Over the next two weeks, I will be engaged in two related endeavors that examine disputed elections from opposite temporal perspectives. One week from today (Tuesday, October 14), I will deliver a lecture on the history of disputed elections. Then, the following Monday, I will be in D.C. to observe the oral argument in McCain v. Obama, which involves a hypothetical dispute over ballots cast in the very near future.
Bush v. Gore in an historical mirror
The historical lecture will go all the way back to our nation’s very beginning, focusing on the 1792 gubernatorial election in New York between George Clinton, the incumbent Democratic-Republican, and John Jay, the Federalist challenger (who was serving at the time as the first Chief Justice of the United States). The dispute over this election truly was our nation’s first Bush v. Gore. The parallels are striking. The two candidates “lawyered up” then, as they did in 2000. On both sides, there were organized efforts to recruit legal luminaries to press their partisan position. As one Jay biographer has written, “every lawyer” in New York City “rummaged in his books for legal arguments.”
So if someone says that the battle over ballots in Florida eight years ago was unprecedented for the army of lawyers each side employed, don’t you believe it. While the lawyers then had no CNN for pitching their legal positions to the public, one of Jay’s legal lieutenants reported that the other side was “stuffing news papers with dissertations” on the dispute, but not to worry because a “refutation” from their “own side” would “appear in tomorrow’s paper.” Indeed, a multitude of pamphlets and broadsides was written to support each candidate, and the news printers were happy to circulate them to an aroused citizenry.
Aaron Burr, in defending Clinton’s position, was the James Baker of his day, while Rufus King (like Burr, a U.S. Senator from New York at the time) was Jay’s Warren Christopher, or, perhaps more apt, Ron Klain (based on the prominence of his role for Gore, as recently portrayed in HBO’s Recount movie). Moreover, Burr and King made essentially the same arguments as their modern-day counterparts. Burr, along with the other lawyers he recruited to Clinton’s side, including Edmund Randolph (then serving as the first U.S. Attorney General), made the argument that election statutes must be strictly followed in order to protect the integrity of elections. King and the rest of Jay’s legal team, which included a prominent former judge in Philadelphia, argued that technical breaches of election statutes should not be permitted to disenfranchise innocent voters. When King wrote that “election law is intended to render effectual the constitutional right of suffrage” and “should therefore be construed liberally” so that “the means should be in subordination to that end,” Gore would have been happy to have those words in his own legal briefs.
It is not merely an historical curiosity that 1792 foreshadows 2000. Rather, I suggest that every high-stakes disputed election has the potential for sparking the basic debate between the Burr-Baker strict constructionist position and the King-Klain voter-protection view. Each side, regardless of its prior ideological commitments, will take whichever of these jurisprudential positions will support a victory in the particular election at hand.
In the 200-plus years since 1792, our constitutional democracy has not advanced beyond the simple repetition of this basic jurisprudential debate. The reason is that we lack an institution capable of developing an impartial body of precedent on how to resolve disputed elections. The specific contest in 1792 ended when the state’s Canvassing Committee, whose decisions by statute were final and unreviewable, ruled in favor of Clinton by a partisan 7-4 vote. The result was unsatisfactory then, precisely because it was so partisan.
In 2000, the Supreme Court, perhaps fearing the partisanship that would beset a congressional resolution of the presidential election, took it upon itself to attempt a resolution according to its interpretation of the Constitution. But the 5-4 decision caused the Court, rightly or wrongly, to be accused of its own partisanship. It wasn’t able to maintain itself as institutionally “above the fray,” because it wasn’t institutionally designed to handle the uniquely polarizing case of two presidential candidates each claiming a legal entitlement to a declaration of electoral victory.
I believe there are valuable historical lessons in the New York election of 1792 on why we still lack the institution necessary for this category of cases. Those lessons, I conjecture, concern the almost immediate development of two-party politics despite the desire of our Constitution’s Framers to avoid that development. But I’ll leave those points for Tuesday’s lecture.
Testing the Potential Future of Bush v. Gore
What is most important, looking forward, is how ready our system of constitutional democracy is to handle the next Bush v. Gore, whenever it may come. It is unlikely to happen this year, for the simple reason that the odds are against it happening in any given year. But come again it will, at some point in nation’s future. There is a story to tell about how our system progressed (if one can call it that) from 1792 to 1876, when the dispute over the Hayes-Tilden presidential election necessitated a special commission—just as the story progressed (or at least moved through time) from 1876 to 2000. My Moritz colleague Steve Huefner and I are in the process of writing a book-length chronicle of major disputed elections in U.S. history—a chronicle that has some interesting tales along the way, of which 1792 is the only the starting point. But whenever that book goes to press, there will be new chapters to be written in subsequent editions, and what will they say about the improvement of our society’s ability to resolve disputed elections?
One specific question for the future is, what effect will the legal precedent of Bush v. Gore have in the next dispute? The McCain v. Obama simulated adjudication is designed, in part, to shed some light on that question. (In my last comment I recounted the genesis and goals of McCain v. Obama, in which hypothetically the outcome of this year’s election turns on whether or not to count provisional ballots cast in Colorado as a result of a severe storm that triggers an extension of polling hours in Denver.) Even now, I can tell that the indeterminacy of the Equal Protection principle articulated in Bush v. Gore poses a challenge to any court confronted with a future disputed election that requires consideration of that precedent. In my role as “Acting Clerk of Court” for the McCain v. Obama simulation, I have prepared a “Neutral Memorandum of Law” for the benefit of the participating attorneys and jurists. Undertaking that task has caused me to realize, even more than I did when I responded to Dan Lowenstein’s critique of my initial effort to classify potential Equal Protection claims based on Bush v. Gore, just how fluid that classification must be until it gets pinned down by future precedents. (It’s hard to know conceptually how to treat the storm-induced provisional ballots under Bush v. Gore for reasons I endeavor to explain, much less to decide definitely which side should win under that precedent.)
But if McCain v. Obama truly has powerful arguments on both sides, as my analysis in the Neutral Memorandum of Law proffers for the consideration of the counsel and Court, then the openness of the law places all the more of a premium on the need for an impartial tribunal. In McCain v. Obama, the attorneys can appeal to the same “first principles” of election law—strict enforcement to protect the integrity of elections, or flexible interpretation to avoid voter disenfranchisement—as their predecessors did in Bush v. Gore, and before them their predecessors in the disputed election of 1792. Without a structurally impartial tribunal, the decision of which side’s “first principles” should prevail is likely to seem just as arbitrary, and thus unsatisfactory, as the previous decisions did to many contemporaneous observers. What is more, there can be no advancement from one dispute to the next; each time, the two sides are condemned to repeat the same warring first principles, with another apparently arbitrary ruling by a body perceived by many to be partial to one side.
The avoidance of this dispiriting repetition is the hope of the institutional experiment underlying the McCain v. Obama simulation. If the institution that adjudicates the dispute is structurally impartial, and perceived as such, then its decision has a chance of being accepted as principled. Moreover, that principled decision can serve as precedent in the next dispute. It might be that even a structurally impartial tribunal will not always side with the same “first principle”: strict enforcement to protect the integrity of elections, or flexible interpretation to avoid voter disenfranchisement. The particular facts of each dispute might cause the impartial tribunal to lean towards one of these two competing “first principles” in some cases, while tipping towards the other when the facts are different. But if the tribunal remains truly impartial over time, it will be able to explain why it leans one way sometimes but not others. By this process, a principled corpus of precedent concerning disputed elections potentially could develop, and ultimately the future of disputed elections might look very different from the past.
But McCain v. Obama is an experiment, and as with any genuine experiment we cannot predict how it will turn out. So, over the next few weeks, I hope that we can learn from the future as well as the past.