Winning the Close Ones

The battle over Florida’s 25 Electoral College votes in the 2000 Presidential election will certainly come to mind when any political analyst thinks of very close, very consequential American ballot disputes. But as Edward Foley makes clear in Ballot Battles: The History of Disputed Elections in the United States (Oxford Press, 2016), a comprehensive and entertaining history of many such battles over more than two centuries, Florida was only the latest such example. And in fact, there have been several such battles since the Supreme Court ruled in Bush v Gore in December 2000. These included the gubernatorial race in Washington State in 2004, and the Minnesota U.S. Senate race in 2008. The Minnesota dispute, which lasted well into 2009 before being settled, gave the Democrats the 60th seat in the U.S. Senate enabling the party to overcome a Republican filibuster and pass the Affordable Care Act (“ObamaCare”).

Foley argues, convincingly I think, that the Founding Fathers did not adequately consider the processes for settling ballot disputes, especially when partisans on the local or state level, could corrupt an honest vote count or even use force to pressure voters, and then submit the results they were seeking for certification on a state or Congressional level. Of course, at the time of the drafting of the Constitution, the plan was for U.S. senators to be elected by state legislatures, and U.S. presidents to be elected by electors chosen by these same state legislatures. The popular election of presidents did not begin for several decades with many states first adopting the practice in 1824, and the popular election of U.S. senators not until more than a century later when the 17th Amendment was passed. In any case, the direct election of senators and presidents did not bring with it much in the way of consistent or fair processes for determining the winners in ballot disputes. 

I do not know Foley’s personal politics, and that is a compliment, for bias does not weave through his history of ballot disputes, as it does with so much other supposed scholarship these days. Rather the individual histories of dozens of ballot disputes is very informative and Foley’s judgments in individual disputes, while not always shared by this reviewer, are well argued and thoughtful. In particular the Florida recount battle in 2000 is a good example of Foley’s seriousness and rigor. The author provides a history of prior Supreme Court decisions, particularly in the reapportionment cases -- Baker v Carr, and Reynolds v Sims -- that lay the groundwork for the Supreme Court’s use of the equal protection clause of the 14th Amendment to invalidate the Florida Supreme Court’s decision to carry out a close to statewide recount of the “under-vote”. Foley calls the Florida Supreme Court a rogue court for its seeming persistence in looking for ways to keep the recount going until Democrat Al Gore could take the lead. 

Foley concludes his chapter on the 2000 battle with this sentence: “The result was the inauguration of a president that the majority of participating voters of Florida, and the nation as a whole, had not intended to elect”. This is accurate, but the truth of the matter is that had Al Gore won the recount battle, the sentence would also have been correct. Either Bush or Gore would at best have won a plurality in Florida, and Gore won a plurality nationwide, but neither candidate could claim to have won a majority in Florida or nationwide due to third party candidates. Ralph Nader won over 90,000 votes in Florida, in a state decided by 537 votes and over 2 million votes nationwide.

So too, Foley believes that more voters who showed up on election day likely intended to vote for Gore than Bush. This is possible, but not so clear. The butterfly ballot in Palm Beach County, which appears to have resulted in more votes for Patrick Buchanan than he received anywhere else in Florida, was of course a ballot design created by a Democratic official to make things easier for the large number of elderly voters in the county. But there was also the matter of the announcement by CNN that polls had closed statewide in Florida, when an hour remained for voters in the panhandle counties, the state’s most Republican area. As I laid out in an article in the early days of American Thinker, this announcement, as well as the mistaken call that Gore had won the state before polls had closed in the central time zone, may have cost Bush several thousand votes, arguably more than Gore lost in Palm Beach County due to the ballot design

Foley also discusses the post-election recounts conducted by various newspaper consortiums, and provides the results of only one of these tabulations which gave Gore a 107-vote victory -- though this survey included both under-votes and over-votes. Gore, in his various post-election attempts to find votes, had never asked for a recount or reconsideration of ballots cast out by the voting machines as over-votes. In fact, Gore had only asked for a recount of the under-vote in four heavily Democratic counties, rather than a statewide recount, demonstrating his strategy of cherry picking favorable counties. Almost all of the newspaper consortiums’ other vote counts using various standards for accepting ballots not completely punched through for the under-vote, produced very narrow Bush victories. Foley points out that these consortiums did not in fact get to count all the votes, and the number of missing votes was larger than the margin in any of the recounts by the newspapers.

I agree with Foley that Gore might have been the choice for more of those who entered the polling place (ignoring the panhandle counties' depressed turnout), but if you spoil your ballot with a double vote, or vote for a candidate other than the one intended, these are not correctible errors.

Foley also provides a convincing case that the Minnesota Senate election -- eventually producing a win for Democrat Al Franken, resulted from a much more transparent and serious approach to getting it right, than the Washington State recount which produced a very controversial win for Democrat Christine Gregoire. In Washington State, King County officials behaved much like the Florida Supreme Court, doing what they needed to do to get the result they seemingly wanted.

Foley’s book has an excellent history of the 1876 presidential dispute, where Democrat Samuel Tilden won the popular vote nationwide, and likely won the popular vote in Florida, Louisiana, and South Carolina, securing enough Electoral College votes for victory. However, the votes in these three states was disputed and the Electoral College vote for all three were eventually awarded to the Republican Rutherford B. Hayes by a Commission on which there were 8 Republicans and 7 Democrats. Foley makes a good case that the Republican effort to “change” the state votes to favor Hayes were clearly fraud, but there was also the Democrats’ effort to deny the franchise to black voters, whose right to vote had been achieved by the 15th Amendment and who likely would have backed Hayes.

There is also a chapter on the 1948 Senate primary election in Texas, when “landslide Lyndon” Johnson won his Party’s nomination (tantamount to victory in the general election) by 87 votes after 202 ballots were discovered in precinct 13 in Jim Wells county. The voter role of those who supposedly signed in that day had 202 names recorded in alphabetical order in a different but identical ink than the sign-ins for the over 700 other voters (actual voters) that day. Interviews with those who were among the 202 “late entries” showed that none of them had voted, and the last legitimate name on the voter roll, indicated he signed in just as the polls were closing. 

Foley’s chapter on the 1960 presidential election offers enough evidence to argue that Richard Nixon may have won that year rather than John F. Kennedy. Two states whose electoral votes went to Kennedy -- Texas and Illinois, were “won” by 46,000 and 9,000 votes respectively. One would think that Illinois would be the easier of the two states to have made a case for fraud, given the closer margin, but Foley provides evidence from those who have studied the race, indicating that over 100,000 votes may have been wrongly recorded-either as votes for Kennedy, or uncounted votes for Nixon. Foley’s history makes it clear that not much had changed in Texas from 1948 to 1960, and the chances for Nixon to get a fair hearing on the fraud that occurred in the state were zero. With no chance to reverse Texas, it made no sense for Nixon to try to challenge the Illinois vote.

Foley applauds Nixon’s decision in 1960, Gore’s in 2000, and others, going as far back as John Jay in the 1792 New York governor's race, for conceding their election loss, though unhappy with the results, rather than creating constitutional crises on the federal level or the state level.

There are many more stories in this book that provide colorful histories of individual ballot disputes through the nation’s two plus centuries. As Foley notes, there is no reason to think that the next big battle, whether for the White House or some other office, will be easily resolved. There is too much at stake, and the author believes the country has entered a more partisan era, where neither side may be so willing to live by the results, if they do not believe the results are accurate tallies.