The presidential election of 1800 has long been notorious for both the ferocity of the partisan rancor it produced and the unforeseen constitutional problems it presented. Yet despite all the ink spilled on these issues, an unresolved question has persisted for two centuries. Did Thomas Jefferson, as president of the Senate, ignore irregularities in—and possible skulduggery behind—Georgia's electoral ballot in order to eliminate his Federalist opponents from contention? Newspapers of the day reported that Georgia's ballot was defective, and tales of Jefferson's unusual behavior during the vote count echoed through the nineteenth century. But by the twentieth century the rumors and allegations had been completely forgotten, and the legions of Jefferson scholars and biographers had moved on to Sally Hemings and other things.
When we began our research on the 1800 election, we feared that the electoral ballots from that year had been destroyed during the War of 1812, when the British set fire to much of Washington. In fact the ballots survived: we discovered them in the recesses of the National Archives, and we can now reconstruct with some degree of certainty what really happened, and what Jefferson did, in February of 1801. The story certainly gives one pause—less, perhaps, for what it says about Jefferson's behavior than for what it says about a still unaddressed flaw in the Constitution.
In 1800 the sitting President, John Adams, a Federalist, was facing off against his own Vice President, Thomas Jefferson, a Republican. (The Republican Party of 1800 was formally known as the Democratic-Republican Party, and it was the precursor to today's Democratic Party.) Both parties believed that the very future of the Republic was at stake. To the Federalists, Jefferson and the Republicans were vicious factionalists who might import the French Revolution to America. To the Republicans, Adams and the Federalists were closet monarchists who aspired to copy the English model of government.
Today the idea that a President and his Vice President could hail from competing parties is wholly alien. But the Founders had inadvertently made it rather easy for this to happen. When the Constitution was drafted, the two-party system had not yet emerged, and no one especially wanted parties to arise at all. In fact, most of the political theorists on whom the Founders drew had equated party division with factional strife; republics died when leaders factionalized, culminating in the despotic rule of Caesars or Cromwells.
Factions in the United States, the Founders believed, were most likely to arise from geography, and specifically from the tendency of electors to vote their local interest rather than choosing men of "continental character," like George Washington. The challenge in framing the Constitution was to engineer a way to keep a state's electors from banding together to vote for a favorite son. The solution the Founders came up with was this: give two votes to every elector, but permit him to cast only one vote for a citizen from his own state. To prevent electors from casting only one vote—for a favorite son—and leaving the other ballot blank, the Founders invented the vice presidency. With a second spot on the ticket available, the electors would not be likely to let a ballot go to waste. "It's true that George Washington is an out-of-stater," the Founders imagined them thinking, "but I might as well vote for the best man for the job, because the Constitution gives me the opportunity to cast two votes. And I still get a chance to cast a ballot for our hometown guy, the honorable John Q. Squire, who will have a chance at the vice presidency." Having created the vice presidency, the Founders had to create a job description for it. So they decided that the Vice President would serve as president of the Senate; the position would be mainly ceremonial, but he might be called on to break a tie among the senators.
The Founders blundered three times here. First, it did not occur to them that candidates would run for the presidency on competing national-party tickets, so they never imagined the scenario that elected the Federalist Adams and the Republican Jefferson in 1796. If this system had still obtained in 2000 (it didn't because the process was changed with the adoption of the Twelfth Amendment, in 1804), then Al Gore might have been George W. Bush's Vice President.
The second blunder was to authorize a Vice President, as president of the Senate, to preside over electoral-vote counts for a presidential election in which he himself might be running. This meant that Adams in 1796 (when, as Washington's Vice President, he was running against Jefferson) and Jefferson in 1800 (when, as Adams's Vice President, he was running against Adams) were in a position to preside over their own election results, putting them in a situation where they might have been tempted to elect themselves to the presidency by manipulating the vote count.
The Founders compounded this error with yet a third mistake. The Constitution isn't clear on the vote-counting process. Here's all it says: "The President of the Senate shall, in the Presence of the Senate and the House of Representatives, open all the Certificates and the Votes shall then be Counted." But what happens if the Senate president discovers a legal difficulty in a ballot submitted by a state? Although he is assigned to "open" the ballots, he is not expressly authorized to make a final judgment on the validity of the votes; and although vote-counting occurs in the "presence" of the two houses, they are not expressly granted any sort of decision-making authority in the event of a dispute. The Founders failed to provide clear rules for how to proceed in this situation—a high-stakes moment when passions might flare. The vote-counting ritual could easily end with a disputed ruling from the chair, bitter protest from Congress, and no clear decision on who had won election as the next President of the United States.
It didn't take long for these problems to become evident. In 1796, for instance, important newspapers reported that the four electoral votes from Vermont—for Adams and Thomas Pinckney, of South Carolina—were invalid, for a variety of technical reasons. It mattered tremendously whether these reports were true: Adams led Jefferson by three electoral votes—he would lose the presidency if the Vermont votes were found to be invalid. On February 8, 1797, when Adams presided over the vote count, a cloud of suspicion still hovered over the Vermont ballot. It was an unfortunate time for a controversy to break out. This was only the third presidential election in U.S. history, and the first to be seriously contested. Adams's dual role as president of the Senate and leading presidential candidate placed him in an awkward position: anything he did might be interpreted in the light of his own self-interest. If he was seen to have counted himself into the presidency by accepting some technically flawed ballots, the legitimacy of the 1796 election would be called into doubt and the Constitution would be off to a very bad start. Jefferson, for his part, took the statesmanlike high ground, writing to James Madison from Monticello,
I observe doubts are still expressed as to the validity of the Vermont election. Surely in so great a case, substance and not form should prevail ... I pray you to declare it on every occasion foreseen or not foreseen by me, in favor of the choice of the people substantially expressed, and to prevent the phaenomenon of a Pseudo-president at so early a day.
In other words, Jefferson was saying, let the will of the electors prevail; even if there were legal problems with the ballot, it should be counted for Adams, since he was clearly the state's choice.