was so precarious for reasons that we discussed last week.
and so I hope we avoid that for what, however, we avoid that. But that's the thing that worries me most because, because it would involve the most difficult sets of procedures that Congress has under the 12th amendment, for reasons we could go into, but they're not an ideal set of procedures. Thank you for that.
Jeffrey Rosen: [00:39:46] James, the same question to you, cause it's an important, important one. What's keeping you up at night. If you do share with our viewers, your scenario about how things could really get complicated if this election goes to the house and what are other nightmare scenarios that you're concerned about?
James Ceasar: [00:40:03] Yeah, I guess, let me go back to the election of 1860 and take it that there was no dispute in the election of 1860 of who won according to constitutional standards. Lincoln won. I don't know anyone in the South who said he didn't win. So in a way, the, the, the problem of 1860 went way beyond the constitution.
You had one part of the country that decided it wanted out, whether it was cause whether it was according to the rules of the constitution or not, if they pulled out and, nothing about the rules could have helped that one way or the other, they were irrelevant. The only thing the South objected to, was that formerly there had been a norm in the United States that both political parties would be national.
And the Republican party was not national. It was Northern. And, this, the, the southerners mentioned several times, but, they were on their way out coming to the current sustain. It seems to me that there's one technical issue that's important is that the Democrats in general don't accept the electoral college.
And they're getting tired of losing elections that they believe that they've won by all their standards, enormous standards. They believe that the rules of the electoral college are unfair and unjust. Whereas a lot of people look at it in another, from another point of view, that's the thing we have and it's defensible.
So, so there's that issue. The other issue, it seems to me though, in the current thing is that, the people in on the different side, don't respect the idea that the majority, should decide the, election. They believe that by right. They, they have the proper point of view, regardless of who gets more votes and, or regardless of who gets votes according to the rules of the constitution.
And that's what I find from a democratic friends. as I said, they don't like the electoral college, but they also don't think that these people who are currently governing the people of the nation should be governing it by every standard that they regard as important. And, maybe the Republicans will see we'll feel the same way after the, the next election.
If they lose that, they just don't respect the outcome of the election. So there's an underlying normative issue. which troubles me far more than the, the technical issues. I see it could be a technical issue, but I, I think if it does deeper issues that are very worried about whether we can keep our democracy, we're slipping into situations now where lots of the country's governed by malicious and by Bob's.
I mean, it's just the way it is. we're outside the bounds of what normally constitutes a well functioning democratic order all across the nation. And these are troubling signs. Go beyond the rules of the election.
Jeffrey Rosen: [00:42:42] Thank you for those troubling scenarios, indeed, for noting the lack of legitimacy of the electoral college among some and, by the way, friends, if you want to hear the best debate about whether or not to keep the electoral college, the constitution center's ever hosted, professor Caesar joined Jesse Wegman, you can find it on the way that people podcasts and it was, extremely eliminating and also, James for noting, the fact that neither side may be willing to accept the legitimacy of the resu l t. Franita, what is keeping you up most at night and what are you most concerned about?
Franita Tolson: [00:43:16] So, every morning I get up and I say to election administrators, prayer, right? Please Lord. No, let it be close. But then I realize that. let's say it's not close, nothing happens right. This, this is the pathology of America, right? If we get through this, okay. Nothing changes. Remember 2012, the long lines, and Obama says we have to do something about that.
They only got a commission and nothing happened 2016, you know, even with Trump's voter fraud thing. Nothing half. Well, I knew nothing. What happened with that, but that's besides the point, but my, my broader point is that nothing ever happens whenever we get past some election successfully. The reason something happened in response to Hayes Tilden, just cause we were two days out from Doolin and alterations in substantial violence.
Right. That was real bad. and so it's. 11 years, but we ended up with the electoral count act because Congress knew after close elections in the early 1880s that they couldn't afford to keep doing this. So let's, that's the problem. Nothing changes unless things get really, really, really bad. And the question we have to ask ourselves, you know, are we there?
and I think James was right. I think we are there. but I, I am also very cognizant of the fact that if we get through November 3rd, successfully, then that diminishes the incentive for people to push for change. And we really do need to keep the focus on that. There's no reason for us to have gotten to this point.
we have had. Two elections in the last 20 years where the popular vote winner lost the electoral college, right? That, that that's a signal that something's wrong and that we need to revisit it. And re we think about that. The fact that since 2016, 2016, 2016, excuse me, things have descended into a point where.
as James points out, militias are governing part of the country. I mean, we, we need to have broader conversations about the health of our democracy that we don't have in instances where we get past the elections that are being, contended for. And that's a problem. We really do have to keep the focus on the fact that we have a deep flaws in our system that we need to address, regardless of what happens on November 3rd.
Jeffrey Rosen: [00:45:22] Great many, thanks for noting those flaws and keeping our attentions focused on it. Robert, I think the last word is to you. we have a question from our colleague, Steven Rockman from the Agora Institute, which I'll read and ask you to answer and then ask you to leave our viewers with, concluding thoughts in this very sobering and illuminating conversation.
Steven Ruckman asks, as we've been listening the Supreme court in a pair. four to four votes Roberts with the Progressive's rejected GOP request to stay in Pennsylvania court. Willings that allowed counting of absentee ballots that arrived shortly after election day with no postmark. Is this a sign of rulings to come in the days or weeks after the election?
That diverge from the Bush speak or interventionist approach. If you want to take a stab at that and then leave us with some concluding thoughts, that would be great.
Robert Liebermann: [00:46:11] Oh, good Lord. I'm not even going to try and prognosticate what the Supreme court is going to do. I feel if I'm, you know, lawyers started good at that and I'm, I'm, I'm, I'm not even going to give us give that a shot.
I mean, I think, but I think, You know, clearly we're at a point I think for Nita is absolutely right. We're at a point where we need to dress these kinds of technical issues and clarify the standards, and, figure out how to run a complex. Close selection in a way that's clean in a way that people recognize and understand as, as, as reasonable and can accept.
I think, but I think more broadly. Yeah. I mean, I agree with Jim that the bigger problem is that no matter. What comes out of this election almost no matter what comes up in this election, no matter who wins and how it comes about, we're going to be living in a country where half the people look at the election outcome is illegitimate and problematic.
whether it's, because once again, we have a popular winner who doesn't win the electoral college, or, you know, if the president is reelected, if, if, if the president is not reelected, He's sort of seeded the ground for his followers and for people in his party to believe that he was screwed out of the election by fraud, or by some kind of malfeasance.
and I think that's not a good situation to be in that's that's it back to the last conversation. That's what I really worry about is no matter which way the election it goes, whether it's closer, not that we're in a scenario where people don't trust the legitimacy of their government. and I think that's, that's a very troubling scenario, especially when, as Jim says, you know, there are lots of parts of the country that seemed to be, at the, at the mercy of, of armed militas.
Jeffrey Rosen: [00:48:01] Well, that scenario that you, that you've identified in that all of you have cast light on a scenario where people don't trust the legitimacy of their government is indeed. One of grave concern. I want to thank each of you for having cast such light on it. And also note that, this collaboration with the SNF Agora Institute is one that will continue after the election.
On November 11th, we will reconvene with the Agora Institute scholars, including Anne Applebaum and Yascha Mounk, and others to discuss the way forward. How can we reconstitute the legitimacy of American democracy? And of course, then we'll know what, what happened in November. Robert Rosenberg asked, "will this will be available for later viewing?"
Absolutely. It'll be up on YouTube and on the constitution center's interactive constitution, the cornucopia of constitutional learning that I want you to check out Robert and all of our great listeners ASAP later tonight or tomorrow, it will also be broadcast on our live at the NCC podcast. I'm so grateful to each of you: Ned Foley, James Caesar Franita Tolson, Robert Liebermann for bringing history and reason to bear on these important questions about election. And the future of American democracy. thank you all for joining, at home and look forward to reconvening after the election. Many thanks. Good night.
