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REVIEW: Edward Foley, "Ballot Battles: The History of Disputed Elections in the United States"

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"Because ballot-counting disputes in high-stakes elections are the ultimate test of a democracy's capacity to identify accurately the electorate's choice [italics mine], the story of how our nation has handled these tests teaches us about the strength of our mechanisms for self-government. Insofar as the story is one of increasing capacity to meet these tests successfully, the lesson helps us comprehend the nation's evolving maturation as a democracy. [italics mine] We deepen our understanding of America's democracy as an ongoing work-in-progress. . . . [T]he overall motion has been toward greater achievement of vote-counting fairness, not less. . . . [E]ven further progress toward fulfillment of the ideal is possible."

The epitomal Bush v Gore Supreme Court decision in 2000 (that "massive electoral earthquake") reflected, inter alia, a gradual buildup of Supreme Court decisions dating back 100 years to Taylor v Beckham in 1899, which "excluded federal courts from involvement in states' ballot-counting procedures." " Bush v. Gore is the culmination of a jurisprudential transformation that took a full century to complete" and, even though the wrong president was awarded the victory, features of this non-precedent-setting decision have wielded important influence on subsequent court decisions. A unanimous agreement within Bush v Gore drew on the one-person-one vote principle that had emerged in the Civil Rights era of the 1960s with the Reynolds v Sims decision." [T]he equal protection jurisprudence that emanates from Bush v. Gore will most likely improve the accuracy and fairness of ballot-counting in the states. . . ." "This new guarantee" [of federal courts' involvement in assuring the fairness of elections] "promises to be as significant a development in the law applicable to vote-counting disputes as any in the nation's entire history." Moreover, "courts are better at handling these cases than legislatures," and federal courts are far better suited to intervene fairly and impartially in such crises than state courts or state legislatures, even when motivated by partisan interests, as the author acknowledges was the case in the 2000 decision. State legislatures and supreme courts are mostly elected and therefore more subject to partisan pressures than federal courts, which are filled by appointment instead, though certainly composed of the bipartisan divide: if not Democratic than liberal; if not Republican then conservative.

Foley's narrative advances from one example to another of electoral irregularities, and the varieties that occurred, let alone that could occur, are many: even in the earliest days, solutions varied from violence to inspiring heights of statesmanship. Throughout nearly all the events bipartisanship, something else not anticipated in the Constitution, played a starring role: X versus Y.

But the 1791 House of Representatives showdown in Delaware between two Revolutionary war heroes, the incumbent James Jackson and Anthony Wayne, boiled down to blatant ballot box stuffing by the Wayne contingent. Partisanship may have been an important factor, but so might principles, mulls Foley. Jackson was pre-Jeffersonian, or anti-Federalist, and Wayne was a proto-Federalist. In this first House election involving election fraud, Jackson made a passionate speech about the principles men had lived and died for: "If elections are pure and free, the People are free, but if the elections are corrupt--I beg pardon of the House--but this honourable House must be corrupt likewise." Jackson persuaded the House to unseat Wayne.

However, the House vote that followed ended up in a tie that the Speaker had to break, which he did, voting against Jackson. Wayne ended up serving for a year before a special election disputing his residency status unseated him, replacing him with John Milledge, another war hero, who also served a year. Jackson did not run in 1792 and Milledge ended up back in the House from 1795 to 1799 and proceeded toward a brilliant political career.

Military coercion polluted the 1793 House election in Virginia, as it had in Pennsylvania 12 years earlier. But such coercion was common in the South at the time, called "nothing but a nursery of superlative mischief," unlike the situation in the North, governed by republican principles. The 1793 election was no big deal, according to southern politicians, dwarfed by an incident in which a magistrate had dragged an opposition candidate out of a church and raised a riot.

But pistol shots in the New York gubernatorial election in 1792 (see below) belie the southern assessment of northerners' political behavior. A mayoral election in New York City in 1834 was marred by rioting. Stakes were high, as in New York in 1792, because the mayor for the first time would be elected by popular vote instead of appointed. An assassination attempt blighted another electoral crisis (gubernatorial) in Pennsylvania's "Buckshot War" in 1838, where, Foley writes, the partisan corruption of the Whig secretary of state, Thomas Burrowes, exceeded the skullduggery of Katherine Harris that so marred the integrity of Election 2000 in Florida. During the fierce and prolonged dispute over the notorious Election 1876, an angry debate in the House over Vermont's submission of two separate sets of ballots for the Electoral College was called "probably the stormiest ever witnessed in any House of Representatives." Revolvers were brandished and one of the "obstructionists" (those protracting the debate in order to have Inauguration Day postponed or whatever could be done) literally physically hurled himself at the Speaker to try to get him to adopt his side's position. In 1899, what Foley calls "the ugliest of elections," the victorious Democratic candidate for governor was assassinated by disgruntled Republicans believing that they had been defrauded.

Successive generations through such events learned that "they could not turn to the Founders to discover the proper principles upon which to resolve disputed elections." Recourse to British sources, like Madison's to William Blackstone's Commentaries on the Law of England , was attempted. The issues described above involved further legal complexities I have no room to include. Problems with certification had already cropped up this early, predecessors of the sloppy storage of paper ballots that marred results of the 2008 New Hampshire primary, to give just one example, as captured in Bev Harris's award-winning documentary Hacking Democracy .

Foley progresses to the level of elections of chief executives, focusing on particularly important gubernatorial elections in New York (1792) and Massachusetts (1806), where governors had the power to veto legislation, unlike in other states, and thus the author uses these examples to conclude that the Founders had provided no guidelines for disputes at this level, let alone higher up to presidential elections, as occurred in 1876, 1960, and 2000, along with some "near misses" in 1884 and 1912. In these areas [as well as at the congressional level], "the sheer novelty of the experiment the Founders were undertaking" was an important impediment. Partisan divisiveness, X versus Y in a warlike scenario, posed a challenge anticipated by one of the Founders, Madison (see below) late in his life, to no avail. The Federalist Papers (1787-88) explained that the Founders had expected "the constitutional separation of powers to keep political factions fluid and disorganized, preventing them from coalescing into two regularly oppositional parties"--naivete?

And so election corruption born of partisan clashes is nothing new. Do particular ends--Medicare, Medicaid, the Civil Rights Act, the Voting Rights Act--justify "landslide Lyndon's" corrupt election to the Senate in 1948? Foley mentions that skullduggery was also part and parcel of the opposition's tactics. Was Nixon's decision not to contest JFK's victory in 1960 based on Hamilton's suggestion to John Jay, Founder, co-author of the Federalist Papers, and SCOTUS Chief Justice who stepped down to run for governor, not to contest corruption in New York in 1792 but rather wait until the next gubernatorial election for success, advice that Jay took? Foley replies in the affirmative. The juxtaposed 1806 gubernatorial election in Massachusetts took the opposite route, with informed citizenry demanding electoral integrity then rather than next time , led by Madison's advice.

As mentioned above, Foley takes us back to the origins of bipartisanship, which predate the Constitution. Does he encompass every instance of election corruption ever committed in this country? Should he? Can anyone? Should anyone? Priceless, vitally significant events are analyzed to a fault. In most of the instances cited, paper ballots were involved. He is careful to distinguish problems associated with the casting of ballots from those related to their counting. He champions technological alternatives to the myriad problems he documents where paper ballots are used, although a huge swathe of the highest-level computer scientists and experts predict that effective technology is decades away from its ability to bring about fair elections.

1876 was the year that marked the most disastrous presidential election in U.S. history--rescued by the statesmanship of a few (he compares Al Gore's withdrawal from dispute in Election 2000, though I take this as a betrayal of the majority who elected him) from the disastrous Constitutional crisis that would have resulted from two separate inaugurations. It involved more than back-room bargaining to remove federal troops from the South, thus ending Reconstruction and allowing the onset of Jim Crow. Foley deems it worse than Election 2000 because of the protracted amount of time taken to name the victor, two days before Inauguration Day on March 4. There is the additional feature of the South's threat to resort to military action if Tilden wasn't awarded the victory. Tilden's vacillation is cited as another source of this potential train wreck. Once again, proof was blatant that despite insights from the past and the multitude of disputes, there was still no solution to problematic elections. Foley blames the ambiguity of the Twelfth Amendment, which to this day still plagues the electorate.

A further parallel with Election 2000 was Florida's status as key state in the controversy: "Perhaps a coincidence, perhaps not. Florida has historically been a state with a political culture that lends itself to deficiencies in the operation of the voting process and intense disputation." Racism in 2000 as blockading an equitable vote count is a further parallel--freedmen were deprived of their vote in 1876. Foley does not dismiss the possibility of the Sunshine State once again becoming the radius of future electoral conflict. As in 2000, its electoral votes, along with those of along with Louisiana and South Carolina, were key to a Republican victory. Florida was the first state Republican talons grabbed, simply on the basis of alphabetical order.

Indeed, as in 2000 but before the GOP had become the conservative party in the usual divide, Republicans corrupted the process in order to win the day. They felt deprived of a huge number of voters who would have handed them the victory. Once again, did the ends justify the means? Cheating to adhere to the Fifteenth Amendment? Credit for preventing the Democratic filibuster engineered to delay the electoral vote count and thus steer the decision to the House goes to the Democratic Speaker of the House, Samuel Randall, who fought against his copartisans' obstructionist efforts and prevailed once the back-room compromise to end Reconstruction was introduced, in a timely fashion also strategized by the Speaker, to circumvent further obstruction once and for all (which continued, but ineffectively, especially after Tilden conceded via telegram) and avoid another civil war. Foley emphasizes the importance of Randall's impartial, transcendent, and statesmanly leadership, which he says has received pathetically little recognition.

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Marta Steele is an author/editor/blogger who has been writing for since 2006. She is also author of the 2012 book "Grassroots, Geeks, Pros, and Pols: The Election Integrity Movement's Nonstop Battle to Win Back the People's Vote, (more...)

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