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The Presidential Election in the divided U.S.

Minoru Iida/Professor, Faculty of Law, Asia University
Area of Specialization: Constitutional Law

1. The 60th Presidential Election

2024 is the year of the U.S. presidential election, which occurs every four years. As of early February, the Republican candidate has not yet been finalized, but the election is widely anticipated to be a contest between Democratic incumbent Joe Biden and former Republican President Donald Trump, as in the previous election. However, regardless of who wins, there is some doubt that the result will bring about new unity in an increasingly divided American society.

2. Numerous Issues Surrounding the Presidential Elections

Since their inception, U.S. presidential elections have often been a source of political unrest. George Washington was elected with overwhelming support from the electors in the first (1788-89) and second (1792) elections due to nation's trust. However, by the third election (1796), party divisions began to emerge. Under the constitutional provisions of that time, there was a twisted phenomenon where John Adams, a Federalist, was elected President, and Thomas Jefferson, a Democratic-Republican, became Vice President.

In the fourth election (1800), Adams and Jefferson contested for power again, leading to Adams' defeat and the first peaceful transfer of power in history, known as the "Revolution of 1800." However, due to party-based voting, Jefferson and his fellow party member Aaron Burr tied in the electoral college, resulting in more than thirty runoff votes in the House of Representatives before President and Vice President were decided (these institutional flaws were later resolved by a constitutional amendment). Additionally, the Federalists, trying to retain power, appointed many judges, but the new administration refused to deliver their commissions. This led the judges to file a lawsuit in the U.S. Supreme Court, resulting in the landmark Marbury v. Madison case (1803), which established the power of judicial review.

The most tumultuous election in U.S. history was the 19th, in 1860. Under the dominant states' rights theory of the time, the nation was deeply divided over slavery, especially regarding its expansion into new territories (the Western Frontier). The Democratic Party in power, divided between the North and South, faced off in the election, leading to Abraham Lincoln's election from the newly formed Republican Party, which was opposed to slavery.

The election results triggered a severe backlash in the southern states. Fearing that the continuation of slavery was under threat, South Carolina declared secession from the Union in December 1860, followed by six other states, forming the Confederate States of America. The Civil War broke out in April 1861, with four more states joining the Confederacy. However, the federal government consistently refused to acknowledge the secession,leading to a strong war that split the country in two. The armed conflict ended by mid-1865 due to federal offensives, but resolving the central issue of the 1860 election required constitutional amendments, and its social impact persists to this day.

3. Delays in Announcing the Winner and Legal Battles

Such conflicts and chaos are not confined to the past when the nation's system was still forming. Even without reaching the point of secession, electoral disputes have arisen in recent years.

The 54th election in 2000, between Democratic Vice President Al Gore and Republican George W. Bush, was marked by contested vote counts in states with ballot-reading issues, leading to lawsuits over the vote-counting process. Ultimately, the Supreme Court halted the recount, securing the election result (Bush v. Gore), and Bush, despite trailing Gore in the popular vote, won the Electoral College by a narrow margin. This marked the first time in over a century that a candidate lost the popular vote but won the presidency (this phenomenon occurred five times until the 58th election in 2016).

Moreover, in the 59th election (2020), Democrat Biden defeated Republican incumbent Trump, but Trump and his supporters filed lawsuits claiming "election fraud." However, the courts dismissed these claims, and with the withdrawal of several lawsuits and the Supreme Court's refusal to recognize these claims, attempts to overturn the election results through legal means were thwarted. Nevertheless, in January 2021, as a joint session of Congress was about to certify the electoral votes, a large number of Trump supporters stormed and occupied the Capitol, temporarily halting the process. However, this action failed to gain public support, and after law enforcement and the National Guard cleared the intruders, Congress reconvened, certified the election results, and confirmed Biden's victory.

4. The Tradition of Concession and Victory Speeches

There has been a longstanding tradition in the United States for losers of presidential elections to deliver a concession speech to their supporters after the election results are finalized. This speech, in which the losers acknowledge defeat and express gratitude and future prospects to their supporters and the nation, is believed to have originated when Adams privately congratulated Jefferson after the 1800 election. This tradition became public in the 20th century through radio and television broadcasts.

While federal congressional elections also occur alongside presidential elections, the losers of these elections rarely receive as much national or global attention, likely due to the differences between the two institutions.

Congress, being a collegial body composed of many members, is expected to reflect the diverse will of the people and reach final decisions through debate, compromise, and sometimes conciliation. As individual members' personalities are diluted in this process, the loss of one or two members, except in the case of influential ones, seldom impacts the overall outcome.

In contrast, the president, as a single-person institution bearing executive power, forces the electorate into an all-or-nothing decision regarding their preferred candidate, often resulting in a polarized friend-foe dynamic. The stark contrast between winners and losers in presidential elections inherently tends to create societal divisions. Thus, the losing side appeals to their supporters for trust in democracy and unity under the new president, as exemplified by Republican John McCain in the 56th election (2008) and Democrat Hillary Clinton in the 58th election (2016). While not a loser's obligation, this has become a rooted ritual. Similarly, the winner's victory declaration is not merely about boasting; it often acknowledges the loser's efforts and pledges to consider their views in governance. These exchanges aim to prevent electoral rifts from leading to greater societal divisions or ruptures, initiating efforts for national integration.

However, no concession speech was given in the last election, and the former president's absence from the inauguration was highly unusual. The divisions that deepened through the electoral process seem to have expanded further without any repair ceremony. The same individuals are set to contest the election again, indicating little hope for elements that could unify American society, regardless of the election's outcome.

The said presidential election will take place this fall in the United States. While it may seem like a distant event in a foreign country where we lack voting rights, it is undoubtedly significant given the considerable role the U.S. currently plays or fails to play globally.

Minoru Iida/Professor, Faculty of Law, Asia University
Area of Specialization: Constitutional Law

Born in Hiroshima Prefecture in 1959, Iida graduated from the Faculty of Law at Chuo University in 1983 and completed his master's degree at Chuo University's Graduate School of Law in 1986. After withdrawing from the doctoral program at Chuo University's Graduate School of Law in 1990, he worked as a full-time lecturer and then as an assistant professor at Meikai University's Faculty of Real Estate Sciences before becoming an assistant professor at Asia University, where he has been a professor in the Faculty of Law since 2007.

His main focus is on constitutional law, particularly comparative studies with the U.S. Constitution.

His recent publications include "Judicial Review of the Suspension Order to a Local Assembly Member (Parts 1 and 2, Complete)" in the Asia University Law Review, Volume 56, Issues 1 and 2 (2021, 2022); "Constitutional Challenges in Objective Actions: Insights from Recent Election Litigation" in the Chuo Law Review, Volume 127, Issues 7 and 8 (2021); and "Judicial Review of the Chairman's Order to Revoke a Speech: within the Local Assembly (Parts 1 and 2, Complete)" in the Asia University Law Review, Volumes 53 and 54, Issues 2 (2019, 2020).