When Richard J. Daley was mayor of Chicago, his workers had a strategy on election day. As vote totals were announced, they would withhold the counts from some precincts in the city, waiting to see how many Republican votes had been cast in the rest of Illinois (what Chicagoans call “downstate”). They would then know how many ballots to report so that the Democratic Party would win the statewide election. Most notoriously, this practice allowed John Kennedy to receive the electoral votes of Illinois in 1960. Richard Nixon knew that vote fraud had been committed in Chicago and other places. He chose not to challenge the election in court, figuring that such a challenge would be bad for the United States. Eight years later, Nixon finally was elected President.
The appearance that Daley’s method has been imitated this year in Milwaukee, Detroit, Philadelphia, Atlanta, and other Democratic strongholds is strong. President Trump has already accused the Democrats of cheating. Court cases have been filed. If the President and his lawyers have clear and convincing evidence of fraud, they should pursue these cases. It would be convenient if someone were to confess to filling out dozens or hundreds of ballots before or during or after the election. Next best is if people in these cities have seen others filling out multiple ballots. No judge is going to disqualify ballots and reverse the election results without compelling evidence of fraud. Suspicion alone is not enough. Proof must be presented in the courtroom; presumably, the President’s lawyers are gathering that evidence.
American courts traditionally are reluctant to take part in political struggles over elections. The election of 2000 was an exception, as the Supreme Court placed a limit on the time State of Florida officials could spend examining and recounting ballots. After that deadline passed, some journalists provided funds to continue the recount. In the end, more votes in Florida were cast for Bush than for Gore, so the Supreme Court’s intervention did not overturn the election results. (This does not stop some Democrats, even twenty years later, from insisting that the election was stolen by the Court.)
If a court decision identifies and excludes fraudulent ballots, changing the outcome of the election that has been reported this week, no doubt there will be an outcry and demonstrations in the streets. That likelihood should have no influence on any judge’s decision. The rest of us, though, should be aware and prepared, even as many business owners prepared for violence election night, speculating that President Trump might be declared the winner in spite of all the polls and prognostications that said that Vice President Biden and the Democrats would win by a landslide.
In 1876, the election was close, and three states had two groups of electors, one supporting Republican Hayes and one supporting Democrat Tilden. Instead of taking the case into the courts, leaders of both parties met and worked out a compromise. Hayes received the support of the compromise and became President. Democrats were granted political power in the southern states, power that had previously been denied them because of their part in the Civil War. When the pre-war officials regained their power, Reconstruction effectively ended. African Americans were disenfranchised and civil rights were denied. This situation lasted several generations, and its repercussions have not yet ended in the United States.
I cannot imagine any compromise that would satisfy the Republicans and the Democrats of 2020. The current question that must be answered is whether evidence—clear and convincing evidence—proves massive vote fraud that changed the election results. Americans must trust the judicial branch of the government to perform its duties in the balance of powers, defending what is right and striking down what is wrong. The Constitution will survive this crisis as it has survived crises in the past. America remains strong enough to weather this storm. J.