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Disputed Elections: An American Tradition

by Holly Brewer and Laurie Burnham on Nov 15, 2000

Some political analysts claim that without quick resolution of the current
presidential election, Americans will lose all faith in the electoral
process. But why rush to judgment?

The historical record shows that earlier generations, including the Founding
Fathers, believed that it is not haste but the careful counting and analysis
of votes that sustains political freedom. A free society must always allow
its citizens the right to reasonable objection and redress in cases of
illegitimate electoral procedures.

Throughout U.S. history, legislators have decreed that several months must
stand between a president's election and inauguration. During this time,
votes can be counted, results recorded and disseminated, and any procedural
problems addressed. Now, with two months until the inauguration of our 44th
president, our nation has no need to rush the electoral process. In a world
of instant gratification, we may want answers right away, but fairness is
more important than haste.

For more than 200 years, elections in America have been routinely disputed, a
practice that protects the will of the people. It is the only insurance that
citizens' intent is met.

As members of Virginia's lower House of Assembly, George Washington and
Thomas Jefferson themselves "intervened" in many disputed elections. During
the eighteenth century, resolving contested elections was normally the first
order of business in every new term, both in Virginia and in other colonies
and states. Lawmakers would hear a county's claims and then decide whether an
election needed to be examined more closely or nullified and redone.
Indeed, the historical record is full of cases in which votes were
resurveyed, confusing ballots reviewed, elections nullified, and voters
recanvassed. Even a cursory look at legal reports from the nineteenth century
reveals thousands of pages devoted to contested elections.

When elections were questioned, common sense, rather than adherence to
technicality, prevailed. Long before punch cards and other modern balloting
methods became available, voters wrote candidates' names on slips of paper.
Misspellings and wrong initials of first names and last names were
commonplace. Rather than throw out the ballots, as electoral judges in
Florida have recently done, judges ruled that voters' intent had to be
determined whenever possible.

Consider this report from Connecticut in 1878. "Votes cast at an election for
A.J.W. may be shown to have been intended for A.L.W. The fact that A.L.W. was
a candidate and received a large number of votes, and that no person of the
name of A.J.W. or of the same first and last names, without the middle
initial, resided in the district, would be satisfactory evidence to show that
the votes must have been intended for A.L.W." The judge considered voters'
intent rather than nullifying their votes.

In Iowa in 1877, judges ruled that "in reviewing an election and determining
its validity, the court must, if possible, give to contested ballots such a
construction as will make them valid."

How do these cases relate to the current presidential election? Fully 19,000
voters in Florida's Palm Beach County had their votes disqualified because
they punched two choices when selecting a presidential candidate. Although
the voters are guilty of technical error, the ballot was misleading. It had
punch holes next to the names of both Democratic candidates, for president
and vice President.

According to precinct workers, many voters who found the ballot confusing
were denied assistance. And at least one voter who mistakenly voted for
Buchanan was refused a new ballot, contrary to electoral law. Thousands of
other ballots with incomplete punches have not been counted because the
tabulating machine couldn't read them.

According to the machine results, 11,000 people who cast ballots in Palm
Beach voted for no one for President. Clearly the electoral process in West
Palm Beach malfunctioned. With political pressure for a solution mounting,
how might this epic dispute be best resolved? To answer that question, we
need to ask how our nation's founders would have reacted. One can only
suppose that they would assign twenty-first century voters at least the same
rights held by voters in earlier centuries.

The time has come for both political parties to embrace the well-established
tradition of electoral redress and to show respect for the voter by honoring
intent. A first step would be an accurate manual recount in the presence of
both partial and impartial witnesses. This would help to clarify the intent
of some 30,000 voters and help to restore America's faith in the electoral
process.

A second option, also supported by historical precedent, would be to give all
who voted in that county the chance to recast their ballots (quickly and
without advertising or interference). That would be the fairest option, since
it would provide the best gauge of their intent.

If all votes statewide need to be recounted by hand for consistency, so be
it. And if votes in Wisconsin and Iowa need to be recounted, so be it.
Neither Washington, nor Jefferson, would have found that requirement
objectionable. They would have objected, however, to any candidate who sought
the presidency at the expense of the legitimacy and integrity of the
democratic process.


Holly Brewer teaches history at North Carolina State University.

Laurie Burnham is a writer in St. Paul, Minn.