Dan Snow's History Hit - America's Contested Election

Episode Date: November 2, 2020

1876 was a great pivot in US history. In the presidential election that year a record turn out and chaotic vote counts, particularly in Florida (!), saw a contested result. Civil war, so recently concluded, seemed imminent until Democrat and Republican grandees made a bargain. It would save the republic but at terrible cost. Joining us on the podcast is Professor Gary Gerstle, the Paul Mellon Professor of American History at the University of Cambridge. We discussed the momentous events of 1876-7, what they mean today and just how endangered is American democracy. Subscribe to History Hit and you'll get access to hundreds of history documentaries, as well as every single episode of this podcast from the beginning (400 extra episodes). We're running live podcasts on Zoom, we've got weekly quizzes where you can win prizes, and exclusive subscriber only articles. It's the ultimate history package. Just go to historyhit.tv to subscribe. Use code 'pod1' at checkout for your first month free and the following month for just £/€/$1.

Hi everybody, welcome to Dan Snow's History It. It's the most contested election in American history, with record turnout. The electoral process was obscure, corrupt, hedged about with intimidation and other dirty tricks. Both sides refused to accept the result, and a constitutional crisis loomed. I am of course talking about the US presidential election of 1876 which eventually saw Rutherford B Hayes defeat Democrat Samuel Tilden despite Tilden getting a lot more votes but the Democrats came away with what they really wanted. This is the election that lots of scholars are looking back to as we enter this pivotal week, US election week.

The rest of the world holds its breath to see who the good people of Wisconsin, Ohio, Pennsylvania and Florida are going to give us as the next leader of the free world. Choose wisely, my friends. Choose wisely. For this podcast, I'm talking to Gary Gersel. He is Professor of American History at Cambridge University. He is a writer, a broadcaster. He's taught around the world.

He's a total legend. He's also, as an American, currently in the US, very excited to cast his vote. So it's a great honour to catch up with Gary Gersel and talk about elections past and present. If you wish to become a subscriber to History Hit, you get to listen to these podcasts without the ads on our own platform. It's called historyhit.tv. We've got extra podcasts on there. But most importantly of all, we've also got hundreds of history documentaries like Netflix, but for history. Amazing. And if you use the code POD1, P-O-D-1, you get a month for free and your second month for just one pound, euro or dollar.

So please go and check it out. In the meantime, though, here's Professor Gary Gersel. Enjoy. Gary, thank you so much for coming on the podcast. Thank you. It's great to be here. Well, we are days away from the election in 2020. There are all sorts of people talking about paths to victory, contested results, single votes in Nebraska. And I thought it'd be good to go back and talk about an election that really was remarkably contested, mathematically tricky.

And that was the 1876 US presidential election. Everyone's talking about it. So let's make sure we do a deep dive with a man who knows all about it. Just set us up, 1876, locate us in the great unfolding of American history. The election of 1876 was an extraordinary election. But before we talk about it in particular, let me give you a little background for your listeners. First, one has to reckon with the Civil War, still to this day, by far the bloodiest war in American history, 1861 to 1865, fought over slavery, fought to destroy the slave system, and it was successful in that. More than 700,000 Americans were killed, North and South, by far the bloodiest war in American history. And after the war ended, the states of the Confederacy

became occupied territory. If we want to think about the U.S. executing occupations, the first occupations are not the Philippines or Germany or Japan after World War II. The first occupation is on the territory of the United States in the Confederate States. The Union military was there to enforce the will of the Republican Party. The Union military was there to enforce the will of the Republican Party. The Southern states had to meet certain tests in order to be readmitted to the Union. And these tests were part of a political experiment and a political initiative called Reconstruction, one of the most controversial episodes in all of American history to this date. And the reason it's so controversial is that Reconstruction had two competing aims. One was to reintegrate the defeated states of the

South back into the Union. And the other was to affirm the equality of African Americans in American society, to make them full citizens, first class citizens with no more racial discrimination. The problem was that those who favored quick reunion had to deal with a white majority in the South that was not ready to grant African Americans their equality. Southerners divided on this. Whites in one camp, Blacks on the other. Northerners divided on this question, too. Some of the Northerners said, we don't really care about African American equality. We just want the union restored. So this is a moment of time beginning in 1865, going through the late 1860s, the early

1870s, and the states are gradually being reincorporated into the union, but through struggle and controversy and increasingly campaigns of terror being carried out by Southern whites against black freedmen who want the right to vote, who have won the right to sit in political offices. The white South is getting increasingly unhappy with the situation, but the Republican Party, then the party of emancipation, then the party that drew all African American votes in the United States. That party, grounded almost entirely in the North, except for black voters in the South, is determined not to conclude the occupation, not to conclude Reconstruction, until African American equality is enshrined. These are the battles being fought out, and this informs in critical ways the election of 1876.

And we've got the figure of Ulysses S. Grant, who, perhaps like Britain's Duke of Wellington, was a better battlefield commander than he was a chief executive. Ulysses S. Grant decides not to run for a third term. That's the background to the election in particular, and that seems to throw everything into some confusion. It does. He could have run for a third term because presidents were then not prohibited by the Constitution from running for a

third term. He had served two terms. There is better feeling toward him among historians today about the job that he did because he understood the two goals of Reconstruction and was constantly trying to balance them. But it was a task so difficult that it was wearing down the energy and ability of any man. And one of Grant's flaws was that he always wanted to have around him, he was a man of principle, but he always wanted to have around him, both as commander of the Union armies and as president, friends, cronies whom he personally could trust,

but who were either not of the highest political caliber or did not possess the same integrity that he did. And so increasingly, his administrations are swamped by accusations of corruption. So he's had enough. He's been at the center of war in American politics by this point for more than a decade. And he is willing to make way for new candidates on both the Democratic and Republican side. It is confusing people perhaps a little bit that the Republicans are at this point the party, you might say the progressive party. Yes, I think it's hard today to imagine the Republicans as being the foremost proponents of racial equality in the United States. But this was the party of Lincoln.

The party of Lincoln was the party of emancipation. This was the party that won the 1860 election. And the Southerners were so scared of Lincoln that they immediately didn't even wait for him to enact any policies or even to assume office. They immediately triggered the process of secession because they understood that he was going to damage and then undermine the slave system by which the white South had defined itself. The white South was almost entirely democratic. And the Democratic Party, which is regarded today as the party of civil rights and the party of African American Freedom was then the Party of White Supremacy. And the Democratic Party remained the Party of White Supremacy until the 1940s for almost 80

years after the Civil War. So yes, it requires a reversal of one's consciousness about how politics in America works. And it is so interesting and disheartening, actually, to contemplate that the party of Lincoln and the party of emancipation is now involved in so much effort to undermine African-American quality in the United States and to return many African-Americans to conditions of second class citizenship symbolized by stripping them of the right to vote. symbolized by stripping them of the right to vote. So Samuel Tilden emerges as the candidate from the Democrats. And of course, that's quite a powerful electoral coalition, isn't it? And he does get a huge number of votes because you guarantee you're going to win the South and he's got to pick up some votes in northern states. Well, it's not a guarantee that he's going to win the South at this time because part of what the Republicans did was to enfranchise the freedmen of the South,

African-Americans. So the Republicans had been very strong during Reconstruction, and state legislatures were full of African American representatives and senators to a degree that would astonish modern day observers of the United States. So the Republican Party was fighting hard. And at the same time, the Democratic Party was limited for a time because Democrats who wanted to participate were generally white Southerners, for a time because Democrats who wanted to participate were generally white Southerners, believers of white supremacy. They had to sign on and commit themselves to observe the 13th, 14th, and 15th Amendments to the Constitution, which meant first, emancipation, no more slavery in the United States. Secondly, it meant no more discrimination on the basis of race. And third,

giving Blacks everywhere in the United States the right to vote. So for a long time, Democrats had very few votes in the South, but gradually, as Grant gets worn down, as terror of white vigilantes in the South against Blacks increases, Democrats are gaining more power. And they are reaching a tipping point in 1876 when Samuel Tilden runs. Samuel Tilden is a Northerner, and the Democratic Party has a lot of power in the North. New York is the biggest state at that time with the most electoral votes, the biggest economy. There is a very strong Democratic Party in the North that is accepting of white supremacy, but does not define itself entirely on the principle of white supremacy. In 1876, it looks like the moment where the Democrats

are gaining enough power in the South in terms of their ability to vote, consolidating their base in the North so that they can actually pull off a victory. And in the election of 1876, it is clear that Samuel Tilden is pulling more popular votes than his opponent, Rutherford B. Hayes, a good Republican and abolitionist governor of the state of Ohio. But as the smoke clears from the election, it takes a while for the smoke to clear from the election then as it might on November 3rd. Samuel Tilden is one vote short of the Electoral College majority he needs to be declared the next president of the United States. He has 184 electoral votes. He needs 185. And there are four states where the

winner has not yet been declared. And if he were to get any one of those four states, he would be become president of the United States. All four of those states are in the American South. They are the former Confederate states. And the key state, the pivotal state in all this, as was true in 2000 and may again be true in 2020, was the, shall we call it the great state of Florida. What is it with Florida? It's amazing. The sunshine, the sunshine state. Sunshine state. And of course, I guess you could argue with pivotal in 2016 as well. Yes.

And so what happens? Why do we suddenly get this crisis? Why aren't the votes just counted and the time taken? Well, voting in the United States has always been and still is, much to my chagrin, a matter for states. And states often delegate those responsibilities to cities and towns. So you have all these cities and towns and states having their own ballots and manufacturing their own ballots, having their own mechanisms for counting the votes. And you have a lot of amateurs involved in this. And then you have these professional parties. You had to vote in public then. There was no secret ballot. You had to cast your vote in public. And so there's all kinds of intimidation at the polls and there's all kinds of opportunities for votes to be lost, stolen, duplicated. There

was a category of voter called a repeater who would say, I'll vote for you twice, but you got to pay me both times in order for me to cast the vote. And then, of course, election sites are sites of drinking and drunkenness because those people coming to the polls are promised a bit of whiskey in return for casting the vote for a particular person. So you can imagine what's going on through the day. And you can imagine the possibility for chaos and corruption, which has been an indelible feature of American elections for as long as there have been elections. And so what does this require? This requires there be some mechanism in each state for reviewing the votes as they have been counted and cast. And there is a board of canvassers in the state of Florida.

It looks like Tilden is going to have 250,000 votes more in this state than his opponent. But there are charges that the votes have been counted incorrectly. So it goes to the board of canvassers. And on the board of canvassers in the state of Florida are two Republicans and one Democrat. So how do you think this board of canvassers is going to vote? They systematically go through all the votes to the point where the Democratic total falls below the Republican total. And then they proceed

to declare Rutherford B. Hayes the victor in Florida and to deny Tilden the electoral votes he needed to put him over the top. At which point, Democrats in the state start crying foul and saying, what the hell have you done? Clearly, we know Tilden is the victor. So they put together their own committee and they certify a different count of electoral votes. This is not authorized, but they do it anyway. Each state is obligated by December 6th. The election was held on November 7th. By December 6th, they are obligated to turn into, one by the Board of Canvassers dominated by Republicans, which gives the election to Hayes, and another by the self-appointed group of Democrats in the state, whichutherford B. Hayes is the president. If they follow the other, Tilden becomes the president of the United States. And that is the conclusion of Act 1 in this saga and the beginning of Act 2. Land a Viking longship on island shores, scramble over the dunes of ancient Egypt, and avoid the Poisoner's Cup in Renaissance Florence. Each week on Echoes of History, we uncover the epic stories that inspire Assassin's Creed.

We're stepping into feudal Japan in our special series Chasing Shadows, where samurai warlords and shinobi spies teach us the tactics and skills needed not only to survive, but to conquer. Whether you're preparing for Assassin's Creed Shadows or fascinated by history and great stories, listen to Echoes of History, a Ubisoft podcast brought to you by History Hits. There are new episodes every week. Oh my god, there's another act. I mean, by the way, this just feels so like 2000. It's just crazy, isn't it? When will the Americans federalize the federal election? I don't know if they ever will.

If you wanted to design a system ripe for corruption, amateurism, chaos, failure and hacking, you would design a system of electioneering that looks a lot like what the United States has. And federalism goes so deep, and here by what I mean federalism, the autonomy of states to conduct their own elections. It's almost impossible unless all the states themselves begin to centralize the printing of ballots in the states, and then they would have to agree to give up that power to the central government. So it's incredibly hard to accomplish. And the result is perpetually all this chaos surrounding elections. We're going on a slight sidetrack here, but is it constitutionally mandated? Or could you just pass a statute through Congress saying

we are going to federalize the process of presidential elections? I think it would have to go through the Constitution, which is why it's been so hard to accomplish. And the United States has the oldest written Constitution still operative in the world today. And that is both a sign of success that it has lasted so long, but it is a burden because it is a Constitution that is almost impossible to change. Okay, happy news. Right. So how do we sort out this problem? Well, the first thing to be said that at the time, a new president did not take office on January 20. They took office sometime in early March, first Tuesday in early March. And that was because it was a big country, it took a long time to count the votes to carry news back and forth. So they had more time,

they had several months. I will spare you the debates that the House of Representatives versus Senate has. That's interesting of itself, but I don't think we have time to get into that today. They decide to appoint a commission as bipartisan as possible to adjudicate the contrasting ballots. And let me say one thing in the defense of what the Republicans did, because it looks like the Republicans just committed an outright act of corruption. And by certain measures, that's what they did. But their justification was that the Democrats, who by this time were increasingly powerful, were systematically suppressing the black vote. And so the Republicans were claiming, this was not a fair election. That's why we have to do what we're doing.

The Democrats were simply saying this was not a fair count. So the Democrats are taking the stand on the basis of fair count, and the Republicans are taking the stand on the basis of this is not a fair election. A bipartisan committee is set up as equally balanced from members of Congress and members of the Supreme Court, but it can't be entirely equally balanced because it's a committee of 15. So someone has got to have an advantage. So they think they have found the perfectly neutral person in America to adjudicate all the disputes. It's all got to come down to him. His man is Davis. They've got him. He is the only man in America who's completely neutral in this question. And then he decides he's not going to do it. And he throws it into turmoil once again. And then they have to get someone else as fair a man as they can find and find a man by the name of Joseph Bradley on the Supreme Court. He is an honorable man with

integrity, but he is a Republican. And he takes the point that all the states whose results are being contested, the four states in the South, he decides every one of them in the Republicans' favor. That's the end of Act II. This infuriates the Democrats who are being robbed of an election, and they threaten that they will not accept this. And that on Inauguration Day, there are going to be not one but two inaugurations. There's going to be an inauguration of Tilden, an inauguration of Rutherford B. Hayes. It's getting a bit Avignon papacy around here now. Yes. And then you get some of the big players in both parties who say, OK, we've got to save this republic because if we have two presidents and we have the Civil War all over again, and this is Act Three, and they cut a deal where the Democrats agreed to accept

the Board of Canvassers report from Florida, making Rutherford B. Hayes president on the condition that Reconstruction, and here we come back to the beginning, and the occupation of the South by the North ends the moment Rutherford B. Hayes becomes president of the United States. So the Republicans get the presidency, but they are forced to terminate Reconstruction, and they are forced to abandon their dream of making African-American equality not just a dream, but a reality in American life. So the Democrats actually win big. The Southern Democrats are delighted because now they have home rule once again. Now they can assert white supremacy in the South. Now they will be in a position to

disenfranchise all these black voters and to restore the South to what they consider to be its proper place and reputation as a land, if not of slavery, then of white supremacy. And so they lose the presidency in 1877, but the battle over white supremacy that they win has got to enshrine the South, not just in local politics, but in national politics as an incredibly powerful player for another 80 years. So you could argue that the true winner of this election were the Democrats and not the Republicans. And thus Rutherford B. Hayes carries on the Republican control of the presidency, but the way is open for the South to once again become not only a land of white supremacy but to become as a bloc arguably the most important electoral bloc in national politics on issues on which they are in agreement and they are always on agreement on the need to

maintain white supremacy. So it's a bitter pill for the country and African Americans and all others interested in racial equality to swallow. But at the same time, what is interesting is that the grandees in each party made this sordid deal, but they did make a deal. Do you have confidence as a historian that some kind of similar deal could be reached in the next month if there is a contested election? That is the million dollar question. I have a scenario where I see the grandees of the parties getting together and it would look something like this. Mitch McConnell, majority leader in the Senate, has always hated Trump, but he found Trump useful. McConnell has been single-handedly pursuing what we might call

Republican judicial supremacy in America for 30 to 40 years, with the appointment of Amy Coney Barrett to the Supreme Court, confirmed last night, now a fact. He has achieved a goal that Republicans have been pursuing for 40 years. He now considers it to be an achievement. He now considers a Republican Supreme Court to be locked in for 30 or 40 years to resist whatever the electorate throws up in terms of representatives and legislators. It is conceivable that he will cut a deal which goes something like this. I will talk to Amy Coney Barrett behind closed doors, of course, and ask her either to recuse herself from any deliberations having to do with the election or actually to vote in the Democrats' favor for the sake of legitimacy in return for the grandees of the Democratic Party accepting the legitimacy of her appointment, which means a promise not to pack the court with Democratic appointees, which the Democrats may well and try and do. In the process, they sacrifice Trump. And I think

very big portions of the Republican Party are willing to sacrifice Trump for the sake of securing this judicial hegemony. So I see the outlines of a plan. But as we know, Trump is the wrecker of all plans. A big part of the party belongs to him. And of course, Democrats would have to agree to this as well. And if this happens, it will definitely go on behind closed doors. And there may be some people reading the grandees of 1876, reading about their exploits to, in a sense, save the union, because the United States faces a similar transition. In that respect, 2020 really does resemble 1876. The welfare of the union is at stake and its ability to continue as a union

with its two bitterly divided halves, willing to concede something for the sake of that unity. And you can see John Roberts, Chief Justice going along with that. He's shown himself to be very nervous about the legitimacy of the court. There may well be a majority on the Supreme Court for that. happened in 2000 under the Rehnquist Court. He had carefully laid plans to build a bipartisan majority on the Supreme Court to deny Trump's claim on the presidency if this reached the Supreme Court. But what blew that to hell was Ruth Bader Ginsburg's unexpected and sudden death a month ago, because until that point, he had the votes and now he no longer has the votes unless Amy Coney Barrett agrees either to vote with him or to recuse herself. If she's interested in her legitimacy and the legitimacy of the court, there are strong arguments for her recusing herself from deliberations about this election should they reach the Supreme Court. And if McConnell throws in no statehood for DC and Puerto Rico as well,

then that looks like a pretty sweet deal for the Republicans. In fact, they get to sit four years out when there will be a crushing economic situation. And they look pretty good for 2024. In fact, you could argue the Democrats would be crazy to take that deal. McConnell would certainly cut that deal if presented to him. And the Democrats, even if they win and win big, they have the nightmare of the Obama presidency in mind, which is the. And the Democrats, even if they win and win big, they have the nightmare of the Obama presidency in mind, which is the story of the Democrats having two years to do their work before Congress reverts back to the Republicans. And something of that sort may happen in 2022. So there's an incentive for them to cut a deal. But you're right that the costs to the Democrats

over the long term may in fact be higher. Let's finish up with that lessons of 1876. If the senior Democrats were looking at this situation, do you think that that group of people, those grandees that came together to avoid war, were they right to cut that deal? It was a sordid bargain. And would Democrats be right to do it? Or should they take the lesson of 1876 and go, no, you take this poison presidency and we're going to come at you hard in four years' time? That's a great question, and I'm not sure how to answer it. You could answer it either way. You could argue that the disordered deal of 1876 saved the Union, but that the price was too high, and that America needed to do more to, as difficult as it was, to extend the period of

Reconstruction and deliver on its fundamental promise, which is that all men and women are created equal. And it gave that up. The danger is to American democracy, it's not so much civil war, it's that we may be ringing the curtain down on America's experiment in democracy. And America will have to define itself as something other than a democracy, because if a minority is ruling for 30 or 40 years, America loses its claim to be a democracy, because if the minority is ruling for 30 or 40 years, America loses its claim to be a democracy. It can be a republic, but the Roman Republic was a republic in which there were slaves and in which most ordinary people didn't vote. It was a way for a minority, in this case, an aristocracy, to look after the public good. That's one of the definitions of a republic. A

republic doesn't have to be a democratic republic. It can be an oligarchic republic. It can be an aristocratic republic. And I think the United States is on its way to being an oligarchic republic. And the passions aroused by the fundamental principles of the American founding, all men and women are created equal, even if they're myth, they're still deeply believed. And what matters about a myth at the end of the day is not whether it's true or false, but whether it has the capacity to move people. And there is a majority of Americans who will not give up that dream lightly. So there is going to be intense struggle, and America may be facing a delegitimation crisis about its democracy. And now, never thought I'd be doing this as an American. I teach in Britain,

but you can tell by my voice, I'm obviously an American. But I'm now reading about other countries that have in the past lost their democracy, and then had to struggle to regain it. And I think that's the dilemma that the United States is facing in the next few years. Thank you very much for coming on the podcast. Thank you. I enjoyed talking with you very years. Thank you very much for coming on the podcast. Thank you. I enjoyed talking with you very much. Thank you very much. Hi, just a quick message at the end of this podcast.

I'm currently sheltering in a small windswept building on a piece of rock in the Bristol Channel called Lundy. I'm here to make a podcast. I'm here enduring weather that frankly is apocalyptic, because I want to get some great podcast material for you guys. In return, I've got a little tiny favour to ask. If you could go to wherever you get your podcasts, if you could give it a five-star rating, if you could share it, if you could give it a review, I'd really appreciate that. And from the comfort of your own homes, you'll be doing me a massive favour. Then more people will listen to the podcast, we can do more and more ambitious things, and I can spend more of my time getting pummeled. Thank you. you