Crisis at the Polls: an Electoral Reform Handbook : An Electoral Reform Handbook 9780313351266, 9780313351259

Citation preview

CRISIS

AT THE

POLLS

An Electoral Reform Handbook

Robert M. Hardaway

Foreword by Richard D. Lamm

GREENWOOD PRESS Westport, Connecticut
London

Library of Congress Cataloging-in-Publication Data Hardaway, Robert M., 1946– Crisis at the polls : an electoral reform handbook / by Robert M. Hardaway / Foreword by Richard D. Lamm. p. cm. Includes bibliographical references and index. ISBN: 978-0-313-35125-9 (alk. paper) 1. Elections—United States. 2. Election law—United States. 3. Representative government and representation—United States. 4. Presidents—United States—Election. I. Title. JK1976.H28 2008 2008020223 324.6 0 30973—dc22 British Library Cataloging in Publication Data is available. Copyright  C 2008 by Robert M. Hardaway All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2008020223 ISBN: 978-0-313-35125-9 First published in 2008 Greenwood Press, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.greenwood.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48–1984). 10

9 8

7 6 5

4 3 2 1

Dedicated to Judy Swearingen

This page intentionally left blank

CONTENTS

Foreword

ix

Acknowledgments

xi

Introduction

xiii

Chapter 1.

The 2000 Presidential Election Crisis

1

Chapter 2.

State, National, and International Crises

27

Chapter 3.

The Electoral College Debate

49

Chapter 4.

The Electoral College: Reform Proposals

69

Chapter 5.

Voter Registration

77

Chapter 6.

The Voter Identification Dispute

89

Chapter 7.

Provisional Ballots

95

Chapter 8.

Absentee Ballots

103

Chapter 9.

Redistricting

117

Chapter 10. Computerized Voting Systems

125

Conclusion

135

Appendix A. Key Election Laws

139

Appendix B.

Electoral Votes by State

143

Appendix C.

Computerized Voting System Companies

145

Appendix D. Table of Cases

147

Appendix E.

Timeline of Electoral Events

151

Appendix F.

Glossary

153

Notes

161

Bibliography

201

Index

205

This page intentionally left blank

FOREWORD

Democracies run on trust. People have to trust that their vote counts, that the rules are followed, and that the entire structure of choosing candidates and electing winners has integrity. Nothing so undercuts a democracy as the people’s perception that their democratic electoral machinery is flawed, unworkable, or corrupted. Professor Bob Hardaway in this compelling book shows how the honest administration of all aspects of elections must be part of the foundation of any democracy, and he reinforces his thesis with compelling stories of elections gone bad. Within the last few years, Kenya, Ukraine, Mexico, Russia, and, in the United States, Washington State—as well as other jurisdictions—have shown how much turmoil can result when people suspect that flaws in the election machinery have affected an election outcome. Hardaway briefly reviews the even larger question of succession of power and how difficult it has been, historically, to transfer power peacefully. No event in human history has proved more likely than attempts to transfer power in a nation to cause civil wars, mass murder, civil disruption, or tanks to roll. Democracy offered a workable alternative to this struggle for power, and generally it has worked brilliantly—but only when the process has had integrity and people have had faith and trust that the process was honest and aboveboard. This book has energy, and you don’t get far into it before you have a new appreciation of the indispensable importance of all aspects of the voting process. That includes the registration process, the voter identification process, the voting itself, the handling of absentee ballots, and the assurance that redistricting will not be used to thwart the will of the people. A flaw in any stage of the democratic electoral process can undercut the whole system. Hardaway takes us from ‘‘macro’’ issues such as the electoral college to less well-known ‘‘micro’’ issues such as voter registration, showing how all are vital

x

FOREWORD

parts of the American democratic process. There are many points in a democratic process that are vulnerable to corruption and undue influence, and too often we take their honest administration for granted. Hardaway gives his recommendations for reasserting the integrity of each and every aspect of our American democratic process. No less a person than Founding Father John Adams observed, ‘‘There was never a democracy that didn’t commit suicide.’’ The ancient Greek philosophers, present at the creation of democracy, did not have faith that democracy was a sustainable institution. The developed world has made it work over time, to our great advantage, but it is indispensable that we revisit the democratic machinery now and then to ensure its integrity and workability. Professor Hardaway gives us a readable and practical roadmap to meet our generation’s challenge to keep our democracy healthy. Richard D. Lamm Former Governor of Colorado (1975–1987) Professor, University of Denver Executive Director, Center for Public Policy and Contemporary Issues

ACKNOWLEDGMENTS

Many thanks to Amy M. Watson for her assistance in researching and writing both election case study chapters, and the chapters on voter registration, voter identification, provisional ballots, redistricting, and computerized voting, and for her editing efforts throughout the work. Many thanks also to Jacob W. Paul for his assistance in preparing the rough draft of the absentee ballot and electoral process chapters, and for his overall help in preparing the manuscript for this book. I also thank Alena Amundson, Laura Bernstrom, Stephanie Ciegelski, Jack Degree, R.L. Jackson, Jessica Enggasser, Frances A. Folin, Laura Guice, Kimberly Lazor, Justin J. Marks, Laura Mullin, Coleen O’Leary, Kevin Paquette, Lindsey D. Parlin, Spencer Ross, and Cressandra Thibodeaux for their research and writing assistance. Finally, I thank Judy Swearingen, without whose inspiration this book would never have been written. Robert M. Hardaway, B.A., J.D. It has been a privilege to serve as Professor Robert Hardaway’s student leader for this endeavor and to work with a team of bright future attorneys. With strong conviction, I believe election integrity is the foundation of a strong republic and that the electoral process is a well-proven system that demonstrates the wisdom of our Founding Fathers. To some extent, I disagree with the author on the integrity of computerized voting mechanisms; I predict that technology will prove itself reliable over time. Thanks to my grandfather, A. Carlton Cockey, for inspiring me with his knowledge of American history. It is an honor to follow in the footsteps of his passion. Amy M. Watson, B.S., M.S.L.A., J.D. 2008

This page intentionally left blank

INTRODUCTION

The history of civilizations is largely the study of the succession of leaders of those civilizations. That history shows that a primary factor in the success and longevity of any body politic has been its development of procedures and channels for the peaceful and orderly transition of political power from one generation to the next. Indeed, history is littered with the carcasses of nations that collapsed not because of external threats, but rather under the strain of internal rivalries for political power. The most natural form of succession that developed in the earliest societies was monarchism, for nothing more promoted stability, prosperity, and order than a long-living benevolent despot whose authority went unchallenged during the despot’s lifetime. (Indeed, if the course of human evolution had not dictated a finite, and often short, human life span, early civilizations, such as ancient Egypt, might still be ruled by the first warlord who united the warring tribes and declared himself pharaoh.) Yet monarchism had one vital aspect that enabled it to survive as a method for intergenerational transfers of power even to the present day, namely, a simple and orderly procedure for determining a nation’s next leader. Far more important than ensuring that a future leader would be righteous, fair, or even competent was that the selection be widely accepted. Without this acceptance, the subsequent battles for power were usually decided by violence, accompanied by anarchy, chaos, and the dissolution of society. A civilization could withstand the occasional cruel or incompetent ruler, particularly if his life was short; but few could survive a long period of chaos and anarchy. It was the internal rivalries for political power in the Roman Empire that weakened it from within, rather than the incompetent rule of any particular emperor, that ultimately caused its fall. Thus, monarchism’s fatal flaw turned out to be not so much that it so often begat a depraved or incompetent ruler, but rather that the monarchial system

xiv

INTRODUCTION

depended on the reigning ruler’s ability to produce a male heir of suitable age to govern at the time of the ruler’s death (although this problem was sometimes circumvented by the acceptance of a ruler’s surviving daughter or wife). In the absence of such an heir or a widely accepted process for nominating a successor, civil war and anarchy often followed. For example, in 1135 King Henry I of England died, leaving his daughter Matilda as his only heir. However, Henry’s more distant male relative, Stephen, contested the throne, leading to many years of destructive civil war as England descended into a feudal anarchy in which ‘‘the earth bare no corn, for the land was laid waste.’’1 An English villager living during that time probably did not care whether Stephen or Matilda assumed the throne, but what he almost certainly did care about was the laying waste to his fields, the killing of his livestock, and the raping of his wife and daughters by the rampaging followers of each of the aspirants to the throne. The ancient Athenians are generally given credit for developing the first principles of democracy as an alternative to monarchy as a means of selecting a ruler. Although a distinct advantage of such a democratic alternative was the ascension to power of fewer unqualified rulers, the process depended on widespread acceptance of the result, which in turn depended on absolute confidence in the integrity of the process. When confidence in that integrity was undermined in any way, the result was often as devastating as the results under a monarchial system in which the king died without a male heir. To choose modern examples, in 2006 a disputed presidential election in Mexico resulted in massive street protests amidst threats of civil war by the losing party.2 In early 2007 a disputed presidential election in Kenya incited massive demonstrations and threats of bloodshed. The unrest included gangs blocking roads and mobs looting tea plantations, virtually shutting off commerce. In 2000 the disputed U.S. presidential election brought the country to the brink of political and social chaos. Applying the lessons of disputed elections to current trends in electoral reform in the United States reveals a disturbing direction toward placing considerations of voting convenience and cheapness over election integrity. For example, since 2000 Oregon has adopted mandatory absentee (mail) voting,3 apparently on the theory that it might be ‘‘inconvenient’’ for voters to actually go to the polls, especially if the weather is rainy—despite the fact that there is no way under such procedures to ensure that the person who sends in the absentee ballot is the person to whom the ballot was sent, or even to ensure that the voter is free from intimidation or coercion—or bribery—when casting his or her ballot. Many of the eastern states have recently adopted electronic voting machines that leave no verifiable paper trail, apparently on grounds that electronic voting is relatively cheap and makes fewer mistakes. In the pages that follow, the case is made that voting systems that place convenience, cheapness, and even absolute accuracy above the integrity of the

INTRODUCTION

voting process are misguided and are an invitation to the most severe kind of election crisis. In short, there are no elections on record in which the social fabric was torn asunder because of evidence of a good-faith typographical or counting error, but there are many elections in which a crisis ensued because of a lack of confidence in the integrity of the voting process. The elections analyzed in this book reveal that election crises are not the result of voters being inconvenienced by having to visit the polls in the rain or obtain a free identification card, nor are they the result of paying a few pennies more for a verifiable voting system, nor even from a showing that good-faith errors were made in the counting process; rather, election crises result from a lack of faith in the integrity of the voting process and from suspicion that one party, usually the party in power, has used its power to manipulate the result. It is the theme of this book that the integrity of the voting process must be the fundamental element of any democratic system and that such other considerations as convenience and cheapness must be considered only as secondary elements and goals. It is submitted that the various electoral crises suffered in recent years around the world can be directly attributed to ignoring the fundamental element of integrity in favor of other considerations that are much less critical to the success of the political process, such as ‘‘convenience’’ or ‘‘cheapness.’’ Indeed, if cheapness is to be considered a primary factor in the electoral process, the costs of societal disruption, chaos, and anarchy must certainly be taken into final account. Although the primary scope of this book must necessarily be limited to U.S. presidential elections, reference is made not only to U.S. elections but also to recent elections held in foreign countries to highlight and illustrate the consequences of failing to place electoral integrity above all other considerations. Seven issues relevant to integrity of the electoral process are examined in this book: (1) absentee ballots, (2) provisional ballots, (3) voter identification requirements, (4) voter registration laws, (5) computerized and Internet voting, (6) the primary system, and (7) the electoral college. The issue of redistricting is also briefly examined, although its relevance to presidential elections is limited to those few states that allocate electoral votes by district. ABSENTEE BALLOTS The 2004 presidential election in Ukraine is examined in chapter 2. Because the drafters of the Ukrainian election laws considered voter ‘‘convenience’’ to be of utmost importance, the election laws of that country permitted the liberal use of absentee ballots. On election day, poll watchers meticulously observed voting at the officially designated polling stations to ensure that there were no irregularities. However, at a critical moment during the election, one of the candidates produced barrels of ‘‘absentee ballots’’ that seemingly came from nowhere, could not be verified by the poll watchers, and would have changed the results of the

xv

INTRODUCTION

xvi

election if counted. Massive demonstrations and social upheaval followed, bringing the country to its knees before order could finally be restored. During its early history, the United States strictly controlled absentee ballots, often limiting them to railroad workers,4 military personnel stationed abroad,5 or to those with medical disabilities who obtained a doctor’s notarized statement that confirmed the voter’s physical inability to travel to a polling station.6 Most states also implemented strict measures to ensure the integrity of the absentee ballot, such as one that included an ‘‘affidavit blank, usually on the envelope in which the ballot is sealed, which must be filled out and attested before a notary or other official authorized to administer oaths (and the) voter shall make his ballot in the presence of an attesting official.’’7 In those early years, there were rarely any cases of absentee voter fraud, and few elections were ever challenged on the basis of fraudulent absentee ballots. In recent years, however, considerations of ‘‘convenience’’ have led legislators to greatly liberalize absentee voting laws, to the point that no reason at all needs to be given by a voter to obtain an absentee ballot. In Colorado, a measure is now pending to actually require voters to vote by absentee ballot.8 As a result of such ill-conceived legislative measures, incidents of absentee voting fraud have skyrocketed in recent years. In 1998 a Pennsylvania congressman was convicted of ‘‘absentee ballot racketeering’’ in a nursing home, which involved the forging of absentee ballots in the names of nursing home residents.9 In the 1997 Miami mayoral race, it was revealed that hundreds of absentee ballots were forged, prompting a Pulitzer Prize–winning series in the Miami Herald asserting that the Florida absentee voting law had led to massive voter fraud.10 John Fund’s 2004 work Stealing Elections: How Voter Fraud Threatens Our Democracy, has documented numerous instances of voter fraud emanating from absentee ballot laws. Absentee voter fraud is outlined in chapter 8.11 Chapter 1 reviews the 2000 U.S. presidential election, in which the winner was determined by as few as 500 votes in Florida. In light of such close elections, it is submitted that any considerations of voter ‘‘convenience’’ pale, compared with the risks of fraud that can undermine the integrity of a presidential election. PROVISIONAL BALLOTS A second major threat to the integrity of the voting process is the recent trend toward ‘‘provisional’’ voting outlined in chapter 7. Described as ‘‘the new hanging chads’’ by the New York Times,12 provisional voting laws permit an unregistered voter who appears at a polling booth without identification, or whose registration contains inaccurate information, to vote ‘‘provisionally.’’ Although intended to ensure that voters not be denied the vote due to ‘‘problems with the registration process,’’ the pernicious and surely unintended consequence of such laws has been the creation of one of the greatest threats to the orderly electoral process, namely, a scenario in which the legitimacy of critical votes is determined after the

INTRODUCTION

fact by adversarial representatives of each political party represented in the election. Such a scenario inevitably leads to interminable lawsuits and litigation, with the result that election results are called into question in virtually every election in which the provisional votes could make a difference in the outcome. The result has been that elections are determined not by the voters but by lawyers and judges, many of whom are themselves members of an interested political party. Candidates who dare to concede an election before the interminable process of vetting provisional votes is completed, as Senator John Kerry did in 2004, are lambasted for ‘‘displaying a disregard for provisional votes’’ and thus consigning such votes to the dustbin of ‘‘second-class votes.’’ Inexplicably, recent federal legislation in this area has been directed not toward addressing the purported ‘‘problems in the registration process,’’ but rather toward enshrining and even mandating that states establish procedures for provisional voting. The ill-fated, so-called Help America Vote Act of 2002 (HAVA) actually requires states to implement provisional voting procedures, including a panoply of complex postelection, litigation-inciting procedures for ascertaining whether a nonregistered voter’s vote is to be counted.13 VOTER IDENTIFICATION REQUIREMENTS A third major threat to the integrity of the electoral process, outlined in chapter 6, is the relaxation of requirements for proof of a voter’s identity. In 2004 Arizona voters approved Proposition 200, which required voters to present proof of citizenship at registration and to show identification when they vote. The initiative was challenged in court on grounds that it discriminated against persons who found it inconvenient to obtain identification documents. Despite the passage of the federal Real ID Act in 2005,14 which set forth minimum federal standards for identification documents, courts, such as the Missouri Supreme Court (in Weinschenk v. State),15 struck down voter identification requirements as ‘‘discriminatory’’ toward those who found it inconvenient to obtain identification documents. While many conflicting holdings have been resolved by the Supreme Court case of Indiana Democratic Party v. Rokita, the door remains open to future challenges.16 VOTER REGISTRATION LAWS Another threat to the democratic process has been the relaxation of registration requirements. On the apparent premise that convenience factors are more important than the integrity of the election process, legislation, such as the National Voter Registration Act (NVRA),17 has focused on making it as ‘‘convenient’’ as possible to register to vote, regardless of the opportunities for fraud. NVRA actually mandates that states allow persons to register to vote at the same time as they conduct business in other government departments, such as applying for a motor

xvii

xviii

INTRODUCTION

vehicle license or welfare, despite the fact that a number of states do not even require proof of citizenship or even legal residence as a prerequisite to obtain a driver’s license. In addition, NVRA requires that registration by mail be made available to everyone so that any person seeking to register might avoid the inconvenience of having to find a parking space at a registration office. It is not surprising that such laws have opened the door to massive registration fraud. In 2007 King County, Missouri, prosecutors filed felony charges against several nonprofit organizations supposedly established to assist voters in the registration process.18 In fact, the defendants were charged with submitting over 1,700 fraudulent registration applications. The tip of this iceberg was perhaps best reflected in the case of People v. Rodriguez, in which the defendant was convicted for violation of a statute prohibiting foreign nationals and illegal aliens from registering to vote.19 The defendant’s sole defense was that a statute prohibiting illegal aliens from registering to vote was ‘‘discriminatory.’’ This case and a litany of other voter registration fraud cases, emanating from legislation premised on the notion that convenience is more important than the integrity of the process, are outlined in chapter 5. COMPUTERIZED AND INTERNET VOTING Perhaps the greatest threat to the integrity of the election process has been the advent of ‘‘computerized’’ voting. Unlike the lever voting systems, mark sense ballots (paper ballots with ovals or circles printed on them, which voters fill in with pencil for scanning), and punch card voting systems, computerized voting systems rely on both computer software and hardware to accurately reflect a voter’s selection, registered by pushing an electronic button or touch-sensored computer screen. Most typical of computer-based voting systems are the direct recording electronic machines (DREs), which have the capacity to display graphics and even photographs. Reliance on such computers must rest not just on faith that the computers actually work properly and are not subject to hacking, crashes, and breakdowns, but faith in the integrity of the programmers of both the software and the hardware. As David Dill, professor of computer science at Stanford University, has noted, ‘‘If I was a programmer at one of these (election software) companies, and I wanted to steal an election, it would be very easy. I could put something in the software that would be impossible for people to detect, and it would change the votes from one party to another.’’20 Yet again, the primary factor considered in pushing for the adoption of direct recording electronic machines has been convenience, closely followed by considerations of cheapness. It is not surprising that the results of computerized voting have proved alarming. In the 2004 election, a precinct in Cartaret County in North Carolina discovered that its voting machine failed to record over 4,000 votes.21 As Professor Dill

INTRODUCTION

has explained, ‘‘The inherent complexity of software code makes it nearly impossible to ensure that computerized elections are fair.’’22 Representative Rush Holt of New Jersey has introduced legislation in Congress to require that computerized voting systems produce a voter-verified paper ballot.23 To a New York Times reporter, Holt remarked, ‘‘Someone said to me the other day, ‘We’ve had these electronic voting machines for several years now and we’ve never had a problem.’ And I said, ‘How do you know?’ And he couldn’t answer that.’’24 In these remarks, Holt highlighted the essential feature of any voting system’s basic integrity, namely, widespread acceptance. Even if a voting system were somehow rendered inherently secure from hackers and voting saboteurs, the very complexity of the software imbedded in the system makes the results inherently unverifiable. Without means of verification, the system becomes vulnerable to conspiratorial assaults on its integrity. Witness the claims of the Common Dreams News Center, suggesting that the 2000 election was the product of computerized voting fraud using software provided by Diebold, whose executives had links to the Republican Party.25 Without widespread acceptance and confidence in the system, any election result is vulnerable to attack and constitutional crisis. Internet voting has proved even more problematic, given that no Internet voting procedure can guarantee that a voter is free from intimidation or trickery, that the person who casts his vote is free to cast a secret ballot, or even that an authorized person is casting the vote. Despite the expenditure of $903 million pursuant to the recently passed Cyber Security Research and Development Act, allocated through a competitive grant process administered by the National Science Foundation to pursue research in the areas of cryptography and network reliability,26 it is known that Internet banking accounts continue to be compromised by hackers. To date, there has been no showing that Internet voting can be made any more secure than current banking accounts. It is submitted in the chapters that follow that the case for electoral reform rests primarily on the premise that the integrity of the voting process should be given greater priority than convenience and cheapness and that the areas covered provide fertile ground on which to base those electoral reforms. Two additional areas, which in recent years have become the focus of media and popular calls for reform, remain to be considered: the primary process and the electoral college. It is here submitted that the electoral college has served the Republic well and should not be substantially changed. Likewise, the present primary system, in which a handful of small states hold early primaries, is offered as preferable to many of the alternative systems that have been proposed. THE PRIMARY SYSTEM Although the target of criticism, it is the proposed ‘‘reform’’ of the current primary system for nominating presidential candidates that would cause the

xix

xx

INTRODUCTION

greatest harm. Consequently, it bears some discussion, though not in-depth exposition. The primary system has been criticized as giving states with the earliest primaries, such as Iowa and New Hampshire, a disproportionate voice in the nomination process. Even though those states holding the earliest primaries provide relatively few delegates to the party conventions, those states have traditionally been perceived as providing to the winners of their primaries that indispensable early visibility, media attention, and ‘‘momentum’’ needed to carry them to victory at the convention. Unfortunately, the trend of electoral reform in this area has been in the wrong direction. The perceived solution on the part of many states has been to move up the primaries of their own states, setting off a mad scramble for which state can hold the earliest primary. Alarmed by this trend, officials of both parties have tried to persuade states not to move up their primary dates, and failing that, have imposed punishments in various forms on those states that insist on moving up the dates of their primaries, including depriving the recalcitrant state of some or all of its delegates to the party’s national convention. Despite these measures, however, the direction has been toward holding earlier primaries, with as many as twenty states now holding primaries on the same day in early February of an election year—the so-called ‘‘Super Tuesday.’’ The premise of holding so many primaries on the same day early in the election cycle appears to be that it is the fairest way of selecting a party nominee, because it ensures that voters of many states will be able to participate in the crucial early decisions that can make or break a candidate. Largely unrecognized, however, are the inevitable unintended consequences of holding such early mass primaries. In elections in which a party candidate is a clear front-runner even before the primary season, such as when an incumbent president is seeking renomination, the holding of early mass primaries will make little difference in choosing the ultimate nominee. Conversely, in elections in which no incumbent is seeking renomination and where the field is wide open, as many as ten or fifteen candidates may be in the starting gate at the beginning of the nomination process. In such elections, preprimary polls will inevitably show that support for each of the candidates is splintered, often with the front-runner in the polls enjoying a plurality as low as 20 to 25 percent. Were a national primary to be held in all states on the same day, the votes would tend to be splintered in much the same way, meaning that no one candidate would receive a majority of delegate votes going into the convention. This in turn would mean that after the first ballots cast at the convention failed to elect a nominee, the delegates would be released from their obligation to vote for the primary winners and would be free to vote for their individual preferences. The inevitable result would be a return to the system of selecting a nominee in the ‘‘smoke-filled’’ rooms, much in the same way as party nominees were selected prior to the time when most states began holding primaries. Students of history may recall that the Democratic Convention of 1924 took over 103 ballots before nominating John Davis of West Virginia.

INTRODUCTION

Since 1960, the last time a candidate was not ensured of nomination prior to the convention, Americans have become accustomed to watching conventions, which are essentially coronations of a candidate already chosen in the primaries; few have any memory of the smoke-filled rooms in which candidates were traditionally chosen. All this would change if ‘‘electoral reform’’ took the form of implementing a national primary—the logical end result of each state competing to have the earliest primary. Indeed, we are almost halfway there, with as many as twenty states holding primaries on ‘‘Super Tuesday’’ in early February. The great advantage of the primary system, which evolved between 1960 and 2008, is that the early primaries held in states such as Iowa and New Hampshire provided a proving ground for presidential candidates. The early primaries are a national stage on which the entire nation can, over a period of several or more weeks, watch the candidates be tested under pressure. Furthermore, the candidates have the opportunity to campaign—‘‘press the flesh’’—in intimate venues in small towns and hamlets. If a national primary were to take place instead, campaigns would necessarily be directed to the largest cities and states, and massive television advertising rather than grassroots campaigning would be the preferred method of winning votes. The irony of such a ‘‘reform’’ is that it would not result in the voters of every state having a proportionate impact on the nominating process; rather, the result would be the selection of a nominee taking place in smoke-filled rooms by party apparatchiks and influential individual kingmakers, since an early national primary would almost certainly result in votes being split among a large number of candidates, none of whom would command a majority of delegates during the first ballot at the nominating convention. THE ELECTORAL COLLEGE AND THE GRAND COMPROMISE Since the creation of the Electoral College by the U.S. Constitution, there have been over 700 attempts in Congress to abolish it by constitutional amendment. Because most of these attempts to undermine federalism were based on a fundamental misunderstanding of both the history and the purpose of the electoral college, all of these attempts have ultimately failed. Nevertheless, populist and demagogic attempts to abolish it continue to this day. The establishment of the Electoral College was the result of the so-called Grand Compromise entered into by the small and large states at the Constitutional Convention in Philadelphia in 1787. Because every state had been guaranteed an equal vote in the congress under the Articles of Confederation, delegates from the small states to the Constitutional Convention, fearful of being overwhelmed by representatives from the large states in any future congress, were instructed, above all, to insist on retention of the ‘‘One State, One Vote’’ they had enjoyed under the Articles of Confederation. Delegates from the large states were equally adamant that their representation in any future representative body

xxi

xxii

INTRODUCTION

reflect their larger populations. When this conflict appeared irreconcilable, only a last-minute compromise prevented the convention from dissolving without achieving its goal of creating a federalist state: it was decided to create two separate legislative houses in the Congress—one in which states retained their right to equal representation, and another house in which representation was based on population. So important was this compromise in inducing the small states to join the union that they insisted that the Constitution also provide for its amendment only by unanimous agreement of all the states. We now know these two houses as the Senate and the House of Representatives. However, this compromise represented only one prong of a broader compromise that included the process for electing a president. Again, the small states insisted that they have an equal voice with the large states in electing the president. Thus, the second prong of the Grand Compromise was the provision for electors based on a state’s total number of representatives in the Congress, including the Senate, in which each state had equal representation. As a young senator, John. F. Kennedy noted in 1956 in defense of the electoral college against yet another attack, ‘‘It’s not only the unit vote of the presidency we are talking about, but a whole system of government power. If it is proposed to change the balance of power of one of those elements of the solar system, it is necessary to consider the others.’’27 In other words, one cannot alter one prong of the Grand Compromise without calling for a new constitutional convention to rewrite the entire Constitution from scratch. It is puzzling to note that while there have been hundreds of attempts to abolish the electoral college, there have been very few attempts to abolish the U.S. Senate, despite the fact that small states have a significantly disproportionate representation in the Senate. In fact, when Ralph Nader called for the abolition of the Senate in his 2000 presidential campaign in the name of ‘‘one man, one vote,’’ few took his proposal seriously. Before the adoption of the Grand Compromise at the Constitutional Convention, serious proposals were made to adopt the parliamentary system of Great Britain, in which representatives in the legislature chose the prime minister. Because of the importance the Founding Fathers placed on the separation of powers among the three branches of government, however, these proposals were ultimately rejected on the grounds that a president elected by the Congress would be too beholden to the legislature and thus unable to exercise independent judgment. As James Madison noted at the Constitutional Convention, ‘‘An election by the legislature is liable to insuperable objections. It not only tends to faction, intrigue, and corruption, but leaves the executive under the influence of an improper obligation to that department.’’28 A secondary compromise was therefore proposed to resolve this concern: establish an entirely separate congress that would meet only once every four years and that would have only one item on its agenda, namely, the election of

INTRODUCTION

the president. Because such a separate congress would not meet again during the president’s term of office, there would be no danger of the president being subordinate to the legislative branch. Of course, we now know the name of that separate congress by the name given to it by the Founding Fathers; the separate congress is the Electoral College. In every other way, however, the electoral college acts in the same way that parliaments act in all the parliamentary democracies of the world, by choosing the nation’s leader. One of the most puzzling criticisms of the Electoral College is that very occasionally, about once every 100 years, it elects a president who did not receive a ‘‘majority’’ of the ‘‘popular vote.’’ (One critic of the Electoral College once asserted that if that ever happened today, there would be universal outrage and ‘‘appeals to the United Nations.’’) Aside from the fact that such criticism reflects a fundamental misunderstanding of the electoral process established by the Founding Fathers, it is interesting to note that the occasional election of a leader who does not receive the most popular votes can occur, and indeed does occur, in all the parliamentary democracies in the world. In 1974, for example, the Labour party in Great Britain lost the national popular vote by a healthy margin; nevertheless, the party won three more seats in parliament than its opposition, thus enabling it to choose the prime minister and form a government. As far as can be determined, there was no rioting in the streets or any ‘‘appeals to the United Nations.’’ One of the most unenlightened claims is that a popular vote election would be more likely to produce a winner favored by a ‘‘majority’’ of the people. In fact, both history and political theory refutes such an extraordinary claim. In countries without an electoral college, or its equivalent in the form of an elected parliament, political parties proliferate. The electoral college system discourages multiple parties, because electoral votes are awarded only to parties that win a plurality of the votes in any given state. As a member of the Socialist Party stated in 1977, referring to the 1936 presidential election, during Senate hearings on the electoral college: One thing we all had in common was an absolute detestation of the Electoral College. It was one of the chief barriers to the success of minor parties … We knew that we didn’t have a snowball’s chance in the nether regions to win any states. Whereas under the system you propose (direct popular election) we would have made hay while the sun shined during the late autumn. We always started with 5 or 6 or 7 percent who said they were for Norman Thomas. … About the third week in October in would be down to 2 per cent; on the first day in November it would be down to 1 per cent … (On Election Day) it would be down to 150,000 votes (nationwide).29

The discipline imposed on warring political factions by the Electoral College has thus been clear: accommodate, merge, persuade, build, and achieve a consensus. In the case of the Socialist Party, many of those who originally intended to

xxiii

xxiv

INTRODUCTION

vote for Norman Thomas almost certainly voted instead for the Democratic candidate, perhaps extracting some concessions from that party in lending that support. That the Electoral College has been the foundation of our two-party system is now clear to political scientists. Voters in countries without such a system are inevitably faced with choosing among multiple parties, with the result that a minority party is often elected to power over the will of the vast majority of voters. Consider, for example, the case of the Russian presidential election of 1993. Without the discipline of an electoral college, voters were faced with a ballot listing literally dozens of parties, and no fewer than thirteen parties received a significant number of votes. The party with the highest percentage of votes was the so-called Liberal Democratic Party of Russia, led by Vladimir Zhirinovsky, whose party platform, Fascist in nature, included blaming Jews for starting past wars and advocating the military takeover of Finland, Poland, and even Alaska. The Reformists’ People Party received 13 percent and the Communists 11 percent. A swing of only but 2 percent in favor of the Communists would have meant that in a runoff election the voters would have been faced with a choice between hard-core Fascists and the Communists, even though an overwhelming 65 percent of the electorate strongly opposed both of these parties. Fortunately, the moderate People’s Party squeaked by with just enough votes to qualify for the runoff and, of course, won handily against the Fascists in the runoff. Thus, Russia fortuitously avoided election of the Fascist Party. Critics of the Electoral College would apparently favor a ‘‘popular vote’’ system based on the Russian model, in which a minority party, opposed by an overwhelming majority of the electorate, can be voted into power. These critics simply assume that if the Electoral College were abolished, a two-party system would continue to prevail in its absence and would continue to offer the electorate a choice between two mainstream candidates, one of whom would receive a majority or close to a majority of votes—an assumption based more on wishful thinking than a careful analysis of history and principles of political science. In fact, a look at comparative systems, such as the popular vote system in Russia, reveals a popular vote system is much more likely to produce a winner opposed by a vast majority of the electorate. Without an Electoral College, or its parliamentary equivalent, there would be no two-party system and no majority winner. In short, such a ‘‘popular vote’’ system would be far less ‘‘democratic’’ than the system envisioned by the Founding Fathers, which has served us so well. While it is tempting to attribute to the Founding Fathers a perspicacity that allowed them to envision the many practical electoral problems avoided by the establishment of an Electoral College, it is more probable that instinct and judgment played a more important role in creating the electoral college. Consider the case of presidential elections in which the popular vote was very close. In 1960, for example, John Kennedy was elected by an overwhelming vote of 303–216 in the Electoral College. However, the popular vote was so close that

INTRODUCTION

to this day there is debate about who gained the most popular votes. (Contrary to popular media reports, the Congressional Quarterly asserts that Nixon won the popular vote by somewhat less than two-hundredths of a percentage point.)30 In that election, the Electoral College served to avoid a constitutional crisis by giving Kennedy an overwhelming majority in the Electoral College. Nixon even declined to demand a recount in Illinois, where there was evidence of rampant voting fraud in Chicago, because winning a reversal of the electoral count in that state would not have affected the result in the Electoral College. If a popular or direct election had been in place, however, the vote margin of two-hundredths of a percentage point would surely have resulted in a recount in every one of the 62,000 voting precincts and hamlets in the entire nation. It has been estimated that such a recount could have taken weeks and perhaps as long as six months to accomplish while the presidency hung in the balance during the height of the Cold War. Ensuing court battles might have prevented the determination of a winner until well after inauguration day, if not years thereafter. The Mexican election crisis of 2006, which brought that country to the brink of violence and chaos, is an example of the kind of crisis to which a close popular vote result can lead. The fact is that Americans have been spoiled for the past 200 years with clear-cut winners in virtually every election, with the exceptions of the 1876 and 2000 elections. Even the crises in those two elections would have been far greater if there had been no Electoral College system in place. In 2000, for example, the election hinged on the outcome of the winner of Florida’s electoral votes. Recounts and ensuing court battles were therefore isolated to Florida. Imagine the crisis if a popular system had been in place and the popular vote had been close. Recounts would not have been limited to Florida but would have been carried out in all of the voting districts in the entire nation. In other words, the magnitude of the crisis would have been at least 50 times greater than it was. Although the Founding Fathers may not have realized the spectacular benefits the Electoral College would provide in terms of providing a clear-cut winner in virtually every election, they surely did consider what is perhaps the most important reason for establishing an independent Electoral College, for that reason is closely tied to the considerations involved in the Grand Compromise, namely, that the election of a president of the United States should reflect popular support that is broad as well as deep. A simple hypothetical situation illustrates this point. Consider a presidential election that might have been held in the 1950s with a direct election system in place. A third-party segregationist candidate, who enjoyed overwhelming popular support in the South, might have had an excellent chance of winning a presidential election. Under the Electoral College system, such a third-party segregationist would have little chance of winning a national election, because the southern states alone could not provide sufficient electoral votes to win a national election. However, if a popular vote system had been in place, such a third-party candidate

xxv

xxvi

INTRODUCTION

would only have had to win a plurality and have been able to win with as little as 35 percent of the vote if the Democrats and Republicans split the remaining popular votes. With overwhelming popular vote support in the South, such a result would not have been unlikely. Even if there were a runoff under such a direct vote system, it would not have been inconceivable for an overwhelming block of popular votes from the South to give the segregationist candidate a ‘‘majority’’ of the total popular votes nationwide, despite the fact that this candidate was opposed by a majority of voters in every other region of the country. The Electoral College system prevents this kind of result based purely on popular votes nationwide. Rather, it requires that a candidate have broad support across the entire nation to have a realistic chance of gaining a majority of electoral votes and not just overwhelming popular support in one region of the country. It remains to be seen whether electoral ‘‘reformers’’ will now concentrate their energies on undermining federalism and the electoral college by claiming wisdom and perspicacity above that of the Founding Fathers, despite the fact that presidential elections not only in this country but in other democracies around the world confirm the wisdom of our own Constitutional framers. Equally disturbing would be the persistence of such self-proclaimed reformers in undermining the integrity of the nation’s entire voting system by adopting corruption-prone absentee ballots and unverifiable electronic voting systems and by eliminating all procedures for ensuring that voters are qualified to vote. The case is made herein for electoral reform that ensures the integrity of the voting process while still maintaining the fundamental principles of federalism that have served the Republic for so many years and made our system the envy of the world.

Chapter 1 THE 2000 PRESIDENTIAL ELECTION CRISIS

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.1 Justice Hugo LaFayette Black, U.S. Supreme Court, 1937–1971

Public faith in governmental leadership is strongly tied to the integrity of the electoral process. Voter fraud threatens the foundational elements of truth that sustain a free society and underpin public trust in the electoral system. The events of the 2000 presidential election illustrated the need for dependable voting processes that withstand the test of integrity. Although the election created a whirl of public disgruntlement, it also brought the election process to the forefront of debate and political commentary. Through this kind of deliberative process, flaws in the election process are exposed and appear as opportunities for voter fraud. Thus, election integrity is compromised. ELECTION DAY 2000 As ordered by Congress, the polls opened on November 7, 2000, for one of the most memorable election days in the history of the United States.2 As Republican Party candidate George W. Bush (Bush) and Democratic Party candidate Vice President Albert Gore Jr. (Gore) contended for the presidential office, no one could have predicted that the entire race would turn on Florida’s twenty-five electoral votes. At approximately 8:00 P.M. on election day, five major television networks announced that Gore was the winner of Florida’s popular vote, even though the polls were still open in Florida’s panhandle region. Less than two hours later, the networks retracted their projection of a win for Gore, labeling the race ‘‘too close to call.’’ At 2:20 A.M. EST, the networks announced that Bush had won

2

CRISIS

AT THE

POLLS

Florida’s popular and electoral votes, bringing Bush to a presidential victory with 271 electoral votes. About 3:05 A.M. EST on November 8, Gore telephoned Bush to concede. Shortly thereafter, Gore withdrew his concession after the polls reported that the margin of victory for Bush in Florida was sufficiently narrow to prompt an automatic recount under the Florida Election Code.3 According to the Florida Division of Elections report, Bush received 2,909,135 votes (48.84 percent), Gore received 2,907,351 votes (48.81 percent), and the other presidential candidates received a total of 139,616 votes. Less than an hour after Gore withdrew his concession, the networks also retracted their projection of Bush’s win of Florida and, for the second time that evening, labeled the vote too close to call. The litigation that resulted was complex and unprecedented.4 The Florida Supreme Court and Florida Court of Appeals decided five major relevant cases, three on remand from the Supreme Court of the United States.5 With no authority to change existing statutory law regarding the election process, the Florida Supreme Court was forced to find a fast, efficient, and fair remedy for both presidential candidates despite the fact that none were set forth in Florida law.6 The court was in a precarious position of balancing its desire to find a conclusion that would accurately reflect the will of the populace with its commitment to protect the interests of the aggrieved parties.7 As the Florida courts struggled with ambiguous and often vague statutory language, Constitutional claims also played a role in the litigation frenzy.8 The President of the National Association for the Advancement of Colored People (NAACP), Kweisi Mfume, requested an investigation by U.S. Attorney General Janet Reno of the reported abnormalities and intimidation that African American voters in Florida may have encountered on election day.9 Subsequently, the NAACP brought a class action lawsuit, alleging that election officials systematically prevented African Americans from voting.10 Ending in settlement, the case paved the way for election reform measures, such as registration list maintenance, poll worker training, and a central voter database. Voters in Texas brought a suit, claiming that Republican vice presidential candidate Dick Cheney (Cheney) was a resident of Texas because he had owned a house in Dallas until right before the November election.11 Because the Twelfth Amendment to the U.S. Constitution bars electors from voting for two inhabitants of their state, the plaintiffs claimed that Cheney was ineligible to receive the Texas electoral votes. The court rejected the suit because the plaintiffs lacked standing, and facts proved that Cheney was a resident of Wyoming, not Texas.12 The decision was upheld on appeal and denied certiorari.13 However, the majority of legal proceedings were not so swiftly settled or so easily resolved. The Florida Supreme Court ultimately turned to the Constitution and the United States Code of Service for authority in each of the cases it heard. In the end, the court had a responsibility to the citizens of Florida to abide by the electoral deadline set forth in the Code of Service. Noncompliance with that

THE 2000 PRESIDENTIAL ELECTION CRISIS

deadline would result in Florida’s populace not participating in this crucial election, and the court understood that its duty was to preserve this fundamental right vested in its citizens. On December 13, 2000, thirty-six days after election day, Gore conceded the presidential race. At 10:03 P.M. that evening, the Democratic Speaker of the Texas House of Representatives introduced President-Elect George W. Bush. THE FLORIDA LEGAL PROCEEDINGS In perhaps the most complicated and technical of the cases contesting the Florida vote, Palm Beach County Canvassing Board v. Harris exposed the difficulty confronting the courts in interpreting ambiguous statutory language.14 Palm Beach County Canvassing Board v. Harris: Manual Recounts On November 9, 2000, the Florida Democratic Executive Committee requested manual recounts in Broward, Miami-Dade, Palm Beach, and Volusia Counties.15 After the canvassing board conducted a sample recount of one percent of the ballots cast, it detected an error in vote tabulation that possibly could have affected the outcome of the election. The canvassing board subsequently voted to conduct a countywide recount, despite the concern that the manual ballot recount might not be completed by the seven-day deadline set forth in Florida statute. The Palm Beach Canvassing Board sought an advisory opinion from the Florida Division of Elections.16 The advisory committee stated that ‘‘absent unforeseen circumstances,’’ the county’s returns had to be completed by 5:00 P.M. of the seventh day in order to be certified.17 Katherine Harris (Harris), Florida’s secretary of state and cochair of Bush’s presidential campaign in Florida, issued a statewide announcement that manual recounts received after the deadline would not be certified.18 In response, Volusia County filed a suit in circuit court seeking declaratory and injunctive relief.19 The trial court ruled that the deadline was mandatory but that Volusia could amend its returns at a later date.20 Upon receipt of the amended returns, the secretary of state could use her discretion as to whether to accept or ignore the amended votes.21 In response to this ruling, Volusia filed a notice of appeal, and Palm Beach filed a notice of joinder.22 Subsequent to the circuit court’s order, Harris issued a statement that she was in possession of the certified returns and that any county that desired to amend its vote tabulation would have to issue a written statement containing the facts and circumstances justifying the acceptance of such amended returns.23 Harris would then consider several circumstances in determining whether to accept the amended returns: (1) whether there was proof of voter fraud that might have affected the outcome of the election; (2) whether there had been substantial

3

4

CRISIS

AT THE

POLLS

noncompliance with statutory election procedures; and (3) whether a good faith effort by election officials has been disrupted by ‘‘an act of God,’’ or extenuating circumstances beyond their control, such as an electrical power outage, a malfunction in transmitting equipment, or a mechanical malfunction of the voting tabulation system.24 Harris indicated that she would not consider voter error, ballot confusion, or the mere possibility of an alternate outcome as factors affecting the decision to accept amended returns.25 The Florida Democratic Party and presidential candidate Gore filed suit to compel Harris to accept the amended returns.26 However, after a hearing, the court denied relief.27 In response, the Democratic Party and Gore appealed. The First Circuit Court of Appeals issued an opinion reversing the trial court’s order based on the fact that legislative intent dictated a remedy based on the facts of the case. Subsequently, Bush sought certiorari before the Supreme Court of the United States, which vacated the judgment and remanded the case to Florida Supreme Court, consistent with its opinion that there was considerable uncertainty as to the grounds for the decision.28 On remand, the Florida Supreme Court faced several issues. The court turned to the primary instrument governing election law, the United States Constitution, to determine under what circumstances a board may authorize a countywide manual recount.29 Article II confers on state legislatures the power to regulate the appointment of presidential electors.30 The court in McPherson v. Blacker (1892) held that electors should be chosen as the legislature directs and that the legislature may decide to vest its population with the power to choose electors.31 Since 1847 the right to elect Florida’s presidential electors has been vested in its citizens.32 After the citizens of Florida have had the opportunity to vote, returns from each county must be filed by 5:00 P.M. on the seventh day following the primary election or the general election.33 Under a Florida statute, a candidate who appears on the ballot, a political committee that supports or opposes an issue that appears on the ballot, or a political party whose candidate appears on the ballot may file a written request with the county board for a manual recount.34 The board is vested with the discretion of whether to conduct the recount.35 If it decides in favor of the recount, it must include at least three precincts and at least one percent of the total votes cast for each candidate or issue, with the person who requested the recount choosing the sampled precincts. If an error in voter tabulation is detected, the canvassing board may choose to correct the error and recount the remaining precincts, may request the Department of State to verify the tabulation software, or manually recount the ballots.36 After presenting the governing election law, the court concluded that a canvassing board may elect to conduct a manual recount when an error in vote tabulation has been detected. The board construed the language ‘‘error in vote tabulation’’ to exclude the situation where a discrepancy between the original machine and the recount is due to the manner in which the ballot is marked or

THE 2000 PRESIDENTIAL ELECTION CRISIS

punched.37 They interpreted an ‘‘error in vote tabulation’’ as a counting error resulting from incorrect election parameters or an error in vote tabulation software.38 The Florida Supreme Court found that the board’s interpretation was contrary to the law because it contravened the plain meaning of statutory law, which states, ‘‘a vote for a candidate or a ballot measure shall be counted if there is a clear indication on the ballot that the voter made a definite choice.’’39 In addition, the Florida Supreme Court stated that an ‘‘error in vote tabulation’’ encompassed more than a mere determination of whether the tabulation system was properly functioning. Under Florida election statute §101.5614(5), no vote shall be declared invalid if the intent of the voter has been clearly indicated. Section 101.5614(6), conversely, provides that any vote that the board cannot discern shall be discarded.40 The two sections together suggest that ‘‘an error in vote tabulation’’ includes a failure of the tabulation machinery and the failure of the machine to read the ballot.41 With this statutory interpretation, the Florida Supreme Court concluded that the manual recount was justified in this situation under Florida election law. The Florida Supreme Court then turned to the issue of whether the commission must accept amended returns that have been filed after the seven-day deadline set forth under Florida election statute and the circumstances presented.42 Florida statute sets forth no specific deadline by which a manual recount must be completed, but it does state that the time required to complete the recount must be reasonable. The reasonableness of the time is thus contingent upon whether the election is for a statewide office, federal office, or for presidential electors.43 If the election is for the president, as is the situation here, then the reasonableness of time is dictated by the provisions of the United States Code of Service, which set December 12 as the date by which all disputes regarding the presidential election must be resolved.44 The Florida Supreme Court concluded that its primary responsibility was to preserve the right of its citizens to select the presidential electors and that those electors are a reflection of the will of its populace.45 The amended returns must therefore be consistent with Florida election law and the United States Code of Service. The department may use its discretion to ignore amended returns if such returns will (1) preclude a candidate, elector, or taxpayer from contesting the certification of an election or (2) result in Florida voters not participating fully in the federal electoral process. Thus, the trial court was determined to be correct in its conclusion that county canvassing boards were required to submit their amended returns by 5:00 P.M. on the seventh day following the election and that the department was not required to ignore them but may count them.46 The court did find that it was not within Secretary Harris’s discretion to reject amended returns filed on or before the date the overseas ballots were due. Such a rejection would clearly be an abuse of her power in that the Elections Canvassing Commission could not certify the election prior to that date.47 The department’s ability to ignore amended returns is limited to those instances in which a

5

6

CRISIS

AT THE

POLLS

candidate may be precluded from contesting an election or would result in Florida’s citizens not participating fully in the federal electoral process. The deadline for receiving overseas ballots had not expired, and neither of the two circumstances had been considered.48 The Florida Supreme Court thus concluded that on the basis of legislative intent election returns must be accepted for filing unless it can be determined that late filing would prevent an election contest or Florida’s citizens’ participation in the federal electoral process.49 In response, the court reversed the orders of the trial court and allowed no motion for rehearing.50 In Miami-Dade County Democratic Party v. Miami-Dade County Canvassing Board, the Miami-Dade Democratic Party and the Florida Democratic Party sought an emergency writ of mandamus compelling the canvassing board to continue the manual recount of ballots for presidential electors in Miami-Dade County.51 Because of the holding of the Florida Supreme Court in Palm Beach Canvassing Board v. Harris, which stated that amended returns must be filed by 5:00 P.M. on the seventh day after the election and the secretary of state and Elections Canvassing Committee must accept such amended returns, the manual recount was suspended and election returns previously compiled were certified. The canvassing board concluded that a complete manual recount could not be finished within the period established by Harris, and a mandamus was denied.52 On remand from the Supreme Court, Gore v. Harris conceded power to the legislature to create such a standard, in effect rendering the Florida Supreme Court impotent.53 In the previous opinion, the Florida Supreme Court ordered the circuit court of Leon County to recount by hand 9,000 contested ballots.54 The court indicated that relief would require manual recounts in all Florida counties where undervotes existed, which had not been previously subjected to manual tabulation. The established standard was that a vote would be counted if there was ‘‘a clear indication of the intent of the voter.’’55 On appeal to the Supreme Court of the United States, the court held that the Florida statutory standard for the manual examination of ballots violated equal protection rights. The Supreme Court concluded that in order for the manual recount to continue, ‘‘it would require not only the adoption of adequate standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matter that might arise.’’56 In response to the orders of the United States Supreme Court, the Florida Supreme Court decided that adoption of a uniform standard of examination that would ensure the preservation of equal rights and the protection of Florida citizens’ fundamental right to vote could not possibly be implemented as a means of relief for the presidential candidates in the 2000 election.57 In addition, the court decided that any changes in the Florida election laws were best left to the legislature. The Florida Supreme Court then concluded that the appellants could be afforded no relief and denied a motion for rehearing.58

THE 2000 PRESIDENTIAL ELECTION CRISIS

Fladell v. Palm Beach Canvassing Board: The ‘‘Butterfly Ballot’’ In Fladell v. Palm Beach Canvassing Board, the legality of Palm Beach’s election ballot was questioned before the Florida Supreme Court. Appellant Andre Fladell filed several complaints in trial court containing claims for declaratory, injunctive, and other relief.59 The appellant brought forth the issue of whether the Palm Beach ballot was patently defective on its face. Fladell argued that the form and design of the ballot violated the statutory requirements of Florida election law and that as a result of the confusing ballot, the citizens of Palm Beach may have inadvertently voted for a candidate other than the one they intended.60 The Florida Supreme Court concluded that an election ballot should not be voided for form defects unless such defects caused the ballot ‘‘to be in substantial noncompliance with the statutory election requirements.’’61 The court determined that the Palm Beach election ballot did not constitute a substantial noncompliance, which would warrant the election void, and declared that the case should be dismissed for failure to state a cause of action. The court also denied any further motions for rehearing.62 A group of Palm Beach voters (Appellant Andre[e] Fladell and others) filed the first of many lawsuits that surrounded the 2000 presidential election. The group filed suit on November 27, 2000, in the Fifteenth Judicial Circuit of Palm Beach County seeking a revote, a new election, or a statistical reallocation of the county election totals. The voters in Fladell alleged two main election errors.63 First, the voters alleged that the ballot used in Palm Beach County for the presidential election was confusing, thereby disenfranchising voters when they voted for more than one candidate (overvote), failed to select a valid candidate (undervote), or voted for the wrong candidate. Second, the voters claimed that the ballot was illegal and in violation of a Florida statute that requires that the candidates’ names be listed on the right and punch holes be listed on the left. The named defendants in Fladell, which included Bush, Palm Beach County Canvassing Board (PBCCB), Gore, Cheney, and Democratic vice presidential candidate Joseph Lieberman, sought declaratory and injunctive relief. The court denied relief on constitutional grounds, noting that the U.S. Constitution explicitly gives Congress the authority to set the date on which electors in national presidential elections are to be chosen.64 Furthermore, in clear and unambiguous language, the Constitution stipulates that the electors must be chosen on the same day throughout the country.65 In response, Congress enacted a law providing for all electors in a national presidential election to be chosen on the first Tuesday after the first Monday of November every four years.66 Congress also gave state legislatures the authority to set forth a procedure for appointing presidential electors, should they not be chosen on the stated day.67 Subsequently, Congress also enacted a law that addresses any controversy in appointing electors and allows the state legislatures to set forth a procedure for

7

8

CRISIS

AT THE

POLLS

addressing such controversies should they arise.68 Although a great amount of flexibility is given to the states in fixing their own election laws, Congress has undeniably expressed its desire for electors in a national presidential election to be chosen on the same day nationwide. Under Judge Jorge LaBarga’s (Judge LaBarga) analysis, the Florida legislature only set forth the general procedures by which electors would be chosen in a national presidential election, but the legislature failed to address a situation in which electors are not chosen on federal election day (the first Tuesday of November every four years).69 Without language addressing the contrary circumstances, Judge LaBarga ruled the Florida legislature intended for all electors to be chosen on the first Tuesday. Fladell further contended that Florida law grants circuit court judges the authority to allow a revote or new election.70 After extensively examining the legislative history of the Florida legislature, Judge LaBarga found that it was not the intent of the legislature to allow a judge to order a revote in national presidential elections.71 Judge LaBarga held that if the Florida legislature intended to allow circuit court judges to order a revote, the legislature would have made a clear indication in the procedural electoral statute. In stating, ‘‘electors may be appointed,’’ Congress did not intend for a second election to occur. Interpreting federal and Florida state law, Judge LaBarga found that neither Congress nor the Florida legislature intended to sanction a second election.72 Judge LaBarga further noted that the intention of the framers of the Constitution was clear: a second national presidential election is not a legally sanctioned remedy when electors are not chosen on the first Tuesday of November. Citing the United States Supreme Court case Foster v. Love (1997), Judge LaBarga illustrated that all congressional and presidential candidates are to be elected on the same day.73 In Foster, the state of Louisiana attempted to hold a congressional primary in October, rather than November, which the U.S. Supreme Court found to be a violation of federal law. ‘‘By establishing a particular day as ‘the day’ on which these actions must take place, the statutes simply regulate the time of the election, a matter on which the Constitution explicitly gives Congress the final say.’’74 Fladell claimed that the U.S. Supreme Court noted circumstances under which an election after election day would be legally sanctioned.75 However, Judge LaBarga found this interpretation contrary to all legislative history, which signified the desire of the framers of the Constitution, as well as Congress, that national presidential elections be held on the same day nationwide to prevent an unfair advantage to states or candidates. In ruling that he did not have the authority to order a revote or award any of the remedies sought by Fladell, Judge LaBarga canceled the hearing to determine the factual issues of whether the butterfly ballot was illegal. Following Judge LaBarga’s denial of injunctive and declaratory relief, Fladell filed a motion to request certification to the Florida Supreme Court on the issue of whether a revote in the presidential election limited to Palm Beach County is

THE 2000 PRESIDENTIAL ELECTION CRISIS

available under Florida state law or federal law.76 The Fourth District Court of Appeals issued a per curiam opinion that granted the certification request and sent the case to the Florida Supreme Court. Its opinion stated, ‘‘We now … certify the order of the trial court as being one of great public importance requiring immediate resolution by the supreme court.’’77 On December 1 the Supreme Court of Florida issued a per curiam opinion that addressed the issue of whether the ‘‘butterfly’’ ballot used in Palm Beach County was illegal and in violation of a Florida statute. Because the circuit court had found that the remedies sought by Fladell were inadequate, a revote, a new election, or a statistical reallocation of the country election totals, it did not address the issue of the legality of the ballot used in Palm Beach County. Fladell, now consolidated with Katz v. Florida Elections Canvassing Comm’n, alleged that the ballot was inherently defective and the design of the ballot was in violation of Florida election law. Because of the alleged defects, voters in Palm Beach County claimed to have voted for a candidate other than who they intended.78 Citing Nelson v. Robinson (1974), the Florida Supreme Court found that an election can only be voided if the alleged defects cause the ballot to be in substantial noncompliance with the statutory election requirements.79 The court found that the ‘‘butterfly ballot’’ could not be classified as in substantial noncompliance of election provisions. ‘‘Courts have generally declined to void an election unless such defects clearly operate to prevent that free, fair, and open choice.’’80 The Florida Supreme Court affirmed the ruling of the Circuit Court, concluding that the remedies sought by Fladell were unsanctioned. Siegel v. LePore: Conducting Manual Recounts81 On November 10 several voters of Palm Beach County (Siegel, Douglas, Dorta, Butler, Bray, Higgins, and Coverly, hereinafter referred to as Siegel) filed a complaint in the United States District Court for the Southern District of Florida seeking to enjoin the Canvassing Boards in Palm Beach, Broward, Miami-Dade, and Volusia Counties from conducting manual recounts in those counties. Presidential and vice presidential candidates Bush and Cheney were co-parties to the suit. The plaintiffs in Siegel claimed that conducting a manual recount violated the Fourteenth Amendment’s due process and equal protection clauses,82 as well as the First Amendment’s free speech clause.83 The plaintiffs maintained that, although a manual recount was provided for under Florida election law, the Florida statutes lacked specifications as to the discretion in which the manual recount was to be conducted (that is, no provisions regarding the circumstances where such a recount was warranted; no mention of the time, manner, scope, or nature of a manual recount; no specifications about the number of precincts to be counted or how votes were to be tallied).84 The plaintiffs in Siegel requested that (1) the defendants be prohibited from

9

10

CRISIS

AT THE

POLLS

conducting a manual recount; (2) that 102.166(4) be declared unconstitutional; (3) that the defendant canvassing boards certify the previous vote totals as determined in the initial machine recount; (4) that the Palm Beach ‘‘butterfly ballot’’ be declared valid; (5) that the ballots not previously counted (as tallied in the machine counts) be declared not to count in the manual count; and (6) that all actions be consolidated. Siegel filed an emergency motion for a temporary restraining order and preliminary injunction, which was denied by District Court Judge Donald Middlebrooks. Judge Middlebrooks ruled that (1) conducting a manual recount was not a violation of the Free Speech, Equal Protection, or Due Process clauses; (2) manual recounts were not so unreliable as to cause constitutional injury; and (3) public interest did not weigh in favor of preliminary injunctive relief. The plaintiffs in Siegel appealed to the Eleventh Circuit Court of Appeals, and the court denied the request for emergency temporary restraining order and preliminary injunction. The court ruled that to grant such an ‘‘extraordinary remedy of an injunction pending appeal, the petitioners must show (1) a substantial likelihood that they will prevail on the merits of the appeal; (2) a substantial risk of irreparable injury to the interveners unless the injunction is granted; (3) no substantial harm to other interested persons; and (4) no harm to the public interest.’’85 Subsequently, the plaintiffs in Siegel filed a motion to expedite consideration and a motion to file certiorari petition with the United States Supreme Court. Siegel sought certiorari on the grounds that (1) the ballots has been physically manipulated and degraded; (2) there were irregularities in the counting method in a manual recount; and (3) political pressure was influencing members on the canvassing boards. Although requesting certiorari before judgment is an extraordinary remedy, it is provided for in the Federal Rules of Civil Procedure in a case of imperative public importance that justifies deviation from normal appellate practice and requires immediate determination.86 Siegel alleged that the matter was of such public importance because of the need for finality and legality of the election. Siegel claimed that the decisions of the lower courts, the U.S. District Court for the Southern District of Florida, and the Eleventh Circuit Court of Appeals conflicted with prior decisions regarding equal protection, due process, and free speech made by the U.S. Supreme Court. Even so, the U.S. Supreme Court denied the request for a writ of certiorari before judgment. The Eleventh Circuit Court of Appeals affirmed the U.S. District Court’s decision to deny injunctive relief to Siegel. The defendant in Siegel argued that the Eleventh Circuit did not have subject matter jurisdiction over the case under the Rocker-Feldman doctrine, which states that other than the U.S. Supreme Court, federal courts have no authority to review the final judgments of state courts. The defendant also claimed that the case was moot because the manual recounts had already been completed, that the Buford abstention doctrine applied,87 and that the Pullman abstention doctrine was applicable.88 However, the Eleventh

THE 2000 PRESIDENTIAL ELECTION CRISIS

Circuit found that abstention from the suit was inappropriate, given the claim of a constitutional violation of voting rights. Although the Eleventh Circuit decided not to abstain from hearing the claim, it did affirm the decision of the U.S. District Court to deny injunctive relief. Siegel argued (1) the Florida election code is in part unconstitutional because it sets forth no standards of when a ballot not tabulated by a machine voting device may be counted manually and (2) that counting ballots manually in some counties and not in others is a violation of due process and equal protection.89 Although the district court found that the plaintiffs in Siegel failed to meet their burden of proving substantial likelihood of winning on the merits, the Eleventh Circuit found that making that determination was not necessary because the plaintiffs had also failed to show that irreparable harm would result if no injunction was issued. The court found that neither Bush nor the voters had effectively shown irreparable harm. Bush, the court found, had already been certified as the winner of the electoral vote. Furthermore, it could not be found that Gore would overtake the vote if the manual recount continued. Bush also contended that continuing the manual recount and then not counting the votes in the county totals would diminish his victory; however, the court disagreed. As for the voters, the court found that they had not suffered from injury either. ‘‘No voter plaintiff claims that in this election he was prevented from registering to vote, prevented from voting, or prevented from voting for the candidate of his choice. Nor does any voter claim that his vote was rejected or not counted.’’90 The plaintiff’s final contention was that violating constitutional rights always equals irreparable harm. The court disagreed, finding, ‘‘Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction.’’91 Finally, the court found that it may reverse the decision of a lower court only when there is a clear abuse of discretion when denying a preliminary injunction. Here, the court found that in weighing the facts that the district court had at the time the injunction was denied, it had not abused its discretion. The district court’s finding that the plaintiffs did not meet the burden of showing irreparable harm was based on the facts that were available at the time. Thus, ‘‘we cannot say that the district court abused its broad discretion in finding that the Plaintiffs did not meet their burden of showing at least a substantial likelihood of irreparable injury. Because proof of irreparable injury is an indispensable prerequisite to a preliminary injunction, Plaintiffs are not entitled to a preliminary injunction at this time; and the district court’s order must be affirmed.’’92 Volusia: The Statutory Deadline93 After the completion of the automatic machine recount of the ballots in Florida,94 the Florida Democratic Executive Committee requested manual recounts of the ballots cast in Broward, Palm Beach, and Volusia Counties, as mandated

11

12

CRISIS

AT THE

POLLS

by the Florida Election Code.95 The counties voted to count one percent of the ballots, which resulted in a net gain of four (4) votes for Gore in Broward County and nineteen (19) votes for Gore in Palm Beach County. The Canvassing Boards in Palm Beach and Volusia Counties concluded that there was an ‘‘error in vote tabulation,’’96 and elected to conduct a full manual recount of the votes in each county.97 However, given the November 14 deadline for certification, the county canvassing boards sought an advisory opinion from the Division of Elections to interpret the statutory deadline provisions in 102.11198 and 102.112,99 coupled with the manual recount provisions in 102.166(4)-(10). Clay Roberts, director of the Division of Elections, issued Advisory Opinion DE 00-10 on November 13100 and explained that with the exception of unforeseen circumstances, all election returns must be submitted to the Department of State by 5 P.M. on the seventh day following the election (November 14) if the results were to be included in the state certification. Secretary of State Katherine Harris responded by stating that she would ignore the results of the manual recount if they were received after the November 14 deadline. In response, the Volusia County Canvassing Board filed suit in the Circuit Court of the Second Judicial Circuit in Leon County. Later, the Palm Beach County Canvassing Board, Vice President Gore, and the Florida Democratic Party joined in the suit. (Hereinafter, the plaintiff parties are referred to as Volusia.) Volusia sought the following remedies: (1) injunctive relief barring Harris from ignoring the results of the manual recount in the statewide certification and (2) a declaratory judgment stating that the counties were not bound to the November 14 deadline. On Tuesday, November 14, Judge Terry P. Lewis of the Leon County Circuit Court ruled that (1) the deadline for submitting election results is mandatory; (2) Volusia County may amend its returns to include the results of the manual recount and submit the new returns after the deadline if allowed by the secretary of state; and (3) the secretary of state—Harris—as the chief elections officer,101 may exercise her discretion to accept or ignore late returns. Volusia subsequently filed an appeal with the First District Court of Appeals. Following Judge Lewis’s order, Harris announced that the counties may submit written statements by 2:00 P.M. on November 15 to explain why they believed they should be allowed to amend their election returns. Harris compiled a list of specific circumstances in which she would accept late returns, as well as circumstances that she deemed were insufficient for accepting returns beyond the deadline.102 Volusia, Broward, Palm Beach, and Collier Counties submitted written statements containing their reasons for wanting to submit late returns. On November 15 Harris rejected the reasons set forth by all four counties and stated that she would certify the previous results, the results from the returns submitted from initial machine recount, along with the overseas returns on November 18.103 On November 16 Gore and the Florida Democratic Party filed an emergency motion in the Circuit Court of the Second Judicial Circuit in Leon County,

THE 2000 PRESIDENTIAL ELECTION CRISIS

claiming that Harris had acted arbitrarily in rejecting the reasons set forth by the counties. On November 17 the circuit court ruled that Harris had reasonably exercised her discretion in rejecting the reasons submitted by the counties and denied Gore’s motion to compel Harris to accept the amended returns.104 The Florida Democratic Party and Gore filed an appeal in the First District Court of Appeals, appealing both circuit court orders, denied the declaratory and injunctive relief sought by Volusia, and denied the motion to compel Harris to accept the amended returns (by Gore)105 to the Florida Supreme Court. Later on November 17, the Florida Supreme Court issued a stay, barring Harris from certifying the election results until after oral arguments were heard before the court on November 20. The first issue the Florida Supreme Court considered was the circumstances under which a county canvassing board could authorize a countywide manual recount.106 Florida law states that if the manual recount indicates an error in the vote tabulation that could affect the outcome of the election, the county canvassing board could (1) correct the error and recount the remaining precincts with the vote tabulation system; (2) request the Department of State to verify the tabulation software; or (3) manually recount all ballots.107 In Advisory Opinion DE 00-13, issued November 13, Clay Roberts, director of the Division of Elections, opined that an ‘‘error in vote tabulation’’ is an error in the vote tabulation system.108 Therefore, the statutory language permitting manual recounts was not intended to include situations in which the results of the machine recount and the results of the manual recount differ, if the vote tabulation system worked correctly. The court stated, ‘‘Florida courts generally will defer to an agency’s interpretation of statutes and rules the agency is charged with implementing and enforcing. Florida courts, however, will not defer to an agency’s opinion that is contrary to law. We conclude that the division’s advisory opinion regarding vote tabulation is contrary to law because it contravenes the plain meaning of section 102.166(5).’’109 The Florida Supreme Court disagreed with the interpretation of the Division of Elections after examining the legislative history. The court found that the Florida legislature had, in fact, used the phrase ‘‘vote tabulation system’’ in 102.166(5)(a), and since it did not use the word ‘‘system’’ in 102.166(5), that the legislature intended to mandate a manual recount for any error in vote tabulation, which could include inconsistencies between machine and manual counts. Read in conjunction with 101.5614(5) and 102.141(4), which provide for the ‘‘intent of the voter’’ to be deciphered, an ‘‘error in vote tabulation includes a discrepancy between the number of votes determined by a voter tabulation system and the number of votes determined by a manual recount of sampling of precincts.’’110 Therefore, the court concluded that the county canvassing boards have the authority to order full manual recounts when there is any error in vote tabulation.111

13

14

CRISIS

AT THE

POLLS

The second issue the Florida Supreme Court addressed was if the secretary of state and the Election Canvassing Commission had to accept recounts when the returns are certified and submitted by the county canvassing board after the seven-day deadline.112 Florida law allows a candidate or elector to file a protest at any time prior to certification by the canvassing board or within five (5) days of the election,113 whichever occurs later, but it also requires certification by the seventh day.114 Florida statute also permits a candidate or political party to request a manual recount at any time before the canvassing board certifies the results, or within seventy-two (72) hours of the election, whichever occurs later.115 The court stated, ‘‘Although the Code sets no specific deadline by which a manual recount must be completed, logic dictates that the period of time required to complete a full manual recount may be substantial, particularly in a populous county, and may require several days. The protest provision thus conflicts with the sections that stipulate that the Boards ‘must’ submit their returns to the Elections Canvassing Commission by 5:00 P.M. of the seventh day following the election or face penalties. For instance, if a party files a pre-certification protest on the sixth day following the election and requests a manual recount and the initial manual recount indicates that a full countywide recount is necessary, the recount procedure in most cases could not be completed by the deadline.’’116 The court found further statutory conflict between the mandatory terms of 102.111 and the permissive terms of 102.112. 102.111 provides in pertinent part: ‘‘If county returns are not received by the Department of State by 5 p.m. on the seventh day following an election, all missing counties shall be ignored …’’ 102.112 provides in pertinent part: (1) ‘‘If the returns are not received by the department at the time specified, such returns may be ignored …’’ (2) The department shall fine each board member $200 for each day such returns are late …’’

In circumstances where a statute’s meaning is apparent, the court will not look to the legislative history or legislative intent for interpretation. However, the court states, ‘‘[C]hapter 102 is unclear concerning both the time limits for submitting the results of a manual recount and the penalties to be addressed by the secretary. In light of this ambiguity, the court must resort to traditional rules of statutory construction in an effort to determine legislative intent.’’117 The court relied on several well-established principles of statutory construction to determine that the provisions set forth in 102.111 are controlling over the provisions of 102.112. First, ‘‘where two statutory provisions are in conflict, the specific statute controls the general statute.’’118 Here, the court reasons that 102.111 titled, ‘‘Elections Canvassing Commission,’’ sets forth the very basic

THE 2000 PRESIDENTIAL ELECTION CRISIS

duties of the commission, and the court considers it to be a ‘‘general’’ statute, whereas 102.112 titled, ‘‘Deadline for submission of county returns to the Department of State; penalties,’’ specifically addresses the deadline and the penalty to be imposed on the members of the canvassing boards for failure to comply with the stated deadline, which the court considers to be a ‘‘specific’’ statute. Therefore, the deadline provisions of the specific statute, 102.112, control those of the general statute, 102.111. Second, ‘‘when two statutes are in conflict, the more recently enacted statute controls the older statute.’’119 Here, 102.111 was enacted in 1951, whereas 102.112 was enacted in 1989. Third, ‘‘a statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provision.’’120 Here, the court found that 102.111 contains no penalty provision for submitting late returns. If 102.111 is the controlling statute, then the penalty provision set forth in 102.112 is meaningless, in conflict with the above-mentioned rule. Fourth, ‘‘related statutory provisions must be read as a cohesive whole.’’121 In relying on this principle, the court held that because the legislature clearly allows for a manual recount when there is an ‘‘error in vote tabulation’’ and also sets forth a specific deadline for certification, that if the canvassing board granted the statutorily permitted recount as late as the sixth day prior to certification, the board would most likely be unable to submit the returns by the seventh day. ‘‘If the mandatory provision in section 102.111 were given effect, the votes of the county would be ignored for the simple reason that the [County Canvassing] Board was following the dictates of a different section of the Code. The Legislature could not have intended to penalize County Canvassing Boards for allowing the dictates of the Code.’’122 Fifth, the court reasoned that when 102.111 was enacted in 1951, that the legislature intended for all votes to be submitted and counted on the same day, including overseas absentee ballots. Federal law123 dictates the basic voting procedures for overseas electors. Florida law124 allows overseas ballots to be counted if postmarked by election day and received within ten (10) days of the election. Therefore, because Florida election law provides for the receipt and count of votes after the seven-day deadline, it is impossible for the mandatory language of 102.111 to supersede the permissive language of 102.112. The court states, ‘‘In light of the fact that overseas ballots cannot be counted until after the seven day deadline has expired, the mandatory language in section 102.111 has been supplanted by the permissive language of section 102.112.’’125 After concluding that 102.112 takes precedence over 102.111, the court examined the circumstances when the Department of State may ignore late election results. The court reasoned that the legislature’s desire for the preservation of political power to exist with the people is unwavering because it is the first provision noted in the Florida Constitution.126 Furthermore, ‘‘Technical statutory requirements must not be exalted over the substance of this right [the right to

15

16

CRISIS

AT THE

POLLS

vote].’’127 Therefore, the court ruled that only under certain circumstances may ballot returns be ignored. Ignoring the county’s returns is a drastic measure and is appropriate only if the returns are submitted to the Department so late that their inclusion will compromise the integrity of the electoral process in either of two ways: (1) by precluding a candidate, elector, or taxpayer from contesting the certification of an election; or (2) by precluding Florida voters from participating fully in the federal electoral process.…128

The court further relied on pronouncements of the United States Supreme Court regarding an Indiana case, which dealt with essentially the same issue. There, the Court opined: These voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter’s disability of inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect.129

The court found that Harris improperly rejected the reasons set forth by the canvassing boards for submitting late returns and thus that she abused her discretion. The court relied on past Florida authority, which fundamentally stated that the will of the voter takes precedence over technical statutory requirements.130 The court opined that the right to vote is so basic and well preserved that neither the secretary of state, nor anyone else, should be permitted to deny any well-intentioned voter of that right. In a unanimous decision, the Florida Supreme Court reversed the ruling of the circuit court.131 Perhaps most significant in its ruling, however, was the deadline it imposed on the county canvassing boards for completing the manual recounts and submitting the amended returns to the Elections Canvassing Commission. ‘‘Amended certifications must be filed with the Elections Canvassing Commission by 5 P.M. on Sunday, November 26, 2000.… If the office is not open for this special purpose on Sunday, November 26, 2000, then any amended certifications shall be accepted until 9 A.M. on Monday, November 27, 2000.’’132 On November 21, the night of the Florida Supreme Court’s decision, Bush was leading Gore by 930 votes. Upon learning of the decision, Bush spokesman James Baker told reporters that the Bush campaign would challenge the ruling to the United States Supreme Court, as well as urge the Republican-controlled Florida legislature to step in to preserve the statutory deadline. On November 22 Bush filed a Petition for a Writ of Certiorari with the United States Supreme Court, claiming that the Florida Supreme Court, by allowing the

THE 2000 PRESIDENTIAL ELECTION CRISIS

Palm Beach and Volusia counties to submit election returns past the deadline for certification, had violated 3 U.S.C. 5. Bush further alleged that the standardless voting tabulation used in the manual recounts violated the Due Process and Equal Protection clauses of the Fourteenth Amendment, as well as the Free Speech clause of the First Amendment. On December 4 the U.S. Supreme Court issued a per curiam opinion, remanding the proceeding back to the Florida Supreme Court. The court found it to be unclear how the Florida Supreme Court reached its ruling, allowing election returns to be submitted to the Department of State by November 26. The Florida Supreme Court never referenced the statutory provision, which sets forth the federal law for determining electors, but it did cite the Florida Election Code and Constitution in its opinion.133 The U.S. Supreme Court elected to allow the Florida Supreme Court to clarify its decision. The Court cited Minnesota v. National Tea Company, which states, ‘‘[I]t is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action.’’134 On remand, the Florida Supreme Court issued its opinion. It considered the same two issues: (1) under what circumstances may the county canvassing boards order manual recounts and (2) under what circumstances should the secretary of state accept amended vote returns. The court reiterated its prior conclusion that a county canvassing board may order a manual recount under any circumstance when an error in vote tabulation has occurred, but not for an error in the vote tabulation system. The court further reiterated its prior analysis of conflicting statutes and concluded that the secretary of state abused her discretion in ignoring the latersubmitted vote returns. Jacobs v. Seminole County Canvassing Board: The Absentee Ballot Controversy135 On November 27, 2000, twenty days after the ballots were cast in the 2000 presidential election, Seminole County voter Harry Jacobs (Jacobs) filed a postcertification contest to the election results.136 In his complaint, filed in the Leon County Circuit Court, Jacobs claimed to have overheard a conversation between several members of the Seminole County Canvassing Board (the Board) discussing how Sandra Goard (Goard),137 the supervisor of elections and member of the Board, allowed representatives of the Florida Republican Party to insert missing voter identification numbers on several thousand absentee ballot request forms.138 According to Florida statute,139 all potential absentee voters must request an absentee ballot, either in person or in writing, before the Friday prior to election

17

18

CRISIS

AT THE

POLLS

day (in this case, Friday, November 3). On the request form, the voter is required to provide specific identification information, including the voter registration number listed on his/her voter registration card. The Democratic and Republican Parties prepared requests for absentee ballots that were mailed to registered voters.140 Although the Democratic Party allowed a space on the absentee ballot request form for a voter identification number, the Republicans did not. As a result of the mailings, thousands of absentee ballot request forms were returned to the supervisor’s office.141 During the summer of 2000, Goard began receiving absentee ballot request forms in the mail and noticed that several thousand of the Republican requests did not contain a voter registration number. Without voter registration numbers, the ballots were invalid. Therefore, Goard notified the Florida Republican Party of her findings. In late summer, Goard received a phone call from a Republican representative, who remains unidentified, requesting access to the office of the Board to insert the missing voter identification numbers on the Republican ballots. Goard then allowed two representatives from the Republican Party unsupervised access to voter records, as well as the use of the office space and equipment, to add the omitted voter registration numbers to several thousand ballots.142 Goard never notified the Democrat Party that she was allowing the Republican representatives to use the office and equipment. She had also previously informed Democrats that voters must include all of the required information on their absentee ballot request form for the request to be processed and that she planned to strictly enforce the requirements. In October Goard specifically told Democrats that the voter registration number must be included on the absentee ballot request form. On November 26 Secretary of State Katherine Harris certified the final vote total for the state of Florida. The margin of victory was 537 votes in favor of Bush. In Seminole County, 15,215 absentee ballots were received. Bush received a total of 10,006 absentee votes, whereas Gore received only 5,209. In his complaint, Jacobs alleged (1) that the absentee ballot requests submitted without voter registration numbers violated statutory provisions and should be disqualified and (2) that the supervisor of elections had allowed representatives of the Republican Party to access Seminole County offices and materials, thus unfairly treating the Republicans differently than the representatives of the Democratic Party. In Jacobs v. Seminole County Canvassing Bd., the appellant sought the invalidation of several thousand absentee ballots.143 The appellant alleged that the requests for absentee ballots were not made in strict compliance with the absentee ballot laws.144 The issue before the Florida Supreme Court was whether the absentee voting laws required strict compliance with all its provisions, or whether substantial compliance was sufficient to give validity to the ballots.145 The court turned to Florida statute as a means to interpret the irregularities of the absentee ballot request form procedure. The person making a request for an absentee ballot must supply the following criteria on his/her request form:

THE 2000 PRESIDENTIAL ELECTION CRISIS

(l) the name of the voter for whom the ballot is requested; (2) the voter’s address; (3) the last four digits of the voter’s social security number; (4) the registration number on the voter’s registration identification card; (5) the requestor’s name; (6) the requestor’s address; (7) the requestor’s social security number and, if available, the driver’s license number; (8) the requestor’s relationship to the voter; and (9) the requestor’s signature.146 Although the statute defines the information that is required on the absentee ballot requests, it does not state a remedy for parties in noncompliance.147 The Florida law only states that ‘‘a ballot that fails to include statutory elements is illegal.’’148 The court considered whether the absentee ballot laws of Florida must be strictly complied with or whether substantial compliance is sufficient. The court reasoned that because there are no specific statutory provisions addressing the consequences of failure by a voter to strictly comply with the provisions regarding the absentee ballot request, that the ballot would be deemed valid, whereas 101.68(2) states that if an absentee ballot fails to comply with the statutory requirements, the ballot cast is illegal and void.149 ‘‘Unless a statutory provision also specifically states that the lack of information voids the ballot, the lack of information does not automatically void the ballot.’’150 Furthermore, the court found the instructions of 101.62 to be directory, not mandatory, unlike 101.68(2)(c), which specifically states that absentee ballots without a name, address, and signature will be voided. ‘‘Our examination of Section 101.62 leads us to conclude that its provisions are directory. We are unable to glean from the provision of that section a legislative intent that the failure to follow the letter of its provisions should result in the invalidation of absentee ballots cast by qualified electors who are also qualified to vote absentee.’’151 Florida statute 101.62(1)(b) requires that the person making the request for the absentee ballot be the one who provides the voter identification number. Here, however, the two representatives from the Republican Party recorded the identification numbers on the ballot request forms. The court opined that because the ballots would have been considered valid even without the voter identification number for substantial compliance under a directory statute that the fact that persons other than the voter provided voter identification numbers on the request forms was irrelevant. Second, the court considered whether the supervisor of elections had treated Republican Party representatives so differently than other political party representatives as to be considered a compromise of integrity. The court reasoned that because the Democrat request forms provided a space for the voter identification numbers to be supplied and the Republican forms did not, that there was no need for the Democratic Party to examine the ballots and write in the identification numbers. Furthermore, there was no evidence that the Democratic Party ever made such a request. ‘‘In determining the effect of irregularities on the validity of absentee ballots cast, the following factors shall be considered: (a) the presence or absence of

19

20

CRISIS

AT THE

POLLS

fraud, gross negligence, or intentional wrongdoing.’’152 The court ruled that while Goard failed to exercise proper judgment, her actions did not constitute fraud, negligence, or intentional wrongdoing to justify disqualifying ballots that did not contain voter registration numbers. Finally, the court opined that Goard’s actions, ‘‘did not adversely affect the sanctity of the absentee ballots subsequently cast. While Goard exercised faulty judgment in first rejecting the requests in question and compounded the problem by allowing third parties to correct the omissions on the forms, no remedy against her is available in this election contest under Florida Statute. Faulty judgment is not illegal unless the legislature declares it so.’’153 On December 8 Jacobs filed an appeal to the First District Court of Appeals. Later that day, the court of appeals certified the order to be of great public importance to require immediate resolution by the Florida Supreme Court. Four days later the Florida Supreme Court affirmed the judgment of the circuit court, stating, ‘‘we affirm the portions of the trial court’s order … and adopt them as our own. We also affirm the trial court’s conclusion that appellant is entitled to no relief.’’154 Gore v. Harris; Bush v. Gore: Contesting the Election Methods155 On November 27 Gore filed a complaint in the Second Judicial Circuit of Leon County, contesting the November 26 certification by Secretary of State Katherine Harris, which declared Bush the next president.156 In his complaint, Gore made the following allegations: (1) that the Miami-Dade Canvassing Board157 abused its discretion in failing to conduct a full manual recount of its 635 precincts, which had netted 168 votes in the partial manual recount of twenty percent (20%) of the precincts for Gore, and failed to certify the amended returns to include the results of the partial count; (2) that the Nassau County Canvassing Board158 submitted the returns from the initial vote count from November 7, which netted 50 votes for Bush, instead of the results of the machine recount conducted on November 8;159 (3) that the Palm Beach County Canvassing Board failed to amend its returns to include 215 net votes for Gore when it submitted its certified results to the Elections Canvassing Commission on November 26 and was unable to complete the manual recount because it waited four days to begin the count in reliance on Harris’s Advisory Opinion;160 and (4) that the Palm Beach County Canvassing Board used the improper standard when manually recounting the votes, which resulted in approximately 3,300 undervotes not being reviewed to determine the intent of the voter, as mandated by a previous Circuit Court decision.161 Gore sought the following remedies: (1) the inclusion of the 215 votes netted for Gore and review of the 3,300 undervotes in Palm Beach County; (2) the inclusion of the 168 votes netted for Gore and a manual recount of the improperly rejected 9,000 ballots in Miami-Dade County; and (3) the exclusion of the 50 netted votes for Bush in Nassau County from the initial count.

THE 2000 PRESIDENTIAL ELECTION CRISIS

On December 4, following a two-day evidentiary hearing before the Circuit Court of Leon County, Judge N. Sanders Sauls ruled that Gore had failed to establish his burden of proving that ‘‘but for the irregularity, or inaccuracy claimed, the result of the election would have been different.’’162 Judge Sauls further ruled that Gore failed to show ‘‘a reasonable probability that the statewide election result would have been different [if a manual recount was conducted].’’163 Judge Sauls found that Gore had not established statistical evidence of illegality, dishonesty, gross negligence, improper influence, coercion, or fraud. Furthermore, he found no statutory or case law to support the inclusion of the results of a partial manual recount. Nor did he find that the officials sitting on the canvassing boards of Palm Beach, Miami-Dade, and Nassau Counties had abused their discretion. Accordingly, Judge Sauls denied all requested relief. Gore immediately filed an appeal with the First District Court of Appeals, which certified the order to the Florida Supreme Court. On December 8 the Florida Supreme Court reversed the circuit court decision in part and affirmed in part. The Florida Supreme Court noted Article II, Section 1, clause 4 of the United States Constitution grants Congress the authority to establish election procedures. In turn, Congress enacted 3 U.S.C. 5, which allows state legislatures to resolve election controversies, if the legislature has enacted such provisions prior to the dispute. The Florida legislature then enacted law in 1951 that allowed unsuccessful candidates to contest the election and set forth the procedures for an election contest.164 In 1999 the Florida legislature had made several revisions to the election contest law. First, an unsuccessful candidate was permitted to file a complaint in circuit court to contest the election when illegal votes have been mistakenly counted, or when legal votes have been rejected.165 Second, the revision granted circuit court judges the authority to order remedies, as he or she deemed necessary.166 In its analysis, the Florida Supreme Court identified two distinctly different methods for disputing election results. First, an unsuccessful candidate can file an election protest, prior to certification, with the county canvassing board. The board could address the validity of the vote returns (that is, the legality of the ballot) and could order a remedy, such as a manual recount. Second, following certification, an unsuccessful candidate can file an election contest, in the form of a complaint filed in the proper circuit court. The circuit court could address the validity of the actual election itself and could order a variety of remedies. Therefore, an unsuccessful candidate is not required to file an election protest before filing an election contest. Judge Sauls found no ‘‘abuse of discretion’’ on the part of the county canvassing boards. However, the Florida Supreme Court found this standard to be improper. The ‘‘abuse of discretion’’ standard is to be used only in appellate review. Here, the Florida Supreme Court found that the circuit court should have applied the ‘‘de novo’’ standard because this proceeding was an election contest,

21

22

CRISIS

AT THE

POLLS

a completely separate proceeding. An election contest is not an appeal to an election protest. The proceedings are entirely separate and distinct, and it is not necessary to have one to have the other. The Florida Supreme Court subsequently found that the circuit court required the improper burden of proof standard on the part of the plaintiff, Gore. The circuit court relied on precedent, stating that ‘‘the Plaintiff must show that, but for the irregularity, or inaccuracy claimed, the result of the election would have been different.’’167 In response, the Florida Supreme Court found that the circuit court had failed to incorporate the 1999 revisions to the Florida Election Code when it required Gore to show an irregularity or inaccuracy. Under the 1999 revisions, a plaintiff need not show reasonable probability of a change in election results if he or she can demonstrate that legal votes have been improperly rejected or illegal votes have been improperly included. Bush, in his response to Gore’s complaint, contended that a manual recount of the undervotes would only be proper if all undervotes were counted throughout the entire state of Florida. However, Florida law does not provide for a recount of all votes in all counties—only in those counties in which an illegal ballot has been included or a legal ballot has been excluded. The Florida Supreme Court found that determining the ‘‘will of the people’’ is mandated in 103.111.168 Therefore, ‘‘a final decision as to the result of the statewide election should only be determined upon consideration of the legal votes contained within the undervote or ‘no registered vote’ ballots of all Florida counties, as well as the legal votes already tabulated.’’169 After determining the proper standard of review, the Florida Supreme Court addressed the factual issues of the current contest. It first determined that ‘‘a legal vote is one in which there is a ‘clear indication of the intent of the voter.’’’170 Second, it determined that a ‘‘rejected’’ ballot can include those legal ballots that were initially not counted by the canvassing boards (that is, those votes not processed by a machine count, but those in which the ‘‘intent of the voter’’ can be determined). In Miami-Dade County, following the Florida Supreme Court’s order in Palm Beach County, which set forth the November 26 deadline for submitting returns to the Department of State, the canvassing board began manually recounting the ballots.171 However, after determining that it would be unable to complete a full manual recount of the ballots, it elected to cease the count. At that time, it had counted twenty percent (20%) of the precincts and Gore had netted 168 votes.172 The circuit court ruled not to compel Miami-Dade to conduct a full manual recount, finding Gore had failed to meet the ‘‘reasonable probability that the statewide election result would be different’’ standard. However, the Florida Supreme Court disagreed, finding that the proper standard was to ‘‘determine whether ‘legal votes’ rejected were sufficient to change or place in doubt the results of the election.’’173 There, the Court found that the proper standard had been met and ordered an immediate recount of the undervotes in Miami-Dade County.

THE 2000 PRESIDENTIAL ELECTION CRISIS

In Palm Beach County, Gore sought further review of 3,330 ballots that had already been manually recounted. There, the Florida Supreme Court affirmed the ruling of the circuit court, which elected not to force Palm Beach County to manually recount the ballots for a second time. The Florida Supreme Court stated, ‘‘When a manual count of the ballots has been conducted by the canvassing board, the circuit court in a contest proceeding does not have the obligation de novo to simply repeat an otherwise-proper manual count of the ballots.’’174 The Florida Supreme Court further ruled that the results of the partial manual recount conducted in Palm Beach County must be included in the final state certification. The circuit court previously stated that there was no ‘‘authority to include any returns submitted past the deadline established by the Florida Supreme Court,’’ whereas the Florida Supreme Court explained that its establishment of the November 26 deadline to submit returns to the Department of State was not intended to deter the county canvassing boards from continuing manual recounts to decipher further legal votes.175 Therefore, it stated, all ‘‘partial recount results should be included in the total legal votes for this election.’’176 In addressing Gore’s allegations with regard to Nassau County, the Florida Supreme Court stated, ‘‘We find that appellants [Gore] did not establish that the Nassau Count Canvassing Board acted improperly.’’177 On December 9 Bush requested a stay from the U.S. Supreme Court, barring the enforcement of the Florida Supreme Court’s December 8 order. Later that same day, the U.S. Supreme Court granted Bush’s request for a stay and decided to hear the case on certiorari. On December 12 the U.S. Supreme Court reversed the ruling of the Florida Supreme Court, which allowed the inclusion of a partial manual recount in Palm Beach County, a full manual recount of the 9,000 disputed ‘‘under-vote’’ ballots in Miami-Dade County, as well as review of all ‘‘under-vote’’ ballots in all Florida counties. The U.S. Supreme Court addressed two issues in its per curiam opinion: (1) if the Florida Supreme Court had established new standards of contesting elections in violation of the Constitution and 3 U.S.C. 5 and (2) if ordering manual recounts of the undervoted ballots without any standards for determining what constituted a legal vote was in violation of the Fourteenth Amendment’s due process and equal protection clauses. The U.S. Supreme Court focused primarily on the equal protection issue of manually examining all ballots that registered an ‘‘under-vote.’’178 In its opinion, the Florida Supreme Court ruled that all undervotes in all Florida counties must be manually examined to decipher the ‘‘voter’s intent,’’ in determining whether the ballot would count as a valid vote. However, the court set forth virtually no standards or methods for determining what would constitute ‘‘voter intent.’’ Because no specific standard was announced in its opinion, varying standards were used among the counties, as well as within the counties themselves (that is, in some counties, the voter must have dislodged the chad by at least two

23

24

CRISIS

AT THE

POLLS

corners for the ballot to count as a valid vote, whereas in other counties, a mere indentation may count as a vote). Relying on precedent, the U.S. Supreme Court stated, ‘‘The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.’’179 Because the Florida Supreme Court established no uniform standards for counting undervotes, the U.S. Supreme Court found this to be disparate and arbitrary treatment of the Florida voters, thus violating the equal protection clause. The U.S. Supreme Court found further equal protection violations in counting undervotes in the amended vote totals. The Court explained that those voters who registered undervotes would have their votes count, whereas those voters who registered overvotes (ballots with more than one hole punched) would not have their votes count. In its opinion, the Florida Supreme Court never addressed the issue of overvotes. The U.S. Supreme Court stated, ‘‘the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual count; [whereas], the citizen who marks two candidates, only one of which is discernable by the machine, will not have the same opportunity to have his vote count, even if manual examination of the ballot would reveal the requisite indicia of intent.’’180 In addition, the U.S. Supreme Court found further equal protection complications in the Florida Supreme Court’s decision to include partial vote totals from Miami-Dade County and the lack of specifications as to who would manually recount the ballots. The U.S. Supreme Court stated, ‘‘The recount process … is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.’’181 The Court found that because of insufficient guidance as to the method of manually recounting the ballots and the December 12 deadline for resolving election controversies and selecting electors that the manual recounts must cease. In its conclusion, the U.S. Supreme Court stated, ‘‘Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.’’182 In a 5-to-4 ruling split along ideological lines, the Court finally stepped in to end the election and Gore’s quest for a final recount, reversing the Florida Supreme Court decision ordering a statewide recount of undervotes. In the per curiam section of its opinion, the U.S. Supreme Court stated that differing votecounting standards from county to county while lacking a single judicial officer to oversee the recount violated the equal protection clause of the Constitution. The majority opinion effectively precluded Gore from attempting to seek further

THE 2000 PRESIDENTIAL ELECTION CRISIS

recounts because a recount could not be completed by December 12, in time to certify a conclusive slate of electors. Several justices issued bitter dissents. ‘‘One thing … is certain,’’ Justice John Paul Stevens argued. ‘‘Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.’’ To which Justice Stephen G. Breyer added, ‘‘In this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the court itself.’’183

25

This page intentionally left blank

Chapter 2 STATE, NATIONAL, AND INTERNATIONAL CRISES

Respect for legality is not and cannot be discretional.1 —President Vincente Fox, president of Mexico (2000–2006)

2004 WASHINGTON GUBERNATORIAL ELECTION On Wednesday, January 12, 2005, Christine Gregoire (Gregoire) was sworn in as the governor of Washington State. Observers at her inauguration ceremony noticed an aura of uncertainty in the air, for Gregoire took her seat as governor amidst a bitter debate as to whether she had fairly won the election.2 Gregoire’s victory was certified only after a controversial hand count of the votes in the closest governor’s race in United States history.3 The first two counts of the votes cast in the election declared GOP candidate Dino Rossi (Rossi), not Gregoire, the winner of the gubernatorial race. The official vote count after election day put Rossi ahead by 261 votes.4 After a machine recount of the votes, triggered by state law in close elections,5 Rossi again emerged as the victor. On November 30, 2004, Secretary of State Sam Reed announced to the Washington voters that Rossi was their new governor.6 Just three days later, the Washington State Democratic Committee requested a statewide manual recount under a Washington election statute providing for hand recounts in close elections.7 After this third hand count of the votes, Gregoire prevailed over Rossi by 129 votes.8 Despite allegations of fraud and improper influence by heavily Democratic canvassing boards,9 Gregoire was certified as the new governor on December 30, 2004.10 She was inaugurated less than two weeks later, amidst a firestorm of controversy regarding the validity of the hand count that put her in office.

28

CRISIS

AT THE

POLLS

WASHINGTON STATE LEGAL PROCEEDINGS The 2004 Washington gubernatorial race was an electoral soap opera, similar to the situation in Florida during the 2000 presidential election. Similar to the Bush-Gore election, which involved the lack of standards for uncounted ballots,11 the 2004 Washington election for governor involved a manual hand count with alleged inconsistent treatment of uncounted ballots, among other alleged improprieties.12 Both election contests involved the secretary of state making a key decision that precipitated a partisan mudslinging war. The contests evoked accusations of partisan canvassing boards and caused voter distrust in election administration. However, the Washington gubernatorial election differs from the 2000 BushGore election in one important regard: the way the respective courts dealt with the contested elections. The Washington judicial branch made a deliberate decision to let the election process take its course before the court got involved. In contrast to the United States Supreme Court’s decisive intervention in Bush v. Gore with regard to the Florida election recount, the Washington courts made it clear they would not intervene until the process of election administration was complete. It seems that the Washington courts specifically wanted to avoid following in the ‘‘Bush v. Gore footsteps.’’13 The Washington Supreme Court declined to issue injunctions or advisory opinions, despite requests of both parties, during the administration of the manual recount process, due to a strict respect for the separation of powers.14 After the recount was complete, when the Republicans filed a legal challenge to the election, the Washington court promptly dismissed their equal protection claims based on a Washington election contest statute.15 The Washington courts appeared to be avoiding the legal methodology used by the Bush v. Gore court in the Florida election crisis. The Washington court avoided early intervention during the recount and dismissed the equal protection theory in the election contest lawsuit. The court appeared to transform a contested election into a postelection trial fought on narrow evidentiary issues under the Washington election contest statute. Despite the Washington courts’ clear attempt to take a different path from that of the Bush v. Gore court, the Washington court ultimately followed the Bush v. Gore court in one respect: The court determined the outcome of a contested election. The Washington courts did not avoid intervention but only delayed intervention in the electoral process. On May 23, 2005, the legal challenge to the governor’s race proceeded in Chelan County Superior Court, and the Washington judicial branch played a large part in determining the fate of the gubernatorial office.

THE AFTERMATH Disputes over ballot counting began when the Washington Republican Party filed suit in King County to ensure the inclusion of a number of provisional ballots.16 After Rossi’s win was certified, Gregoire’s campaign contested Rossi’s win

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

and demanded a recount of the votes under a state law allowing for manual recounts in close elections. Shortly thereafter, counties began recounting ballots by hand. On December 13 King County election officials announced that they discovered more than 500 ballots mistakenly rejected by election workers, and the number of missing ballots increased by 200 a few days later. Looking for direction from the judiciary branch, the Democratic Party petitioned the Washington Supreme Court to direct the counties to reconsider mistakenly rejected ballots in the hand count. In McDonald v. Reed, the Democrats asked the court to compel Secretary of State Sam Reed to set forth uniform standards for the inclusion of previously uncounted ballots in the hand recount, based on the argument that certain ballots had been unfairly rejected because the signatures did not match the signatures on file. According to the Democrat Party, because the various counties used different procedures for comparing the signatures, King County had a greater rejection rate for the ballots, mostly provisional and absentee ballots, than other counties.17 The Democrat Party claimed that this disparity in signature-checking standards violated the equal protection rights of the voters under the Privileges and Immunities Clause of the Washington State Constitution. The Supreme Court of Washington refused to promulgate any standards. The court held that the word ‘‘recount’’ under the Washington statute means ‘‘the process of retabulating ballots and producing amended election returns’’; therefore, the ballots are to be ‘‘retabulated’’ only if they have been previously counted or tallied.18 The court rejected the Democrat Party’s assertion that the court should order a recanvassing of the rejected ballots. The court, noting that the Democrat Party claimed no discriminatory intent in regard to the disparities of signature-checking standards, held that the claimed disparity in rejection rates did not trigger any independent right, ‘‘constitutional or otherwise,’’ to the recanvassing of the rejected provisional and absentee ballots.19 The day after the court issued its order, the King County Canvassing Board held a meeting where it voted to recanvass the previously rejected 573 absentee ballots at issue in McDonald.20 After the Republican Party learned of this decision, it promptly petitioned the Pierce County Court for an injunction to stop the recanvassing.21 The Republican Party asked the court to order the segregation of the 573 previously rejected absentee ballots and to prohibit the canvassing of those ballots.22 The Republican Party argued that the recanvassing on the part of the Democrat Party was in direct defiance of the Washington State Supreme Court’s decision in McDonald. Furthermore, the party complained that the 573 absentee ballots at issue had not been kept secure as required by law since rejection in November.23 The Republican Party asserted that the recanvassing of the ballots violated the equal protection clause and the Washington State Election Statutes by allowing the lawful votes of properly registered voters to be canceled, by the votes of those unauthorized to vote or by those voting more than one time.24

29

30

CRISIS

AT THE

POLLS

The Pierce County Court granted an injunction to stop the inclusion of the ballots in question, and the Democrat Party appealed to the Washington Supreme Court. On appeal in Wash. State Republican Party v. King County Div. of Records, the Washington Supreme Court held that the Pierce County Court erred in granting the temporary restraining order because the ballots at issue were not actually being ‘‘recanvassed.’’25 The court held that when election workers found no matching signatures for the ballots in the electronic voter files, the ballots were set aside so workers could check for signatures elsewhere.26 However, this process was never completed. Instead, the ballots were ignored and not counted in the vote returns. Therefore, according to the court, the King County Canvassing Board properly concluded that it had authority to recanvass the ballots. The court held that the King County Canvassing Board was not wrong to recanvass votes and set aside the injunction given in Pierce. The concurring opinion of Justice Chambers in King criticized what Justice Chambers called ‘‘a recent trend of political interest groups seeking judicial intervention before matters are placed on the ballot, before the people vote, and before election officials have fulfilled their duties to canvass and count the votes.’’27 According to Justice Chambers, ‘‘this trend was perhaps exacerbated by Bush v. Gore.’’28 In his opinion, Chambers recognized that ‘‘any election … including election of officials, which violates constitutional, federal, or state laws may, in due course, be declared void and unenforceable by the judicial branch.’’ However, Chambers maintained ‘‘courts … should be reluctant to issue temporary restraining orders or grant emergency review of election matters before election officials have sufficient opportunity to fulfill their duties.’’ Chambers went on to state the following: The legislature has empowered county election officers and canvassing boards to administer elections. [T]here is a certain amount of subjectivity inherent in the legislatively adopted process of comparing signatures and counting absentee and provisional ballots. The legislature, probably in recognition of this inherent subjectivity, has given local county election officials the authority and the discretion to recanvass ballots or voting devices until the last day to certify the election.

‘‘The legislature should make the law,’’ Justice Chambers insisted. ‘‘We are not a Council of Revision, routinely advising the other branches as to the constitutionality of proposed laws.’’29 In the final words of his concurrence, Justice Chambers stated that the Pierce County trial court should not have granted the Republican Party a temporary restraining order.30 He admonished, ‘‘Should election officials fail to carry out their duties within the law, there are procedures for challenging the results.’’31 After the Supreme Court ruled that King County could reconsider the ballots at issue, the ballots were included in the vote count, and Gregoire prevailed in

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

the recount by 129 votes.32 On December 30, 2004, after the results of the hand recount were certified by Secretary of State Sam Reed, Gregoire was declared the winner of the Washington State gubernatorial race.33 The manual hand count and the results caused quite a stir among the citizens of Washington State. While Republicans voiced a public outcry that Gregoire was ‘‘hunting for votes,’’ Democrats hailed the process of the hand recount. Partisan commentary on the election was characterized by mudslinging for weeks. On January 7, 2005, Republicans, supporting Rossi, filed suit in Chelan County, contesting the results of the gubernatorial election.34 Furthermore, they filed an identical petition with the state legislature, because Gregoire’s side of the camp contested the jurisdiction of any court to hear the election contest.35 The Republicans alleged that election officials failed to perform their duties and obligations under both the constitutions of the state of Washington and the United States and committed wrongful acts that ‘‘render the true results of the election impossible to determine.’’36 The crux of the Republicans’ petition was that election officials counted the votes of felons who had not regained their right to vote, failed to secure absentee and provisional ballots properly, and did not use uniform procedures for counting overvotes and undervotes.37 The Republicans alleged that the inconsistent treatment of ballots and the use of illegal ballots diluted the equal protection rights of lawful voters. Therefore, the Republicans asked the court to declare the election void, set it aside, and order a new election. At the time of the first filing in January, Republicans hoped that to overturn the election they would only have to prove that errors and illegal votes resulted in uncertainty as to the correct winner of the election.38 The Democrats asked the court to dismiss the case because the Republicans failed to prove that illegal votes accounted for the Gregoire margin of victory. Judge Bridges eventually ruled that the Republicans did not meet this burden at the early stages of a lawsuit.39 At the outset of the lawsuit, the most heavily disputed issue was how to interpret a Washington election statute, which reads: No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting there from the illegal votes that may be shown to have been given to the other person.40

The Republicans and the Democrats disagreed over the interpretation of ‘‘appears’’ in the statute. While the Republicans interpreted ‘‘appears’’ to mean ‘‘look, or seem,’’ indicating no requirement of absolute certainly, Democrats interpreted ‘‘appears’’ based on plain meaning. Therefore, ‘‘appears’’ should be interpreted to mean that a candidate must show that he or she ‘‘obviously perceived’’

31

32

CRISIS

AT THE

POLLS

that illegal votes have been given unfairly. Because of this initial uncertainty regarding how the statute would be interpreted by the court, the situation remained unclear at the outset of the lawsuit whether Republicans would have to bring felons into court to testify regarding how they voted. THE WASHINGTON COURT’S RESPONSE On Friday, February 4, 2005, the Chelan County Superior Court Judge John Bridges issued initial key rulings on the Republicans’ election contest. He ruled that the court did not have the authority to order a special governor’s election, regardless of whether it could be shown that illegal voting or other irregularities affected the outcome of the election.41 However, Judge Bridges further ruled that the GOP’s case could not be dismissed on grounds that the court cannot decide election contests. As a matter of law, an election contest case would have to be resolved by the state supreme court.42 Bridges also ruled that individual counties should not be defendants in the case. Bridges’ ruling limited the parties who could approve and certify the results of the entire statewide election to Secretary of State Sam Reed, Lieutenant Governor Brad Owen, and House Speaker Frank Chopp.43 Finally, one of the most significant rulings of Judge Bridges was that the evidentiary burden of proof was on the Republicans. The Republicans needed to prove that not only errors and illegal votes resulted in uncertainty as to who had won the election but that the errors and illegal votes caused Christine Gregoire to win the gubernatorial election. In other words, the Republicans would have to prove that Dino Rossi would have won the election if it were not for the errors and illegal votes.44 After Justice Bridges’ evidentiary ruling, Republicans developed an alternate strategy to mathematically prove that Christine Gregoire received enough illegal votes to change the result of the election. They decided to rely on the theory of ‘‘proportional reduction,’’ a way of prorating the election results in relation to the amount of felons who voted. With proportional reduction, there is an assumption that illegal votes were cast in the same percentages as legal votes in a given voting district. For example, if candidate A won 70 percent of the vote in a certain area, then the proportional reduction technique would assume that candidate A received 70 percent of the illegal vote in that area as well. Therefore, 70 percent of the total number of illegal votes would be subtracted from candidate A’s total votes. The Republicans hired Anthony Gill and Jonathan Katz, experts in voting behavior and patterns, to analyze the 2004 gubernatorial election based on the proportional reduction theory. According to Anthony Gill’s analysis of 879 illegal votes cast in the 2004 gubernatorial election, under proportional reduction, Gregoire would have received 510.02 illegal votes, whereas Rossi would have received 318.64 illegal votes.45 Under Gill and Katz’ proportional reduction analysis, Dino Rossi should have won the gubernatorial election by a 62-vote margin.

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

On May 3, 2004, Judge John Bridges gave a response to which the parties to the lawsuit had been anxiously awaiting for months. Judge Bridges ruled that the Republicans would be permitted to present their proportional reduction theory to prove whether Christine Gregoire’s election was won by illegal votes. Judge Bridges warned, however, that ‘‘unless an election is clearly invalid, when the people have spoken, their verdict should not be disturbed by the courts.’’46 CRITIQUE OF THE GUBERNATIORIAL CRISIS The 2004 Washington gubernatorial election resembles the presidential election of 2000 in numerous ways. Given the facts surrounding the Washington gubernatorial election contest, one might expect that the Bush v. Gore decision would offer precedential value to the Washington courts. First, in both cases the initial count of the votes revealed an extremely tight race, in which the small difference between the votes for each candidate triggered an automatic statewide recount.47 Second, in both cases an automatic statewide recount tightened the race between the two candidates, leading to a situation where the inclusion or lack thereof of an otherwise insignificant number of votes would change the outcome of the election.48 Finally, both cases involved a form of alleged arbitrary hand count, the results of which had high potential to determine the outcome. Despite all the similarities between the two cases, the limited, but pertinent, precedent value of Bush v. Gore was not used by the Washington courts. There were two important areas where the Washington courts took a significant departure from the reasoning of the Bush v. Gore court: (1) on the issue of the propriety of the court’s intervention in election processes and (2) on the decision whether to analyze the question of voting standards from an equal protection standpoint. Although the Bush v. Gore court’s per curiam opinion stated that its ‘‘consideration is limited to the present circumstances,’’ the court clearly states that ‘‘the present circumstances’’ means the exact type of situation Washington faced, a situation where the judiciary has the authority to ensure uniformity in a statewide recount.49 The Washington courts’ departure from an analysis in line with that of the Bush v. Gore court caused two negative consequences concerning the recent election crisis. First, the Washington courts’ failure to get involved in the crisis early on resulted in the protraction of the election contest. Second, the Washington courts dismissed the equal protection claims during the hand recount and in the election contest lawsuit. This decision failed to take into account the important constitutional equal protection issues raised by a manual hand count, especially when conducted by an alleged partisan canvassing board. Hence, the delay of the election contest, in addition to the narrower issues on which the outcome of the Washington election contest now rests, both chips away at the sense of conclusiveness an election should offer and decreases voter confidence in the voting franchise, an important institution at the core of representative government.

33

34

CRISIS

AT THE

POLLS

The Washington Supreme Court in King appeared concerned with intervening in processes left to the other branches of government before those processes completed themselves. This stance indicated distaste for the type of intervention used by Bush v. Gore to halt the election. By overturning the injunction in King, the Washington Supreme Court may have been abiding by a strict notion of separation of powers, but they were also purposefully ignoring the inclusion of questionable ballots by a canvassing board with heavy leanings toward one candidate. Leaving aside the Washington Supreme Court’s decision to overturn the injunction in King, even though the inclusion of the ballots at issue may have violated equal protection, the Chelan County Court’s dismissal of the equal protection claims, in the election contest petition filed after the election process was complete, was arguably wrong. If a lack of prescribed standards among different counties violated equal protection by diluting a vote in Bush v. Gore, why would the claims of disparate signature standards, disparate provisional ballot standards, and other inconsistencies not survive in the Washington courts? Furthermore, an equal protection analysis could be pertinent in the Washington election contest regarding disputes between Republicans and Democrats over which counties to focus on. Should all of the counties, or just the counties where most of the errors took place, have been subjected to judicial review? It also can be argued that an equal protection analysis is important in any hand recount dispute for the same reason that an equal protection analysis is pertinent in a political gerrymandering situation. Election canvassing boards, just like state legislatures, have a great deal of power to affect the outcome of elections.50 The Washington State Statutes offer remedies for fraudulent behavior by election boards, but those remedies focus on more isolated, evidentiary issues and ignore the broader group equal protection problem that arises when heavily partisan canvassing boards have wide latitude to conduct manual recounts. Even if specific fraud cannot be proved, when an election is very close, and a potentially partisan canvassing board has a great deal of discretion, it only takes a few arbitrary decisions by election workers to change the result of an election. That situation is just as unfair as a political gerrymander that ensures one party’s hegemony in the state legislature.51 Instead of a constitutional argument, the Washington election contest lawsuit was structured around the more concrete issue of fact whether it can be proven that Rossi would have received a victory in the gubernatorial race were it not for illegal votes of felons. There are grave concerns of fairness to the voters with this standard. As Judge John Bridges admonished at an evidentiary hearing, ‘‘Unless an election is clearly invalid, when the people have spoken, their verdict should not be disturbed by the courts.’’52 The 2004 Washington gubernatorial election is one of many examples showing a need for reform in election administration reform.53 The Washington example proves that while a few improper votes here or there usually do not pose a great risk to the integrity of election results, when an election gets close,

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

improper election administration can jeopardize the validity of the entire election. This problem will both affect the results of an election, as well as voter confidence in representative government. The state of Washington appears to be taking positive steps toward remedying the problems with election administration. In a recent Seattle Times article, Sam Reed offered suggestions to restore public faith in the voting process. He suggested giving counties the option to vote entirely by mail, prohibiting third parties from collecting or returning absentee and provisional ballot signature affidavits, more stringent laws identifying a ‘‘signature match,’’ and ensuring that recanvassing addresses election-worker error, not voter mistakes.54 On Tuesday, May 17, 2005, a task force consisting of prominent representatives of the legal and academic world began the first of three reviews of the King County Elections Department. The task force focused on issues with absentee ballots, the tabulation of provisional ballots, and the discrepancies between the number of ballots and the number of voters.55 The GOP members of the King County Council maintain that election errors in King County made it impossible to determine who won the governor’s race.56 THE 1876 PRESIDENTIAL ELECTION Since the hotly debated election in 2000, the Hayes-Tilden presidential contest of 1876 has seen a resurgence in public interest, and many writers have undertaken a general comparison of the events of over a hundred years ago with those of recent memory. The issues of 1876 even prompted Supreme Court Chief Justice William H. Rehnquist to write a book on the election. Although there are many ways that the two elections are alike, there are key differences between the two that a superficial exploration of the elections glosses over. A terse glance at what has been written about the election of 1876 reveals the perception of the election held by much of the general public. The public perceived a ‘‘stolen election,’’ one where the wrong candidate won and is often cited by election reformers as the pinnacle example for the disposal of the electoral college, an institution which the public insisted led to the election of the loser.57 Like the 2000 election, the presidency hung on the outcome of the votes cast in Florida. In 1876 the winner was chosen by a panel of fifteen men, and the chosen candidate was not the candidate who won the popular vote.58 The failure of the electoral college did not lead to the election of the popular vote loser. In reality, the electoral college functioned to ensure that on the day the oath of office was to be taken, there was a winner. Although the recounts and uncertainty about who won lasted a full four months, there were recounts in fewer states than would have been necessary had the election depended on the winner being named on the basis of popular vote in all of the states, a likely occurrence in the absence of the electoral college.

35

36

CRISIS

AT THE

POLLS

Leading up to the election, the United States was rocked by scandal and fraud reaching up to the highest levels of government, including members of then President Ulysses Grant’s administration. Given the condition of his administration, Grant seemed an unlikely candidate if he bid for a third term. Other members of Grant’s administration, possible alternative Republican candidates in Grant’s absence on the ticket, were implicated in major scandals. Vice President Schuyler Colfax was a party to the Credit Mobilier scandal where Grant’s personal secretary was indicted and his secretary of war was impeached.59 Despite the fraud surrounding his administration, rumor circulated that Grant was considering a third term. Members of the Republican Party, fearing the implications of a Grant candidacy, took the rumors seriously and pressed the president to admit his actual intentions. In May of 1875 Grant officially declared to party leaders his intention not to run for reelection.60 Later, in December 1875, the House of Representatives passed a resolution ‘‘reaffirming the two term tradition as part of our republican system of government, and that any departure from this time-honored custom would be unwise, unpatriotic, and fraught with peril to our free institutions.’’61 A Constitutional amendment limiting presidential terms to two would not be ratified until 1947. With Grant thoroughly out of the race, Republicans and Democrats began to look for potential candidates. At first glance, James G. Blaine seemed to be the Republican frontrunner. Blaine served three terms in the House of Representatives and spent part of that time as the Speaker of the House, before he was elevated to the Senate.62 Despite his high-profile record of service, Blaine also faced scandals and was not chosen.63 Instead, Republicans chose Rutherford B. Hayes, the governor from Ohio. Unlike Blaine, Hayes’ record was clean and untouched by scandal.64 During the last few scandal-rocked years of the Grant administration, the Democrats made great strides toward a political comeback. In 1874 they swept the congressional election and took possession of the House of Representatives for the first time in almost twenty years.65 The clear American distaste for scandal and corruption, reflected in Democratic wins in 1874, played a major part in the Democrats’ choice of a nominee in 1876. Unlike the difficulties faced by Republicans in their choice for a candidate, from the very beginning Samuel Tilden was the Democratic front-runner for the nomination. Tilden’s reputation sat squarely on his aura of incorruptibility. This was linked directly to his breaking of the Tweed Ring in New York State, which ‘‘gave him an invaluable reputation as a reformer.’’66 The election was a particularly bitter one. Republicans constantly reinforced the destruction of the Civil War and its senseless death. The Republicans framed the war as one caused by the Democrats and proclaimed that the country was being saved by Republicans. They often urged voters to vote as they fought, reminding them that ‘‘every man that tried to destroy the nation was a Democrat. Every enemy this great republic has had for twenty years has been a

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

Democrat.… Every scar, every arm that is lacking, every limb that is gone, every scar is a souvenir of a Democrat.’’67 Democrats were not silent. They attacked the Republicans as corrupt and accused Hayes of a variety of improprieties, including taking money and possessions from a deserter during the Civil War and for cheating on his tax returns.68 After months of campaigning, the moment of truth came November 7. As was the campaign, so was the day of the election: corruption at the polls, threats and violence to keep African Americans in the South from voting, reminiscent of events that happened during the election held the previous year.69 On the evening of November 7, the outcome seemed clear that Samuel Tilden had won the popular vote by a 200,000-vote margin out of over eight million votes cast.70 On the eve of the election, Hayes conceded defeat to himself. He went to bed that night, believing that not only was the election lost but the gains made in the South for equality were lost as well.71 Although Hayes may have had little doubt that he lost the election on the night of November 7, 1876, what happened the next day and in the subsequent four months turned out to be the real story of the election. Far from being right about his assumed loss, Hayes would end the election sworn in as president. Tilden’s popular vote win by 250,000 votes did not guarantee him the 280 electoral votes he needed to actually win the election. In the end, the contest hung on the disputed results from three southern states: South Carolina, Louisiana, and Florida.72 While all seemed settled in Tilden’s favor, some Democratic officials began to question what the final result would be. In the early morning hours of November 8, two separate Democratic officials independently sent telegrams to the Republican-leaning New York Times, inquiring about the latest election returns.73 These telegrams fell into the hands of the Times’ ardently Republican editor, John Reid. Though Reid was angered by the probability of a Democratic win, the telegrams gave him hope that the election was not lost after all. Doing some calculations, Reid discovered that if the electors in South Carolina, Louisiana, and Florida were certified for Hayes, Tilden would lose. At the same time Democrats were sending telegrams to the New York Times, Republicans were beginning to question the results, without Democratic tips. Daniel E. Sickles, a Republican whose public mishaps ruined his political aspirations, stopped by Republican Headquarters on his way home in the early hours of November 8, to check on the returns.74 When he arrived at the Fifth Avenue hotel that housed Republican Headquarters, Sickles found almost no one around, including Republican Chairman Zachariah Chandler. Directed by an assistant to Chandler’s desk, Sickles discovered that if Hayes won the western states of California, Nevada, and Oregon, along with securing the electoral votes of South Carolina, Louisiana, and Florida, Hayes would win the election by just one electoral vote.75 He sent out a telegram to those southern states, each of which had a Republican government at the time of the election, reading, ‘‘With your state sure for Hayes, he is elected. Hold your state.’’76

37

38

CRISIS

AT THE

POLLS

The electoral votes from California, Nevada, and Oregon were eventually certified for Hayes, with little resistance from Democrats.77 South Carolina, Louisiana, and Florida were another story entirely. After receiving the telegram from Sickles and later telegrams from Reid and Chandler telling the states not to certify their electors for Tilden, a stalemate ensued. After months of squabbling over how the votes would be certified, plans that included a simple verification by the president of the Senate, Republican Thomas Ferry, Democrats and Republicans reached a compromise. The Electoral Commission Act was voted on and passed by both the House and the Senate. The duty of the commission was simple: in cases where the electors were in dispute and could not be certified by Congress alone, the commission would investigate, deliberate, and vote on which electors to accept. All this would need to be completed before March 4, the day of the inauguration.78 The commission consisted of fifteen members; initially, it appeared to favor the selection of Tilden electors. Fourteen members represented an equal number of Democrats and Republicans from the House, Senate, and Supreme Court. The fifteenth member was Supreme Court Justice David Davis, who was considered unbiased and nonpartisan.79 Much to the chagrin of Democrats, Justice Davis would never be on the commission. On January 25 he was elected to the Senate by the State of Illinois, and he was forced to resign from the commission. In the wake of this shake-up, the Democrats agreed to the appointment of Justice Joseph Bradley, a Republican, as Davis’ replacement.80 Democrats may have been reassured of Justice Bradley’s impartiality, but outside observers have commented on what a colossal, unfortunate, and disastrous mistake the Democrats’ agreement to Bradley really was. In a sense, the Democratic agreement to Bradley was the equivalent to the election of Hayes. Bradley may have intended to remain honest in his choice of electors, and when the commission began its work on February 1, 1877, there was no inclination that Bradley would vote one way or the other, even though he was a Republican. Within a week, the tides turned. Debate heated up when the Florida electors were brought to the commission. Republicans staunchly defended the choice of the certification signed by Republican Governor Marcellus L. Stearns. On the other side, Democrats favored the Tilden electors, certified by Florida’s new Democratic governor, George F. Drew. On the evening of February 7, Bradley seemed to firmly favor the Tilden electors, confiding his feelings to John C. Stevens. After his confession to Stevens, Bradley was visited by several other members of the Republican Party that evening.81 The commission reconvened at noon on February 8; the question of how Bradley would vote and which electors would be chosen remained unanswered. One by one, each member of the commission gave his opinion as to which set of electors to choose. As expected, each chose on the basis of party lines. Bradley was the last to speak. Although on the evening of February 7 it appeared that Bradley would endorse the Tilden electors, he cast his vote on February 8 for the Hayes electors.82

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

Democrats were disheartened, but they did not give up quietly. There were other states at issue, and a certification of one elector for or against either candidate would decide the election. If the Democrats could win in one of the other states at issue, or even the single vote in dispute from Oregon, the election would go in Tilden’s favor. Questions about electors in those states were decided in much the same way, along partisan lines and in support of Hayes.83 On February 14, Louisiana certified its electors for Hayes. Democrats then started looking for ways to delay the selection of a president until after inauguration day, which would require a new election to be held.84 On February 28 the electors from South Carolina were certified, also in favor of Hayes. With the unanticipated exception of a dispute over Vermont’s electors, a second slate of electors suspiciously appeared the evening before the state’s electors were to be certified. The commission’s work was completed on March 2, with Hayes winning the election in the Electoral College, 185 electoral votes to Tilden’s 184. Hayes was advised of his victory and arrived in Washington, D.C., on March 3. The official inauguration was not scheduled to take place until Monday, March 5, but Hayes secretly took the oath the night before, to ensure an end to the madness and to secure the presidency.85 Hayes’ presidency was tainted by this long ordeal. He took office under a black cloud, reflected in his notable nicknames, among them ‘‘Rutherfraud B. Hayes’’ and ‘‘His Fraudulency.’’86 While the commission was undoubtedly biased, its work was lawful and Hayes was fairly elected. The four months of uncertainty, however, took its toll on the nineteenth president. He served one term in office. While early observers of the controversy surrounding this election pointed to backroom deals and southern economic factors as the main catalyst for a Hayes win, later historical observation undermined that thesis.87 Instead, as discussed above, it was the Electoral College and the Electoral Commission that secured Hayes’ presidency. Before 1876 eighteen men served as president. In every election, the electoral college had decided which of the candidates won the election and which would hold the presidency. In this situation, it is clear that the electoral college functioned properly and ensured a proper succession. The 1876 election presented a problem in just four states: Florida, South Carolina, Louisiana, and Oregon. In the absence of the Electoral College, there would have been no choice but to recount the votes in every state, not just the four disputed states. Given the voter fraud in the disputed states, the racist tactics used to keep African Americans from voting in the South, and vote-buying schemes in Oregon, any recount forced by a question of winner would have gone on for an unknown period. In addition, because each vote would be given equal weight, a vote lost in one state could be made up in another, leading to massive recounts and vote conflict. Given the domestic situation in 1876, the Black Codes, efforts at Reconstruction, and the presence of the U.S. Army in the South, the election system worked well fundamentally and in the way that it was intended. Despite the fact that a

39

40

CRISIS

AT THE

POLLS

commission was necessary to inquire into and certify the proper electors from each state, under normal circumstances, which do not include widespread voter fraud and intimidation, the electoral college helps to avoid the problems that would otherwise plague a popular-vote, direct-elect based system. The 2000 election, as discussed in the introduction to this book, brought new life into the old argument over the U.S. election system. The events that November closely mimicked those of 1876: There were accusations of voter fraud and intimidation, the election would be decided by the certification of electors from Florida, and the popular-vote winner lost in the Electoral College. As with every critically close election, the 2000 election once again brought questions about the appropriateness of the electoral college. The system was called antiquated and inherently unfair, and was put forth as genuinely un-American because it did not count each vote equally.88 There is no question that both elections saw a country bitterly divided, along partisan lines, over how the votes should be counted. However, observers, Chief Justice William Rehnquist among them, reveal that 2000 was not 1876.89 Chief Justice Rehnquist aptly points out that in 2000 the players at the center of dealing with the dispute were the courts, a very different situation from 1876. He is also quick to remind readers that while those recent events may seem more salient to contemporaries, a reassessment of the events of 1876 can emphasize and highlight just how different the events of those two terrifically disputed elections were, and how different the situation Americans faced in 2000 was from 1876. THE 1960 PRESIDENTIAL ELECTION The election of 1960 presents another compelling case for the institution of the electoral college. This election tends to receive considerable attention due to the players, groundbreaking campaigning techniques, and close results. The 1960 election came at a time when, after a period of relative stability and popular consensus about the direction the country should go, issues in the United States that had once been put aside came to the forefront. Given the consensus, people could easily see why the election was so close, and why the Electoral College was necessary to determine the winner of the election. In the early Cold War period, Americans turned to their tried-and-true war heroes to lead the country. In the face of Soviet power, no man embodied the leadership qualities craved by Americans more than Dwight Eisenhower. During the war, Eisenhower served as Supreme Commander of Allied Forces in Europe. This position gave him the exposure he needed to successfully run and win the presidency, despite the absence of political experience. His election, as a Republican candidate, marked the end of a twenty-year Democratic dominance of the White House. President Eisenhower was very popular during the 1950s. His election in 1952 and reelection in 1956 markedly demonstrated American desire for a return

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

to normalcy. President Eisenhower easily defeated his Democratic opponent, Adlai Stevenson, in both elections. At the same time that Eisenhower was ruining the chances of Stevenson’s presidential hopes, he was investing in his vice president’s future election potential. Ratified just one year before his first election to the presidency, the TwentySecond Amendment limited the number of presidential terms to two.90 Despite his overwhelming popularity through the 1950s, the amendment made Eisenhower the first president who would not have the option of a third term. Although there was some internal resistance to the nomination of Vice President Richard Nixon, he was the clear choice long before the campaign season began.91 Nixon faced only one serious contender for the nomination, New York Governor Nelson Rockefeller. Unfortunately for Rockefeller, Nixon was too easily identified with the popularity of Eisenhower and concerns in his home state made it almost impossible for Rockefeller to properly campaign for the presidency. In December 1959 Rockefeller withdrew his bid for the Republican nomination.92 Although Nixon faced little to no opposition in his bid for the Republican presidential nomination, Democrats saw a large number of men attempt to gain the nomination. A predictable choice would have been Adlai Stevenson, but Democrats decided not to nominate the man who had lost them the last two elections. The main front-runners for the Democratic nomination, after primary season was underway, were the senators from Texas and Massachusetts. Texas Senator Lyndon B. Johnson was an outstanding choice because of the power he wielded in the Senate. However, Democrats were hesitant to choose Johnson because of his southern heritage; no candidate from the South had been nominated or elected president since the Civil War.93 A relative to the world of politics, Massachusetts Senator John F. Kennedy would not have been a prominent choice, except for his Pulitzer Prize-winning book and notoriety as a war hero.94 Unlike questions about Johnson’s southern connections, the attacks on Kennedy focused mainly on his Catholic faith. The viciousness of the campaign for the nomination was not seen in the campaign between the Democratic and Republican candidates. Despite the backlash against Kennedy for his religion, he won every primary that he entered.95 Going into the Democratic Convention, Kennedy still faced some serious opposition from other hopeful nominees. However, after the convention voted, Kennedy was the clear winner. He secured resounding support from every region in the country, except the South. With this concession in mind, and because, after Kennedy, he won the most support at the Convention and held the majority of southern support, Johnson was the obvious choice to join Kennedy on the Democratic ticket. A major change to campaigning happened in 1960. During the preceding decade, television had become an increasingly important part of American life. In fact, by 1960, television had become more important to the candidates than the newspaper.96 The candidates spent large amounts of money on televised

41

42

CRISIS

AT THE

POLLS

campaigning. However, no single event more affected the campaign than the four presidential debates, which were broadcast nationwide on all the major networks. Kennedy had been singled out by reports as better able to connect using TV, even though Nixon spent more money on television ads as election day approached. The airtime for the televised presidential debates was free, and the nation saw Kennedy as a young and confident candidate. Nixon, who had recently been in the hospital due to illness, appeared tired and pale. The first debate was seen as the turning point in the election. Although neither candidate ‘‘won’’ the debates, their physical appearance on television gave Kennedy an edge because he looked healthier and because his answers seemed more direct and decisive. On election day, the presidency was still up for grabs, as proven by the close outcome in the popular vote nationwide. The 1950s was a period of stability as a greatly popular president led the country, and the public saw the presidential candidates as basically the same on the issues. There were a number of complaints about their platforms, which were similar and displayed the candidates’ preference for foreign affairs over domestic issues.97 The outcome of election day was by no means decided before the election. As the polls began to close, it appeared that the Democrats would sweep the election. Moving West, however, the Democrats began to lose states to Republicans. Nixon won most of the midwestern and western states, including his home state of California. Overall, Nixon won 26 states.98 With the voters in more than half of the states choosing Nixon, it would be reasonable to conclude that he won the election. However, despite his popularvote win in a majority of the states, Nixon was never able to garner enough electoral votes from those 26 states to defeat Kennedy. Kennedy easily won with 303 electoral votes compared to Nixon’s 216.99 In fact, Kennedy and Nixon’s popularvote totals in the election of 1960 separated the winner and loser by only 250,000 votes nationwide, one of the closest margins ever. The difference constituted less than 0.2 percent of the total votes cast between the two candidates. This small margin left little room for error in vote counting. However, some scholarship suggests that Kennedy did not win the plurality of the popular vote. Under Alabama’s ballot, citizens voted for the electors and not necessarily the candidate. In most instances where the popular vote was reported, the unpledged Democratic electors were reported as actual Kennedy electors. Using this method, Kennedy would win the election overall with a little over 110,000 votes. If, on the other hand, these votes were not put in the Kennedy column, then Nixon would win the popular vote by nearly 60,000.100 Although votes in several states were questionable, there was no serious outcry as there had been in other elections. There were questions by Republicans of the returns in Illinois, yet Nixon did not challenge the returns because winning the state would not have given him a win in the Electoral College.

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

This incident is paramount to the discussion of the Electoral College’s importance in close elections. Imagine if the United States functioned under a directvote system. It did not take Nixon’s opportunity to challenge the returns away; rather, in an effort to end a possible dispute, the electoral college stopped a possible long and drawn-out fight over who was elected. In this case, the benefits of the electoral college are particularly salient. The difference between the total number of votes received by the two candidates was less than 0.2 percent of the total; to this day the election is disputed. Given the inordinately small difference in vote totals and that the totals are still in dispute, the results of the 1960 election may even now be in question without the electoral college. 2004 UNITED STATES PRESIDENTIAL ELECTION In 2004 Ohio became the new battleground for election fraud allegations and court intervention. The legal proceedings began when the Socialist Equality Party candidates failed to receive the required number of valid signatures to be placed on the state ballot.101 Then the court granted a restraining order and a preliminary injunction that prevented the state from allowing challengers, other than election judges, into polling places on election day on the basis that the act would discriminate against African American voters.102 Ohio law provides a right to challenge any voter at the polls.103 However, the Ohio court anticipated that numerous challenges to voter registrations would amount to confusion and chaos, causing voter injury. On the basis of the impending voter burden, the court upheld temporary restraining orders against poll challengers.104 Following the state certification of the 2004 election, a group of Ohio voters first filed a contest of both the presidential and vice presidential election and the Ohio chief justice election.105 However, the court dismissed the contest because Ohio law did not permit more than one election to be contested in a single case.106 The thirty-seven Ohio voters then filed a contest action naming contestees President George W. Bush, Vice President Richard Cheney, and Bush-Cheney Advisor Carl Rove separately from the Ohio chief justice candidate. The contested action alleged the contestees implemented techniques of voter fraud and intimidation, had a conspiracy to ‘‘steal the election,’’ and procured fraudulent vote totals, among other allegations.107 Five days after Congress certified the election, the voters applied to dismiss the election contest and the case was dismissed.108 In light of potentially defamatory allegations against Republican candidates and the Ohio secretary of state, the court in Moss v. Bush ultimately held that the court could not impose sanctions on the movants for filing a frivolous lawsuit after the suit had been dismissed.109 Because Ohio law did not specifically authorize the court to reopen the merits of dismissed election contest claims, the court held sanctions were not warranted because the election contest was voluntarily dismissed before trial.110 Despite what the court called a ‘‘vast

43

44

CRISIS

AT THE

POLLS

criminal conspiratorial scheme to subvert our democracy through massive election fraud,’’ the court held that filing election contests was a matter of public policy and the court should not decide to encourage or discourage filings.111 While the Ohio proceedings in 2004 pale in comparison to Florida’s 2000 deadlock, the integrity of elections was once again called into question, further undermining public faith in the election process. UKRAINE’S 2004 PRESIDENTIAL ELECTION Voter fraud and the integrity of elections are international concerns. In 2004 voter fraud led the Ukrainian Supreme Court to exercise the power of judicial review for the first time.112 With the authority to interpret and determine law, the Ukrainian Supreme Court resolved the issues surrounding the 2004 presidential election battle between Victor Yushchenko (Yushchenko) and Victor Yanukovych (Yanukovych).113 On the Ukrainian election day, there were significant signs of voter fraud. One scheme of voter fraud used is called the ‘‘carousel.’’114 In a carousel, individuals were organized into teams and given a premarked counterfeit ballot. The individuals would report to a voting station, ask for a genuine ballot, deposit the counterfeit ballot, move to the next voting station, and request another genuine ballot. The carousel method enabled individuals to cast duplicate votes at every voting station within traveling distance.115 Many fraudulent and innovative schemes were used to secure millions of votes. The removal of election safeguards, such as checking internal passports and identification enabled practices like ‘‘electoral tourism,’’ transporting voters by bus or train from polling station to polling station, to take place. Citizens impersonated deceased parties to engage in ‘‘dead soul’’ voting. Some voters were paid to commit voter fraud; others did so out of animosity for one of the candidates or parties.116 An alarming 1.5 million absentee ballots were cast, close to 30 percent in some regions and far exceeding the number of real individuals.117 Thousands of absentee ballots were taken, only to reappear in voting bins shortly before the polling stations closed.118 Although some citizens were allowed to vote twice, others were denied the opportunity to vote and complained of threats and coercion.119 Electoral observers were denied entry to the polling stations and some were assaulted. There were 7,476 citizen calls to a voting hotline concerning coercion, illegal voting, and counterfeit ballots.120 When the election results were announced, Yushchenko appealed the results, naming Yanukovynch the winner.121 Yushchenko’s supporters gathered in protest in Kiev, wearing orange clothing to represent Yushchenko’s campaign.122 The mass protests were televised around the world as an estimated 200,000 to 300,000 Ukrainians gathered in subzero temperatures around Kiev’s political buildings and open squares.123 The protests were organized around the

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

‘‘Maidan,’’ the Ukrainian word for square, and a local businessman supplied tents, mattresses, food, transportation, and facilities for the growing number of protesters. While some people left the Maidan at night, there were still too many protesters to clear the streets. Several days later, authorities estimated that about 500,000 to 800,000 Ukrainians filled Maidan and overflowed the streets of Kiev.124 Ten days after the protests began, the protesters began to encircle Kiev’s government buildings, threatening violence.125 After numerous debates and discussions, the parties resorted to the Ukrainian Supreme Court. The Ukrainian Supreme Court is a court of general jurisdiction governed by a procedural law that mandates the court to decide election matters within three to five days of the hearings.126 On December 3, 2004, a day known as the ‘‘Orange Revolution,’’ the Ukrainian Supreme Court issued a decision that the numerous violations made it impossible to determine the election results. The court ordered a runoff election.127 In response to the court’s decision, the Ukrainian Parliament enacted a new set of election laws to govern the runoff election.128 Absentee ballots were restricted to the infirm, disabled, or injured citizens who were actually immobile, and the number of printed ballots was restricted. Measures were taken to secure the integrity of the election and prevent fraudulent voting.129 On December 26, 2004, Yushchenko was elected by 52 percent of the popular vote in the runoff election.130 As in Bush v. Gore, the Ukrainian Supreme Court’s decision prompted subsequent cases on election law.131 Between December 2004 and January 2005, Yanukovych filed two claims in the Ukrainian Supreme Court. First, he alleged the Central Election Committee was violating the rights of disabled citizens because only immobile citizens were granted an absentee ballot. Second, he filed a claim to invalidate the runoff election results, in which he had lost the election.132 In both cases, the Ukrainian Supreme Court affirmed its judicial review power in rejecting Yanukovych’s claims and asserting constitutional power.133 MEXICO’S 2006 PRESIDENTIAL ELECTION On July 2, 2006, two candidates declared themselves the winner of the Mexican presidential race.134 Andres Manuel Lopez Obrador (Obrador), the candidate for the Democrat Revolution Party, and Felipe Calderon (Calderon), the candidate for the National Action Party, vied for the one, six-year presidential term in Mexico.135 Term-limited President Vincente Fox, of the National Action Party, brought economic stability to Mexico’s industrial northern cities, yet Mexico’s southern cities remained poor and demanded change.136 This economic division created the most bitterly battled presidential race in Mexico’s history, which ended up with citizens demanding a recount.137 On July 6, 2006, Calderon was declared the winner by half a percentage point, or only 243,934 out of nearly 41 million votes.138 Before the results were

45

46

CRISIS

AT THE

POLLS

final, Obrador appealed to Mexico’s federal electoral tribunal and claimed that the election was manipulated in favor of the National Action Party, President Fox’s ruling party.139 Obrador called for his supporters to gather in Mexico City’s central square for a Saturday mass rally to contest the election in a peaceful manner.140 Obrador, who also claimed fraud and organized marches to protest his loss in a 1994 governor’s race, claimed that the presidential election was rigged and demanded that every ballot box in Mexico be opened and recounted.141 The alleged case of voter fraud was appealed to Mexico’s seven-judge tribunal, which has the final say in any electoral matter. The tribunal was given until September 6, 2006, about two months, to investigate the evidence, deliberate, and name the winner of the presidential race.142 On September 5, 2006, the tribunal ruled that there was no evidence of systematic fraud. Although several thousand ballots were thrown out for mathematical errors, irregularities, and other problems, the tribunal emphatically reported that the democracy of Mexico had a ‘‘clean, fair election.’’143 Obrador accused the tribunal of a lack of public transparency and of releasing partial results of a partial recount.144 While the 2006 election campaign occupied the news in Mexico, the U.S. news focused on a different aspect of the election. For the 2006 election, Mexico initiated its first absentee ballot program that gave citizens living outside the country a right to vote for a presidential candidate.145 Only thousands out of about 10 million Mexicans living in the United States registered to take advantage of the absentee ballot opportunity.146 The press reported that strict credentialing requirements, insufficient information about the registration procedure, and lack of public interest attributed to the poor voter turnout.147 When interviewed, one Mexican citizen living illegally in the United States claimed he would be required to pick up his voting credential in Mexico, a trip that would risk his ability to get back into the United States.148 A documented Mexican voter traveled to his hometown in Mexico twice to register: once to fill out the registration papers and once to receive his voter card.149 About 28,225 absentee ballots were mailed to Mexico from the United States and about 4,300 from other countries.150 The election could not have relied on absentee ballots alone. However, had the registration of absentee voters been greater, Mexico’s first absentee ballot system could have been the center of the election dispute. Even without an absentee ballot issue, Mexico’s 2006 presidential race was initially reminiscent of the alleged voter fraud in the 2000 U.S. presidential election. However, as the sixty-five days passed between the election and the tribunal’s determination, the political frenzy far surpassed the 2000 U.S. election. While Obrador organized massive street protests and set up camp in the heart of Mexico City, his allies in the Mexican Congress successfully prevented President Fox from publicly delivering his annual state of the nation address.151 While the

STATE, NATIONAL,

AND

INTERNATIONAL CRISES

tribunal claims the legitimacy of the election results, Obrador continues to make claims of voter fraud and governmental deceit. CONCLUSION In each case, the circumstances create a foundational argument for the need of consistent procedural guidelines in election statutes. Various methods of processing provisional and absentee ballots create an opportunity for fraud that can sway election results. Because repairing public confidence in election integrity is vital to preserving a democratic society, a systematic and accountable system of voting must be statutorily restored.

47

This page intentionally left blank

Chapter 3 THE ELECTORAL COLLEGE DEBATE

It is not only the unit vote for the presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider the others.1 —Senator John F. Kennedy, 1956

INTRODUCTION If a majority of American voters cast ballots for Al Gore, but George W. Bush legitimately moves into the White House, laypersons must wonder, was the election fixed? It appears that the unthinkable has happened. A candidate who lost the popular vote has been elected into the most powerful position in the American governmental system.2 Senator Hillary Clinton’s first legislative proposal after her election was to call for the abolition of the U.S. Electoral College, which she believes is the root cause of what has been termed the election of a ‘‘loser president.’’3 In fact, since its inception, the electoral college has received more proposed amendments than any other part of our Constitution. If there has been a prodigious quantity of proposals to amend or abolish the U.S. Electoral College, why does it remain? We revisit the basic principles within the solar system of governmental power, clarify common misnomers, analyze and compare the chronological details of the 2000 election with other politically and legally controversial elections, and underscore relevant areas in need of responsible revision within the context of the entire system of American government. ORIGINS OF THE ‘‘ELECTORAL COLLEGE’’ Contrary to popular belief, the Electoral College is not mentioned in the U.S. Constitution. Article II of the Constitution and the Twelfth Amendment refer to ‘‘electors,’’ but not to the ‘‘Electoral College.’’ In the Federalist Papers, Alexander

50

CRISIS

AT THE

POLLS

Hamilton discussed the process of selecting the ‘‘Chief Magistrate of the United States’’ and ‘‘a small number of persons, selected by their fellow-citizens from the general mass,’’ but the term ‘‘Electoral College’’ is never referenced.4 In The Federalist Hamilton wrote of the Electoral College, ‘‘I … hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages; the union of which was to be desired.’’5 The genesis of the ‘‘elector’’ is found in the Holy Roman Empire (962–1806), where an elector was one of a number of princes of the various German states within the Holy Roman Empire who had a right to participate in the election of the German king (who generally was crowned as emperor). The term ‘‘college’’ is derived from the Latin word collegium, which refers to any group of persons that acts as a unit. It was not until the early 1800s that the term ‘‘electoral college’’ came into general usage as the unofficial designation for the group of citizens selected to cast votes for president and vice president.6 The ‘‘Electoral College’’ was first recorded into federal law in 1848.7 The United States Code provides that ‘‘each state may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote.’’8 Presently, the Electoral College consists of 538 electors; there is one elector for each of the 435 members of the U.S. House of Representatives, one elector for each of the 100 U.S. Senators, and three for the District of Columbia by virtue of the Twenty-Third Amendment.9 Each state’s allotment of electors is equal to the number of House members to which it is entitled plus two senators. The federal decennial census apportions the number of congressional representatives to each state, thereby determining the number of electors allocated to each state.10 Chapter 9 discusses apportionment in further detail. The Electoral College may seem to be a complex system, but it is quite simple. It is merely a step-by-step process that has evolved over a course of two centuries since the framers outlined the simple process in the Constitution.11 The state and federal courts, the state legislatures, Congress, and the major political parties have all played essential roles in devising the system used today in electing our president.12 Under our current system the president is elected under the rules set forth in both the Constitution and by the federal and state laws and political party rules.13 SELECTION OF AN ELECTOR Unlike the princes de naissance of the Holy Roman Empire, the 538 electors in the United States, once properly screened, are popularly elected. The screening process for becoming an elector is limited to a few constitutional provisions enumerating required qualifications. Article II, section 1, clause 2 provides that ‘‘no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.’’14 A residual disqualifier from the

THE ELECTORAL COLLEGE DEBATE

Civil War era restricts electors to a history of patriotism. The Fourteenth Amendment provides that ‘‘citizens who have engaged in insurrection or rebellion against the United States, or have given aid or comfort to its enemies are disqualified from serving as electors.15 In addition, the political parties have devised their own methods for choosing electoral candidates. Although it is not a perfect meritocracy, electors are often selected in recognition of their service and dedication to the political party. The electors are usually state-elected officials, party leaders, or persons who have personal or political affiliation with the presidential candidate. Before these candidates are chosen, they are often required to promise in writing to vote a particular way. Once the candidates have volunteered and have been screened, they are generally nominated by their political party at their state party conventions or by a vote of the party’s central committee in each state. Then, the people of each state and the District of Columbia popularly elect the electors on the Tuesday after the first Monday in November.16 On election day, a voter casts his or her vote for a presidential candidate indirectly by voting for an elector. The precise process for selecting electors differs by state. The variance in procedure is often the cause of much concern. In particular, the lack of a constitutionally standardized ballot presentation format leads some states to completely omit the names of electors from the general election ballot. As a result, voters are encouraged to vote along precast party lines. In contrast, other state ballots list the names of the party-nominated electors below the name of their party’s presidential candidate, but without the option to select or deselect names, again encouraging voters to vote strictly along party lines. In Maine and Nebraska, two electors are chosen at large by statewide popular vote, and the rest are selected by the popular vote in each congressional district. Consequently, the electoral procedure in these states permits a split slate of electors to be chosen, which dilutes the people’s relative representation in the election of a president. The states’ freedom to determine its elector selection process has been the origin of a century-old debate in law and politics over power and principle. The states that allow a split slate argue that they are providing a forum for an outcome that is representative of the composite population, irrespective of the power that could be gained over the national election by consolidating its electoral votes for one party’s presidential candidate. The realist or utilitarian opposition claims that a state will choose the selection process that best meets its needs. In this case, if Maine or Nebraska felt it would gain more from having a consolidated group of electoral votes for president, then they would make the necessary changes to optimize their influence over the national presidential election. For the national election, a state’s certification of electors on its Certificates of Ascertainment is sufficient to establish the qualifications of an elector. Once the electors have been chosen, the governor of each state prepares six original Certificates of Ascertainment, which list the names of the popularly elected

51

52

CRISIS

AT THE

POLLS

electors and the runners-up along with the tally of votes for each.17 The states send one original, along with two authenticated copies or two additional originals, to the Archivist of the United States at the National Archives and Records Administration (NARA) by registered mail. The Certificates of Ascertainment must be submitted as soon as possible, but no later than the day after the meetings of the electors, which occur on the first Monday after the second Wednesday in December. The archivist transmits the originals to NARA’s Office of the Federal Register. The Office of the Federal Register forwards one copy to each house of Congress and retains the original.18 ‘‘FAITHLESS ELECTORS’’ State law or political parties may require an elector to vote a particular way; however, there is no constitutional provision or federal law requiring electors to vote in accordance with the popular vote in their states.19 In Ray v. Blair, the U.S. Supreme Court held that members of the electoral college have the freedom to vote as they may choose.20 However, a political party is not constitutionally barred from requiring a pledge of support for specific nominees and may compel participants to comply with party rules.21 Members of the electoral college who cast a vote for a different candidate than whom they have pledged to vote for are referred to as ‘‘faithless electors.’’ According to the Center for Voting and Democracy, there have been 156 votes cast by a faithless elector throughout the history of the United States.22 Seventy-one votes were changed because the original candidate died before the electoral votes were cast. However, the remaining instances were a result of a changed mind or possibly due to a ballot mistake. In 1836 twenty-three Virginia State electors changed their vote for vice president because the Democrat candidate, Richard Mentor Johnson, openly lived with a mulatto slave and had two daughters born from the union.23 Democrat candidate Martin Van Buren won the majority of the electoral vote and became the eighth president of the United States. However, without Virginia’s electoral votes, Richard Mentor Johnson was one vote short of the majority. Subsequently, the U.S. Senate voted by a margin of thirty-three to sixteen to elect Johnson on February 8, 1837. In 1872 Democrat candidate Horace Greeley died after election day, but before the electoral votes were cast. Three electors cast a vote for the deceased candidate; Congress disallowed these three votes. Seventeen abstained from voting and forty-three split their votes among the three remaining Democrat candidates. However, Greeley’s death did not create an Electoral College crisis because incumbent Ulysses S. Grant easily won the election with 286 electoral votes. In the 1976 election, a Washington State elector pledged to President Gerald Ford voted for Ronald Reagan. In the 1988 election, a West Virginia State elector voted for Senator Lloyd Bentsen as president and for Governor Michael Dukakis as vice president. Most recently, Barbara Lett-Simmons, a Democrat elector from

THE ELECTORAL COLLEGE DEBATE

the District of Columbia, abstained from casting a vote in 2000 out of protest for lack of congressional representation in Washington, D.C.24 In twenty-four states electors are not required to vote for a specific candidate. However, the remaining states require electors to cast their votes according to the popular vote and, in some states, ‘‘faithless electors’’ face civil or criminal penalties. In New Mexico, failing to vote for the pledged candidate is a fourthdegree felony.25 In North Carolina, the elector who violates the pledge is replaced and is subject to a $500 fine.26 In Washington and Oklahoma, the violation carries a $1,000 fine.27 (See Appendix B.) In Virginia, the statute states that an elector ‘‘shall be expected’’ to vote for the popular nominee, which may be advisory language only.28 However, Virginia’s statutory language is judicially unchallenged. Furthermore, no elector from any state has ever been prosecuted for failing to vote as pledged. THE SELECTION OF THE PRESIDENT The electors for president and vice president are appointed in each state on election day, the Tuesday after the first Monday in November every fourth year.29 On the first Monday after the second Wednesday in December, the electors meet in their respective states. The state legislature may designate where in the state the meeting will take place. It usually takes place in the state capitol building. At this meeting, the electors vote by ballot for president and vice president.30 At the designated meeting place, distinct ballots for president and vice president are provided. The electors’ votes are recorded on a Certificate of Vote, which must contain a list of all persons voted for as president and the number of electors voting for each. It must also contain a list of persons voted for as vice president and the number of electors voting for each. The names of candidates receiving no electoral votes do not appear on the Certificate of Vote. Federal law does not suggest a uniform format for the certificates. The law or custom of each state determines the official format for that state. Six original Certificates of Vote must be prepared by the electors.31 Each certificate must be signed by all of the electors.32 One of the six Certificates of Ascertainment forwarded to the electors by the governor must be attached to each of the six Certificates of Vote. The electors must seal and certify each of the six pairs of certificates as the list of votes for that state. One set of certificates is delivered by registered mail to the president of the state senate, two sets to the state secretary of state, two sets to the archivist of the United States, and the remaining set is filed with the district judged presiding in the district where the electors assembled.33 After the Certificates of Ascertainment and Certificates of Vote are delivered to the appropriate parties, the state functions of the electoral process are completed. Following every meeting of electors, the U.S. Senate and House of Representatives meet in a joint session on January 6 at 1:00 P.M. to conduct the official tally of electoral votes.34 The vice president, as president of the Senate, acts as the

53

54

CRISIS

AT THE

POLLS

presiding officer. Two tellers are appointed to open, present, and record the votes of the states in alphabetical order. The president of the Senate announces the results of the vote and declares which persons, if any, have been elected president and vice president of the United States. The results are entered into the official journals of the House and Senate. The president of the Senate then calls for objections, if any, to be made. If any objections are registered, they must be submitted in writing, state clearly the grounds for the objection, and be signed by at least one senator and one member of the House of Representatives. The House and Senate withdraw to their respective chambers to consider the merits of any objections. Pursuant to a valid objection, the House and Senate may reject votes upon concurrent agreement that the votes were not cast by the state’s certified electors.35 Votes submitted validly by state electors may not be rejected. Upon the resolution of submitted objections, if any, the House and Senate certify the official tally of electoral votes.36 PREELECTION PROCESS; SELECTING THE PRESIDENTIAL CANDIDATES The process of selecting the presidential candidates is determined primarily by party politics.37 This is a very complex process involving elaborate party rules, state statutes, and court rulings, none of which are discussed in the Constitution.38 The informal process of citizens seeking nomination begins by becoming visible to the public as a candidate and to be recognized as a viable candidate by a broad base of electorate.39 The next step in the nominating process is influencing as many delegates as possible to vote for your nomination.40 The delegates are chosen under a number of different state and political rules and consist largely of public officials, governors, congresspersons, and other party leaders.41 There are two categories of delegation activities: (1) the party and state leaders who control many votes other than their own and (2) the independent delegates who control only their own votes.42 Although delegates are free to vote for any candidate, most vote for the candidates supported by their party leaders.43 Today the selection of the nominee is all but a foregone conclusion before the national convention actually occurs. The national convention has become more of a platform for nominated candidates to give their victory speeches. During the primaries beginning in January of the election year, the nominees are voted for in each state to determine who becomes the presidential candidate representing the party in the general election. Most states hold their primaries on different days, depending on the state. Because it has been argued that separate primary dates give undue weight and influence to the presidential choice of one small or particular state, it has been suggested that the current system should be replaced by a national primary in which every state conducts its primary on the same day.44 This plan, however, overlooks many of the virtues present in the current system. If there are losing candidates in the first elections, the

THE ELECTORAL COLLEGE DEBATE

present system encourages other candidates to enter the race, replacing the losing candidates.45 The present system also allows candidates who cannot afford to fund a national primary campaign at the outset to have a chance at the primaries.46 Finally, the present system allows for losers in one primary to redeem themselves in later primaries.47 However, in most states primary results bind the votes of national convention delegates only for one or a limited number of ballots.48 The primaries and the national conventions have proven to be a successful system in providing presidential candidates throughout its evolution over two centuries. The next phase in the election process begins with the nine stages of the Electoral College. NOMINATING PRESIDENTIAL ELECTORS Article II, section 1, clause 2 of the Constitution provides only one qualification for an elector, that being ‘‘no Senator or Representative, or person holding Office of Trust or Profit under the United States, shall be appointed an elector.’’49 The intent of the Founding Fathers behind this provision probably was to ensure that the electors would be distinguished citizens.50 Today political parties have devised their own methods for choosing electoral candidates.51 Although it is not a perfect meritocracy, electors are often selected in recognition of their service and dedication to the political party and are usually state-elected officials, party leaders, or persons who have personal or political affiliation with the presidential candidate.52 Before these candidates are chosen, they are often required to pledge in writing to vote a particular way.53 This pledge has sometimes been broken and the elector votes for another candidate. These electors are known as ‘‘faithless’’ electors, and in some states faithless electors are threatened with consequences of fines or criminal actions.54 There have only been a few cases of faithless electors, however, and they have never influenced an election.55 Once the candidates have volunteered and been screened, they are generally nominated by their political party at their state party conventions or by a vote of the party’s central committee in each state.56 From here the names of the candidates are officially submitted to each state’s chief election official in order for them to appear on the general election ballot.57 ELECTING THE PRESIDENTIAL ELECTORS The Constitution allows each state a number of electors equal to the combined total of its Senate membership (two for each state) and House of Representatives delegation (ranging from one to 53, depending on the state’s population).58 The manner of selecting the electors is left to each state legislature.59 Initially, the selection method differed in every state. Some legislatures chose the electors themselves, whereas others used a direct popular vote either by

55

56

CRISIS

AT THE

POLLS

congressional district or throughout the whole state.60 Other states used a combination of these methods.61 In all states, electors are chosen individually from a single list of all candidates for the position.62 Today all states choose their electors by direct statewide election except for Maine and Nebraska, who now select two of its electors by a statewide popular vote and the remainder by the popular vote in each congressional district.63 Then the people of each state popularly cast their ballots for the electors representing their choice for president and vice president on the Tuesday following the first Monday in November in years divisible by four.64 Depending on the procedure in each state the names of the electors may or may not be on the ballot below the name of the candidates running for president.65 Once the ballots are cast, whichever electors win the popular vote in the state becomes the state’s electors. The slate of electors for the presidential ticket that receives the most popular votes in each congressional district is appointed. In Maine and Nebraska, two electors are chosen at large by statewide popular vote. ELECTION OF THE PRESIDENT BY ELECTORS Article II, Section 2 states that ‘‘the electors shall meet in their respective states, and vote by ballot for two persons. The person having the greatest number of votes shall be President, if such number be a majority of the whole number of electors appointed.’’66 The Twelfth Amendment modifies this procedure to require balloting for president and vice president separately.67 On the Monday following the second Wednesday of December (as established in federal law) each state’s electors meet in their respective state capitals and cast their electoral votes, one for president and one for vice president.68 When the electors meet, the U.S. Code provides that they shall make and sign six certificates that shall contain two distinct lists: one of the votes for president, and the other for vice president.69 Although most electors pledge to vote a certain way, no federal law requires electors to vote according to the popular vote in their state, but some state laws do. To prevent electors from voting only for ‘‘favorite sons’’ of their home state, at least one of their votes must be for a person from outside their state (though this is seldom a problem because the parties have consistently nominated presidential and vice presidential candidates from different states).70 If an elector is unable to vote, the U.S. Code permits states to fill the vacancy before the vote is cast.71 CERTIFICATION OF THE ELECTORAL SLATE According to section 6 of title 3 of the U.S. Code the governor of each state then certifies the state’s electoral votes and makes sure a final determination has been made if a dispute has arisen.72 If a dispute does arise, resolution of the dispute is guided by state procedures. The U.S. Congress is then bound by section 15 to

THE ELECTORAL COLLEGE DEBATE

accept the governor’s certification of the state’s electoral slate, as long as the electoral votes were ‘‘regularly given’’ by the electors.73 TRANSMISSION OF CERTIFICATES TO THE U.S. SENATE PRESIDENT The electoral votes are then sealed and transmitted from each state to the president of the Senate who is also the vice president of the United States.74 On January 6 at 1:00 P.M. the House of Representatives and the Senate meet together in the chamber of the House of Representatives to count the votes.75 The president of the Senate opens all the certificates and the votes are counted before both Senate and the House of Representatives by four tellers, two appointed by the House and two appointed by the Senate.76 Finally, the tallied votes are delivered to the vice president, who announces the results.77 The presidential candidate with the absolute majority of electoral votes (currently 270 of 538) is declared president.78 Similarly, the vice presidential candidate with the absolute majority of electoral votes is declared vice president.79 COUNTING OF ELECTORAL VOTES BY CONGRESS Once the vice president announces the electoral results on January 6, Title 3 section 15 now permits Congress to reject the electoral votes not ‘‘regularly given’’ by the electors.80 Written objections, signed by at least one member of the Senate and House, are then considered.81 Then both houses go off to their chambers and meet separately to consider the objection.82 By law the sessions cannot last longer than two hours and each senator and representative can speak for only five minutes, once.83 At the end of the debate, a vote is taken in each house on whether the objection is agreed upon.84 Both houses must stay until the matter is resolved.85 The decisions of the two houses are announced. If the objection is agreed upon by both houses, then the electoral vote or votes in question are not counted.86 If the houses do not agree to the objection, the vote or votes in question are counted.87 At noon on January 20, the duly elected president and vice president are sworn into office. REFERRAL OF THE PRESIDENTIAL ELECTION TO THE HOUSE IF NO CANDIDATE RECEIVES A MAJORITY OF ELECTORAL VOTES In the event no one obtains an absolute majority of electoral votes for president, the U.S. House of Representatives is called on to select the president.88 The Twelfth Amendment provides that when there is no majority candidate, the house must immediately choose the president by ballot from the top three candidates

57

58

CRISIS

AT THE

POLLS

receiving the highest number of votes in the Electoral College.89 In choosing the president, the votes shall be taken by states, each state casting only one vote.90 A quorum consisting of a member or members from two-thirds of the states, and a majority of all the states is necessary to win.91 The house has only had to choose the president for two elections, those in 1800 and 1824.92 The electors in 1800 gave both Thomas Jefferson and Aaron Burr an equal number of electoral votes.93 The house elected Jefferson in accordance to the original design of the Electoral College system.94 This election prompted the Twelfth Amendment, which permitted the electors to vote separately for presidential and vice presidential candidates to prevent a tie from ever happening again.95 In the 1824 election, five candidates (Andrew Jackson, John Quincy Adams, William Crawford, John C. Calhoun, and Henry Clay) emerged in the race for the presidency.96 No one received the necessary majority electoral votes to become president.97 The house, in accordance to the Twelfth Amendment, selected John Quincy Adams, despite the fact that Andrew Jackson received the greater number of electoral votes.98 In every election since the 1824 election, no presidential candidate has ever failed to get a majority of electoral votes.99 After the 1824 election, the general ticket system was widely adopted, becoming almost the exclusive method of tabulating electoral votes.100 The general ticket system has proved to be successful, ensuring the prompt and orderly election of a president each election. There are a number of procedural issues, however, that the Constitution and the Twelfth Amendment do not clearly resolve. The first issue pertains to whether the votes within each delegation would be by plurality or by majority.101 In other words, what percentage of a state’s delegation must vote for a presidential candidate for the state’s vote to count?102 The Constitution merely states that ‘‘the votes shall be taken by states, the representation from each state having one vote.’’103 When the issue arises, House rules decide the matter.104 The rules established in 1825 more explicitly state that ‘‘in case one of the persons from whom the choice is made shall receive a majority of the votes given … the name of that person shall be [the choice of that state].’’105 Because this rule would be subject to the Twelfth Amendment, which states that the House shall immediately choose the president by ballot and the votes must be taken by the states (each state having one vote), there is no constitutional barrier that requires either a majority or a plurality in the voting of the delegation.106 It is likely, however, that if new rules were to be adopted to clarify this ambiguous process, the requirement of majority would be obtained.107 Not only would the majority requirement favor public confidence over the outcome but the requirement would appear to be consistent with constitutional requirements in other similar contexts, such as the requirements that a majority of electoral votes is required for victory in the electoral college and states’ votes in the House.108 Another procedural issue not clearly resolved is whether the votes within each delegation would be by open or secret ballot. It is unclear whether the ballot of the state’s representative and the ballot of the state taken as a whole are

THE ELECTORAL COLLEGE DEBATE

secret ballots.109 The Constitution neither requires nor forbids a secret ballot, which leaves the issue open to congress.110 It can be argued, however, that if a House election were held today, the 1825 rules would prescribe a secret ballot based on their own interpretation during that election.111 At the time, some House members felt that a ballot was per se a secret and that the Constitution provided the right to a secret ballot.112 However, this interpretation is not binding, and rules requiring an open ballot can be adopted. Furthermore, public opinion would be opposed to a secret ballot and would insist on knowing for whom their elected representatives voted.113 The issue of what quorum should be required of delegates within a delegation has been raised by some scholars as an unclear provision. The Twelfth Amendment, however, explicitly describes that ‘‘a quorum shall consist of a member or members from two-thirds of the states, and a majority of all states be necessary to a choice.’’114 As provided in the 1825 rules, the candidate who receives a majority of votes is chosen by the delegation when a vote is taken.115 Taken together, it is clear that even one member of a delegation will constitute a quorum for the delegation, and there must be two-thirds of the states present and voting.116 The final issue not clearly resolved by our current rules questions whether the House election would be by the House sitting at the time of the presidential election, or the new House not yet sworn in at the time of the meeting of the Electoral College in December.117 Most scholars believe that January 6, the date on which the electoral votes shall be opened, presented, and acted upon by Congress, is the date on which it is determined that there not be a majority of the whole number of electors appointed and have concluded that the newly elected House would therefore elect the president.118 However, January 6 is purely a ceremonial day and is not a critical day.119 The popular election day should therefore be the day on which it is determined that no candidate receive a majority of electoral votes and that the old House rather than the new House would select the new president.120 REFERRAL OF VICE PRESIDENTIAL ELECTION TO THE SENATE If no one obtains an absolute majority for vice president, then the U.S. Senate makes the selection from among the top two contenders for that office in accordance to the Twelfth Amendment.121 Only once has the Senate chosen a vice president, in 1837 (it chose Robert Richardson who failed to get a majority of electoral votes).122 Because the Senate election of the vice president is by the whole number of the senators, questions about majority or plurality within state delegations, or a quorum within delegations are avoided.123 There does not appear to be any serious disputes over issues of a secret ballot; however, there are few records left describing the Senate election. Because the Twelfth Amendment does not use the term ‘‘ballot,’’ the Constitution does not prescribe any requirements.124 If a Senate election were to occur today, secret-ballot issues would have to be resolved.

59

60

CRISIS

AT THE

POLLS

The issue of whether the new Senate or the old Senate would elect the vice president would not appear to be as crucial an issue as it is for the presidential election because one-third of the Senate turns over every two years.125 This issue would still need to be addressed if a Senate election took place today. One feature of the Senate election that may appear to be troublesome is that the running mate of the elected president may not be elected. This is because the Senate may only choose from the top two candidates of the electoral vote.126 An example of this is the 1992 election when the polls suggested that Perot would have received 33 percent of the vote, Bush 28 percent, and Clinton 24 percent, and no candidate would have received a majority of electoral votes.127 Had these numbers held up until the election, the presidential election would be decided by the House where Clinton would have most likely been declared the winner and the Senate would have to choose the vice president who would likely be Quayle (Gore being ineligible).128 Clinton and Quayle, from opposing parties, would be the president and vice president elect.129 If reform is considered, it seems that the best way to reduce the possibility of the president and vice president being from different parties is to limit the number of presidential candidates in the House to the top two candidates of the electoral votes.130 However, as long as the general ticket ballot is retained, it is highly unlikely that the House election will ever take place.131 ELECTION OF THE PRESIDENT PURSUANT TO THE AUTOMATIC SUCCESSION ACT IF NO SELECTION OF THE PRESIDENT IS MADE BY THE HOUSE If the president and vice president are not selected by the House by January 20th of the year following the general election, Congress may declare the president, as stated in the Twelfth Amendment.132 Section 19 of Title 3 of the U.S. Code provides that if no president or vice president is selected, then the speaker of the House on January 20th shall act as the president.133 If the speaker of the House fails to qualify or refuses the office, the president pro tempore of the Senate shall act as president.134 After the president pro tempore, cabinet members are designated in the succession chain.135 Because the Automatic Succession Act allows a party to delay an election in the House and ensure a member of their own party will assume the duties of the presidency, reform must take place to establish quorum provisions and a ‘‘two candidate’’ presidential selection for the House.136 THE HISTORY BEHIND THE ELECTORAL COLLEGE: THE BIG COMPROMISE The U.S. presidential election of 2000 was a highly disputed election. In fact, many Americans might suggest it is the most disputed election in U.S. history.

THE ELECTORAL COLLEGE DEBATE

However, another highly disputed election took place in 1876. The presidential election of 1876 placed Republican Rutherford B. Hayes against Democrat Samuel J. Tilden, and it involved an electoral college dispute, which was not explained by the U.S. Constitution. The 1876 election took place in the height of the Civil War era. The actual war was over, but its aftermath was plaguing the South. The South was in the middle of ‘‘Reconstruction,’’ and Ulysses Grant was the president. The Civil Rights Act of 1875 had outlawed racial discrimination on public places, to little avail in many parts of the South.137 Hence, there were federal troops stationed all throughout the South, an attempt to ensure that black Americans could vote. During the 1870s, racism was growing in the South. In 1865 a group of soldiers from the Confederate army formed the Ku Klux Klan. Race riots were happening in New Orleans and other cities around the South. Yet progress was made as well. In 1870 Hiram R. Revels of Mississippi became the first black person elected to the U.S. Senate. A month later, the Fifteenth Amendment was ratified, which said no person shall be denied the right to vote ‘‘on account of race, color, or previous condition of servitude.’’ President Grant was elected to a second term of office in 1872. At that time, he tried to reconcile with Democrats in the South, but he was not successful.138 Aside from the historical context of the election (which is quite different from the context in 2000), the 1876 election bears substantial similarity to the 2000 election that is so disputed. The elections were held on the same date, Tuesday, November 7. Next, by a margin of only 8 to 7, the Electoral Commission gave the contested twenty electoral ballots to Hayes, which allowed him to win the presidency by one electoral vote, 185 to 184. Moreover, the state of Florida played a crucial role in the controversy. Another similarity was that the snowball effect of the dispute threatened to bring the electoral count in states like Wisconsin into play. Finally, the electoral college and the popular vote were won by different candidates, the losing candidate holding the popular vote. Moreover, just as in 1876, the election controversy was covered extensively by the public and the press. EVENTS LEADING UP TO THE NOMINATION OF HAYES The Republican Party nominated Rutherford Hayes in 1876 as the presidential candidate. After the scandals during the presidency of Ulysses S. Grant (1869– 77), the Republican Party liked Hayes’ clean record in government. Hayes had an honest record in public service, and he was known as a war hero and advocate for the rights of freed slaves; therefore, they saw Hayes as a good choice. Rutherford Hayes was born in the small town of Delaware, Ohio, in 1822. At the age of 21, he enrolled in Harvard Law School and in March of 1845, he was admitted to the Ohio bar to practice law. His practice did not take off right away, and Hayes spent time traveling throughout 1847 and 1848. In 1848 he went to

61

62

CRISIS

AT THE

POLLS

New Orleans and Galveston, Texas, where he was exposed to slavery for the first time. Hayes was appalled by the institution and felt it was bad for both the slaves and the slaveholders. Hayes returned to Cincinnati, Ohio, after his travels and married Lucy Hayes in 1852. Hayes was active in Cincinnati politics and built his life and family in the city. He and Lucy had seven sons as he worked his way up the political ladder of Cincinnati, beginning with a city solicitor position in the 1850s. On April 12, 1860, Hayes responded to President Lincoln’s call for volunteers in the Civil War. He and his friend Stanley Matthews enlisted together, and Hayes became a major in the 23rd Regiment of Ohio Volunteers. Hayes fought in the Union Army for four years, until he injured his arm when he was hit with a musket ball. A war hero, he was elected to Congress from his Ohio district in 1864. After Hayes was reelected in his Ohio district in 1866, he went to Washington with his wife and his third son, Rutherford Jr. At that time, the ‘‘Radical wing’’ of the Republican Party was growing stronger in Congress and ‘‘veered closer to a collision with the President,’’ President Johnson, over Reconstruction legislation. In 1866 the Congress passed Reconstruction Acts that imposed military rule on the South, and these were passed over President Johnson’s vetoes. After Ohio Governor Jacob Cox decided not to run for reelection, Ohio politicians urged Rutherford Hayes to run for governor, and he did. He viewed his gubernatorial campaign as a method of pushing his desire to allow blacks to vote in Ohio through a referendum. He denounced Ohioans who did not want political equality in the state. Hayes won the gubernatorial campaign in 1867 and went on to run for a second term in 1869. During the campaign for his second term, he focused on equal rights. His opponent, Democrat George Pendleton, was focused on the use of ‘‘greenbacks,’’ depreciated money to repay the Civil War debts. Hayes won the 1869 election by 7,000 votes. In January 1872 Hayes retreated to private life, choosing not to run for a third term of office as governor. He spent time campaigning for Republicans and the Republican Party in general and spent time with his family. However, as soon as 1875, Republicans again called on Hayes to represent them in Ohio, asking him to run for governor for the third time. This time, the office of governor would allow Hayes to be ‘‘mentioned’’ as a Republican presidential nominee for 1876. Hayes chose to run for governor and defeated Aphonso Taft by a margin of more than two to one. Hayes was inaugurated for his third term as governor in January 1876, but almost as soon as he took office, talk surfaced about his potential presidential nomination. In April, the Ohio state convention voted unanimously to support Hayes for the Republican Party nomination. The Republican National Convention was held on June 14, 1876, in Cincinnati, Ohio. Although Rutherford Hayes was not the favorite among the six potential Republican nominees, he had certain qualities that set him apart. He was the

THE ELECTORAL COLLEGE DEBATE

governor of a ‘‘swing state’’ and was accepted by various groups within the Republican Party; hence, he could end up as a ‘‘compromise choice.’’ After loyalties allayed themselves within the party that day, Hayes ended up the winner with 384 votes. On June 14–16 the Republican National Convention in Cincinnati nominated Governor Rutherford B. Hayes of Ohio for president and Congressman William Wheeler of New York as vice president. NOMINATION OF TILDEN Hayes’ Democratic Party opponent, Samuel Tilden, also had a unique, impressive background. Born in New Lebanon, New York, near the Massachusetts border, Samuel Tilden had a sheltered childhood due to weakness and illness. As a result, he read books avidly and became a young scholar. This would serve his intelligence well, but not his social life, because, according to his biographer, A. C. Flick, Tilden ‘‘missed the best experiences of childhood’’ and did not experience ‘‘the free spirit of fun which would have made his character more responsive and his personality more likeable.’’ Yet Samuel Tilden’s career as a lawyer was served by his reserved, neutral temperament, and he was admitted to the New York State Bar in 1841. He achieved success quickly with his calm, logical standpoint. Tilden became Corporation Counsel for the City of New York in 1843, where he processed claims for the city and issued complaints for violations of city laws. He also began a New York City newspaper called the New York Morning Daily News, which only lasted for about two years due to his lack of interest. In 1845 Tilden became a member of the New York State Assembly, and the next year, he was elected as a delegate to the New York State Constitutional Convention. At the end of Tilden’s term in the State Assembly, he returned to private practice—against the pleas of New York politicians—and developed a sound reputation as a solid lawyer who charged modest fees. Samuel Tilden practiced law throughout the 1840s and 1850s, but he also stayed active in politics. As he earned money, he is said to have become more active socially, and even to date some women, although he never married. In the late 1850s and early 1860s, Northerners debated the issue of the South and slavery. Tilden’s belief on the South was that the southern states were ‘‘determined to preserve the social superiority of their race’’ and they would never accept the Republican view wanting to end slavery. Tilden’s view was that although Northerners were against slavery, they did not feel as strongly about the issue as the people in the South. Tilden felt opposed to the use of force by the North against the South. In September of 1874, Tilden was pressured to run for New York State governor. He ran and defeated the Republican opponent, John Dix. Tilden’s reform efforts during 1875 and 1876 were praised and rewarded by his receipt of the nomination for presidential candidate at the New York State Democratic Convention in Utica

63

64

CRISIS

AT THE

POLLS

in 1876. In late June of 1876, the Democratic National Convention was held. On June 27, 28, and 29 of 1876, the Democrats at the convention in St. Louis nominated Governor Samuel J. Tilden of New York for president and Governor Thomas Hendricks of Indiana as vice president. ACTUAL ELECTION In 1876 there were only thirty-eight states in the United States, and their electoral votes were very different from the votes of today. In 1876 New York had the most electoral votes of any state with thirty-five votes, followed by Pennsylvania with twenty-nine, Ohio with twenty-two, and Illinois with twenty-one votes. States like California, which today has the largest number with fifty-four votes, only had six votes back in 1876. The Republicans’ allies were obvious in the 1876 election. It was clear that any Republican success in the presidential election in the South depended on the votes of the free black population. The problem that Republicans faced was that even though the Fifteenth Amendment had been passed, forbidding the denial of the right to vote based on race, the amendment would not necessarily be properly enforced. Groups like the Ku Klux Klan were in formation, and they threatened the legitimacy of the vote. The issues in the 1876 presidential race were heated, and there was great interest in the election. In Supreme Court Chief Justice William Rehnquist’s book on the election, he notes the various news articles from across the country showing the excitement, especially an impromptu poll of all of the passengers on the New York-Philadelphia express train, the results of which were published in the New York Herald. The Kentucky newspapers sent reports of intense excitement across the entire state. Voter registration increased in California at an unprecedented rate, and Pennsylvania, Tennessee, and Massachusetts reported great interest in the race. Reports of private wagers and small group polls were heard in the big cities. As Rehnquist states in his book, ‘‘People were prepared for a close vote, but scarcely anyone guessed just how close it would be.’’ As the votes came in on election night, it was clear that it was going to be a close race. While Hayes won many northeastern states like Pennsylvania, Massachusetts, New Hampshire, Rhode Island, Maine, and Vermont, Tilden held his own with Connecticut, New York, New Jersey, and Delaware. Tilden was also clearly in the lead in the South, south of the Mason-Dixon Line. Hayes dominated the Midwest by winning Ohio and Illinois, but he narrowly missed Indiana to Tilden. Hayes clearly won in Colorado, Nebraska, Kansas, California, and Oregon. After all the votes were accounted for, except for South Carolina, Florida, and Louisiana, it seemed like Tilden would be the victor. The only way that Hayes could win would be if he won South Carolina, Florida, and Louisiana. General Daniel E. Sickles was a Republican who involved himself in the fateful election of 1876. He was in New York as the returns came in on election night,

THE ELECTORAL COLLEGE DEBATE

and after he stopped by Republican Headquarters, he decided to send telegrams to Republican Party officials in South Carolina, Florida, and Louisiana. His telegrams, which were over the name of National Committee Chairman Zachariah Chandler, said, ‘‘With your state sure for Hayes, he is elected. Hold your state.’’ THE CASE FOR KEEPING THE ELECTORAL COLLEGE Since the development of the Electoral College, the Twelfth Amendment, the expansion of voting rights, and the use of popular vote in states as the vehicle for selecting electors have substantially changed the process, but concerns remain.139 The American Bar Association (ABA) has criticized the Electoral College as ‘‘archaic’’ and ‘‘ambiguous’’ and its polling showed 69 percent of lawyers favored abolishing it in 1987. Public opinion polls have shown that the majority of Americans have continuously favored its abolishment: 58 percent of Americans in 1967, 81 percent in 1968, and 75 percent in 1981 wanted the Electoral College abolished.140 Nonetheless, surveys of political scientists have supported the continuation of the Electoral College.141 Why would lawyers want to get rid of the Electoral College and politicians want to keep it? Lawyers question the power of the individual’s vote in a system that gives no legal significance to it. Why should an individual vote, if an elector can disregard the popular vote without legal ramifications? Is a government that is not elected by the aggregate of its people legitimate? Why do Americans maintain the Electoral College? Why do we not change or abolish it as Senator Clinton advises? What are the issues deserving of responsible reform? Does America keep the Electoral College because there are no better systems available to accommodate the needs of the fifty-one diverse states (here the term ‘‘state’’ includes the District of Columbia)? The notion of an Electoral College has evolved for more than a millennium (962–2002). It is one of the legacies of the inspired genius of our Founding Fathers. It was part of the Great Compromise, which transformed the American people from an amalgam of rival colonies into a constitutional republic. This Great Compromise brought together the large states and the small by means of a national Congress, with the House of Representatives based on population and the Senate based on state sovereignty. The Electoral College is fundamentally grounded in the same compromise: it allows all states, regardless of size, to participate in the process of electing the president. The Electoral College is structured to keep politicians’ interests, money, and policies focused on the whole country, not merely toward the half-dozen most populous states. If the Electoral College was abolished and a popular vote instated, the temptation would be irresistible for presidential candidates to offer the moon wrapped in federal dollars to big cities in exchange for an extra million votes. Meanwhile, the rest of the country would be forgotten. The Electoral College is the mechanism that consistently provides a president who has achieved a majority in a functioning political process. It protects America

65

66

CRISIS

AT THE

POLLS

from the fate of other nations that suffer from the complexities, uncertainties, and agonies of coalition governments patched together with no single candidate or party winning a majority. Relative to its European predecessors that led to the democratic elections of Hitler and Mussolini, the electoral college is brilliantly safe, efficient, and fair. ‘‘Whereas other countries handle their succession of chief executives by revolution or angry mobs, the only street ruckus during our present dilemma has been a little pushing and shoving by Jesse Jackson’s friends.’’142 Throughout the history of the United States, the electoral votes have nearly perfectly paralleled the popular vote; more than 99 percent of electors have voted as pledged, and results are swiftly rendered and often left undisputed.143 Critics of the Electoral College system can point to the rare (