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

Disputed Elections, pre-Disputed Elections, pre-18761876Year State Result

1872 Arkansas armed conflictLouisiana armed conflict

1855 Wisconsin peaceful court ruling

1838 Pennsylvania armed conflict

1837 Maine peaceful court ruling

Timeline of Otsego sheriff Timeline of Otsego sheriff disputedispute

Jan. 13 Jan. 13 Smith sends resignation Smith sends resignation Feb. 18 Feb. 18 Smith’s commission expiresSmith’s commission expiresMarch 30 March 30 Gilbert’s commission issuedGilbert’s commission issuedApril 3 April 3 Smith elected town supervisorSmith elected town supervisorApril 24-28 April 24-28 Balloting; Smith supervises pollsBalloting; Smith supervises pollsMay 1 May 1 In new job, Smith rules on ballotsIn new job, Smith rules on ballotsMay 3 May 3 As sheriff, Smith deputizes GoesAs sheriff, Smith deputizes GoesMay 11 May 11 Gilbert becomes new sheriffGilbert becomes new sheriff

Randolph’s integrity Randolph’s integrity pointpoint““The very sacredness of the right of suffrage exacts a degreeThe very sacredness of the right of suffrage exacts a degree

of rigor, in insisting on those rules which are designed to beof rigor, in insisting on those rules which are designed to bethe outworks of its defence. In proportion to its magnitude, isthe outworks of its defence. In proportion to its magnitude, isit in the hazard of being abused, since the temptation is moreit in the hazard of being abused, since the temptation is moreviolent. With this belief the legislature called upon the sheriffviolent. With this belief the legislature called upon the sheriffofficiallyofficially to be the fiduciary of the ballots. Through this pure to be the fiduciary of the ballots. Through this purechannel, delineated by law, ought they, therefore, to come.channel, delineated by law, ought they, therefore, to come.Otherwise subtlety and refinement may, by degrees, reduceOtherwise subtlety and refinement may, by degrees, reducethis security against fraud to a mere nullity.”this security against fraud to a mere nullity.”

Trumbull’s voting-rights Trumbull’s voting-rights pointpoint““The existence of all representative republics isThe existence of all representative republics is

founded on the rights of suffrage. This right is fullyfounded on the rights of suffrage. This right is fullyestablished in the Constitution of the State of Newestablished in the Constitution of the State of NewYork. The Legislature have undoubtedly authority toYork. The Legislature have undoubtedly authority topass laws to guard this right, but not to destroy it; topass laws to guard this right, but not to destroy it; toregulate, but not to prevent the exercise of it; to pointregulate, but not to prevent the exercise of it; to pointout the proper mode in which returns shall be made;out the proper mode in which returns shall be made;but not to devise modes that may be impracticable.” but not to devise modes that may be impracticable.”

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

Randolph’s integrity Randolph’s integrity pointpoint““The very sacredness of the right of suffrageThe very sacredness of the right of suffrage exacts a degree exacts a degree

of rigor, in insisting on those rules which are designed to beof rigor, in insisting on those rules which are designed to bethe outworks of its defence. In proportion to its magnitude, isthe outworks of its defence. In proportion to its magnitude, isit in the hazard of being abused, since the temptation is moreit in the hazard of being abused, since the temptation is moreviolent. With this belief the legislature called upon the sheriffviolent. With this belief the legislature called upon the sheriffofficiallyofficially to be the fiduciary of the ballots. Through this pure to be the fiduciary of the ballots. Through this purechannel, delineated by law, ought they, therefore, to come.channel, delineated by law, ought they, therefore, to come.Otherwise subtlety and refinement may, by degrees, reduceOtherwise subtlety and refinement may, by degrees, reducethis security against fraud to a mere nullity.”this security against fraud to a mere nullity.”

Trumbull’s voting-rights Trumbull’s voting-rights pointpoint““The existence of all representative republics isThe existence of all representative republics is

founded on the rights of suffragefounded on the rights of suffrage. This right is fully. This right is fullyestablished in the established in the ConstitutionConstitution of the State of New of the State of NewYork. The Legislature have undoubtedly authority toYork. The Legislature have undoubtedly authority topass laws to guard this right, but not to destroy it; topass laws to guard this right, but not to destroy it; toregulate, but not to prevent the exercise of it; to pointregulate, but not to prevent the exercise of it; to pointout the proper mode in which returns shall be made;out the proper mode in which returns shall be made;but not to devise modes that may be impracticable.” but not to devise modes that may be impracticable.”

Timeline of Otsego sheriff Timeline of Otsego sheriff disputedispute

Jan. 13 Jan. 13 Smith sends resignation Smith sends resignation Feb. 18 Feb. 18 Smith’s commission expiresSmith’s commission expiresMarch 30 March 30 Gilbert’s commission issuedGilbert’s commission issuedApril 3 April 3 Smith elected town supervisorSmith elected town supervisorApril 24-28 April 24-28 Balloting; Smith supervises pollsBalloting; Smith supervises pollsApril 30 April 30 Van R. gives commission to CooperVan R. gives commission to CooperMay 1 May 1 In new job, Smith rules on ballotsIn new job, Smith rules on ballotsMay 3 May 3 As sheriff, Smith deputizes GoesAs sheriff, Smith deputizes GoesMay 11 May 11 Cooper gives Gilbert commissionCooper gives Gilbert commission

Van Rensselaer’s letterVan Rensselaer’s letter““I delayed sending Sheriff Gilbert’s commission tillI delayed sending Sheriff Gilbert’s commission tillafter the Election lest by some irregularity your after the Election lest by some irregularity your

Poll,Poll,which in all probability will turn the Election[,] which in all probability will turn the Election[,]

shouldshouldbe rejected. . . . Pray detain the Commission untilbe rejected. . . . Pray detain the Commission untilSmith has deputed some faithful person to deliverSmith has deputed some faithful person to deliverthe box [of ballots] to the Secretary [of State].”the box [of ballots] to the Secretary [of State].”

Timeline of Otsego sheriff Timeline of Otsego sheriff disputedispute

Jan. 13 Jan. 13 Smith sends resignation Smith sends resignation Feb. 18 Feb. 18 Smith’s commission expiresSmith’s commission expiresMarch 30 March 30 Gilbert’s commission issuedGilbert’s commission issuedApril 3 April 3 Smith elected town supervisorSmith elected town supervisorApril 24-28 April 24-28 Balloting; Smith supervises pollsBalloting; Smith supervises pollsApril 30 April 30 Van R. gives commission to CooperVan R. gives commission to CooperMay 1 May 1 In new job, Smith rules on ballotsIn new job, Smith rules on ballotsApril 29-May 3April 29-May 3 Ballots in Smith & Cooper’s Ballots in Smith & Cooper’s

storestoreMay 3 May 3 As sheriff, Smith deputizes GoesAs sheriff, Smith deputizes GoesMay 11 May 11 Cooper gives Gilbert commissionCooper gives Gilbert commission

Canvassers (majority)Canvassers (majority)““These facts, with other suggestions of unfairThese facts, with other suggestions of unfairpractices, rendered the conduct of the Otsegopractices, rendered the conduct of the Otsegoelection justly liable to suspicion; and [we were]election justly liable to suspicion; and [we were]constrained to conclude, that the usurpation ofconstrained to conclude, that the usurpation ofauthority, by Richard Smith, was wanton andauthority, by Richard Smith, was wanton andunnecessary, and proceeded from no motiveunnecessary, and proceeded from no motiveconnected with the preservation of the rights of connected with the preservation of the rights of

thethepeople, or the freedom people, or the freedom and purity of elections.and purity of elections.””

Canvassers (dissents)Canvassers (dissents) ““In all doubtful cases, the committee ought In all doubtful cases, the committee ought

to decide in favour of votes given by to decide in favour of votes given by citizens, lest by too nice and critical an citizens, lest by too nice and critical an exposition of the law, the rights of the exposition of the law, the rights of the suffrage be rendered nugatory.” (3 suffrage be rendered nugatory.” (3 Federalist dissenters)Federalist dissenters)

““In all doubtful cases, I conceive the In all doubtful cases, I conceive the committee ought to decide in favor of the committee ought to decide in favor of the votes given by the citizens.” (other votes given by the citizens.” (other dissenter)dissenter)

Violence & Threats of Violence & Threats of Much MoreMuch More ““A Face of Flint ought to be set against the A Face of Flint ought to be set against the

insult.”insult.”

““Clinton must quit the Chair, or blood must and Clinton must quit the Chair, or blood must and will be shed—and if no innocent blood was to will be shed—and if no innocent blood was to flow, I would not care how soon it began to run.”flow, I would not care how soon it began to run.”

““The state seemed menaced with the The state seemed menaced with the ascendancy of anarchy and utter confusion.” ascendancy of anarchy and utter confusion.” (early historian)(early historian)

Story on the Framers’ Story on the Framers’ FailureFailure

““No provision is made for the discussion or decision No provision is made for the discussion or decision of any questions, which may arise as to the regularity of any questions, which may arise as to the regularity and authenticity of the returns of the electoral votes,and authenticity of the returns of the electoral votes,or the right of the persons who gave the votes, or theor the right of the persons who gave the votes, or themanner, or circumstances, in which they ought to bemanner, or circumstances, in which they ought to becounted.”counted.”

Story on Framers’ Story on Framers’ Failure, cont.Failure, cont.““It seems to have been taken for granted, that noIt seems to have been taken for granted, that no

question could ever arise on the subject; and nothingquestion could ever arise on the subject; and nothingmore was necessary than to open the certificatesmore was necessary than to open the certificateswhich were produced, and to count the names and which were produced, and to count the names and numbers, as returned. numbers, as returned. Yet it is easily to be conceived that very delicate andYet it is easily to be conceived that very delicate andinteresting questions may occur, fit to be debatedinteresting questions may occur, fit to be debatedand decided by some deliberative body.”and decided by some deliberative body.”