Constitutional crises?

Trump balloting machinations heighten fears of 1876 redux

Not long before he died in 2005, William Rehnquist wrote an excellent history of the disputed presidential election of 1876. The Stanford-educated chief justice became deeply fascinated in the subject while leading the Supreme Court during its deliberations in Bush v. Gore, the decision that settled the 2000 election in George W. Bush’s favor.

Rehnquist understood that little, if anything, is truly unprecedented. History may never repeat itself exactly, but there are always echoes. While Bush v. Gore is top of mind because it happened in our lifetimes, the chicanery of 1876 might soon become more salient.

President Trump’s escalating and preemptive attacks aimed at undermining the legitimacy of the November election are generating growing fears of a looming constitutional crisis. The president reiterated on Thursday that he may not honor the results should he lose reelection, reaffirming his extraordinary refusal to commit to a peaceful transition of power.

In an interview with Fox News Radio, Trump said he would agree with a Supreme Court ruling that Democratic nominee Joe Biden won the election but without it, the vote count would amount to “a horror show” because of fraudulent ballots. He’s also continuing to agitate to get whomever he nominates onto the Supreme Court confirmed before November so that she can vote in his favor. There is no evidence to support Trump’s claims about widespread fraud.

Presidents Rutherford Hayes and Donald Trump. (AP; Jabin Botsford/The Washington Post)

Rehnquist’s book was entitled “Centennial Crisis” because 1876 was the country’s 100th birthday. Gov. Samuel Tilden (D-N.Y.) won more votes than Gov. Rutherford Hayes (R-Ohio) in the election, but four states sent rival slates of electors to Congress. Democrats had won control of the House in the 1874 midterms while Republicans controlled the Senate and the White House. That is the same balance of power as now, although both parties are very, very, very different.

To referee the dispute, a 15-member commission was formed with seven Democrats, seven Republicans and an independent. But one of the five Supreme Court justices on the commission, an independent, was induced to quit by being offered a Senate seat. He was replaced by a Republican. This gave the GOP an 8-to-7 edge on the committee, which used it to Hayes’s advantage. But Democrats threatened to use parliamentary shenanigans in Congress to block the certification process.

There were widespread fears of a second Civil War. The outgoing president, Ulysses Grant, mobilized troops and made contingency plans for martial law in case there were dueling inaugurations.

Ultimately, the outcome of the presidential election was hashed out during a secret meeting at a D.C. hotel called Wormley’s. In a particularly odious deal, now known as the Compromise of 1877, Democrats agreed to let Republicans hold on to the White House if Hayes would commit, for all intents and purposes, to end Reconstruction and withdraw federal troops from Southern states that had been in rebellion, where they were deployed to protect the rights of freed slaves.

“Military withdrawal brought lynchings, voter suppression and segregation,” said Richard Kreitner, the author of “Break It Up: Secession, Division, and the Secret History of America’s Imperfect Union.”

“The truly terrifying legacy of the 1876 electoral standoff isn’t only how close the crisis came to triggering a new outbreak of catastrophic violence but the solution American politicians came up with to avoid it: to avert another constitutional breakdown and resort to arms, the greatest advances for liberty and equality in human history were all but repealed,” Kreitner wrote in an essay this month for our Sunday Outlook section. “A renewal of the founding bargain — Northern silence in exchange for Southern allegiance — endured and underwrote America’s rise as a world power. What deals might today’s political leaders ink to end a similar crisis this time around? It may not be too soon to ask. As in 1876, constitutional breakdown would be disastrous, but so would a desperate, panicked insistence on compromise at any cost.”

Trump, Hayes and Bush are three of the five American presidents who took control of the Oval Office despite losing the popular vote. The others are John Quincy Adams and Benjamin Harrison.

A flurry of recent stories in outlets from New York magazine to the New York Post and the New York Times have started highlighted parallels from 2020 to 1876.

Bart Gellman described the Compromise of 1877 as “an unsettling precedent for 2021” in his widely discussed story this week for the Atlantic: “According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. … Republicans control both legislative chambers in the six most closely contested battleground states. Of those, Arizona and Florida have Republican governors, too. In Michigan, North Carolina, Pennsylvania, and Wisconsin, the governors are Democrats. …

“Rival slates of electors could hold mirror-image meetings in Harrisburg, Lansing, Tallahassee, or Phoenix, casting the same electoral votes on opposite sides,” Gellman warned. “Each slate would transmit its ballots, as the Constitution provides, ‘to the seat of the government of the United States, directed to the President of the Senate.’ The next move would belong to Vice President Mike Pence.”

Democratic state attorneys general strategized among themselves on what to do if the president refuses to accept the result and said they were most concerned that his drumbeat of unfounded accusations about fraud could undermine public confidence in the election,” Phil Rucker, Amy Gardner and Annie Linskey report. “In North Carolina, the State Board of Elections is preparing to relocate its Election Day operation to the state’s Emergency Operations Center. The state board considered evacuating its workforce on Wednesday after a woman called accusing Democratic board members of trying to steal the election and warning that she and about 1,000 other conservatives were on their way to protest … In Wisconsin, state Elections Commission spokesman Reid Magney said he was on an election security call with federal officials several weeks ago in which an FBI official assured election administrators that any deployment of military or law enforcement for election monitoring would be illegal and would not happen. … Arizona Secretary of State Katie Hobbs (D) said she has had discussions about how to police voter intimidation in a way that doesn’t make the problem worse.

Voters interviewed in Michigan, Indiana and North Carolina expressed uncertainty about whether mail-in ballots would be counted and dismay about the president’s willingness to challenge the results. ‘I’m afraid he’ll do whatever he wants,’ Socorro Herrera, 36, who is unemployed, said as she cast her ballot Thursday in Waukegan, Ill., a community north of Chicago. … In Warren, Mich., voters expressed similar disbelief. ‘To go against all norms, that’s what upsets me,’ said Deborah Grimaldi, 66, a retired sewing machine operator. ‘It’s like he wants to be a king or a monarch.’”

  • Virginia Attorney General Mark Herring (D): “If there’s one thing that I’ve learned in suing Trump and his administration dozens of times, it’s that when he threatens to cross democratic boundaries and constitutional norms, he usually does — and when he denies it, it often turns out he was actually doing it all along.”
  • Maine Secretary of State Matthew Dunlap (D): “Categorically and emphatically, when you have public officials casting doubt on the process, it’s incredibly corrosive. I cannot describe that with enough vehemence. It’s nearly a criminal or treasonous act. We hold a sacred trust, and it is our job to make people feel like they’re protected in their decision-making, as the authors of our future.”
  • Bill Galston, chair of the Brookings Institution’s Governance Studies Program: “For the first time in my life, and maybe for the first time since the Civil War, the fate of constitutional democracy in the United States is on the line, and it’s on the line because the president has put it there. It is a clear and present danger.”

Senate Republicans tried to deflect Trump’s challenge to the foundation of American democracy as bravado. “Most Republicans tried to dodge how they would respond if the president refused to accept the results if he lost and stoked violence among his supporters, either calling it a hypothetical they would not contemplate or saying Trump just talks like that but does not follow through on such threats,” Paul Kane and Rachael Bade report. “‘The president says crazy stuff. We’ve always had a peaceful transition of power. It’s not going to change,’ Sen. Ben Sasse (R-Neb.) said. Sen. Kevin Cramer (R-N.D.) credited the controversy to Trump’s tendency to speak in ‘very extreme manners occasionally’ and dismissed the latest controversy as part of that trend. …

Sen. Chris Murphy (D-Conn.) has reached out to GOP colleagues to encourage them to hold the line for democracy. Murphy said Republicans are in denial that the president would ever ignore the results of the election. But Democrats, he said, are trying to get them to acknowledge that every absentee ballot should be counted, fearful that the president could try to head off the results by contesting mail-in ballots. … In interviews, along with statements and social media posts, more than two dozen Senate Republicans pledged support for a peaceful transition should Biden win, yet [Mitt] Romney was the only one who, again without naming Trump, took on his statements. ‘Any suggestion that a president might not respect this constitutional guarantee is both unthinkable and unacceptable,” Romney tweeted late Wednesday. … Many Republicans tried to blame Biden for the issue following Hillary Clinton’s suggestion that the 2020 nominee should not concede until all the ballots are counted.”

FBI director says it would be a “major challenge” for a foreign country to commit widespread voter fraud by mail.

Chris Wray’s testimony before the Senate Homeland Security Committee again put him at odds with repeated assertions by the president who appointed him. Wray added the United States has not experienced large-scale voter fraud by mail or other means. “The FBI director, seemingly aware that his comments about election interference last week angered the president, said he was ‘in no way minimizing’ any threat to ballots. Changing the outcome of a federal election ‘would be a major challenge for an adversary,’ he said, adding that the FBI ‘would investigate seriously’ if it saw indications of such an effort,” Devlin Barrett reports.

The FBI warned cyber threats could slow voting but promised they won’t prevent it. The Bureau and the Cybersecurity and Infrastructure Security Agency said in a statement they have no reporting to suggest cyber activity has prevented a registered voter from casting a ballot, compromised the integrity of any ballots, or affected the accuracy of voter registration information: “However, even if actors did achieve such an impact, the public should be aware that election officials have multiple safeguards and plans in place — such as provisional ballots to ensure registered voters can cast ballots, paper backups, and backup pollbooks — to limit the impact and recover from a cyber incident with minimal disruption to voting.”

Bill Barr’s hyper-politicized Justice Department appears to be coordinating with the White House on communications.

“The Justice Department alarmed voting-law experts Thursday by announcing an investigation into nine discarded ballots found in northeastern Pennsylvania, a case immediately seized upon by the Trump campaign as evidence of a dark Democratic conspiracy to tamper with the presidential election,” Barrett reports. Initially, DOJ announced that all nine votes were for Trump and then said there were actually seven. The president had already seized on the announcement as he hit the campaign trail. “Before the U.S. attorney’s statement, White House spokeswoman Kayleigh McEnany told reporters that there would be an announcement about the case. … A statement issued by the local district attorney earlier in the week expressed confidence that the investigation would be ‘successfully resolved so it will not have an impact on the integrity of the election process,’ a degree of assurance absent from the U.S. attorney’s announcement. …

‘It’s wildly improper, and it’s truly unconscionable,’ said Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles. Levitt said that the investigation itself is worthwhile but that it was a baldly political move to announce the probe with partial facts — which officials then had to scramble to correct — while describing which candidate was selected on the ballots. ‘That is the tell, and it says this was not an act of law enforcement, this was a campaign act, and it should mean the end of the career of whoever approved the statement,’ said Levitt. Richard L. Hasen, an election law professor at University of California at Irvine, said he could not recall ever seeing such an announcement. ‘The Justice Department should not be a political tool, and this is a story that is going to be manipulated by the president to say his votes are being thrown out,’ Hasen said.”

Barbara Lagoa refused to recuse herself on a key voting rights case that could swing the outcome in Florida.

The Florida judge identified this week by Trump as a finalist to succeed Ginsburg made a broad ethical promise last year when the Senate confirmed her to the federal bench. “Lagoa wrote that a judge must recuse herself when her impartiality might reasonably be questioned and said she would step away from any case involving her past work as a judge. Then came a case this year involving a referendum that Floridians approved to restore the voting rights of former felons and a law that the Republican-controlled legislature then passed setting a major limitation: Only felons who don’t owe money to the state can vote,” Aaron Davis and Ann Marimow report.

“When the matter resurfaced before her on the U.S. Court of Appeals for the 11th Circuit in Atlanta, Lagoa did not recuse herself. Instead, she and another Trump appointee, who also had been a state judge in Florida, penned a 25-page order rejecting calls for their disqualifications … They became the deciding factor in a 6-to-4 ruling that overturned a lower-court finding that the payment provision amounted to an unconstitutional poll tax that discriminates against poor former prisoners. The reversal is expected to keep many of the 85,000 felons who had registered to vote in the swing state from casting ballots in November. Trump won the state in 2016 by fewer than 113,000 votes.

“Democrats say her actions should prompt heavy scrutiny about how she would conduct herself on the high court, beginning with a possible appeal of the Florida case, as well as challenges that would undoubtedly flow from a disputed or razor-thin presidential election result. … Lagoa may also face recusal questions about cases involving her husband, attorney Paul C. Huck Jr., and his law firm, Jones Day. The firm has long represented the Trump campaign. Trump, who continued his assault on mail-in balloting this week, left little doubt that he seeks to fill the Supreme Court vacancy in part to help him win reelection in the event the outcome winds up in the courts.”

Trump’s Supreme Court choice is still widely believed to be Judge Amy Coney Barrett. He will announce his final decision tomorrow. “White House officials have asked several members, both Democratic and Republican, of the Senate Judiciary Committee if they would like to meet personally with the nominee starting next week,” Seung Min Kim reports. “GOP leaders are privately aiming for a final confirmation vote just days before the Nov. 3 election, with confirmation hearings starting the week of Oct. 12. That timetable is subject to change.”

“Naked ballots” are the new “hanging chads.”

The top election official in Philadelphia is warning that a minor technicality in a state Supreme Court ruling this week could cause as many as 100,000 mailed ballots to be rejected statewide in November, a potentially significant statistic for a state that Trump won by 44,000 votes in 2016. “Lisa Deeley, the Democratic chairwoman of Philadelphia’s election board, warned in a letter to lawmakers this week that the court’s requirement of an additional envelope for voters to mail back with their ballots could disenfranchise tens of thousands of voters in her city and many more statewide,” Michelle Ye Hee Lee reports. “At issue is the use of ‘secrecy envelopes,’ which are designed to protect the privacy of the voter. A voter returning an absentee ballot must insert the ballot into the secrecy envelope, and then insert that envelope into a larger envelope that carries the mailing address and postage.

“For the state’s primary election, local election officials were allowed to accept ballots that were returned without the inner envelope — commonly referred to as ‘naked ballots’ — to accommodate the surge of voters in Pennsylvania who cast absentee ballots for the first time because of the coronavirus pandemic. But under last week’s court ruling, ballots sent back to election officials without the inner envelope will be rejected, with no opportunity for voters to rectify the problem to make sure their vote is counted. … Pennsylvania is one of roughly 16 states that require such an inner envelope, according to a tally by the National Conference of State Legislatures.”

This is already the most litigated election in memory. “In Pennsylvania and Ohio, there are lawsuits about where voters might be able to drop off their ballots,” the New York Times notes. “In Michigan, legislation is pending concerning whether voters will have the ability to fix any problems with their mail-in ballots. In North Carolina, elections officials signed an agreement to extend the deadline for receiving mail ballots by six days, and Republicans immediately pledged to try to overturn it.”

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