Politics: Reflections on Election 2000
For a long while it looked like we would at long last behold Tilden’s revenge, but that didn’t happen. Instead, as my lawyer son observed, the Supreme Court reinvigorated the great tradition it established in Dred Scott v. Sanford and Plessy v. Ferguson. The doctrine of equal protection of the laws may very well escape from the Pandora’s box of Bush v. Gore and bedevil elections in many another state and many another year. Perhaps that will provoke a return to deciding elections by the simple and traditional expedient of counting the votes. Even black people’s votes, which were disproportionately denied.
In our previous presidential elections where the winner got fewer votes than the loser, the winner either lost the next contest or was not nominated. So it went for John Quincy Adams in 1828, Rutherford B. Hayes in 1880, and Benjamin Harrison in 1892. In the Adams and Harrison cases, the loser (the one with more votes) won the re-run four years later. In the most egregious case, when Tilden was stopped cold one electoral vote short of victory, the winner (Hayes) forbore from running again, leaving the Stalwarts and Halfbreeds to struggle with each other for the nomination that Garfield managed to capture. This time may be different; at this writing it seems unlikely that those who invested so heavily in George W. Bush’s ascent to Austin and now to Washington will back off from a second term of returns.
Except for the 185-184 result in Hayes-Tilden (and the pre-Twelfth Amendment Jefferson-Burr tie in 1800), the Electoral College has never been closer than in Gore-Bush. The process in Louisiana, South Carolina, and Florida (yes, even then) in 1876 was murkier than the results from Palm Beach, Broward, Miami-Dade, Duval, and other Florida counties in 2000. In 1876 the Republicans on the Electoral Commission, including Garfield, intervened locally and directly to throw out Democratic ballots. In 2000 it proved easier to simply not count them. We await the count now taking place by media organizations under the Florida sunshine statute, a protection not available in 1876.
The January 5 issue of the Chronicle of Higher Education reports the opinions of eight academics (including three historians), plus the writer Gore Vidal, as to how the 2000 election will be viewed in the future. All but one describe the “Scalia Five’s” decision in Bush v. Gore in negative terms ranging from incomprehensible to infamous. Eric Foner points out that after the Supreme Court disgraced itself in Dred Scott, “nobody thought of going to [it] to decide the issue” in Hayes-Tilden; “the court had lost its legitimacy.” For William H. Chafe, the bargain by which Hayes gained the electoral votes to become President in return for ending federal enforcement of equal protection (ironically) not only made the loser the winner, but “set in motion the systematic disfranchisement of blacks, and ushered in the era of Jim Crow.” Ellen Carol Dubois sees the Court’s action as part of a win-at-any-cost effort by Republicans who never accepted Clinton’s legitimacy and were determined, rule or ruin, to regain the Presidency in 2000.
Perhaps future observers will see the process and the outcome as of a partisan piece with Clinton’s impeachment. Two years ago I was asked several times how his impeachment and acquittal may look in the future. Prophecy is not my game, but surely a Gilded Age historian may compare it to Andrew Johnson’s. Clinton had twice been elected by the people, while Johnson had never been elected President at all; and, as impeachable offenses, Clinton’s indecencies with Lewinsky and then his cover-up fell ludicrously short of Johnson’s program of Reconstruction, which in so many crucial ways sought to overturn the results of the Civil War in which 350,000 Union troops died.
As in 2000, the Republicans of 1876-1877 refused to lose. In those days they were at least promoting a better cause. The Electoral Commission of 1876-1877 was supposed to reach a nonpartisan, impartial judgment on Hayes and Tilden. It failed. The Supreme Court in 2000 did not do so either, and deserves as little esteem from historians.
This article first appeared in the Spring 2001 Newletter of the Society for Historians of the Gilded Age and Progressive Era.