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

::::::::

"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."

"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.

Beyond that, the author surmises that the existence of an impartial arbitration board would have awarded victory to the Republicans on the basis of the Fifteenth Amendment without the compromise that vitiated Reconstruction. History might have been altered without the red carpet rolled out for Jim Crow. History might have been vastly different since 2000 had the Supreme Court not have been dominated by conservatives but rather rendered impartial.

There is so much more: the anecdote that begins the book about the importance of a single vote and, inter alia, coverage of elections during the Gilded Age and the Progressive Era as well as the 1960s and 2000. The closing chapter details crucially close elections since 2000--2004 in Ohio, North Carolina, and Washington state as well as the Minnesota 2008 U.S. Senate race between Al Franken and incumbent Norm Coleman. Had either of the latter two involved a Presidential vote, asks Foley, would they have been able to resolve their protracted disputes within the time frame allotted by Congress? The Conclusion recaps and contextualizes vitally important elections detailed in the narrative and points the way forward toward impartial arbitration of electoral disputes and other necessary reforms. An Appendix offers data tables on elections that carried over beyond Election Day: gubernatorial elections since 1876; Senate elections since passage of the Seventeenth Amendment, and all categories of statewide elections held since 2000.

There are copious and vitally important endnotes, historically significant illustrations including portraits of important actors throughout the time period covered by Foley, and political cartoons lampooning the nearly catastrophic Hayes-Tilden impasse, among other subjects.

Beyond that, this excellent book is affordable and well worth the purchase price. Far from a "scholarly tome," it educates the public in a way crucial to the future of election integrity. Disagreement with a few details is inevitable for Progressives and some EI advocates, but continuity of democracy concerns all political persuasions, as will become evident sooner rather than later--I hope before the next civil war.

(Article changed on January 11, 2016 at 08:01)

Authors Website: http://www.wordsunltd.com

Authors Bio:

Marta Steele is an author/editor/blogger who has been writing for Opednews.com 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, 2000-2008" (Columbus, Free Press) and a member of the Election Integrity movement since 2001. Her original website, WordsUnLtd.com, first entered the blogosphere in 2003. She recently became a senior editor for Opednews.com. She has in the past taught college and worked as a full-time as well as freelance reporter. She has been a peace and election integrity activist since 1999. Her undergraduate and graduate educational background are in Spanish, classical philology, and historical and comparative linguistics. Her biography is most recently listed in "Who's Who in America" 2019 and in 2018 she received a Lifetime Achievement Award from Who's Who.