The country has seen several disputed presidential elections, some of which ended up being decided on the floor of the House of Representatives while others went to the highest court in the land. When the U.S. confronted the most intensely disputed presidential election in our history, the post-Civil War 1876 election, the country and Congress discovered we had no rules or institutional structure in place for addressing the form of conflict which that election raised. In the end, Tilden, the Democrat, won the popular vote. Foley also notes there are some historical arguments parts of the Electoral Count Act of 1887 that are unconstitutional and there could a role for the Supreme Court to settle these disputes before January 20, 2021, when the Constitution’s 20th Amendment requires the new President to take the oath of office. Nixon, the sitting Vice President, lost the popular vote to Kennedy, then a Massachusetts senator, by 113,000 votes of the 68 million cast—a minuscule margin of 0.2%. Historians have noted that both Democrats and Republicans committed election fraud, but there was also widespread violence against Black voters in the South and voter intimidation by Democrats. On Jan. 6, Congress convenes to count the electoral votes and certify the winner of the election. The country may not even know the results for days, as states have different rules about when mail-in ballots can be opened and counted—some states, like Pennsylvania, do not allow them to be read until election day, November 3, while other states, like Florida, are already processing ballots. The 12th Amendment says that in that case, the House of Representatives elects the president and the Senate elects the … The 2020 United States presidential election is shaping up to be one of the messiest and most unusual political contests in modern memory—with shouting-match debates, historic turnout for early voting, and a Supreme Court confirmation just eight days before the election. No one had taken into account the scenario of disputed electors at a state level, and there were disagreements about how the dispute would be settled within Congress. Congressional Research Service, The Electoral College: a 2020 Presidential Election Timeline (September 3, 2020), https://www.everycrsreport.com/files/2020-09-03_IF11641_5002793d090fd38c1af7284b97317d97259d009f.pdf, Congressional Research Service, Legal Processes for Contesting the Results of a Presidential Election (October 24, 2016), https://fas.org/sgp/crs/misc/R44659.pdf, Foley, Edward B., Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management (August 31, 2019). ELECTORAL COLLEGE. Although it has national impact, the presidential election is in essence 50 state and District of Columbia elections for presidential electors, held on the same day throughout the country. The 12th Amendment says that in that case, the House of Representatives elects the president and the Senate elects the vice president. Back in 2000, a deeply divided Supreme Court, in a 5-4 vote, wouldn’t allow an extension of the safe harbor deadline proposed by Justice Stephen Breyer in the specific case of Florida’s recount. Can schools punish students for online speech? The "Democratic Machine" in Chicago was long suspected of interfering in elections, though nothing was ever proven. In an election year unlike any other, it's almost certain that one or both candidates will challenge some results in court or that votes—whether mail-in or in-person—will need to be recounted. The U.S. president is not elected by a majority of the popular vote. The 20th Amendment authorizes Congress to pass a law to fill this gap, so that someone can act as president until an elected president can be chosen. If the certificates and documents are not received, the Vice President requests the results shall be sent to Congress by registered mail or messenger. The election of the president and the vice president of the United States is an indirect election in which citizens of the United States who are registered to vote in one of the fifty U.S. states or in Washington, D.C., cast ballots not directly for those offices, but instead for members of the Electoral College. President Trump has said he’s going to contest the election results – going so far as to say that he believes the election will ultimately be decided by the Supreme Court. But legally contested presidential elections within its system are not the norm for a part of the Constitution that dates back to 1787. One factor is the spate of lawsuits involving voting by mail options related to the COVID-19 crisis. The dramatic 1876 contest between Rutherford B. Hayes and Samuel Tilden is perhaps the closest the nation has come to experiencing a constitutional crisis related to presidential elections - and one law related to the 1876 dispute keeps popping up in scenarios linking that election to the 2020 contest. If a candidate has at least 270 electoral votes, they are declared the winner of the presidential election. No one can say for sure when the country will have a clear winner and, more important, what will happen if either one of the candidates does not accept the results. Both Trump’s and Biden’s campaigns have lined up armies of lawyers—and have already gone to court over mail-in ballot deadlines and other voting issues caused by the Covid-19 pandemic. A group of leading election scholars remarked in April 2020 a project sponsored by the University of California, Irvine School of Law, about the possible problems with the act. In 2020, that deadline is December 8, since the college votes on December 14. Christian Grose, a USC associate professor of Political Science and Public Policy, said a roadmap for this would be … How rare are contested presidential elections? The Federal Contested Elections Act of 1969 provides a procedure for candidates to the United States House of Representatives to contest general elections by filing with the Clerk of the House. But the … 51 Loyola University Chicago Law Journal 309 (2019), Ohio State Public Law Working Paper No. Monmouth University: “Both the presidential contest and the U.S. Senate race in Iowa are very competitive according to the Monmouth (‘Mon-muth’) University Poll. But what happens if a state provides a second slate of electors named by its legislature or a state’s governor refuses to sign the state’s election certificate in a dispute over ballot counting? At one point, Gore called Bush to concede—then in an extraordinary move, called back in a matter of hours to retract his concession. Oregon also submitted two sets of returns. Tilden won the popular vote and the electoral count. Congress passed the legislation after the disputed 1876 presidential election between President Rutherford B. Hayes and Samuel Tilden. The new Congress that enters in January is the one tasked with carrying out the so-called “contingent election.” The president has only been selected this way once, in 1825. This admittedly messy system led to the ratification of the 12th Amendment in 1804, which states that electors must cast two separate votes: one for President and the other for Vice President. Smart conversation from the National Constitution Center. Star lawyers from both campaigns descended upon the Sunshine State in what became a month-long series of legal battles. The 1800 and 1824 elections were contingent elections in Congress after no candidate won a majority of electoral college votes, and a special 15-person commission decided the disputed 1876 election. According to the Election Law Blog, at least 300 lawsuits were in play as of September 28 related to COVID-19 election issues, ranging from disputes about the postal service to deadlines to witness requirements. The new Congress that enters in … Election officials spent days hand-counting ballots, examining the chads to determine the voter's intention. Ultimately, the fight went all the way to the Supreme Court in the decision Bush v. Gore, which ended the recount. In a 2016 analysis of presidential election disputes, the Congressional Research Service said that “under the United States Constitution, these elections for presidential electors are administered and regulated in the first instance by the states, and state laws have established the procedures for ballot security, tallying the votes, challenging the vote count, recounts, and election contests within their respective jurisdictions.”. While Kennedy captured a seemingly commanding 303 Electoral College votes compared to Nixon's 219, even those numbers were a bit misleading. If there is an Electoral College tie this year, it will go to the House for a vote. If there is a tie in the Electoral College, the election will be taken to the House of Representatives for a "contingent election," as happened in 1800 and 1824. The previously obscure Electoral Count Act could be a factor under certain conditions in the current election, some scholars have argued. Where this could get even messier: This is all spelled out in a very confusingly written law called the Electoral Count Act that was derived from another messy presidential election in 1876. In 1887, Congress then passed the Electoral Count Act to deal with a future scenario of rival or contested electoral votes presented at the joint session of Congress required under the 12th Amendment to certify election results. The threat of a contested election. What Happened at the Creative Time Gala and Party? Don't miss a live podcast recording of Free and Fair with Franita and Foley. The next day, it emerged that Bush had won Florida by such a close margin that state law required a recount. Town & Country participates in various affiliate marketing programs, which means we may get paid commissions on editorially chosen products purchased through our links to retailer sites. Here's everything you need to know about the strange history of contested—and contentious—elections in the United States. Federal statutes also require states to deliver certified electoral college results to the vice president, serving as president of the Senate, and other parties by the fourth Wednesday in December; in the year 2020 that date falls on December 23. What Happens if There’s a Contested Convention? It’s possible, too, that some states’ counts could be so close, or contested, that the presidential race could rely on the Supreme Court to finalize a decision. No wonder when Congress confronted a contested presidential election in 1877, its leaders (along with lame duck president U.S. Grant) created an extra-constitutional Election Commission to … (Many historians dispute Nixon's "country above party" message, suggesting he surely would have authorized the efforts to challenge Kennedy's win.) What Happens to the Children of Infamous Fathers. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly, Interactive Constitution: Classroom Edition, 2016 analysis of presidential election disputes, https://www.everycrsreport.com/files/2020-09-03_IF11641_5002793d090fd38c1af7284b97317d97259d009f.pdf, https://law.uci.edu/2020ElectionReportLAWPOLITICSMEDIATECH, Akhil Reed Amar on The Words That Made Us, Jeffrey Rosen and Ali Velshi Discuss Free Speech Student Case at Supreme Court. Jackson (who won the presidency four years later) was furious, believing he should have been the winner and that Clay tampered with the election by supporting Adams. The Electoral College is a uniquely American institution and no stranger to controversy. 501, https://ssrn.com/abstract=3446021, UC Irvine School of Law, Fair Elections During a Crisis: Urgent Recommendations in Law, Media, Politics, and Tech to Advance the Legitimacy of, and the Public’s Confidence in, the November 2020 U.S. Elections (April 2020), https://law.uci.edu/2020ElectionReportLAWPOLITICSMEDIATECH, Filed Under: 12th Amendment, 20th Amendment, Article II, Article II, Section 1. Or there could be rival sets of electors sent to Congress if state legislatures and governors do not agree on a slate of electors. The 2000 election is the only modern precedent for contested vote returns. Even if the election is messy and contested in court, the country will have a president on Inauguration Day. Election scholar Michael Morley of Florida State University College of Law will join hosts Edward Foley and Franita Tolson for a discussion about one of the most contentious presidential elections in American history—the 1876 Hayes-Tilden election—and its significance today. Who might decide a contested Presidential election? Republicans challenged the results in three Southern states—Louisiana, Florida, and South Carolina—which had submitted two different sets of returns, showing a different winner, to the Electoral College. This was the last time a presidential election went to the House for an up-and-down vote. (Some networks initially called the state, with 25 electoral votes, for Gore, then retracted and called it for Bush.) In some counties, there was a dilemma surrounding punch-card ballots where the voter had only succeeded in detaching a portion of the perforated paper, the so-called "hanging chads." Scott Bomboy is the editor in chief of the National Constitution Center. The U.S. president is not elected by a majority of the popular vote. And in Texas, home of Kennedy's running mate, Lyndon Johnson—who had been caught up in the "Box 13" scandal in his 1948 U.S. Senate race, when 200 votes for him mysteriously appeared—Kennedy won by only 46,000 votes. Experts discuss a pending Supreme Court case with Jeffrey Rosen. California, for example, was originally called for Kennedy, but Nixon ended up with the state's 32 electoral votes on November 17 after absentee ballots were tallied. The 12th Amendment says that in that case, the House of Representatives elects the president and the Senate elects the vice president. There were accusations of chicanery on both sides, but ultimately, in what became known as "The Compromise of 1877," Democrats decided to allow Hayes to become President in exchange for the removal of federal troops from the South and an end to Reconstruction. If not, Congress can decide the issue under the 12th Amendment in a contingent election held after the newly elected Congress is seated in office. Nixon publicly conceded defeat early in the morning after the election. Therefore—and consistent with … What Happened at the 2020 Storm King Gala? But, it's important to note that if there is an Electoral College tie this year, it will go to the House for a vote—that constitutional provision hasn't changed. While Nixon always claimed he had no part in it, his campaign did challenge the results in various ways, with recounts and court cases in Illinois, Texas, and even other states. When the results from each state are announced, a member of the House and Senate can jointly object, in writing, to the election results from that state. Fortunately, history can offer some guidance about how events may shake out in the coming days. Liz Cantrell is the assistant to the Editor in Chief of Town & Country, covering arts and culture, and has previously written for Esquire. In the end, each state must send a certified list of presidential electors to Congress after the electors meet within each state if the state wants its votes counted in the presidential election. The challenges did not succeed and by mid-December, Nixon reportedly privately told friends, "we won, but they stole it from us.”. In the event of a tie in the Electoral College, the Constitution leaves it to the House of Representatives to decide. The 2000 election between George W. Bush and Al Gore became one of the most memorable—and unusual— in modern history when it all came to down to so-called "hanging chads" and a mere 537 votes in Florida. However, in 2020 the possibility of a contested presidential election has been discussed, at least among academics, for months. However, Davis resigned from the Court and his replacement was Justice Joseph P. Bradley. If there are court battles at the state level, they will almost definitely wind their way through the federal appeals process. Which Election Took the Longest to Decide? The 2000 election offers the only modern precedent for contested vote returns. Monday, October 12, 6:30 p.m. EDT By most accounts, the most controversial presidential election in the U.S. was the 1876 matchup between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. Each state delegation gets a single vote in a so-called “contingent election.” When this voting commenced in February 1801, there were sixteen states, each with one vote, and an absolute majority of nine was required to win. George W. Bush and Al Gore argued for a month over Bush’s slim, 327-vote … The law dictates that contested House elections must first go to the federal Committee on House Administration. Each state is allocated a slate (or number) of electors based on its representation in Congress, and voters in each state choose electors affiliated with a political candidate. It’s safe to presume that the 2020 election will … Ironically, Constitutional rules at the time dictated that Burr, as the runner-up, would become vice president. messiest and most unusual political contests, the Constitution leaves it to the House of Representatives, the House members voted an astonishing 35 times over a week, Andrew Jackson won the most votes in the Electoral College, When the vote went to the House, Clay (the Speaker of the House) threw his support to Adams, both Democrats and Republicans committed election fraud, In January 1877, Congress established a bipartisan commission, "Box 13" scandal in his 1948 U.S. Senate race, Nixon reportedly privately told friends, "we won, but they stole it from us.”, states have different rules about when mail-in ballots can be opened and counted. The commission awarded all 20 disputed electoral votes to Hayes, with Bradley voting with the Republicans. One problem could be delays in counting votes submitted by mail at the state level, which could lead to a dispute about which votes are counted. In the 58 presidential elections held since 1789, only three presidents have been elected after the regular Electoral College process played out. Smith Collection/Gado/Image courtesy National Archives. But neither Jefferson nor Burr could eke out a clear victory—the House members voted an astonishing 35 times over a week, unable to declare a winner. The Founders crafted the Electoral College as a compromise that balanced population-based voting and state interests when it came to electing a president and vice president. The 1876 election was the most contentious in U.S. history. On election night, Gore had captured the popular vote, but the results were too close to call in Florida. In recent times, the Supreme Court ruling in Bush v. Gore in 2000 settled a controversy over an automatic recount in Florida that gave George Bush a majority of votes heading into the Electoral College proceedings that December. The U.S. House of Representatives has its own rules about contested elections. The Electoral Count Act of 1887, which Foley calls “astonishingly messy,” could lead to competing interpretations within Congress of what actions it can take on January 6. According to the federal election commission (federal legislature, federal government, federal judiciary — they ARE the definitive authority …not your alt right God damned lying pieces of SHIT) The 1800 and 1824 elections were contingent elections in Congress after no candidate won a majority of electoral college votes, and a special 15-person commission decided the disputed 1876 election. That such a crucial state was so close shows the down-to-the-wire nature of the race. In the 58 presidential elections held since 1789, only three presidents have been elected after the regular Electoral College process played out. “The procedures for handling a disputed presidential election that reaches Congress are regrettably, and embarrassingly, deficient,” Foley wrote in 2019 for the Loyola University Chicago Law Journal. The Constitution has an answer. But Jackson did not receive the majority of 131 electoral votes required to win. The House and Senate then adjourn briefly to consider the objection; if both bodies agree to uphold the objection, the votes are excluded from the election results under the terms of the Electoral Count Act. The Constitution and federal law ensure it. Given the long shadow of the 2000 court decision, and Amy Coney Barrett's 11th-hour ascension to replace the late Justice Ruth Bader Ginsburg, there are plenty of questions about what would happen should issues around this election appear before the Supreme Court. Many people assume the winner of the U.S. presidential contest is determined once the media calls the race and the losing candidate delivers a concession speech. This content is created and maintained by a third party, and imported onto this page to help users provide their email addresses. A state legislature decides to buck the electoral vote. In that scenario, the Speaker of the House would serve a president if Congress has not certified a winner of the 2020 presidential election and remain in that role until Congress does so. In the end, Bush won Florida by 537 votes, a margin of 0.009%, and this put him over the top to clench victory with 271 Electoral College votes. In response, Congress passed the Electoral Commission Act in January 1877 to establish a special commission of 15 people to decide the election, with five members of the Senate, the House, and the Supreme Court on the panel. The law delegates all matters involving contested elections first to the Committee on House Administration, which receives jurisdiction of such matters by the rules of the House. The 1960 election, which featured the first televised debates, was incredibly close. Also, violence about the 1876 election outcome was a distinct possibility. After Election Day in 1876, four states, Florida, Oregon, Louisiana, and South Carolina, sent two different slates of electors to Congress to be counted, since there were rival Democratic and Republican factions in those states at the end of the post-Civil War Reconstruction period. You may be able to find more information about this and similar content at piano.io. The legitimacy of a presidential election result wouldn’t be challenged again until 2000. Former US President George W. Bush speaks to health workers during a visit to … Also under federal law, the joint session of Congress required by the 12th Amendment to count the electoral votes and declare the winners of the presidential election is held on January 6, 2021. “The statute is a morass of ambiguity, which is the exact opposite of what is required in this situation.”, The Constitution provides that the settlement of presidential election disputes first happens within the state legal system under powers granted by Article 2, Section 1. In Illinois, he won by just 8,800 votes, mostly clustered in Chicago, which was run by Mayor Richard J. Daley. Because the sitting vice president also serves as … According to the Federal Contested Elections Act of 1969, candidates to the House of Representatives may contest general elections by way of a filing with the Clerk of the House. Together, Illinois and Texas had 51 electoral votes, and flipping them from Kennedy to Nixon would have handed Nixon the election. Joe and Jill Biden to Get a White House Cat, Dr. Jill Biden's 100 Days of First Lady Fashion, Biden and Harris Call George Floyd's Family, George W. Bush Talks Michelle Obama Friendship, Joe Biden Sends Queen Elizabeth His Condences, Josh Kushner and Karlie Kloss Welcome a Baby, Jill Biden & Meghan Markle Rock Oscar de la Renta. Of course, that litigation process within the states may involve rulings from the United States Supreme Court, as in Bush v. Gore from 2000. Back then, the demographics of the two major political parties were geographically "flipped" from how we perceive them today: the Republicans were popular mostly in the North in former Union states and among Black voters in the South, while the Democrats were powerful among white voters in the South. Finally, on the 36th ballot, Jefferson won 10 states and became president. Users provide their email addresses which featured the first televised debates, was incredibly close margin that state Law a... 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