Post-election lawsuits are bad for democracy

By Stephen L Carter

With the election expected to be agonizingly close, voters are bracing not only for a late night watching the returns but also for the inevitable spate of post-balloting lawsuits that could drag out a final verdict for weeks or months.

But ... what if those lawsuits were a little more evitable?

Let’s lay aside for a fitter time the slew of pre-election lawsuits already working their way through the courts. (Bloomberg counted over 160.) Without endorsing any particular filings, we should remember that judicial action to ensure a fair outcome has been a common feature of our democracy since the Civil Rights movement.

Suing to overturn the result is different — and a much more recent phenomenon. Sure, defeated candidates in the past sometimes tried. But they almost always lost. Even back in the days when fraud was a commonplace, few went to court.

Let’s begin with a far less — oops, sorry, I meant far more — divided era in our history. In 1792, George Clinton’s allies stole the New York gubernatorial election from John Jay, disqualifying thousands of votes from pro-Jay counties to get their candidate over the top. Well-armed Jay supporters poured into the streets.

The journalist Willis Fletcher Johnson was not far off when he wrote in 1922, “A word from Jay would have plunged the State into civil war.” But Jay asked his supporters to stand down. He did not file a lawsuit. He accepted the result. Later he wrote a friend: “A few more years will put us all in the dust, and it will then be of more importance to me to have governed myself than to have governed the State.”

In 1876, Rutherford B. Hayes defeated Samuel Tilden by a single electoral vote — the closest presidential election in US history — in a contest noted for its bitter accusations of fraud. The outcome was ultimately decided by a special commission appointed by Congress … which simply chose to ignore the multiple post-election lawsuits decided by various state courts, some of which might have affected the outcome.

And in 1899, the US Supreme Court rejected a claim by William Taylor, the Republican nominee for governor of Kentucky, that William Goebel, his opponent, had won by fraud. (Which he had.) The justices ruled 8-1 that no constitutional question was involved.

That precedent, as the legal scholar Edward B. Foley points out in his 2016 book, Ballot Battles: The History of Disputed Elections in the United States, was relied upon by Justice Hugo Black in refusing relief to Coke Stevenson, who’d lost to Lyndon Johnson in a probably fixed 1948 Democratic Senate primary.

And then there’s Richard Nixon, in so many ways egregious, but here not. After his defeat by John F. Kennedy in the 1960 presidential race, Nixon was counseled by friends and advisers to file lawsuits challenging the vote counts in Illinois and Texas, two states where irregularities had been alleged. Had both states switched to the Republican column, the election would have come out the other way.

Nixon biographer John A. Farrell writes that the former vice president did not want to go down in history as a sore loser; besides, there would be other opportunities. Whatever the reason, Nixon magnanimously accepted a result some observers question to this day.

Maybe that was sensible. After all, until this century, the prevailing wisdom was that post-election litigation was fruitless.

The major turning point was the US Supreme Court’s 2000 decision in Bush v. Gore. I wrote at the time — and still believe — that the only principle involved was the belief of litigants on both sides that “My party cannot be allowed to lose.”

Perhaps nobler principles have since driven some post-election litigation. But all of it has the same effect: reinforcing the view of whichever side loses that somewhere along the way they’ve been cheated.

My heroes are the candidates who, once declared defeated, could have pressed on but did not. I’ve mentioned previously my respect for Kelly Ayotte for sparing her constituents a recount to which she had a right when, in 2016, she lost her Senate re-election bid by about one-tenth of a percentage point. I noted above my admiration for the actions of Nixon, a man I otherwise loathed, after his defeat in 1960.

Finally, given the attention being paid to William McKinley in the current campaign, let’s go back to an all-but-forgotten instant of his biography. In 1884, McKinley lost his congressional seat in an election that might well have involved fraud. Rather than sue, the future president told his fellow members of Congress that if his “right to a seat in this House” rested on the rejection of disputed votes counted for his opponent, “then I do not want it and would not have it.”

No, the old days weren’t better. But in certain ways, the candidates in their public selves showed a greater respect for democratic norms. One of those norms is that it’s rarely, if ever, worth dragging the outcome through the courts.