Alan Hirsch is the author of A Short History of Presidential Election Crises. Interview conducted by Greg Ruggiero, editor at City Lights Publishers.
In what ways has the 2020 presidential election been unprecedented?
The pandemic led to exponentially greater use of mail-in voting. And because some state legislatures refused to authorize the counting of absentee votes before Election Day, the process of counting votes (never mind re-counting them) has taken longer. Also, because voting by mail was primarily by Democrats, President Trump was way ahead in several critical states on Election Day, only to see Biden come roaring back—fueling Trump’s claims of fraud. Of course, Trump created this situation by discouraging his base to vote by mail.
This election has also been unprecedented in the sense that one of the candidates was complaining about fraud months before Election Day.
On November 10, 2020, the New York Times reported “President Trump, facing the prospect of leaving the White House in defeat in just 70 days, is harnessing the power of the federal government to resist the results of an election that he lost, something that no sitting president has done in American history,” and that Secretary of State Mike Pompeo said, “There will be a smooth transition to a second Trump administration.”
What concerns should these unprecedented developments be raising?
In context, it appears that Pompeo was joking, but it’s a scary joke that seems to reflect the denialism among the Trump administration and many of his supporters. This is frightening and unprecedented. One major difference between this situation and the post-election crises of 1876 and 2000 is that, in those situations, the incumbent president was not one of the candidates. Here, we have a defeated president who is nevertheless fighting for a second term. Will he abuse the office to make that happen? This is the man with the armed forces and nuclear codes at his command.
What is your assessment of President Trump’s news conference on November 5, his statement of Nov 7, and his ongoing insistence that he, not Joe Biden, has won the 2020 Presidential election “by a lot”?
It is mind boggling, and that’s understatement. The new conference started with his false claim that he won the election, and went downhill from there. The President apparently considers “legal” votes and “illegal” votes as synonymous with Trump votes and Biden votes respectively.
The big lie at the heart of Trump’s complaint is that he had Pennsylvania and other key states easily won until the suspicious onslaught of Biden votes. The only reason for both Trump’s huge lead and Biden’s big comeback was the fact that Democrats voted largely by mail and most Republicans voted in person.
What would happen if Trump refuses to accept the election’s outcome and refuses to leave?
Fortunately, the winner of this election seems fairly clear, and no recounts or lawsuits seem likely to change the outcome. If Trump refuses to leave, he will presumably be escorted from his office—by force if necessary.
It’s not often taught that the Electoral College was a compromise the North made with the South. In the process, white slave owners were able to count each black person they enslaved as 3/5 a person, and thereby gained greater representation in the Electoral College.
The legacy of that compromise continues to distort our democracy today. As Wilfred Codrington III writes in The Atlantic, “The South’s baked-in advantages—the bonus electoral votes it received for maintaining slaves, all while not allowing those slaves to vote” made the difference in the election outcomes. In some ways, Trump’s 2016 victory was a direct result of baking white supremacy into the electoral process.
Given this history, are there any civic arguments to keep the Electoral College?
The argument one hears most often is that the Electoral College protects the interests of small states. The senate protects the interests of small states (since every state, even the least populated, gets the same two senators), and no one proposes abolishing the senate. It is argued that, without the Electoral College (ensuring that even the tiniest state has 3 electoral votes), candidates would never visit small states. This gets things backwards. Without the Electoral College, candidates would have at least some incentive to campaign in all states. Because of the Electoral College, they spend almost all of their time in a handful of swing states (whether or not small).
How might Trump’s lawsuits succeed in altering the election outcome?
It appears that he would need to reverse the outcome in several states. In other words, he’d need three or four Bush v. Gores, and even that doesn’t capture the desperation of his situation. Florida in 2000 was essentially a tie, and the legal arguments on both sides had at least some merit. Trump has offered no semi-convincing reason why the outcomes in any of the close states should be reversed.
In addition to litigation, might there be other routes Trump could take to derail the election result or attempt to stay in power?
The one being pushed by Trump allies is to try and convince Republican legislatures in several states to substitute a Republican slate of electors for the Democratic slate that was chosen in the election. After all, the Constitution empowers state legislatures to choose the “manner” in which electors are chosen. The problem for Trump is that these electors did choose the manner—popular elections. They can’t just substitute their will for that of the people because they don’t like the result.
Outlandish as it may sound, could Trump somehow use an act of war or claim of insurrection to maintain power? After all, he threatened to use the Insurrection Act in June 2020.
He can try, but there’s no legal basis or precedent for a president remaining in power after his term was over.
Of the past presidential election crises, do any resemble the situation we are in now?
It resembles both 1876 and 2000 in that the election came down to a few states with narrow margins. And, like 2000, recounts and litigation will extend the period of uncertainty. But the Biden margins appear to be large enough that we will probably avoid the chaos that ensued after those elections.
Can you go into more detail about parallels between the current moment and the election crises of 1876 and 2000? What form did corruption take then? How might it manifest now?
As the 2020 post-election crisis unfolds, we must learn from history—specifically the presidential election chaos in 1876 and 2000. In each of these three elections, the outcome came down to one or more disputed states. Most history books claim the 1876 election was resolved by a fifteen-man commission that voted along party lines. In truth, Democrats were prepared to ignore the commission’s determinations, and the threat of duel inaugurations and another civil war loomed ominously. The resolution came only when Republicans assured Democrats in Congress that, if they went along with Rutherford B. Hayes’s election, would cease implementing Reconstruction. The nation paid a terrible price for the backroom dealing. In 2000, the election was resolved by the Supreme Court – with five conservative Justices intervening to assure the election of George W. Bush.
Today, both of these threats are present—political deal-making and/or a partisan Supreme Court could determine the outcome. There are additional parallels to 1876 and 2000 that need to be explored. In both 1876 and 2000, as in 2020, the election took place against the backdrop of voter suppression. In 1876 and 2000, like today, there were calls for state legislatures to intervene and nullify the results of their state’s popular vote. In 1876, states sent competing slates of electors that Congress had to choose between. Today, the possibility of competing slates of electors cannot be ruled out. Ditto the threat of the conservatives on the Supreme Court intervening.
To prevent these destructive outcomes, we need to understand how things unfolded during the prior election crises.
In your latest book, A Short History of Presidential Election Crises, you write: “Abolition of the Electoral College would reduce but not eliminate the dangers of a presidential election marred by fraud and post-election chaos.” How would your proposed Presidential Election Review Board potentially help eliminate the dangers of post-election instability?
Trump’s various claims of election irregularities would be resolved by a tri-partisan (Democrats, Republicans, and independents) commission rather than the courts. Because many judges are seen as partisan, the public would rightly have more confidence in the process and outcome.
Alan Hirsch, Instructor in the Humanities and Chair of the Justice and Law Studies program at Williams College, is the author of numerous works of legal scholarship and many books including A Short History of Presidential Election Crises (And How to Prevent the Next One), Impeaching the President: Past, Present, and Future and For the People: What the Constitution Really Says About Your Rights (Free Press, coauthored with Akhil Amar). He received a J.D. from Yale Law School and B.A. from Amherst College. His work has appeared in the Washington Post, Los Angeles Times, Washington Times, Newsday, and the Village Voice. Hirsch also serves as a trial consultant and expert witness on interrogations and criminal confessions, testifying around the nation. He lives in Williamstown, Massachusetts.