The Original Bush v. Gore : An Historical Perspective on Disputed Elections Edward B. Foley Robert M. Duncan/Jones Day

1. The Original Bush v. Gore: An Historical Perspective on Disputed Elections Edward B. Foley Robert M. Duncan/Jones Day Designated Professor in Law; Director, Election Law @ Moritz

2. Disputed Elections, pre-1876 YearStateResult 1872 Arkansas armed conflict Louisiana armed conflict 1855 Wisconsin peaceful court ruling 1838 Pennsylvania armed conflict 1837 Maine peaceful court ruling

3. Timeline of Otsego sheriff dispute • Jan. 13 Smith sends resignation • Feb. 18 Smith’s commission expires • March 30 Gilbert’s commission issued • April 3 Smith elected town supervisor • April 24-28 Balloting; Smith supervises polls • May 1 In new job, Smith rules on ballots • May 3 As sheriff, Smith deputizes Goes • May 11 Gilbert becomes new sheriff

4. Randolph’s integrity point • “The very sacredness of the right of suffrage exacts a degree • of rigor, in insisting on those rules which are designed to be • the outworks of its defence. In proportion to its magnitude, is • it in the hazard of being abused, since the temptation is more • violent. With this belief the legislature called upon the sheriff • officially to be the fiduciary of the ballots. Through this pure • channel, delineated by law, ought they, therefore, to come. • Otherwise subtlety and refinement may, by degrees, reduce • this security against fraud to a mere nullity.”

5. Trumbull’s voting-rights point • “The existence of all representative republics is • founded on the rights of suffrage. This right is fully • established in the Constitution of the State of New • York. The Legislature have undoubtedly authority to • pass laws to guard this right, but not to destroy it; to • regulate, but not to prevent the exercise of it; to point • out the proper mode in which returns shall be made; • but not to devise modes that may be impracticable.”

6. Trumbull, cont. • “If it therefore becomes impossible in any case, that • the statute relative to the return of ballots should • literally be complied with, I should consider the • law in that instance void; and am of the opinion that • in such case all votes fairly given and honestly • returned, ought to be canvassed; for the rights of • the free electors ought always to be preferred to the • mere forms of law.”

7. Randolph’s integrity point • “The very sacredness of the right of suffrage exacts a degree • of rigor, in insisting on those rules which are designed to be • the outworks of its defence. In proportion to its magnitude, is • it in the hazard of being abused, since the temptation is more • violent. With this belief the legislature called upon the sheriff • officially to be the fiduciary of the ballots. Through this pure • channel, delineated by law, ought they, therefore, to come. • Otherwise subtlety and refinement may, by degrees, reduce • this security against fraud to a mere nullity.”

8. Trumbull’s voting-rights point • “The existence of all representative republics is • founded on the rights of suffrage. This right is fully • established in the Constitution of the State of New • York. The Legislature have undoubtedly authority to • pass laws to guard this right, but not to destroy it; to • regulate, but not to prevent the exercise of it; to point • out the proper mode in which returns shall be made; • but not to devise modes that may be impracticable.”

9. Timeline of Otsego sheriff dispute • Jan. 13 Smith sends resignation • Feb. 18 Smith’s commission expires • March 30 Gilbert’s commission issued • April 3 Smith elected town supervisor • April 24-28 Balloting; Smith supervises polls • April 30 Van R. gives commission to Cooper • May 1 In new job, Smith rules on ballots • May 3 As sheriff, Smith deputizes Goes • May 11 Cooper gives Gilbert commission

10. Van Rensselaer’s letter • “I delayed sending Sheriff Gilbert’s commission till • after the Election lest by some irregularity your Poll, • which in all probability will turn the Election[,] should • be rejected. . . . Pray detain the Commission until • Smith has deputed some faithful person to deliver • the box [of ballots] to the Secretary [of State].”

11. Timeline of Otsego sheriff dispute • Jan. 13 Smith sends resignation • Feb. 18 Smith’s commission expires • March 30 Gilbert’s commission issued • April 3 Smith elected town supervisor • April 24-28 Balloting; Smith supervises polls • April 30 Van R. gives commission to Cooper • May 1 In new job, Smith rules on ballots • April 29-May 3 Ballots in Smith & Cooper’s store • May 3 As sheriff, Smith deputizes Goes • May 11 Cooper gives Gilbert commission

12. Canvassers (majority) • “These facts, with other suggestions of unfair • practices, rendered the conduct of the Otsego • election justly liable to suspicion; and [we were] • constrained to conclude, that the usurpation of • authority, by Richard Smith, was wanton and • unnecessary, and proceeded from no motive • connected with the preservation of the rights of the • people, or the freedom and purity of elections.”

13. Canvassers (dissents) • “In all doubtful cases, the committee ought to decide in favour of votes given by citizens, lest by too nice and critical an exposition of the law, the rights of the suffrage be rendered nugatory.” (3 Federalist dissenters) • “In all doubtful cases, I conceive the committee ought to decide in favor of the votes given by the citizens.” (other dissenter)

14. Violence & Threats of Much More • “A Face of Flint ought to be set against the insult.” • “Clinton must quit the Chair, or blood must and will be shed—and if no innocent blood was to flow, I would not care how soon it began to run.” • “The state seemed menaced with the ascendancy of anarchy and utter confusion.” (early historian)

15. Story on the Framers’ Failure • “No provision is made for the discussion or decision • of any questions, which may arise as to the regularity • and authenticity of the returns of the electoral votes, • or the right of the persons who gave the votes, or the • manner, or circumstances, in which they ought to be • counted.”

16. Story on Framers’ Failure, cont. • “It seems to have been taken for granted, that no • question could ever arise on the subject; and nothing • more was necessary than to open the certificates • which were produced, and to count the names and • numbers, as returned. • Yet it is easily to be conceived that very delicate and • interesting questions may occur, fit to be debated • and decided by some deliberative body.”