Christopher Fauske is a Professor of Media and Communications at Salem State University.
The 1876 US presidential election is back in play, at least for those gaming out every small detail of what might—or might not—happen in the aftermath of November 3. And, for once, it seems necessary to include that usually redundant ‘or not’.
Complicating that particular gaming scenario, though, is the Blue Wave of 2018 that might actually have done something no one was thinking about at the time - protecting the integrity of the much-maligned electoral college.
But first, as they say, some background.
Hallmarks of Fascism?
In ‘The election that could break America’ Barton Gellman details a variety of scenarios the Trump campaign and its surrogates are developing to establish a framework to discredit any result except a Trump win. It is a playbook part 1920s Italian fascism, part Viktor Orbán meets Jarosław Kaczyński, and part US electoral politics as they used to be done, but with a kick in the tail.
As early as March 2016 Jeffrey Herf identified “plenty of room for discomfort”, and that “We know what can happen when politicians who speak and act like Donald Trump gain power, even if they do so by using the instruments of democracy. With fear and anger unloosed in the land, much can happen, nearly all of it very bad. Trump can be stopped, but for that to happen we need to take the threat he poses seriously and to remember the lessons of the not so distant past”.
Herf was essentially applying the analysis of Robert O. Paxton, who identified not a stable policy platform, but a series of ‘mobilising passions’ as the hallmark of Fascism. These include an open assault on democracy, the call for a strongman, a contempt for human weakness, an appeal to national greatness, an investment in the language of cultural decline, the suppression of dissent, a propensity for violence, disdain for intellectuals, and fantasies of racial superiority.
It is a strategy now clearly being deployed by the US Department of Justice, led by Attorney General William P. Barr, who on 11 October 2019 told a closed-door gathering at the University of Notre Dame’s de Nicola Center for Ethics and Culture that: “… the force, fervor, and comprehensiveness of the assault on religion we are experiencing today… is not decay; it is organised destruction” and promised that “… as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties”, with that word ‘our’ being regularly deployed throughout the speech as exclusionary in the sense of ‘us against them’.
Joshua Geltzer, a former deputy legal adviser at the National Security Council, is clear there is ample evidence on the ground that Barr is deploying lessons that Orbán took on board after his 2002 electoral defeat. After his 2002 failure, Orbán, as Viktória Serdült recounts, quickly blamed ‘left-wing and liberal journalists’ for his downfall: “His big mistake, he told his biographer at the time, was that he had insufficiently influenced the media. But after coming back to power in 2010, it was not only the media he started transforming: he has spent the last eight years cementing his power, including meddling with the electoral system, getting a super-majority in parliament and taking over the courts”.
Meanwhile, in Portland, OR, the Department of Justice and FBI officials are examining local and state police records to identify people they can charge under Federal laws, including, for example, charging protestors on public roads with disrupting interstate commerce. This is a Federal rather than state offence that has traditionally been used as a tool to help ensure effective competition in interstate commerce. Such federalisation of criminal indictment echoes the ’Law and Order’ message Republicans routinely fall back on, but it also seeks to identify law and order with the party and the national state, as is the case with PiS’s (Prawo i Sprawiedliwość) merging of cultural and security messaging.
By blocking judicial nominees for much of Barack Obama’s second term, Senate Majority Leader Mitch McConnell has also been able to oversee Trump’s appointment of almost a quarter of all active federal judges in the United States, and it looks likely that Trump will manage to have a third nominee approved to the Supreme Court before his term in office ends.
Part of the rush to confirm Amy Coney Barrett, following the passing of Ruth Bader Ginsburg, is the recognition that at some stage the Supreme Court might have to rule on the election, which gave Texas senator Ted Cruz the grounds to argue that “we need… to have nine justices who can resolve any dispute and ensure that the law and constitution are followed”. A Supreme Court with eight justices “lacks the constitutional authority” Cruz said. This is, of course, nonsense. Throughout its history the Supreme Court has regularly reached constitutionally valid decisions without a full bench, but the crux of Cruz’s argument is hidden in plain sight: with a presumably favourable Supreme Court ruling possible, make sure there is no apparent loophole for those who would demur.
While it is demonstrable, then, that much of the playbook of populist authoritarian regimes has been deployed with increasing urgency by the Trump administration, in Gellman’s telling there is a final card that would be unique to the United States, and that has been identified by lawyers working for the president’s re-election campaign. That is, re-enact the chaos around the Rutherford B. Hayes - Samuel J. Tilden 1876 election, send competing slates to Washington DC, and delegitimise the election at the end stage.
The Tilden-Hayes election and electoral law
Tilden outpolled Hayes in the popular vote, and after a first count of electoral college votes, Tilden had won 184 to Hayes' 165. But 20 votes from four states were unresolved. In Florida, Louisiana, and South Carolina, each party reported its candidate had won the state, while one Oregon elector was disqualified for being an ‘elected or appointed official’. The parties each sent their own slate of delegates to Washington, DC and the convocation turned into an unmanageable farce. Trying to make sense of all this fell to the US Congress with the Supreme Court waiting in the wings. Confident they could manage to deadlock Congress, the Trump campaign would ask the Supreme Court to decide the matter, if a similar situation were to arise in November.
But this end-of-the-line scenario actually illuminates the failure of the current administration to replace federalism for nationalism in one key area, electoral law. That failure, along with a 2020 Supreme Court decision, and, ironically, the electoral college itself, should offer the Biden campaign an almost rock-solid buffer if the voting goes as the polls increasingly suggest it will.
There was some electoral reform after the Tilden-Hayes election, but, more importantly, a sweeping 1948 electoral law reform includes a sub-section on the ‘Credentials of electors; transmission to Archivist of the United States and to Congress; public inspection’.
The language is about as straightforward as legal language can be: ‘It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed’. In other words, it is up to the governor of each state to determine who shall represent the will of that state’s voters at the meeting of the electoral college.
In a further complication for a Trump legal challenge to this practice, the US Supreme Court ruled unanimously in June this year (Chiafalo v. Washington) that state laws that prohibit ‘faithless electors’ (that is electors who on the day cast their ballot for any nominee other than the one they were appointed to support) are constitutional. Brett Kavanaugh joined the majority opinion. Even the concurring decision, written by Clarence Thomas and joined by Neil Gorsuch, represents bad news for a Trump challenge as it finds the Constitution to be silent on the matter. And, says the concurrence, “When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment”.
Chiafalo v. Washington means you cannot replay Tilden-Hayes, as the final decision who goes is up to the governors, who have to certify the list of electors from their state in reasonable time and with due regard for that state’s election results. And therein lies the challenge for the man whose team has done its best to follow a playbook well planned by fellow authoritarians, but who has largely done so on the federal level in a country wherein states still retain considerable say over how elections are conducted and reported.
Looking at a scenario to recreate Hayes-Tilden shows one consequence of the 2018 Blue Wave; it managed something no one at the time was discussing - safeguarding the electoral college from tampering. Democrats flipped gubernatorial seats in Illinois, Kansas, Maine, Michigan, Nevada, New Mexico, and Wisconsin. All of which, except Kansas, are exactly the states that would need to form the backbone of a duelling-slates scenario.
Could Trump rely on help from Republican governors?
Of the 25 states and the District of Columbia where Biden is leading in recent polling, only five now have a Republican governor. Three of those are Massachusetts, Vermont, and Maryland, where all three governors have increasingly made clear their disdain for Trump, and where he has no chance of even getting close to any plausible claim of having won the popular vote.
New Hampshire and Arizona are the other two states on that list. New Hampshire governor Chris Sununu has been less outspoken in his opposition to Trump, but has actively managed not to be associated with him in any meaningful way. An incumbent senator and both US representatives are running for re-election, and the governor’s position and all state senate and house seats are also on the ballot, so stopping the count at any stage would invite multiple legal challenges. And the secretary of state, who oversees elections, is a Democrat with a long record of working with both parties and some history criticising Trump.
Arizona governor Doug Ducey’s options, if he considers he has any, will be hampered by a highly competitive US Senate race that will likely boost turnout, and might well have the incumbent senator’s only chance being late-counted postal ballots that, again, would limit his opportunity to call the race early for Trump. And, as in New Hampshire, the secretary of state is a Democrat.
Tilden-Hayes redux might look like the nightmare scenario, but it’s something much more interesting: a red herring hiding behind which is a joker - to mix metaphors - that could trump the numerous cards the current president’s campaign has dealt itself. Trump’s mimicry of authoritarian European leaders who would be effective role models would be scarier yet if they, or he, had solved the still surprising conundrum that is the electoral college.
This post is part of on an ongoing series on the United States Presidential election, 2020. View more.
All articles posted on this blog give the views of the author(s), and not the position of the IPR, nor of the University of Bath.
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