Book Review: Ballot Battles

BALLOT BATTLES: The History of Disputed Elections in the United States
Edward B. Foley
Oxford University Press
(c) 2016

While all the hubbub over our elections and voting (so far) has to do with access to the ballot box, Foley argues that what happens after the votes have been cast is just as important.

A professor of constitutional and election law at Ohio State, Foley has chronicled all the disputed elections of national importance since the 1790s. Doctored ballots, bogus returns, stuffed ballot boxes, the works. And not just that sort of shenanigans, but cases where the result was so close that there absolutely had to be a recount. When the first count was done in Virginia’s attorney general election in 2013, the margin of victory was a mere 32 votes….

His style, as befits a law professor, is rather dry and tedious at first. It’s not an easy read, but you’ll get used to it after a while. The long slog through history is important to his thesis – disputed elections are not as rare as one would think (or hope), so we had better be prepared for the next one.

Foley notes that we do not have a standard system in place to resolve disputed elections. We’ve had them too often for it to be done on an ad hoc basis. Having a high office go unfilled while the recounting goes on and on deprives people of representation, and can even have the government come to a halt. The Senate election in Minnesota in 2008 wasn’t resolved for seven months – and that, according to Foley, was one of the ones that was handled properly.

Reading Foley’s accounts of recent disputed elections makes it clear (at least to this reader) that absentee or mail-in ballots (which some advocate as a way to increase voter participation) is most definitely NOT the way to go. Not only are those types of ballots the most susceptible to chicanery, they are also the most problematic when it comes to figuring out the voter’s actual intent. They depend on people accurately and completely following instructions. The 2004 gubenatorial election in Washington, which when the dust settled had a margin of victory of just 137 votes, should serve as a case study of everything that can go wrong with mail-in ballots.

Foley does propose a solution. Mandate an automatic recount whenever the margin of victory is below a certain threshold. Have rules and deadlines covering challenges and appeals. Select a tribunal (and he really does mean a panel of only three people) to supervise the entire process. He admits it won’t be perfect, but it’s better than the “playing-it-by-ear” that we have now. Given how partisan our politics have become, there’s no doubt that we will continue to have disputed elections for the foreseeable future.

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