A Short History of Presidential Election Crises. Alan Hirsch

figure in the American Revolution. With the notable exception of the prickly Adams himself, who expressed bitterness that so many electors declined to support him, virtually everyone approved the result. The nation thus began with President Washington and Vice President Adams, a talented and public-spirited duo. They were re-elected in 1792, Washington again unanimously and Adams this time receiving the votes of seventy-seven of the 132 electors.

      The broadly approved outcome of the first two elections masked two potential problems. First, what if all the electors had cast one ballot each for Washington and Adams? Under that plausible scenario, there would have been a tie for the presidency, throwing the election to the House. Foreseeing this possibility—or, worse, a few quirky electors omitting Washington, and Adams ending up president—Alexander Hamilton lobbied some electors not to vote for Adams, so as to ensure Washington’s election to the top spot. But apart from Hamilton, who privately noted this “defect in the Constitution,”² few worried about a tie, perhaps because such an occurrence would have been easily resolved: The House would have elected Washington president and Adams vice president. Not even Adams would have expected otherwise or protested the result.

      So too, no one raised the risk of a second troubling scenario: What if the men to finish first and second were adversaries, leaving the president saddled with an antagonistic “partner” in office? (Adams was actually the rare Founder not enamored of Washington, but for the most part he kept his misgivings to himself.) But this problem, too, seems magnified through the prism of political parties. Absent such parties, the antagonism between president and vice president would be personal only, a circumstance that could be transcended through maturity and good will.

      Thus, if the original method of selecting the president and vice president created the seeds of crisis because of a potential tie or a schizophrenic “team,” neither problem seemed likely to arise. But both would before long.

      By the time Washington stepped down after two terms, political parties were clearly established. Adams and Hamilton led the incumbent party, the Federalists; Thomas Jefferson and James Madison led the opposition, the Democratic-Republicans (or Republicans for short). The bitter divide between these parties produced the first contested presidential election, in 1796. While it remained the case that no one formally declared their candidacy or campaigned openly, everyone understood Adams and Jefferson to be the respective choices of the Federalists and Republicans. South Carolina’s Thomas Pinckney served as Adams’s de facto running mate, while Aaron Burr was Jefferson’s. Such designations were unofficial, and the voting mechanism remained the same: each elector would cast two votes for president (none for vice president) and the second-place finisher would become vice president.

      Adams prevailed in a tight election, receiving seventy-one electoral votes to Jefferson’s sixty-eight. Some scheming produced ticket-splitting, such that Pinckney received only fifty-nine votes and Burr just thirty. The result was that, while Adams won the presidency, Jefferson, rather than Adams’s running mate Pinckney, was elected vice president. The Adams-Jefferson administration consisted of a president and vice president from different parties. And though they had been co-revolutionaries and close friends, Adams and Jefferson differed markedly in their political philosophies. Indeed, ten months prior to the election, in a letter to his wife, Abigail, Adams prophesied that he and Jefferson as president/vice president (in either order) would produce a “dangerous crisis in public affairs” because the two were in “opposite boxes.”³

      For the first time, the Constitution’s mechanism for electing the president and vice president had proven problematic, producing an administration potentially at war with itself. “The Lion & the Lamb are to lie down together,” observed Hamilton, who detested both lion and lamb (Adams and Jefferson). “Sceptics like me quietly look forward to the event—willing to hope but not prepared to believe.”⁴

      Some Federalists were more pessimistic and looked to prevent a recurrence of the lion/lamb problem that resulted from electors voting only for president. They proposed constitutional amendments that would require electors to vote separately for president and vice president, which would actually make it easier to elect a united administration. The proposals went nowhere, but the concern that triggered them proved justified: Over the next four years, Vice President Jefferson opposed (with various degrees of openness) many of the policies of President Adams.⁵

      The resistance of his own vice president proved a headache for Adams, but not an existential threat to the nation. The Adams-Jefferson intra-administration discord paled in comparison to the crisis created by the next presidential election, in 1800. In that rematch between Adams and Jefferson, the Constitution’s flawed process produced the other potentially catastrophic scenario that the framers had inadvertently made likely: a tie. Not a tie between the parties’ respective presidential candidates, but rather a tie between one of them (Jefferson) and his running mate (Burr).

      As in 1796, it was understood that Jefferson was the presidential candidate and Burr his junior partner, but there remained no mechanism for electors to distinguish between their two choices. Rather, as before, they cast two votes for president (and none for vice president). In 1796, many Republican electors had voted for Jefferson but not Burr. That changed in 1800, because Republicans learned from the Federalists’ mistake. Recall that in 1796 twelve Federalist electors did not use their second vote on Adams’s running mate Pinckney, allowing Jefferson to sneak in to the vice presidency. In 1800, every Republican elector cast one vote for Jefferson and one for Burr, giving them seventy-three electoral votes each. Adams received sixty-five, and his unofficial running mate, Charles Pinckney (cousin of his previous running mate, Thomas), sixty-four. One Federalist elector was smart enough to vote for someone other than Pinckney and thus avert a tie in the event the Federalists won. There was talk of a few Republican electors doing the same. However, because of concern that too many electors would do so, thereby allowing Adams to secure the second spot, none did. Republicans over-learned the lesson of 1796. Professor Akhil Amar succinctly captures the result: “Even though almost all Republicans electors had in their minds voted for Jefferson first and Burr second, on the formal paper ballots these two candidates emerged as equals.”⁶

      Recall our speculation that a tie between Washington and Adams would have been unproblematic: The House of Representatives would have elected Washington president without much fuss. Ideally, the Jefferson-Burr tie would have produced a similarly uncontroversial result. After all, no one doubted that Jefferson was the top of the ticket, the man the Republican electors wished to make president.

      But the combination of two circumstances prevented the easy resolution: 1) Aaron Burr was a conniver who wanted to be president; and 2) Federalists wanted anyone but Jefferson as president. They calculated that the notoriously nonideological Burr would work with them if he were indebted to them. Burr did nothing to discourage such calculations, declining to renounce interest in the top spot.

      The Constitution dictates that, when a presidential election is thrown to the House, the voting goes state by state, with each state receiving one vote, and a majority of the states needed for victory. On the first ballot, eight states tapped Jefferson and six chose Burr, while Vermont and Maryland deadlocked. (Every Federalist representative voted for Burr.) That left Jefferson one short of the nine states needed for victory. One week and thirty-five ballots later, the stalemate remained—despite extensive backroom maneuvering, including efforts by the Federalists to extract promises from Jefferson in exchange for their votes. Alexander Hamilton, a leading Federalist and enemy of both Jefferson and Burr, let it be known that he regarded Jefferson as the lesser of the two evils. Even so, as the March 4 date for the president’s inauguration rapidly approached, there was a real prospect of the nation without a leader.

      Before the thirty-sixth ballot, however, James Bayard, Delaware’s sole representative, announced that he would switch from Burr to Jefferson to end the crisis. Bayard ended up abstaining instead, leaving Delaware in neither candidate’s column. However, a few Federalist House members from Maryland and Vermont who previously supported Burr followed Bayard’s lead and abstained. That gave Jefferson those states, and ten states total, breaking the deadlock and averting disaster.

      The election of 1800 belied Alexander Hamilton’s confident claim that the Constitution set forth a method of selecting