Yes, we sure have. More than one, in fact. Historians still regard the 1800 election as the nastiest on record. 1824 had to be settled in the House; and the losers refused to accept the results by doing everything they could to make sure the elected President was not successful, and they succeeded. 1860 led to the Civil War. 2000 and hanging chads comes to mind as well. The 2008 and 2016 elections were also quite divisive.
But, the closest parallel to this one has to be the one fought out in 1876. It took four months to finally arrive at an accepted winner with the 1876 Compromise. It came close to tearing the fabric of the Union apart, again. There has been quite a bit written about this terrible situation so I can only summarize the story for you.
By the evening of election day, the GOP chairman went to bed believing that their candidate Rutherford B. Hayes had lost and the Democratic candidate Samuel J. Tilden had won. But, it became clear to the GOP headquarters that if Hayes won South Carolina, Florida, and Louisiana, which were all controlled by the GOP, Hayes would win by one electoral vote. So, the GOP leaders in their states made sure the results made Hayes the winner.
Needless to say there were outcries of fraud from the Democrats. Threats of severe civil strife broke out. There were stories that circulated of armed partisans descending on D.C. to determine the outcome. It was so contentious that the results were not clear as the inauguration date in March approached.
What had happened? Two separate slates of electors provided by the two parties in the states in question were presented to Congress. The Constitution did not provide a remedy for this and that could be what would happen this time since the Constitution has not been amended to fix this. The GOP feared that the party of secession, the Democrats, would prevail—though Tilden had strongly opposed secession at the time. He had also opposed slavery then.
What was done? It took until January for Congress to pass an Electoral Commission Act setting up a special commission to settle matters. The results awarded all disputed electoral votes to Hayes on a party line vote thus making him President by one electoral vote. Democrat did not accept those results so a behind the scenes compromise was worked out that had long standing consequences, especially for blacks in the South. The Democrats accepted Hayes as a one term President while the GOP gave up on Reconstruction. This meant southern white Democratic party rule until the Voting Rights Act of 1965. It meant white Southerners, who called themselves Redeemers (Meaning “redeeming” the south from any rights worth spit for blacks.) could do whatever they wished to maintain their rule.
Former Union soldier and Alabama legislator Charles Harris described these results well in 1877:
We obey laws; others make them. We support state educational institutions, whose doors are virtually closed against us. We support asylums and hospitals, and our sick, deaf, dumb, or blind are met at the doors by invidious distinctions and unjust discrimination.
Matters would progressively get worst as slavery by another name became well established. See the PBS documentary Slavery By Another Name. Hundreds, even thousands, of white mob extralegal lynchings of blacks took place. The eugenics movement, fueled by a distorted Social Darwinism, justified all this. It was THE Nadir of race relations which still impacts us today. The past is never really past.
There was a very important other consequence which must be understood in view of Trump’s threats to derail the results of this election if it looks like he will lose. He and his enablers are apparently prepared to contest the election results claiming fraud in the use of absentee ballots. They could send in their own set of electors by declaring the results by the end dof election night. But, the Speaker of the House is not obliged to accept them; and could insist on waiting until the votes have all been counted leading to a different set of electors being selected.
What to do in this nightmare scenario?
The parties involved in the 1877 election took a decade of intricate squabbling to come up with a law to deal with issues like this in the Electoral Count Law of 1887. The results would not be sent to the House floor or to the Supreme Court as apparently President Trump hopes because in either case he has said he would have a likely winning majority.
By the 1887 law, The House and Senate would each serve as a referee with the governor of each contested state would be the tie breaker if the two Houses can’t agree on which set of electors should be used. It is a complicated and in sections opaque law, but it is all we have. The authors expected that it would be amended to make it clearer; but, this never happened in large part because the threat of another 1876 mess didn’t take place. One important provision under this law is ff the results are not straightened out by Jan. 20, then the Speaker of the House is sworn is as Acting President.
Right now, there are 8 likely battleground states: Arizona, Fl, GA, Mich, MN, N.C., PA, and WI. The first three have GOP governors and the last 5 have Dem governors. Biden is leading in all of them but barely in FL, GA and N.C. at the moment. A close race seems likely. Biden’s lead nationally has stayed consistent at 7-9 %, though polls can be inaccurate, but it’s the individual states that matter.
To put it bluntly, as one sarcastic comic put it, an asteroid may hit the U.S. on November 3 upsetting all results. Let’s hope that reason and rationality prevail. Let’s hope that Trump and his supporters don’t contest the results. Let’s hope that neither party cheats to get the voting results it wants. There are already a near multitude of claims of fraud now—so far all that I have read or watched have been debunked, and there will surely be more. The best solution would be a Biden or Trump landslide where there’s no question of a winner. It would help if the great majority of those who have or soon will receive absentee ballots will vote early. Biden’s legal team is preparing for all contingencies.
But, a real mess could be heading our way, much worse than hanging chads.
What is your view of this controversy?