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Center for Ethics and the Rule of Law

 


elections • November 02, 2020

Changing the rules for choosing electors: Lessons from the election of 1800

by Gary Stein

 

John Jay, by Gilbert Stuart, 1794
John Jay, by Gilbert Stuart, 1794

According to a recent article in The Atlantic by staff writer Barton Gellman, a most unusual contingency plan is under consideration to ensure President Trump’s continuation in office. Worried that an election day lead for the president could melt away amid record levels of subsequently counted mail-in ballots, Republican-controlled legislatures in key swing states, such as Pennsylvania, reportedly might refuse to allow their states’ presidential electors to be chosen based on the popular vote. Instead, the legislature would change the rules of the election after the fact and directly appoint electors who would support Trump.

This plan may seem strange, but it is not unprecedented. Early in the nation’s history, a very similar idea was floated as a way to prolong the tenure of a sitting president and his political party. But it was immediately vetoed by one of that party’s own leaders, who recognized the incalculable damage it could inflict on the new Republic’s still-fragile institutions. As a result, instead of political violence or even civil war, a bitterly divisive election ended with the first peaceful transfer of presidential power between political parties—beginning a tradition that has endured for over two centuries. Now seems like a good time to retell this relatively little-known story.

In the presidential election of 1800, each of the major political parties enjoyed a regional base of support. John Adams, the incumbent president, could count on sweeping Federalist New England, and the South was solidly behind the Democratic-Republican candidate, Thomas Jefferson. New York, perched in between, was the pivotal swing state, a battleground where the two parties had alternated electoral triumphs.

In March 1800, New York’s legislature decided how the state’s presidential electors would be selected later that year. The legislature, controlled by Federalists, rejected a proposal by Republicans to hold “district elections,” which would have allowed for the possibility of Adams and Jefferson splitting the state’s 12 electoral votes. Instead, the legislature would make the decision on an “all or nothing” basis, meaning that all 12 votes would go to the candidate of whichever party controlled the legislature.

Control of the legislature would be determined by statewide elections held in the spring of 1800. The decisive races were in Manhattan where 13 Assembly seats were up for grabs. “In New-York all depends on the success of the city election,” Jefferson wrote James Madison. “We may say that if the city election of New York is in favour of the republican ticket, the issue” —i.e., the outcome of the national election—“will be republican.”

Heading up the opposing campaigns in New York City were two of the most ambitious and skilled politicians of the founding era: Alexander Hamilton and Aaron Burr. Co-author of The Federalist Papers, Hamilton was the driving intellectual force of the Federalist party. But when it came to “ward politics,” as one of his biographers put it, “Hamilton was no match for his antagonist.” Unlike most of his contemporaries, who deemed it undignified and ungentlemanly to ask citizens for their votes, Burr embraced the emerging art of electioneering.

Converting his palatial Manhattan home into a campaign headquarters, Burr put together a star-studded cast of Republican Assembly candidates that included Revolutionary War heroes—a list he shrewdly kept secret until after Hamilton publicly announced his own lackluster slate of Federalist candidates. Burr raised money from Republican benefactors in unprecedented sums. Republican canvassers went door to door, compiling a roster of which voters supported which party. When the polls opened, Burr organized a massive get-out-the-vote effort, with elderly Republicans wheeled to the polls in carriages, chairs, and wagons, and German-speaking campaign workers dispatched to German-American neighborhoods to conjure up more votes.

Breaking further from convention, Burr went out on the hustings himself, directly addressing throngs of New Yorkers at campaign rallies. Hamilton, crisscrossing the city astride his white horse, equaled Burr’s oratorical efforts; sometimes the two crossed paths at the same polling places and held spirited debates. But Hamilton never created a campaign organization comparable to Burr’s juggernaut.

When the election results were announced, it became clear that Burr had outsmarted and outmaneuvered his rival. Buoyed by a 40% increase in turnout in the city’s two most Republican (and least affluent) wards, Republicans swept to victory, winning all 13 Assembly seats. Republicans would hold a majority of seats in the new legislature that would take power in July. The national implications were enormous and immediately understood: Jefferson’s election was now all but assured.

Hamilton and his fellow Federalists were aghast. To them Jefferson was a radical egalitarian on the model of the French revolutionists, who would redistribute wealth, wreck the economy, unleash violence by immigrants, and breed contempt for religion. America would follow France into the abyss of anarchy followed by military despotism. “The air will be rent with the cries of distress, the soil will be soaked with blood, and the nation black with crimes,” predicted a Federalist newspaper in Connecticut.

At a conclave on May 3, stunned and fearful Federalists came up with a way of averting this catastrophe: New York’s Federalist governor, John Jay, should call the lame-duck Federalist-dominated legislature back into session so it could invest Jay with the power to appoint New York’s electors. Someone observed that nullifying the popular vote in this manner “might lead to civil war.” But this did not trouble the majority of Federalists in attendance, who felt “a civil war would be preferable to having Jefferson for President.”

Incendiary as it was, the idea quickly seized the imagination of leading Federalists. On May 7, 1800, Hamilton himself sent an extraordinary letter to Governor Jay proposing a modified version of the plan. Citing the “extreme danger of the Crisis,” Hamilton urged Jay to convene the legislature to authorize a new election in which voters would choose electors on a district-by-district basis (the same method proposed earlier in the year by Republicans and rejected by Federalists). Because most districts outside of New York City leaned Federalist, such a do-over would result in Adams gaining a majority of New York’s electoral votes and thereby “insure a Majority of votes in the U States” for the Federalists.

Anticipating that Jay, a former Chief Justice of the U.S. Supreme Court, might perceive “weighty objections” to the plan, Hamilton argued, in essence, that desperate times called for desperate measures. “In times like these in which we live, it will not do to be overscrupulous,” he wrote Jay. “Scruples of delicacy and propriety … ought not to hinder the taking of a legal and constitutional step, to prevent an Atheist in Religion and a Fanatic in politics from getting possession of the helm of the State.” Federalists were in a death struggle with a party willing to “call to its aid all the resources which Vice can give;” they could not be inhibited by “a strict adherence to ordinary rules.”

Hamilton’s father-in-law Philip Schuyler, a former U.S. senator and mainstay of New York’s Federalist party, dialed up the pressure on Jay. Hamilton’s proposal had the backing of “our Federal friends in Congress,” Schuyler assured Jay. Like Hamilton, Schuyler argued that although the plan might cause “embarrassment,” it was “the only way to save [the] nation” from the “disasters” that would befall the country if it came under the “mis-rule” of Jefferson and his “mad French philosophy.”

Jay was a dyed-in-the-wool Federalist fully committed to the party’s philosophy and policies. He supported Adams’ re-election. Hamilton and Schuyler were his longtime friends and political allies. Nevertheless, Jay found their proposal repugnant to his code of honor. He refused to reconvene the legislature. Without issuing a formal reply, he scribbled on the back of Hamilton’s letter an explanation for posterity: “Proposing a measure for party purposes wh. I think it wd. not become me to adopt.”

With New York, as expected, providing the margin of victory, Jefferson went on to defeat Adams in the Electoral College, 73 votes to 65. The government changed hands. But the Republic did not fall. To the contrary, it can justly be said that America became a true constitutional democracy at this time, when it first experienced the peaceful transition of power from one party to another.

Although Jay has never been the subject of a Tony-winning Broadway production, history has anointed him the hero of the drama that played out in New York in the spring of 1800. “Jay rightly recognized,” in the words of his principal recent biographer, “that it was improper to change the rules of an election once the votes were cast and counted.” Other historians have lauded Jay’s “integrity” and “rectitude” and his “refus[al] to manipulate established procedures for the sake of party politics.” No governor or state legislature in the 220 years since has defied the precedent Jay set.

By contrast, Hamilton has drawn almost universal condemnation for his proposal, denounced by historians as “startling,” “astounding,” “desperate,” “underhanded,” “arrant manipulation,” an attempted “electoral coup,” and “a brazen attempt to thwart the popular will.” Even Hamilton’s otherwise admiring biographers have been unsparing in their criticism. The letter to Jay was “the one dark blot upon the public career of Hamilton,” wrote Henry Cabot Lodge (later a GOP senator from Massachusetts) in his 1882 biography. Ron Chernow echoed that judgment in his 2004 book (the inspiration for Lin-Manuel Miranda’s musical), calling Hamilton’s letter to Jay “the most high-handed and undemocratic act of his career.”

The historical precedent established by the New York election of 1800 thus stands squarely against the plan currently being entertained to extend President Trump’s time in office. It also provides a framework for assessing the ostensible justifications offered in support of this maneuver.

Trump loyalists apparently would justify rewriting the rules on the theory, relentlessly promoted by the president, that mail-in votes are so rife with “fraud” that they should be disregarded. In 1800, Federalists similarly believed Burr had cheated. The year before, Burr created the Manhattan Company, ostensibly to supply the city with clean drinking water to combat periodic bouts of yellow fever. Burr instead turned it into a bank that provided credit to artisans and mechanics of the middling and lower classes, enabling them to meet Federalist-mandated property qualifications for voting. Groups of men would jointly purchase a single piece of property, allowing each to claim he was the owner of the whole for election purposes. Moreover, at least some of the celebrity candidates Burr put on his ticket apparently had no intention of serving in the Assembly.

“Burr, as Hamilton saw it, had stolen the election by a trick,” according to Hamilton biographer Forrest McDonald. Hamilton’s letter to Jay alluded to this in assailing the “Vice” of the Republicans. Yet as Jay correctly perceived, if a state legislature could annul an election result every time a majority believed the other side did not play fair, democracy would cease to exist. If there is evidence that fraudulent ballots were cast, and in sufficient numbers to alter the outcome, a neutral forum exists for that evidence to be presented and evaluated: the courts, not a partisan legislature.

As legal authority for their plan, Trump loyalists point to Article II, Section 1 of the Constitution, which says that each State shall appoint electors “in such Manner as the Legislature thereof may direct.” So did Hamilton—that was why he claimed his proposal was “legal and constitutional.” But as Jay also correctly perceived, Hamilton wrongly confused the existence of power with its proper exercise. Or as Henry Cabot Lodge put it, Hamilton was invoking “the forms of law” to commit “a fraud, which would set aside the expressed will of a majority of the voters in the State.”

While Article II, Section 1 unquestionably vests state legislatures with authority to decide how electors will be selected in advance of the election, it is another thing entirely to read that clause to permit a legislature to change the rules after the election has been held in such a way as to nullify the popular vote. In a decision this past summer, the U.S. Supreme Court noted that Article II, Section 1 gives states “far-reaching authority over presidential electors,” but added: “absent some other constitutional constraint.” The fundamental right to vote protected by the Constitution—a right the Court has called “the essence of a democratic society” and “preservative of other basic civil and political rights”—certainly is one such constraint. And the experience of the founding era shows that a post-election change in the rules is deeply antithetical to the nation’s core democratic and constitutional values.

Gary Stein is a lawyer in private practice in New York City.