"The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism."--George Washington, in 1796 farewell address to the US
"Our entire system of government depends on honest elections and a fair count."--Charles Evans Hughes
"This book . . . is motivated by the goal of improving the procedures by which America resolves vote-counting disputes in high-stakes elections."--Edward Foley
"No electoral system, no matter how well designed and administered, can completely eliminate the risk of a vote-counting dispute.--Edward Foley
"[T]he health of a two-party system depends on the proposition that neither party controls the process for counting ballots."--Edward Foley
AT THE END OF HIS TWO TERMS as first president of the United States, in his 1796 farewell speech, George Washington warned against factionalism and partisanship. These words have resonated throughout U.S. history since then, first relevant, at the "major" level, to an election that had already occurred in 1781, while the Articles of Confederation still ruled the day. This problem, which occurred where both the Declaration of Independence and the Constitution were subsequently completed, Pennsylvania, was not a close vote count, but military intervention--the Revolution was still in progress. Soldiers were compelled to vote and ballot privacy was violated. The main takeaway feature was that the participants were conscious that they were being witnessed by other individuals and governments and setting a precedent for the future, but Foley calls the most important feature of this precedent "unsettled indeterminacy" of the law on how to settle such disputes, a matter that didn't receive the attention needed to yield answers to controversies about presidential elections and state-level ballot counting, among other relevant categories. That problem persists into the present, as Foley points out at the end of the book. The state supreme court was consulted by the "radicals," and the decision of the two justices (who happened also to be "radicals") who agreed to rule on it was that "error alone is not enough; it must be consequential" to justify nullifying an election. The opinion prevailed despite opposition, but the precedent of using a state-level court is ultimately dismissed by the author in favor of federal courts. In New Jersey's election of legislators seven years later, the issue was that no deadline for counties' handing in ballots had been set, and Essex County purposely postponed handing in its share, hoping that voters would favor the candidates it wanted and not its counterpart the other side of the state favored. There was no precedent from Britain for settling this dispute either. Fortunately, scheduling is one aspect of election days that has since then been addressed, although complications linger and provoke.
Clad in wool in a Philadelphia August toward the end of the Constitutional Convention in 1787, the founding fathers were burning out, at just the point when the issue of political parties, elections, and voting occupied the agenda. It faded into the torpor of late summer and, though James Madison tried to fill in this huge void before he died in 1836, ten years earlier having found faulty structural features and proposing new ones that were not adopted. He and the "founding generation" "bequeathed to the nation a political system, not to revere, but to improve." There are no provisions for what to do in the event of close election totals--a huge problem protracted for two hundred years until things came to a head in the notorious Election 2000, resolved into the Bush v Gore monstrosity that haunts recent history relentlessly while leaving the question unanswered. Professor Edward Foley, author of the superb Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016), offers a solution, exemplified successfully in the past and ethically: arbitration by tribunals; for example, a 3-person tribunal to be set up by Congress or the Supreme Court, consisting of one representative from each party and an unbiased third appointee to break ties equitably. The committee might also consist of three unbiased members and two partisans of opposite persuasion. The Founders simply did not anticipate the consistent bipartisanship that would dominate the governments and politics of the nation that they built.
Favorable examples of this solution are provided most notably by Minnesota in disputed elections in 1962 and, more famously for our times, the Coleman versus Franken U.S. Senate election in 2008, drawn out by eight months but in the process providing one of the most exemplary and fair processes in the history of election disputes over vote tallies so close that at least one recount was mandated. The ultimate decision, accepted by the recalcitrant Coleman, urged to concede at the end of January as losing candidate by 225 votes, was issued by a "special purpose" tribunal--"one that was intentionally and transparently structured to be balanced and neutral toward both sides"--once Franken's margin of victory had increased to 312 votes after months of further appeals processes and further vote counting.
In the course of his ascent toward his conclusion, Foley finds positive things to say about our electoral system: that material violence and civil unrest have been absent since the 1899 assassination of a successful candidate for the position of governor in Kentucky: "[T]he idea of a fair count has been a constant component of how to conduct elections."
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