How Do We Accept a President Who Won Without Getting the Most Votes? History Can Guide Us

November 9th 2016

Mike Rothschild

Donald Trump's win in the 2016 election makes him the fifth president in U.S. history to win a majority in the Electoral College while losing the popular vote.

All such presidents ultimately achieved a peaceful transition of power.

But several of the elections had to be resolved with bargains and compromises fraught with conflict and corruption.

The nation is still absorbing the shock of Trump's winning the election without a popular majority, so it may be useful to look back at the last four times this uniquely American situation unfolded and see how the process has evolved.

The election of 1824

America in 1824 was still dominated by single-party politics, and there were four candidates from the Democratic-Republican Party: Secretary of State John Quincy Adams, Speaker of the House Henry Clay, Tennessee Sen. Andrew Jackson, and Treasury Secretary William Crawford.

Strong regional preferences resulted in Jackson's winning the popular and electoral votes. But he didn't have the needed Electoral College majority, so the 12th Amendment dictated that the top three candidates compete in a special election in the House of Representatives.

Clay was the odd man out, but as speaker he had enormous power to select the winner. Despising Jackson, he threw his support to Adams, who easily won the contingent election.

An enraged Jackson called the result a "corrupt bargain" and spent the next four years viciously campaigning against Adams. The bargain hampered Adams, who was an ineffectual one-term president, and Jackson easily beat him in a rematch in 1828.

What changed afterward

The one-party era ended, but little changed about the electoral process itself.

The election of 1876

It's likely that no presidential election will ever be as disputed and corrupt as that of 1876. Election night left Democrat Samuel Tilden with a large lead in the popular and electoral vote over Republican Rutherford Hayes, but he was one vote shy of the 185 needed for a majority.

Twenty votes remained outstanding — the slates from Florida, Louisiana, and South Carolina were plagued by corrupt electoral boards and were claimed by both parties. One elector from Oregon was disqualified.

With no constitutional provision for how to proceed, an electoral commission was formed, which voted 8-7 to award the votes to Hayes.

Democrats charged that the commission was corrupt and continued obstructing, taking the matter to Congress. With days to go and the matter still not settled, an informal and unwritten bargain was struck under which Democrats would drop their objections in exchange for Hayes' removing federal troops from the South and ending Reconstruction.

What changed afterward

Hayes was plagued by accusations of fraud and illegitimacy. After a scandal-plagued term, he declined reelection.

Tilden accepted the commission's results but continued to believe he'd won. In 1887, Congress passed the Electoral Count Act to settle disputes and prevent insurgent members of Congress from hijacking or delaying the inauguration.

The election of 1888

There was no dispute this time, as Benjamin Harrison had 65 more electoral votes than incumbent Grover Cleveland, despite getting 90,000 fewer votes in a contentious contest.

What changed afterward

The Electoral College worked as written. Harrison's presidency was ineffectual and economically turgid, and he easily lost a rematch to Cleveland.

The election of 2000

The 2000 contest took weeks to resolve, with Republican George W. Bush beating Democrat Al Gore by five electoral votes, despite losing the popular vote by well over half a million.

Famously, the election came down to Florida, whose results were subjected to intense legal wrangling that ended in a Supreme Court ruling that a full recount of the state's votes was unconstitutional and certifying Bush as the winner.

What changed afterward

After the Supreme Court's controversial decision in Bush v. Gore, the minutiae of the Electoral Count Act, passed after the 1876 debacle, could have become very relevant.

Federal law gives the job of counting and announcing the electoral vote to the vice president — who, in 2000, was Al Gore.

There was serious concern that Gore or other Democrats might try to affect the counting by invoking ambiguous provisions in the act.

Two Democratic House members actually tried to object, but Gore himself ruled the objections without merit. Gore also could have invoked the act had he attempted to take the election to Congress. In the end, Gore accepted the Supreme Court ruling.

The aftermath of the election still marred Bush's legacy, but he easily won a second term in 2004.

A few useful conclusions can be applied from these four elections to 2016.

  • Putting aside 1824, the other four elections took place in fractious times. Two took place 12 years apart, two 16 years apart.
  • The loser of the electoral vote has always eventually conceded, no matter the context.
  • The winners of the electoral vote were always dogged by questions of their legitimacy. Three of the four served only one term. Two were crushed in their reelection bids.

Given the sheer tonnage of controversy Trump takes with him into the White House, it seems likely his popular vote loss will be used against him in 2020 and well before then.

Will Trump join John Quincy Adams, Rutherford Hayes, and Benjamin Harrison as ineffectual one-term presidents dragged down by winning an election despite fewer voters supporting them? Only time will tell.