Disputing An Election
American Democracy Is Tested, Again
NewsFacts & Analysis • October 26 - November 15, 2020
Four years ago, Donald Trump was campaigning in Pennsylvania. Then, as now, it is a key swing state that can be decisive in a presidential election. “The only way we can lose, in my opinion, and I really mean this, Pennsylvania, is if cheating goes on,” he told an audience on October 16, 2016 at a rally in Altoona. “I really believe it.”
Recently, on September 26, 2020, Trump was back in Pennsylvania, again stumping for votes, but this time as President of the United States. “The only way they can win Pennsylvania, frankly, is to cheat on the ballots,” he told a campaign crowd in Middletown. “That’s the way I look at it.”
Back in 2016, on October 17, Trump addressed supporters at a rally in Green Bay, Wisconsin. “We are competing in a rigged election, the media is trying to rig the election,” he said. “They even want to try and rig the election at the polling booths, where so many cities are corrupt and voter fraud is all too common.”
Again in Wisconsin this summer to campaign for his reelection bid, Trump spoke at a rally in Oshkosh on August 15. 2020. “The only way we’re going to lose this election is if the election is rigged. Remember that,” he said, “it’s the only way we’re going to lose this election.”
Denunciations vs. The Data
On June 22, Trump appeared on Raymond Arroyo’s radio show for The Eternal Word Television Network. “You talk about foreign countries, they’re going to be printing their own ballots,” he said. “It will be a rigged election if they do that.”
On July 24, 2020, Trump appointee William Evanina, Director of the National Counterintelligence and Security Center, issued a statement to the press: “The diversity of election systems among the states, multiple checks and redundancies in those systems, and post-election auditing all make it extraordinarily difficult for foreign adversaries to broadly disrupt or change vote tallies without detection.”
The following month, on September 23, 2020, the President held a news conference at the White House. A reporter asked, “Win, lose, or draw in this election, will you commit here today for a peaceful transferral of power after the election?” Trump hesitated. “Well, we’re going to have to see what happens,” he said. “The ballots are a disaster.”
The next day, September 24, Christopher Wray, the FBI Director appointed by Trump, testified before the Republican-led Senate Homeland Security and Governmental Affairs Committee. He assured lawmakers that voting by mail has not been a problem in the United States.
“We have certainly investigated,” Wray assured the lawmakers. “We have not seen, to date, a coordinated national voter fraud effort in a major election.” When asked about the presidential election, the FBI Director said, “I think Americans can and should have confidence in our election system and our democracy.”
The following week, on September 29, Trump participated in the first debate with his presidential opponent, Vice President Biden, moderated by Fox News host Chris Wallace.
As we meet tonight, millions of Americans are receiving mail-in ballots or going to vote early. How confident should we be that this will be a fair election? And what are you prepared to do over the next five-plus weeks, because it will not only be to Election Day, but also counting some ballots, mail-in ballots after Election Day. What are you prepared to do to reassure the American people that the next president will be the legitimate winner of this election? In this final segment, Mr. Vice President, you go first.
I’m prepared to let people vote. They should go to iwillvote.com. Decide how they’re going to vote, when they’re going to vote, and what means by which they are going to vote. His own homeland security director as well as the FBI director says there is no evidence at all that mail-in ballots are a source of being manipulated and cheating. They said that.
The fact is that there are going to be millions of people, because of COVID, that are going to be voting by mail-in ballots. Like he does, by the way. He sits behind the Resolute Desk and sends his ballot to Florida. Number one.
Number two. We are going to make sure that those people who want to vote in person are able to vote, because enough poll watchers are there to make sure they can socially distance, the polls are open on time, and that polls stay open until the votes are counted. And this is all about trying to dissuade people from voting because he’s trying to scare people into thinking that it’s not going to be legitimate.
Show up and vote. You will determine the outcome of this election. Vote, vote, vote. If you’re able to vote early in your state, vote early. If you’re able to vote in person, vote in person. Vote whatever way is the best way for you because you will — He cannot stop you from being able to determine the outcome of this election.
And in terms of whether or not — When the votes are counted, and they’re all counted, that will be accepted. If I win, that will be accepted. If I lose, that will be accepted. But, by the way, if, in fact, he says he’s not sure what he’s going to accept, well let me tell you something, it doesn’t matter because if we get the votes, it’s going to be all over. He’s going to go. He can’t stay in power. It won’t happen. It won’t happen.
So vote. Just make sure you understand, you have it in your control to determine what this country is going to look like the next four years. Is it going to change, or are you going to get four more years of these lies?
Mr. President, two minutes.
So, when I listen to Joe talking about a transition, there has been no transition from when I won. I won that election and if you look at crooked Hillary Clinton, if you look at all of the different people, there was no transition because they came after me trying to do a coup, they came after me spying on my campaign. They started from the day I won and even before I won, from the day I came down the escalator with our First Lady.
They were a disaster. They were a disgrace to our country. And we’ve caught them. We’ve caught them all. We’ve got it all on tape. We’ve caught them all.
And, by the way, you gave the idea for the Logan Act against General Flynn. You had better take a look at that because we caught you, in a sense, and President Obama was sitting in the office. He knew it too, so don’t tell me about a free transition.
As far as the ballots are concerned, it’s a disaster. A solicited ballot, ok, solicited is ok. You’re soliciting, you’re asking, they send it back, you send it back. I did that. If you have an unsolicited — They’re sending millions of ballots all over the country.
There is fraud, they found them in creeks, they found some with the name Trump, just happened to have the name Trump, just the other day in a wastepaper basket. They’re being sent all over the place. They sent two in a Democrat area, they sent out 1,000 ballots. Everybody got two ballots. This is going to be a fraud like you’ve never seen.
The other thing, it’s nice. On November 3rd, you’re watching and you see who won the election and I think we are going to do well because people are really happy with the job we’ve done.
But you know what, we won’t know — We might not know for months because these ballots are going to be all over. Take a look at what happened in Manhattan. Take a look at what happened in New Jersey. Take a look at what happened in Virginia and other places. They are not losing 2 percent, 1 percent, which by the way is too much. An election can be won or lost by that. They are losing 30 percent, 40 percent. It’s a fraud and it’s a shame.
And can you imagine, they say you have to have your ballot in by November 10th? November 10th. That means that’s seven days after the election — In theory, should have been announced. We have major states with that, all run by Democrats
President Trump, you’re going to be able to continue. You have been charging for months that mail-in voting is going to be a disaster. You say it’s rigged. You said it’s going to lead to fraud. But in 2018, in the last midterm election, 31 million people voted mail-in voting. That was a more than a quarter of all the voters that year, cast their ballots by mail. Now that millions of mail-in ballots have gone out, what are you going to do about it, and are you counting on the Supreme Court, including a Justice Barrett, to settle any disputes?
I think I’m counting at them to look at the ballots, definitely. I don’t think — I hope we don’t need them, in terms of the election itself. But for the ballots, I think so, because what’s happening is incredible. I just heard — I read today where at least 1% of the ballots for 2016 were invalidated. They take them. We don’t like them, they throw them out left and right.
There are millions of ballots going out right now. What are you going to do about it?
What you do is you go and vote. You do a solicited ballot and that’s ok. Or you go and vote. You go and vote like they used to in the old days.
No, no. I’m not talking — What I’m saying is, what do you do about the fact that millions of people —
You either do, Chris, a solicited ballot where you’re sending it in, sending it back, and they are saying, they have mailmen with lots — Did you see what’s going on? Take a look at West Virginia, mailmen selling the ballots. They are being sold. They are being dumped in rivers. This is a horrible thing for our country.
There is no — there is no evidence of that.
This is not going to end well.
There is no evidence of that.
Vice President Biden.
Five states have had mail-in ballots for the last decade or more, five including two Republican states. You don’t have to solicit the ballot, it’s sent to you, it’s sent to your home. What we’re saying is, they’re saying it has to be postmarked by the time, by Election Day. If it doesn’t get in until the seventh, eighth, ninth, it still should be counted. He’s just afraid of counting the votes because —
You’re wrong, you’re wrong.
I want to continue with you on this, Vice President Biden.
Chris, he’s so wrong when he makes a statement like that.
No, excuse me. Vice President Biden, the biggest problem in fact over the years with mail-in voting has not been fraud, historically. It has been that sizable numbers, sometimes hundreds of thousands of ballots are thrown out because they have not been properly filled out, or there is some other irregularity where they missed the deadline. So the question I have is — Are you concerned that the Supreme Court, with a Justice Barrett, will settle any dispute?
I’m concerned that any court will settle this because here’s the deal, when you, when you file, when you get a ballot and you fill it out, you’re supposed to have an affidavit. If you didn’t know, you have someone say that, this is me. You should be able to come if, in fact, you can verify that’s you, before the ballot is thrown out. That’s sufficient to be able to count the ballot because someone made a mistake and not doing it correctly. Who they voted for, testify, said who they voted for, say it’s you, that is totally legitimate.
Excuse me, when you have 80 million ballots sent in a swampy system. You know it can’t be done. You know it can’t, and already there’s been fraud.
Mail service delivers 185 million pieces of mail a day.
Gentlemen, I have a final question. We can keep talking. In eight states, election workers are prohibited, currently by law, eight states, from even beginning to process ballots, even take them out of the envelopes and flatten them, until Election Day.
That means that it’s likely, because there’s going to be a huge increase in mail-in balloting, that we are not going to know on election night who the winner is, that it could be days; it could be weeks until we find out who the new president is.
It could be months.
So I — first for you, sir. Finally, for the Vice President. I hope neither of you will interrupt the other. Will you urge your supporters to stay calm during this extended period, not to engage in any civil unrest?
And will you pledge tonight that you will not declare victory until the election has been independently certified? President Trump, you go first.
I’m urging my supporters to go into the polls and watch very carefully. Because that’s what has to happen. I am urging them to do it.
As you know, today, there was a big problem. In Philadelphia they went in to watch. They were called poll watchers — a very safe, very nice thing. They were thrown out. They weren’t allowed to watch.
You know why? Because bad things happen in Philadelphia, bad things. And, I am urging, I am urging my people. I hope it’s going to be a fair election. If it’s a fair election.
You’re urging them what?
I am 100% on board. But if I see tens of thousands of ballots being manipulated, I can’t go along with that. And I’ll tell you what. From a common-sense —
What does that mean, you can’t go along? Does that mean you’re going to tell your people to take to the streets?
I’ll tell you what it means. It means you have a fraudulent election. You’re sending out 80 million ballots.
And what are you going to — And what would you do about that?
They’re not, they’re not equipped to — These people aren’t equipped to handle it, number one. Number two, they cheat. They cheat. Hey, they found ballots in a wastepaper basket three days ago, and they all had the name — Military ballots, they were military. They all had the name Trump on them. You think that’s good?
Vice President Biden, final question for you. Will you urge your supporters to stay calm while the vote is counted? And will you pledge not to declare victory until the election is independently certified?
Yes. And here’s the deal. They count the ballots, as you pointed out. Some of these ballots in some states can’t even be opened until Election Day. And if there’s thousands of ballots, it’s going to take time to do it.
And, by the way, our military, they’ve been voting by ballots for — since the end of the Civil War, in effect. And that’s — And that’s what’s going to happen. Why was it not — Why is it for them, somehow, not fraudulent? It’s the same process. It’s honest. No one has established at all that there is fraud related to mail-in ballots. That somehow, it’s a fraudulent process.
It’s already been established. Take a look at Carolyn Maloney’s race. They have no idea what happened.
Vice President Biden, go ahead.
He has no idea what he’s talking about. Here’s the deal. The fact is, I will accept it. And he will, too. You know why? Because, once the winner is declared, after all the ballots are counted, all the votes are counted, that will be the end of it. That will be the end of it. And if it’s me, in fact, fine. If it’s not me, I’ll support the outcome.
And I’ll be a president not just for the Democrats, I’ll be a president for Democrats and Republicans. And this guy —
I want to see an honest ballot.
This is the end of this debate. We’re going to leave it there.
A few weeks after the debate, on October 21, FBI Director Wray held a press conference on election security alongside John Ratcliff, the Director of National Intelligence selected by Trump.
The FBI is the primary agency responsible for investigating malicious cyber activity against election infrastructure, malign foreign influence operations, and election-related crimes, like voter fraud and voter suppression or intimidation.
And that’s exactly what we’ve been doing.
At the FBI, we’re working closely with our intelligence community partners, as well as our other federal, state, and local partners, to share information, bolster security, and identify and disrupt any threats.
We’re not going to tolerate foreign interference in our elections or any criminal activity that threatens the sanctity of your vote or undermines public confidence in the outcome of the election.
When we see indications of foreign interference or federal election crimes, we’re going to aggressively investigate and work with our partners, to quickly take appropriate action.
We’re also coordinating with the private sector—both technology and social media companies—to make sure that their platforms are not used by foreign adversaries to spread disinformation and propaganda.
We’ve been working for years as a community to build resilience in our election infrastructure—and today that infrastructure remains resilient.
You should be confident that your vote counts.
Early, unverified claims to the contrary should be viewed with a healthy dose of skepticism.
We encourage everyone to seek election and voting information from reliable sources — namely, your state election officials. And to be thoughtful, careful, and discerning consumers of information online.
And if you suspect criminal activity, we ask that you report that information to your local FBI field office.
As always, the men and women of the FBI remain committed to protecting the American people, our democracy, and the integrity of our elections.
We are not going to let our guard down.
When Trump appeared on Chris Wallace’s cable show, Fox News Sunday, the host wanted to know the implications of the President’s allegations of fraud despite their being refuted by his appointed law enforcement and intelligent officials. “Can you give a direct answer: You will accept the election?” Wallace asked. “I have to see. Look, you – I have to see. No, I’m not going to just say yes. I’m not going to say no.”
A Dangerous History
The 2020 election is not the first time the vote count has been questioned. The disputed presidential election of 1876 threatened to upend the belligerent peace that followed four years of Civil War, still a fresh memory just a decade later. Rutherford Hayes, a former officer in the Union Army from Ohio, hoped to become the Republican Party’s third President, succeeding the incumbent, General Ulysses S. Grant, who had served under the first, Abraham Lincoln.
The Republican Party was the leading advocate for civil rights until the mid-20th Century, when the Democrats took up the cause and passed legislation barring discrimination against African Americans.
Hayes’s opponent was Samuel Tilden, a New York Democrat who had opposed Lincoln’s election but remained an anti-slavery Union supporter when the Southern States chose to secede. Tilden was backed by Southern Democrats who had split the party over the issue of slavery but now faced a common adversary, the Republican Party.
The defeated South was still controlled by Republicans in the North who were loathed by Southerners eager to regain control of their own local governments.
Southern Democratic leaders planned on rebuilding their clout in national elections by rejoining Democrats in the North, betting that they would restore local control in the South which would enable them to preserve their white supremacist rule and resist Republican efforts to protect the rights of African Americans.
On Election Day, November 7, 1876, a quarter of a million more votes were cast for Tilden than Hayes. But a majority of votes in the Electoral College was needed to clinch the presidency. The initial count gave 163 to Hayes and 184 to Tilden, just one vote shy of the 185 needed to achieve the majority of electoral votes.
The race froze when the legitimacy of the vote count in three states was challenged by the Republicans, leaving the allocation of 19 electoral votes still to be determined: Florida (4), Louisiana (8), South Carolina (7). All Tilden needed to win was one of them.
The 1876 election was marred by political chicanery on both sides but in Florida, Louisiana, and South Carolina, all former members of the Confederacy, the problem was racial. Hayes supporters claimed that a Tilden victory in any of the three Southern states in dispute would result from the systematic use of terror and intimidation to suppress the Black vote.
A majority of the population, 60%, in South Carolina were Black. In Florida and Louisiana, Blacks accounted for almost half of the population. Still loyal to the party of Lincoln that freed four million slaves, most Southern Blacks were Republicans.
The torture and lynching of Black voters by white supremacist militias like the Red Shirts, the Rifle Clubs, the White League, and the Ku Klux Klan were terrorizing the African American electorate in many parts of the South. The violence aimed to either strip them of the right to vote, or the opportunity to vote.
A Tilden victory in the three Southern states in contention, Republicans charged, would likely be fraudulent. The Southern Democrats will have driven down Black Republican votes in Florida, Louisiana, and South Carolina, resulting in fraudulent wins for the Democratic nominee.
Southern Democrats claimed the accusation was a Republican ruse to steal the election. The old animosities between North and South reignited and intensified as the disputed election tally dragged on, with no agreement on a presidential winner, and no clear path towards a reasonable solution. Writing in the American Bar Association Journal, historian Walker Lewis described the mood.
Democratic hotheads shouted that they would march on Washington. One mentioned 40,000 followers, another upped the ante, and before long no self-respecting politico could afford to claim less than 100,000 rifle men at his back. After this lost its novelty, Northern Democrats assured the world that their Southern brothers would rise in arms against any move to deny them the Presidency. This, despite the fact that no Southern leader of consequence had any notion of going to war over the election. Rifle clubs and the Ku Klux Klan were all right for keeping ex-slaves in their proper place, which was mostly away from the polls, but the South had suffered too grievously to think seriously of further fighting. The threats came mostly from those who had not fought and who would have been the first to vanish at the sound of shooting.
But though Tilden and other realists scoffed at the idea of armed conflict, the threats and clamor had an alarming effect on the public. There was a wave of feeling that something must be done, and done promptly, to avert calamity.
The lingering North-South grievances did not diminish the mutual dread of another nationwide civil war, and so the conflicts played out within states, in cities and towns across the South.
Florida’s Anti-Black Crackdown
The Democratic Party’s anti-Black voter suppression system in Florida during the 1876 Hayes-Tilden election was not atypical for the South. Sustain a persistent line of political violence, the segregationists preached, that only White people can cross.
Sometimes the voter suppression in Florida was economic. “Householders who rented to negroes told their tenants to vote the Democratic ticket or seek another domicile,” the historian, William Watson Davis, wrote in 1913. “Negro cooks were ordered by their mistresses to induce husbands either to stay away from the polls or to vote the Democratic ticket, on pain of dismissal from their places as cooks.”
More often, as Davis documents, the violence had nothing to do with money; it was physical.
A band of armed whites took several negro leaders into the woods and after putting halters about their necks preparatory to hanging them, desisted on obtaining from the blacks promises not only to vote the Democratic ticket and join the Democratic club in the neighborhood, but to persuade a certain number of friends to do likewise.
Anti-Black voter suppression in the South during the 1876 presidential contest could be deadly. Both parties also engaged in less lethal election irregularities. Historian Jerrell Shofner offered a slew of examples illustrating the pervasiveness and ingenuity of the manipulators.
The party controlling the election machinery had a tremendous advantage. When the Republican speakers called on Negroes to vote “early and often,” the Democrats were alarmed because it was possible for this to be done. The rumors of armed assistance from out of state alarmed the Republicans because duplicate voting could be prevented if the roads were closely patrolled. One advantage of the incumbent party was its ability to designate polling places. In a public letter to Governor Steams, State Democratic Executive Committee Chairman Samuel Pasco protested that county commissioners were removing polling places from areas which were heavily Democratic without corresponding reductions in Republican precincts. The result was that whole neighborhoods would either be deprived of their vote or would have to travel as much as fifty miles to a polling place. According to Pasco, this was not accidental but had the mark of policy directed from high authority.
Some county officials were apprehensive that consolidation of precincts in the towns would create a violent situation. A Democratic committee urged Governor Stearns to divide the precincts in Tallahassee and other towns according to party. When he failed to issue such an order, Jacksonville Democrats and Republicans agreed on a plan to divide the city’s six precincts according to party. In some Jackson County precincts, there were provisions for alternate voting during the day to prevent concentration of antagonistic voters at the polls.
False registration was another means whereby public office could be used to thwart the election process. It was alleged that Negroes from Georgia were being registered in the border counties. The Monticello Constitution warned that any caught registering in Jefferson County would be “registered on the criminal docket at the proper time.” Both sides registered minors in several counties. Many of them were challenged at the polls, but others were allowed to cast their ballot.
Since many Republican voters could not read, their ballots had an easily identifiable emblem printed across the top. The Democrats saw a golden opportunity in this and printed ballots with a similar emblem and inserted the Democratic slate of candidates below it. These ballots were distributed to Negro voters and several such ballots were cast in Jackson and Columbia counties.
In spite of the spirited feelings aroused during the campaign and the many predictions of violence, election day passed in comparative quiet. No armed Georgians appeared in the state. Duplicate voting in Leon County was surreptitious and limited rather than open. It was not until several days after the election that charges of illegal activities began to be reported. Some of the reports were undoubtedly true, but by that time, Florida had been caught up in the disputed presidential contest and many of these reports were either magnified or were completely false.
Although it would be many days before county returns reached the capital, both parties claimed victory almost immediately. Their claims were based on incomplete returns and partisan estimates. The Republicans feared that returns from outlying counties might be tampered with on their way to Tallahassee and accordingly sent couriers to the various county seats to obtain duplicates of the certificates. A train carrying some of these couriers was wrecked and Governor Stearns announced that it had been “ku-kluxed” by Democrats who wanted to alter the returns before the Republicans reached the county seats.
After the train wreck, reports of fraud began appearing in partisan newspapers. The Savannah Tribune, a Negro journal, denounced George H. Davis, a Negro formerly of Savannah, for chartering a train and carrying five hundred Negro men to Jacksonville. According to the Tribune, Davis forced the Negroes to vote the Democratic ticket. How he carried out this formidable feat, the paper did not say. The precinct returns in Hamilton County were reportedly stolen by Democrats after the election and finally turned in just before the county canvassing board met. A Republican legislative candidate complained that a ballot box was removed from the polls in Monroe County before the ballots were counted. The Democrats were accused of destroying a ballot box in Jackson County and changing a large Republican majority to a majority for the Democrats. When a number of Democrats from Georgia were alleged to have voted in Jackson County, the Tallahassee Floridian said the report came from a man destitute of truth. A group of more than a hundred Democrats, accused of repeating their votes at Cedar Key in Levy County after voting elsewhere, seized the ballot box and kept it until November 13 when the county canvassing board was scheduled to meet. They announced that they were holding the ballot box to prevent Republicans from tampering with it. One Democratic railroad man sent a gang of Negro workmen into Alabama and their train “broke down” there until after the election. At Waldo precinct in Alachua County, a train stopped while the passengers got off and cast votes for both parties.
The Democratic Jacksonville Press was angry because Negro prisoners were released from jail to vote. Democrats complained that Negro women forcefully prevented Negro Democrats from voting in Jefferson County. An ingenious plan was attempted in Leon by Joseph Bowes, Republican county superintendent of public instruction. He had printed a number of small ballots on thin paper and planned to have voters fold them inside the regular ballot. This plan was not carried out, but Bowes, who was also a poll inspector, placed seventy-four of these "little jokers" in a ballot box himself. He was later indicted for this, but not before he had gone to Washington where he obtained employment in the treasury department. The Republicans were accused of altering the returns from Archer precinct in Alachua County by adding 219 names to the registration lists. Green Moore, a poll inspector whose integrity was later impeached, entertained his col- leagues in the store which served as the Archer polling place while Democratic ballots were being replaced by Republican ones in a back room. L.G. Dennis was supposed to have dressed Negro women as men and sent them to the polls in Alachua and Bradford counties.
Baker County Judge Elisha Driggers managed to obtain a Republican majority in that county by simply excluding two of the four poll returns which were heavily Democratic. His announced reasons for excluding the returns were that he had heard that a man had been deprived of the right to vote at one polling place and there were rumors that some illegal votes had been cast at the other. He did not say which party had benefited from the alleged votes. When one of the county canvassers refused to accept this interpretation, Driggers obtained the appointment of a new justice of the peace from Governor Stearns. Then, in collaboration with the new appointee and the county sheriff, he completed a return while the county clerk and others sent a return which included the Democratic precincts. The state canvassing board accepted the Driggers version which gave the Republicans a majority of forty-three on the state count.
There is no way to determine the truth or falsity of the various accusations. There were probably other incidents which were never reported, but these were limited because observers from both sides watched closely at every polling place.
South Carolina’s Red Shirts
In South Carolina, the campaign to block Blacks from voting in the 1876 election was organized and bloody. The Red Shirt brigades, a White supremacist militia, deployed its forces in places like Edgefield Village, where several armed militiamen entered the town, seized the polling stations at the Masonic Hall and Court House, and blocked Blacks from entering to vote. The county’s vote count reflected the consequences: 9,289 ballots were cast, but there were only 7,122 registered voters. The vote count had been inflated, and majority were allocated to the Democrats.
The Edgefield raid was launched as part of The Shotgun Plan, hatched by former Confederate General Martin Gray, executed by over 15,000 Red Shirt terrorists. Among the 33 points delineated in the plan, a few revealed the forces driving the 1876 election.
• Every Democratic must feel honor bound to control the vote of at least one Negro, by intimidation, purchase, keeping him away or as each individual may determine, how he may best accomplish it.
• Treat them so as to show them you are the superior race and that their natural position is that of subordination to the white man.
The Red Shirt attacks erupted across the state of South Carolina. “In Abbeville County, armed Democrats attacked several polls. In Greenville, an armed mob of Democrats tore down a fence built to control the crowds and rushed the ballot box,” wrote historian Michael Trinkley. “In Barnwell, Democrats fired on the polling place, driving off both voters and managers. The ballot box was then stolen.”
Benjamin Tillman was a Red Shirt militiaman who murdered Black voters, eventually becoming South Carolina’s Governor, and then its Senator. On March 30, 1900, Tillman delivered a speech to his Senate colleagues touting anti-Black terrorism and his commitment to subverting democracy in his state. “In my State there were 135,000 negro voters, or negroes of voting age, and some 90,000 or 95,000 white voters,” Tillman said. “Now, I want to ask you, with a free vote and a fair count, how are you going to beat 135,000 by 95,000?” He reiterated his rationale for suppressing the Black vote in South Carolina.
We of the South have never recognized the right of the negro to govern white men, and we never will. We have never believed him to be equal to the white man, and we will not submit to his gratifying his lust on our wives and daughters without lynching him. I would to God the last one of them was in Africa and that none of them had ever been brought to our shores.
On August 25, 1909, Tillman spoke at a Red Shirt Reunion in Anderson, South Carolina, still proud of his role in the 1876 election.
All that I have ever said to northern audiences in the senate or elsewhere is that the Creator made the Caucasian of better clay than he made any colored people . I have told them “we shot them, ( the negroes ), we stuffed ballot boxes,” and did all that was necessary to maintain our hold on the government.
Tillman recounted the gore of a raid against the predominantly Black town of Hamburg, somewhat wistfully.
It was now after midnight, and the moon high in the heavens looked down peacefully on the deserted town and dead negroes, whose lives had been offered up as a sacrifice to the fanatical teachings and fiendish hate of those who sought to substitute the rule of the African for that of the Caucasian in South Carolina.
Tillman boasted of his militia’s rejection of the civil rights sensibilities of the North, denouncing white Southern Republicans for betraying the cause.
The red shirt men of 1876 did all and dared all that was necessary to rescue South Carolina from the rule of the alien, the traitor, and the semi-barbarous negroes.
Like elsewhere in the South, the recently emancipated Black communities chose not to reject the nation that enslaved them but to instead become a part of it, and the vote was the first step. In 1876 Louisiana, the response was bulldozing. Bull-dosing someone into doing something meant applying a dose strong enough to control a bull, and it was used to reference the amount of violence White supremacist gangs needed to keep Blacks from voting.
For Whites who were forced to abandon the slave system in America, emancipation did not mean equality for former slaves. They believed it was their rightful place to rule over Blacks, even if they could no longer enslave them. As the 1876 election unfolded, the White Rifle Club terrorist militias, aligned with the Democratic Party, were dispatched to keep Blacks from attaining political power, bulldozing them away from the polls by murdering and torturing them. Black voters could either stay home on Election Day or risk casting a ballot for Republicans, and such widespread illegal coercion became the grounds for challenging the election results in Louisiana.
In his 1906 book on the Hayes-Tilden race, historian Paul Leland Haworth documented the mix of murder and economics that beset Black voters. “White Democrats were organized into secret military organizations which rode up and down the country at night threatening, beating, and even murdering negroes,” Professor Halworth wrote. “Democratic employers, who owned practically all property, threatened to discharge everyone who affiliated with the Republican, that the Republican negroes were weak — spirited and poor, so poor that they were in absolute dependence from day to day upon their Democratic employers for their daily rations of bread and meat.”
Complicating a resolution of the disputed election was the Republican Party’s culpability in corrupting the vote. There were instances of ballot stealing, duplicate voting, bribery, fraud, all manner of deceits to outmaneuver the Democrats.
“Each partly justified itself in what it was doing by the claimed acts of the other,” said Benjamin Butler, a former Union officer, member of Congress, and Governor of Massachusetts in his statement for the 1879 Congressional report on the disputed 1876 election. “The Democracy seemed to insist upon some supposed right to keep the negro away from the polls because the Republicans were cheating in the returns, and the Republicans claimed the right to cheat in the returns because the Democrats were intimidating voters.”
Professor Haworth showed how cheating was outmatched by terror.
A demonstration was made on the Saturday night just prior to the election. On that night parties of men severely whipped Abram Williams and Willis Frazier, two colored Republicans; attempted to catch the son of Abram Williams, but not finding him at home, whipped his wife and outraged her; killed Merrimon Rhodes and threw his body into a bayou; whipped Randall Driver; and murdered Henry Pinkston and child in the manner already described.
Seeing the situation of affairs in the parish, the Republican managers had already decided not to attempt to have their followers vote at the outlying polls, but to have them come into Monroe, the chief town, where there was a small detachment of United States troops. There was nothing unlawful in this procedure, for the law allowed a man properly registered to cast his ballot at any poll in the parish; but to prevent the movement, the rifle-clubs picketed the approaches to the town; while the Democratic mayor issued a proclamation directing the negroes to return to their homes.
The evidence before the returning board showed that in a number of other parishes there had been a condition of affairs somewhat similar to that just described in Ouachita. For example, in East Feliciana, a parish in which the Republican vote for state officers in 1874 had been 1,688, the negro Republicans had been so demoralized as a result of a reign of violence which had begun more than a year before that the Republican managers appear to have given up all hope of carrying the parish and to have issued instructions to their followers not to attempt to vote. In consequence, only a single Republican ballot, and that a defective one, was cast; and the Republican majority of 84I in 1874 was transformed into a Democratic majority of 1,741.
The attacks against Black voters were blatant, a defiant rebuke of Republican Party efforts to enforce civil rights protections. On June 20, 1876, the New Orleans Republican reported an incident similar to the many others that were published in newspapers around the country.
W. Y. Payne, a colored man, of East Baton Rouge, was taken from his home, at Holt’s place, at night, from his bed, and was afterward found hung to a tree, two miles above that place, on the plank road near White’s bayou. He had committed no offense; all had been quiet, but he was the secretary of the Third Ward Republican Club of that parish. He was therefore “bulldozed,” which is of late the local name of the actions of the “Regulators.” Besides this many other negroes have within a few days been taken from their homes and brutally whipped and beaten, a milder means of correction sometimes adopted by the bulldozers.
When Congress met in December to finalize the outcome of the presidential race, the two sides appeared intractable. “To Democratic shouts of ‘fraud’ and ‘Tilden or-fight,’ the Republicans retorted that they had been robbed of their Negro support by Democratic fraud in all Southern states and would yield no further,” C. Vann Woodward wrote in Reunion and Reaction.
The bloodshed between Northern and Southern Whites had ended, but the schism remained. “Debates became angrier on Capitol Hill and members began to arm themselves,” Woodward reports. “Scenes on the floors of the two Houses reminded old-timers of the days of 1860-1861. It had been less than twelve years since the country was at war and memories of those days were always present in this crisis.”
Republican Senators, who were in the majority, insisted that they had the right to determine which votes were legitimate and which were not. Congressional Democrats, who were the majority in the House of Representatives, claimed that they were the arbiters of disputed elections, authorized to select the next President. Both sides claimed that the Constitution supported their position. The standoff continued for weeks, an election victory claimed by both sides, a country adrift and splintering.
There were debates over the power of the federal government vs. those of the states, the role of the Senate and that of the House, claims of intimidation countering charges of fraud, a series of arguments and pleadings struggling to find common ground between North and South.
“There was something else at stake, and it was probably of more consequence in the long run than any of the previous considerations,” Woodward wrote. “This was the question of whether the country could regain the ability to settle Presidential elections without the resort to force.”
Careening toward Inauguration Day without an elected President, a compromise was forged. The Democrats would accept a Hayes victory in exchange for the removal of Federal troops from the Southern States, returning local control to the former members of the Confederacy, relinquishing Washington’s role in protecting African Americans and expanding their civil rights.
The Compromise of 1877 did not restore the old order in the South,” Woodward notes. “It did assure the dominant whites political autonomy and nonintervention in matters of race policy.” That policy was to keep Blacks under foot and out of government.
The deal between Northern and Southern Whites guaranteed a peaceful transition of power, with Democrat Samuel Tilden conceding defeat and Republican Rutherford Hayes taking the oath office to become President on March 3, 1877. Southern Blacks were left to suffer a fate lamented by Frederick Douglass, who had experienced slavery firsthand before fleeing North to become a leading abolitionist and social reformer.
Though slavery was abolished, the wrongs of my people were not ended. Though they were slaves, they were not yet quite free. No man can be truly free whose liberty is dependent upon the thoughts, feeling, and actions of others, and who has himself no means in his own hands for guarding, protecting, defending, and maintaining that liberty. Yet the Negro after his emancipation was precisely in this state of destitution. He was free from the individual master but the slave of society. He had neither money, property, nor friends. He was free from the old plantation, but he had nothing but the dusty road under his feet. He was free from the old quarter that once gave him shelter, but a slave to the rains of summer and the frost of winter. He was in a word, literally tuned loose, naked, hungry, and destitute to the open sky.
The Supremes Choose a President
Nearly a century would pass before the Federal Government returned to the South to protect the civil rights of African Americans. The intervention was authorized by laws that included the Voting Rights Act of 1965 which prohibits discrimination against Black voters. The Democratic Party’s leadership in getting the bill passed antagonized many Southerners, driving them into the Republican Party whose civil rights advocacy had been declining since it withdrew troops from the South under the Compromise of 1877. This led to a role reversal from the Hayes-Tilden days, with most Southern Whites becoming Republicans, and most Blacks joining the Democrats.
The reconfigured parties did not dispute another presidential election until 2000, when a handful of votes in Florida threatened to once again derail the peaceful transfer of power.
At 7:50 pm, after the polls closed on Election Day, November 7, 2000, NBC News became the first network to announce that Al Gore had won the state of Florida in his presidential race against George W. Bush. The Associated Press (AP) declared its agreement at 7:53. At 7:55, CNN did the same. “A big call to make. CNN announces that we call Florida in the Al Gore column,” Judy Woodruff said. “This a state both campaigns desperately wanted to win, the state of Florida fought over very hard.” ABC News quickly followed up. “Al Gore wins the state of Florida and its 25 electoral votes,” anchor Peter Jennings declared. “This is the biggest state where the race has been close.” CBS’s Dan Rather joined the group. “Florida goes for Al Gore,” he said. “The Sunshine State will have plenty of sunshine for Al Gore.”
Fox News also predicted a Democratic victory in the must-win state of Florida. “We’re coming to a conclusion here, which is that Gore is going to win the election,” Fox analyst John Ellis recalled saying.
Most of the state races had already been decided by election night, with Gore racking up 250 electoral votes to Bush’s 246, both shy of the 270 needed to win. By the close of the evening, the only states remaining were Wisconsin (11 electoral votes), Oregon (7), and Florida (25), with the vote margins separating the two candidates so small that the media deemed them too close to call. All eyes remained focused on Florida since a win in both Wisconsin and Oregon would not be enough to push either candidate over the top, but a single win in Florida was enough to clinch the presidency.
With the announcements of a Bush loss in Florida, the Gore campaign naturally assumed that their candidate would become the next President of the United States. But the celebration was short-lived. At 9:55, CNN’s Bernard Shaw made a sudden announcement. “Stand by, stand by,” he said. “CNN right now is moving our earlier declaration of Florida back to the too-close-to-call column. Twenty-five very big electoral votes, and the home state of the Governor’s brother, Jeb Bush, are hanging in the balance. This is no longer in the victory for Vice President Gore. We’re moving it back into the too close to call.”
The number of votes separating the two candidates grew increasingly narrow; the initial polling projections were not aligning with the actual vote counts. The other news outlets soon followed CNN’s lead, taking back the declarations of a Gore victory. “We don’t just have egg on our face,” said NBC’s Tom Brokaw. “We have an omelet.” As the uncertainty lingered into the early morning, the dispute over the accuracy of the vote intensified.
At 2:16 am, Fox News anchor Brit Hume moved Florida out of the too-close-to-call column, projecting a Bush victory. The rapid-fire reversals went viral. At 2:17, NBC likewise declared Bush the winner in Florida, followed by CBS and CNN. At 2:20, ABC also projected a Bush win. Ten minutes later, at 2:30, Gore telephoned Bush to concede victory in a contest he thought he had won just a few hours earlier. Gore did win the popular vote, receiving 543,895 more votes than Bush, but he had lost Florida, giving Bush a majority in the Electoral College and hence the presidency.
But then things changed again. Bush’s lead had sunk to less than 2,000 votes, about .01% of the ballots. The new tally triggered an automatic machine recount, mandated by Florida law when the margin of victory is less 0.5%. Gore called Bush to retract his concession.
Teams of lawyers descended on Florida to monitor the recount and contest potential irregularities or oversights. The machine recount gave Bush a win of 930 votes out of the 6,000,000 that were cast. There were numerous complaints of voter confusion in Florida’s Palm Beach County, where a newly designed “butterfly ballot” led many seniors to mistakenly indicate a vote for Reform Party candidate Pat Buchanan when they intended to choose Gore.
“Palm Beach County has a lot of elderly voters,” former County Supervisor of Elections, Theresa LePore, later explained. “I was trying to make the ballot so that it would be easier for the voters to read, which is why we went to the two-page, now known as the butterfly ballot.” The design backfired, and the controversy erupted the very next day after the election.
“Hundreds of Gore supporters also called the county elections office,” the AP reported, “saying they feared they had mistakenly voted for Buchanan.” Others were unclear about where to punch their ballots, inadvertently marking more than one candidate. Palm Beach officials disqualified 19,120 ballots because of these double votes.
The Buchanan votes were especially troubling to Democrats. He received 3,407 votes in Palm Beach County, 0.8% of the ballots, significantly higher than his 0.3% statewide total. And Palm Beach County had a higher percentage of Democratic voters than many of the other regions in the state. Observers also found it striking since Pat Buchanan’s views on race and his particular brand of conservatism was particularly at odds with the majority of voters in Palm Beach.
Many Democratic voters complained, insisting that the poorly designed ballots had produced an inaccurate result. “It was so hard to tell who and what you were voting for,” Eileen Klasfield told the AP. “I couldn’t figure it out, and I have a doctorate.″
“By Gore, there were two holes,” Lena Fransetta complained. “I had to figure out which one.” She asked for help, but none of the poll workers knew what to do. “When I left I figured out I voted wrong.”
“I don’t know if I voted wrong,” May Cohen told a reporter. “Republicans had only one hole, Gore-Lieberman had two. I think I did right, but it was very confusing.” AP reporter Karin Meadows elaborated.
The confusion apparently arose from the way Palm Beach County’s punch-card style ballot was laid out for the presidential race. Candidates are listed in two columns, with holes down the middle between the columns, to the right or the left of each candidate’s name.
The top hole was for Bush, who was listed at top left; the second hole was for Buchanan, listed at top right, and the third hole was for Gore, listed under Bush on the left. Arrows linked the names with the proper hole, but some voters feared they had missed the arrows and punched the wrong hole.
“When ballots are placed in the slide for voting, Al Gore and Joe Lieberman are the second names on the ballot, but the third hole to punch,” Florida Democratic Party Communications Director Bill Buck said in a statement.
But Clay Roberts, director of the Florida Department of Elections, said the problem was exaggerated.
“`I don’t think they are confused. I think they left the polling place and became confused. The ballot is very straightforward. You follow the arrow, you punch the location. Then you have voted for who you intend to elect,” said Roberts, a Republican appointed by Gov. Jeb Bush, George W.’s brother.
Florida law specifies that voters mark an X in the blank space to the right of the name of the candidate they want to vote for.
Jeff Liggio, a lawyer for county Democrats, called the ballot illegal. “Right means right, doesn’t it? The state law says right. It doesn’t mean left,” he said.
Don A. Dillman of the American Association for Public Opinion Research, who has done research on the design of paper questionnaires, called the ballot confusing.
“I’ve never seen one set up like this,” Dillman said from Pullman, Wash. “It’s very confusing the way they have put things on the right side together with things on the left side. I can see why there might be a problem. If you passed over the first candidate to go for the second candidate, it’s logical that you’d punch the second hole.”
Outside the Palm Beach elections office, about 50 outraged citizens carried signs protesting the ballots.
“It was an injustice. Thousands of people were confused,” said 42-year-old Niso Mama. “We have to have another election in this county.”
The New York Times also found widespread confusion among Palm Beach voters.
A confusing ballot, said Mr. Rosen and more than 20 of his neighbors, led them to punch the wrong hole on that ballot, and several others said they were still unsure if they had accidentally wasted votes crucial to their candidate, Vice President Al Gore.
It was, the residents here said today as they angrily milled around this complex of 1,400 condominiums, almost too much to stand.
The complex makes up almost an entire precinct in this predominantly Democratic county. It was the strongest showing in Palm Beach County by Mr. Buchanan, the Reform Party candidate, yet a survey of almost 200 people here found not one voter who meant to vote for him.
The problem, they said, was that they punched a hole on the ballot next to Mr. Gore’s name that actually registered a vote for Mr. Buchanan. There were many who said they knew they mistakenly voted for him but had not realized it until after they cast their ballots. Others said they knew immediately they had made a mistake and punched a second hole in the presidential race — voiding their vote.
And some said they knew they had cast the wrong vote but did nothing because they said they were either embarrassed, ashamed or did not know what to do. Many did ask for a new ballot after mistakenly punching the wrong hole but before inserting the ballot in the box, and they received a new one. But others said they did not know they could.
Of the more than 1,700 votes cast at Precinct 162G, only 47 people, or less than 4 percent, voted for Mr. Buchanan, and residents here say that all or almost all of those 47 votes were intended for Mr. Gore. It is a small percentage in this precinct, but in such a close race every wasted vote seemed to cause great misery.
"I figured, 'How could I go back?' because I’d voted already, and once you’re out, you’re out,’’ said Natalie Cantor, 71, a retired bookstore employee from New York who said she believed she accidentally voted for Mr. Buchanan.
Once the ballot was inserted in the box, there was no recourse, these voters said.
Gerald Gross, 72, from Brooklyn, said he worried that he had punched the wrong name, and, after talking with others here, he was sure he had. Dave Silverberg, 74, of Baltimore, accidentally punched two choices for president on his ballot, trying to correct his mistake, and voided his vote. Ruth Kleiner, 74, from New Jersey, knew as she walked from the ballot box to the door that she had mistakenly cast a vote for Mr. Buchanan, but it dawned on her too late.
“I thought I did my job, and when I walked out, I said, ‘Did I do something wrong?’” Ms. Kleiner said.
Even Pat Buchanan thought the process was confusing. “My name right beside his on the butterfly ballot cost Al Gore thousands of votes,” he said.”
The butterfly ballot was not the only culprit in the Florida 2000 election. The state used punchcard machines where voters would use a stylus to punch a hole next to the candidate of their choice. As Mary Bellis explains in The History of Voting Machines, the system has its flaws.
In U.S. elections, voters use pins to mark the punchcards by hand. The resulting leftover piece of paper is referred to as a piece of chad, a term originating from 1947 of unknown origin. Machines can punch chad out cleanly, but people cannot always do so, resulting in confusing to interpret ballots. New election terms have been used to describe disturbing ballot chad. Hanging chad means one corner of the chad is hanging onto the punchcard. Swinging chad means two corners are attached to the ballot card. Tri chad means three corners are hanging but the hole has been punched. Pregnant chad means a hole is punched through the chad but it still hangs on all four sides. Dimpled chad means there is an indent in the chad but no clean hole has been punched.
Gore’s supporters wanted votes that were discarded because the machine recount could not process them to be recounted by hand. The Palm Beach County Canvassing Board agreed and began the tedious task of going through each ballot to categorize the partially punched holes in accordance with the guidelines they set for a manual recount.
✓ Hanging Door Chad
One corner is still attached to the ballot. (Counted as a vote).
✓ Swinging Door Chad
Two corners are still attached to the ballot. (Counted as a vote).
✓ Tri Chad
Three corners are still attached to the ballot. (Counted as a vote).
✓ Dimpled Chad
Indented but still fully attached to the ballot. (Not counted as a vote).
✓ Pregnant Chad
Pierced but still fully attached to the ballot. (Not counted as a vote).
Gore’s team estimated that the hand recount would be able to decipher enough improperly rejected votes to win the state and the presidency, without even counting the butterfly backup mix-up that mistakenly allocated many Democratic votes to Reform Party Candidate Pat Buchanan.
According to a CNN study, the 36 counties that used optical scanners, where you mark your vote by darkening a box with a pencil instead of punching a hole, had an undervote of just .03% because of faulty ballots that the scanners could not read.
In Palm Beach County where the punchcard machines were used, the undervote was 1.9%, significantly higher than the percent rejected by the optical scanners.
Gore received 62.27% of the vote in predominantly Democratic Palm Beach County, giving him 269,754 votes. Bush, with 35.31%, garnered 152,964 votes. The machine recount resulted in 537 more votes for Bush than Gore. Assuming that the percentages remained the same as the regular vote count, Democrats calculated that a manual recount would give Gore’s 62.27% of the 8,222 undervotes recorded by Palm Beach County, yielding him 5,112 more votes compared to Bush’s extra 2,388. Gore’s net gain of 2,724 would have far exceeded the 537 vote edge that the machine recount gave to Bush, making him the winner of Florida, and the presidency.
But a manual recount would take time, longer than the regulations allowed. The Palm Beach County Canvassing Board asked that it be allowed to amend the deadline for their certification of returns so that they would have more time to complete their review. The application was submitted to the official in charge, Florida Secretary of State, Kathleen Harris, a Republican who was also state co-chair of Bush’s presidential campaign. Harris denied the request.
I have decided it is my duty under Florida law to exercise my discretion in denying these requested amendments. The reasons given in their requests are insufficient to warrant waiver of the unambiguous filing deadline imposed by the Florida legislature.
The Democrats were outraged. “George Bush will have the most tarnished presidency in American history right off the bat,” said Mark Fabiani, spokesperson for the Gore campaign. “This is an outrageous attempt by Bush to steal the election.”
The Bush campaign had opposed a manual recount, claiming that trying to decipher voter intent by interpreting hanging door chads and swinging door chads and dimpled chads was too subjective to produce a fair and accurate result. “We think the process is seriously flawed, we think it presents tremendous opportunities for human error and, indeed, for the possibility of mischief,” said James Baker, who led Bush’s legal team in Florida.
Lawsuits were filed on both sides as the Gore campaign pressed its case for completing the manual recount. The issue made its way to the Florida Supreme Court, which issued a ruling on election procedures that included an order to complete “tabulation of the approximately 3300 miscounted votes from Palm Beach County.”
The Gore campaign sensed victory; the Bush team was incensed. “We believe the justices have used the bench to change Florida’s election laws and usurp the authority of Florida’s election officials,” Bush told reporters. “Manual recounts will continue in three selective counties, with no uniform standards, no clear direction, and therefore no fair or accurate result.” His legal team took the case to the United States Supreme Court.
The final ruling, issued on December 12, 2000, was explosive. “When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied,” the decision stated. “It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.”
Al Gore won the nationwide contest with half a million more votes than Bush, lost by only five votes in the Electoral College, and failed to prevail in the U.S. Supreme Court because of a single Justice in the 5-4 ruling. “We reverse the judgment of the Supreme Court of Florida ordering a recount to proceed,” the U.S. Supreme Court decided. Millions of Gore supporters believed the election was stolen by Bush and the five Republican appointments members of the Supreme Court who sided with him.
A group of researchers from Cornell University, Harvard, Northwestern, and the University of California, Berkeley conducted their own study of the balloting in Palm Beach County. They published their findings in The American Political Science Review.
Was the butterfly ballot pivotal in the 2000 presidential race? The evidence is very strong that it was. Had PBC used a ballot format in the presidential race that did not lead to systematic biased voting errors, our findings suggest that, other things equal, Al Gore would have won a majority of the officially certified votes in Florida.
Brett Presnell and Alan Agresti, who teach statistics at the University of Florida, also studied the Palm Beach County vote count.
The evidence about the overvotes and the regression analyses of the Buchanan legal vote suggest that the butterfly ballot design is likely to have cost Gore a substantial number of votes in Palm Beach county. Given the small margin of victory statewide for Bush (537 votes), it is plausible that the ballot design cost Gore the election.
Richard Posner, a noted conservative legal scholar at the University of Chicago, supported the U.S. Supreme Court ruling that stopped the manual recount in Florida, dismissing speculations about alternative outcomes.
There have been several efforts by the media to recount disputed ballots. These recounts cannot reveal who “really” won, because of the subjectivity involved in hand counting punchcard ballots, the biases of counters, and, underlying both points, the fact that what shall count in a hand recount as a vote is a contestable issue, both of law and of judgment.
Yet, although he opposed the manual recount on legal grounds, Posner nevertheless did not think the Democratic Party’s complaint was unreasonable. He rejected their remedy, but understood their complaint.
Al Gore was indeed the fair winner of the nationwide popular vote; and if Florida’s most populous counties had employed a more user-friendly voting methodology, he might well have won the popular vote in Florida as well, and with it the Presidency.
The notion that Gore was the legitimate winner in Florida remains contentious. A study by the Miami Herald and USA Today determined that if a manual recount was done for undervotes in all of the state’s 67 counties, as ordered by the Florida Supreme Court, and not just the four requested by Gore’s team, Bush would still have prevailed.
“What we do know is that the process that was going forward in December that was stopped by the U.S. Supreme Court would have resulted in a Bush victory,” said Mark Seibel, Managing Editor at the Miami Herald. “Bush, under most scenarios, would have won a recount of the Florida ballots as the Florida Supreme Court ordered.”
The month-long fight over the November vote count was beset by demoralizing reversals and vitriolic accusations. There were protests ripe for violence, the mood in the country at times ugly and uncompromising. Both sides were dug in.
Democrats condemned the Supreme Court as a blatantly partisan decision that handed the election to the losing candidate. The Republicans felt vindicated. The nation was unnerved, not knowing if the Democrats would accept the legitimacy of the election and accept George W. Bush as their President.
Relations between Bush and Gore was strained, stressed by the animosities of a grueling campaign, raw from the contentious aftermath. When Gore called to retract his concession speech after the Florida vote count became questionable, Bush bristled.
“Let me make sure I understand,” the AP reported. “You’re calling me back to retract your concession?” Bush said. “Well, Mr. Vice President, you do what you have to do.”
Gore said that he would. “You don’t have to get snippy about this,” he added.
Bush later confessed to his snippiness. “We don’t use that word here too often down here in Texas,” he said. “So I’m not exactly sure what that means, but if he meant abrupt, I was abrupt.” The tension left little room for cordiality. “I wasn’t warm and fuzzy on the telephone, let me put it to you that way,” Bush said.
The country was divided, the electorate angry and exhausted. The day after the Supreme Court ruling, Al Gore delivered a speech from his Vice President’s office next to the White House.
Just moments ago, I spoke with George W. Bush and congratulated him on becoming the 43rd President of the United States. And I promised him that I wouldn’t call him back this time. I offered to meet with him as soon as possible so that we can start to heal the divisions of the campaign and the contest through which we’ve just passed.
Almost a century and a half ago, Senator Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, “Partisan feeling must yield to patriotism. I’m with you, Mr. President, and God bless you.” Well, in that same spirit, I say to President-elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country. Neither he nor I anticipated this long and difficult road. Certainly, neither of us wanted it to happen. Yet it came, and now it has ended, resolved, as it must be resolved, through the honored institutions of our democracy.
Over the library of one of our great law schools is inscribed the motto, “Not under man but under God and law.” That’s the ruling principle of American freedom, the source of our democratic liberties. I’ve tried to make it my guide throughout this contest, as it has guided America’s deliberations of all the complex issues of the past five weeks.
Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession. I also accept my responsibility, which I will discharge unconditionally, to honor the new President-elect and do everything possible to help him bring Americans together in fulfillment of the great vision that our Declaration of Independence defines and that our Constitution affirms and defends.
Let me say how grateful I am to all those who supported me and supported the cause for which we have fought. Tipper and I feel a deep gratitude to Joe and Hadassah Lieberman, who brought passion and high purpose to our partnership and opened new doors, not just for our campaign but for our country.
This has been an extraordinary election. But in one of God’s unforeseen paths, this belatedly broken impasse can point us all to a new common ground, for its very closeness can serve to remind us that we are one people with a shared history and a shared destiny. Indeed, that history gives us many examples of contests as hotly debated, as fiercely fought, with their own challenges to the popular will. Other disputes have dragged on for weeks before reaching resolution. And each time, both the victor and the vanquished have accepted the result peacefully and in a spirit of reconciliation.
So let it be with us.
I know that many of my supporters are disappointed. I am too. But our disappointment must be overcome by our love of country.
And I say to our fellow members of the world community, let no one see this contest as a sign of American weakness. The strength of American democracy is shown most clearly through the difficulties it can overcome. Some have expressed concern that the unusual nature of this election might hamper the next president in the conduct of his office. I do not believe it need be so.
President-elect Bush inherits a nation whose citizens will be ready to assist him in the conduct of his large responsibilities. I, personally, will be at his disposal, and I call on all Americans — I particularly urge all who stood with us — to unite behind our next president. This is America. Just as we fight hard when the stakes are high, we close ranks and come together when the contest is done. And while there will be time enough to debate our continuing differences, now is the time to recognize that that which unites us is greater than that which divides us. While we yet hold and do not yield our opposing beliefs, there is a higher duty than the one we owe to political party. This is America and we put country before party; we will stand together behind our new president.
As for what I’ll do next, I don’t know the answer to that one yet. Like many of you, I’m looking forward to spending the holidays with family and old friends. I know I’ll spend time in Tennessee and mend some fences, literally and figuratively.
Some have asked whether I have any regrets, and I do have one regret: that I didn’t get the chance to stay and fight for the American people over the next four years, especially for those who need burdens lifted and barriers removed, especially for those who feel their voices have not been heard. I heard you. And I will not forget.
I’ve seen America in this campaign, and I like what I see. It’s worth fighting for and that’s a fight I’ll never stop. As for the battle that ends tonight, I do believe, as my father once said, that “No matter how hard the loss, defeat might serve as well as victory to shape the soul and let the glory out.”
So for me this campaign ends as it began: with the love of Tipper and our family; with faith in God and in the country I have been so proud to serve, from Vietnam to the vice presidency; and with gratitude to our truly tireless campaign staff and volunteers, including all those who worked so hard in Florida for the last 36 days.
Now the political struggle is over, and we turn again to the unending struggle for the common good of all Americans, and for those multitudes around the world who look to us for leadership in the cause of freedom.
In the words of our great hymn, America, America, “Let us crown thy good with brotherhood, from sea to shining sea.”
And now, my friends, in a phrase I once addressed to others: it’s time for me to go.
Thank you, and good night, and God bless America.
On January 20, 2001, President George H.W. Bush watched his son take the presidential oath of office with President Bill Clinton in attendance, standing alongside his Vice President, Al Gore. The peaceful transfer of power from one elected president to the next is the essence of American democracy. Like other Republicans, he viewed his son’s win as legitimate. But, as the Hayes-Tilden dispute of 1876 illustrates, without the acceptance of those who disagreed, the nation’s democratic process would have been imperiled.
Bush Sr. was aware of the painful price that Gore paid when he accepted a defeat that he believed to be unjust. “I remember when I gave my second and final concession speech in 2000,” Gore recalled. “I was in the Secret Service car going back to the vice president’s residence, and it was President George H.W. Bush calling me on the telephone. And he was overcome with emotion, and he said the kindest things. It was really a touching call.”
In a democracy, a gracious loser can be as important as a gallant winner.
Patriotism vs. Ambition
During her Senate confirmation hearings for Supreme Court Justice, Senator Cory Booker asked Amy Coney Barret a series of election-related questions. Prior to their appointment to the Supreme Court, Barret, along with Chief Justice John Roberts and Associated Justice Brett Kavanaugh, had assisted the Bush legal team during the ballot dispute with Al Gore in 2000.
Do you believe that every president should make a commitment unequivocally and resolutely to the peaceful transfer of power?
Well, Senator, that seems to me to be pulling me in a little bit into this question of whether the President has said that he would not peacefully leave office. And so to the extent that this is a political controversy right now, as a judge, I want to stay out of it and I don’t want to express a view on.
So judge, I appreciate you, what you’ve said about respecting our Founding Fathers, about the originalism. It’s remarkable that we’re at a place right now that this is becoming a question and a topic, but I’m asking you in light of our Founding Fathers in light of our traditions, in light that everyone who serves in that office has sworn an oath where they “swear to preserve and protect and defend the constitution of the United States.” I’m just asking you, should a president commit themselves like our Founding Fathers . . . like the grace that George Washington showed, to the peaceful transfer of power. Is that something that presidents should be able to do?
Well, one of the beauties of America from the beginning of the Republic is that we have had peaceful transfers of power and that disappointed voters have accepted the new leaders that come into office. And that’s not true in every country. And I think it is part of the genius of our Constitution and the good faith and goodwill of the American people that we haven’t had the situations that have arisen in so many other countries where there have been, where those issues have been present.
Dan Coats, a conservative Republican who had served as Senator from Indiana before being appointed Director of National Intelligence by President Trump, penned an op-ed in The New York Times to warn about the dangers of undermining the nation’s confidence in the legitimacy of the 2020 presidential election. The nation is at a tipping point, he explains. The country is anchored in a 250-year history of democratic elections, yet remains susceptible to the undemocratic forces that govern authoritarian regimes in places like Russia, China, and Iran.
We hear often that the November election is the most consequential in our lifetime. But the importance of the election is not just which candidate or which party wins. Voters also face the question of whether the American democratic experiment, one of the boldest political innovations in human history, will survive.
Our democracy’s enemies, foreign and domestic, want us to concede in advance that our voting systems are faulty or fraudulent; that sinister conspiracies have distorted the political will of the people; that our public discourse has been perverted by the news media and social networks riddled with prejudice, lies and ill will; that judicial institutions, law enforcement and even national security have been twisted, misused and misdirected to create anxiety and conflict, not justice and social peace.
If those are the results of this tumultuous election year, we are lost, no matter which candidate wins. No American, and certainly no American leader, should want such an outcome. Total destruction and sowing salt in the earth of American democracy is a catastrophe well beyond simple defeat and a poison for generations. An electoral victory on these terms would be no victory at all. The judgment of history, reflecting on the death of enlightened democracy, would be harsh.
The most urgent task American leaders face is to ensure that the election’s results are accepted as legitimate. Electoral legitimacy is the essential linchpin of our entire political culture. We should see the challenge clearly in advance and take immediate action to respond.
The most important part of an effective response is to finally, at long last, forge a genuinely bipartisan effort to save our democracy, rejecting the vicious partisanship that has disabled and destabilized government for too long. If we cannot find common ground now, on this core issue at the very heart of our endangered system, we never will.
Our key goal should be reassurance. We must firmly, unambiguously reassure all Americans that their vote will be counted, that it will matter, that the people’s will be expressed through their votes will not be questioned and will be respected and accepted. I propose that Congress create a new mechanism to help accomplish this purpose. It should create a supremely high-level bipartisan and nonpartisan commission to oversee the election. This commission would not circumvent existing electoral reporting systems or those that tabulate, evaluate or certify the results. But it would monitor those mechanisms and confirm for the public that the laws and regulations governing them have been scrupulously and expeditiously followed — or that violations have been exposed and dealt with — without political prejudice and without regard to political interests of either party.
Also, this commission would be responsible for monitoring those forces that seek to harm our electoral system through interference, fraud, disinformation or other distortions. These would be exposed to the American people in a timely manner and referred to appropriate law enforcement agencies and national security entities.
Such a commission must be composed of national leaders personally committed — by oath — to put partisan politics aside even in the midst of an electoral contest of such importance. They would accept as a personal moral responsibility to put the integrity and fairness of the election process above everything else, making public reassurance their goal.
Commission members undertaking this high, historic responsibility should come from both parties and could include congressional leaders, current and former governors, “elder statespersons,” former national security leaders, perhaps the former Supreme Court justices David Souter and Anthony Kennedy, and business leaders from social media companies.
This commission would be created by emergency legislative action. During that process, its precise mandate, composition, powers and resources would be defined. Among other aspects, the legislation would define the relationship between the commission and the intelligence and law enforcement communities with the capability necessary for the commission’s work. And it would define how the commission would work with all the individual states.
Congressional leaders must see the need as urgent and move quickly with common purpose. Seeking broad bipartisan unity on such an initiative at such a fraught time goes against the nature of the political creatures we have become. But this is the moment and this is the issue that demands a higher patriotism. No member of Congress could have any valid reason to reject any step that could contribute to the fundamental health of our Republic. With what should be the unanimous support of Congress, the legislation must call upon the election campaigns of both parties to commit in advance to respect the findings of the commission. Both presidential candidates should be called upon to make such personal commitments of their own.
If we fail to take every conceivable effort to ensure the integrity of our election, the winners will not be Donald Trump or Joe Biden, Republicans or Democrats. The only winners will be Vladimir Putin, Xi Jinping and Ali Khamenei. No one who supports a healthy democracy could want that.
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