Nothing New Under the Sun

Nothing New Under the Sun

Spring 2024

Kermit Roosevelt III

The 2024 presidential election is shaping up to be a disaster. Or so many people think. And there are plenty of reasons they can point to. One candidate is under indictment and could conceivably be convicted of a crime by the time of the election. Both candidates are old, raising concerns about their health and ability to serve out a full term if elected. The partisan divide is so sharp that supporters on both sides seem primed to deny the legitimacy of the outcome if their favored candidate loses. The contest seems, as of now, so close that there may well be substantial doubt about who won. Each side will probably accuse the other of cheating. And, lest we forget, just weeks ago the Supreme Court had to decide whether one candidate could even appear on the ballot after some states sought to disqualify him. 

It’s a lot to handle, especially for an electoral system as old and — as some may say — poorly designed as ours. (That’s my position, at least, but the defects of the Electoral College are the topic for another essay.) Despite it all, the good news is that we’ve been through most of this before. Not all at once, admittedly, but sometimes in more extreme circumstances than those we face now. Our nation has faced each of the concerns listed above during previous presidential elections — sometimes multiple. And America has survived. 

That’s no reason for complacency. America survived because Americans worked together to ensure it would. And as we’ll see, sometimes the cost was terribly high. But there is every reason to think that if we face up to the challenges ahead, and especially if we can put country before party when the moment comes, we will get through this election too. 

It’s hard to know where to start with the list of concerns I raised above, but let’s try the beginning. Never in American history has a current or former president been charged with a crime, but it’s not unprecedented for candidates to be charged — or even convicted. 

In 1918, socialist leader Eugene V. Debs gave a speech in Canton, Ohio, opposing U.S. participation in World War I and urging resistance to the draft. “You need to know,” he told his audience, “that you are fit for something better than slavery and cannon fodder.” He was prosecuted for sedition on the grounds that his speech might interfere with military recruitment and — though the speech was constitutionally protected according to the modern view of the First Amendment — he was convicted and sentenced to 10 years in prison. The Supreme Court unanimously upheld his conviction, and when Debs went to prison in 1919, violent riots broke out in Cleveland. 

All that was prologue, though, to the 1920 presidential election. The Socialist Party nominated Debs, and he campaigned from his prison cell, promising to pardon himself if he won. He didn’t win, of course, but he received almost a million votes. If a third-party candidate had drawn the same percentage of the vote in the 2020 election, they would have received about 6 million votes; a stronger showing than any third-party candidate since Ross Perot in 1992. 

So we’ve seen candidates run for president from prison. And if the people choose a candidate under indictment, or one who’s been convicted — or even one, like Debs, who’s been incarcerated — that is their choice, and that person becomes president. Debs said that he would pardon himself; that is impossible for crimes under state law, but the pardon is probably unnecessary, at least as far as the office of the presidency is concerned. The president possesses whatever immunities are necessary to allow them to execute the duties of the office, so it’s my view as a constitutional law professor that a person who was elected president while incarcerated would be released at least for their presidential term. (The Supreme Court has never considered the question.) Criminal trials might affect voters’ views of a candidate, but they could not stop that person from serving.  

But what if an elected candidate is too old to serve a full term under the demands of the presidency? Again, our system has survived similar challenges. Eight presidents have died in office — four were assassinated, and four died of natural causes. William Henry Harrison survived only one month into his term, and Horace Greeley — the Liberal Republican candidate in 1872 — died after the election but before the meeting of the Electoral College. His electors voted for other candidates, and those who didn’t saw their votes discounted. Dead people cannot be elected president. But death in office, or even death during the election, does not stop the system from functioning. 

What if people refuse to accept the result? We witnessed some of that on January 6, 2021, and it was alarming. People worry that history may repeat itself. But January 6 was already history repeating itself — not precisely, but as Mark Twain supposedly said, it rhymes. Past elections have already shown us what happens when losers refuse to concede. 

In both 1800 and 1876, as elections came down to the wire, states mobilized their militias in anticipation of violence. And in 1860, eleven states seceded rather than accept Abraham Lincoln as their leader. That didn’t end well, of course. It cost three-quarters of a million American lives to restore the Union. Although the prospect of election-related violence is real, I don’t think we face any real threat of secession. 

Lincoln provides a good opportunity to address the issue of candidates not being on the ballot. You might have heard, back when people were talking about the pros and cons of excluding candidates, that Abraham Lincoln wasn’t on the ballot in 10 of the states that ended up seceding. That’s true, sort of. Not a single vote was recorded for him in those states, so no ballot with his name was submitted. But that’s not because he was excluded from some official ballot. There were no official state ballots in the 19th century. Instead, parties would distribute ballots with only their candidates, and voters could vote the ticket just by submitting those ballots. The Republican party — aware that Lincoln had no chance in certain states and that people distributing Republican ballots would be in real physical danger — simply didn’t distribute their ballots. And so Lincoln received zero votes. 

The phenomenon of official state ballots featuring different candidates has also occurred. In fact, it’s occurred in every modern election. In 2020, there were three candidates on the Pennsylvania ballot (the Democratic candidate, the Republican candidate, and the Libertarian candidate, Jo Jorgenson), there were six candidates in Michigan (the same three, plus the Green Party, the Constitution Party, and the Natural Law Party), and there were seven in Florida (similar to Michigan, but excluding the Natural Law Party and including the Reform Party and the Party for Socialism and Liberation). So the idea that a candidate might appear on the ballot in some states but not others is nothing to worry about — it happens every time. 

What about close elections, confusion, and dirty tricks? We’ve seen those before too, and on a scale that, thankfully, is unlikely to repeat. In the past, people who cared (maybe too much) about the outcomes of elections have done everything they could to affect those outcomes. They’ve worked within the law, and they’ve worked outside the law, and they’ve even resorted to murder. 

In 1800, many state legislatures took the choice of electors away from the people — they replaced the popular vote with selection by state legislatures in Georgia, Massachusetts, Pennsylvania, and New Hampshire. The American people prize democracy more today, and it’s unlikely any state legislature could get away with seizing the presidential election from the people in a modern election. 

In 1868, 1872, and 1876, political violence marred the elections in the aftermath of the Civil War. Thousands of black people and Republicans were killed as the elections neared, and thousands more intimidated away from voting. Ballot boxes were destroyed and votes switched. Despite, or perhaps because of, all the misconduct, the 1876 election was too close to call and several states submitted dueling slates of electors, one pledged to Democrat Samuel Tilden and one to Republican Rutherford B. Hayes. The cost of resolving that conflict was the Compromise of 1877, which abandoned the racially integrated governments of the Reconstruction South to overthrow white supremacists. It was a steep price to pay, but America survived. 

History gives us reason to be confident in the ultimate resilience of the American project of democratic self-governance, and understanding the mistakes of the past can smooth the path forward. Democracy will last as long as we remain dedicated to it. 

Kermit Roosevelt III is the David Berger Professor for the Administration of Justice at the University of Pennsylvania Carey Law School. He is the author of numerous law review articles and several books, most recently The Nation That Never Was: Reconstructing America’s Story. Before joining the Penn faculty, he clerked for U.S. Supreme Court Justice David Souter. In 2021, he was selected by President Biden to serve on the Presidential Commission on Supreme Court Reform. He is also the author of two novels, Allegiance and In the Shadow of the Law. Professor Roosevelt is a graduate of Harvard University and Yale Law School.