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Election Law @ Moritz

Election Law @ Moritz


Echoes of New York’s “Stolen Senate”?


Thanks to the sleuthing of Justin Levitt, I now know that control of the state senate in New York depends on the outcome of three undecided races. The New York Times has the details.

Of course, it is still extremely early in the process, and no one knows how it will turn out, but the basic facts bear some resemblance to one of the lowest moments in New York’s electoral history. During an episode known as “The Stolen Senate” (as described in Chapter XXX of this book), partisanship ran amok in 1891 when control of the state senate similarly depended on the outcome of several close and disputed elections.

The historical details are too convoluted and technical to describe in this “blog” post. My co-author Steve Huefner and I will cover it more in depth in the book on the history of disputed elections in the U.S., which we are currently writing. But the following brief synopsis, necessarily oversimplified for present purposes, will give you a flavor of what happened.

Back then, although four state senate seats were disputed, the fight ultimately boiled down to just two of them. If the Republicans prevailed in either of these two elections, they would control the state senate. The partisan split in the chamber was 15-14 in the Republican’s favor with only these two seats unresolved. Conversely, if the Democrats prevailed in both, they would have control.

One issue, involving Onondaga County (where Syracuse is located), concerned an error made by local election officials: they sent the official ballots designated for one precinct to another precinct by mistake. This election was one of the first in New York involving the so-called “Australian” ballots, in which the officials were responsible for printing and distributing them. Evidently, being unfamiliar with this responsibility, the election officials had trouble in its implementation. As a practical matter, however, the error did not prevent voters for making a choice in their local senate election: even though these voters received the ballot for the wrong precinct, the name of their senate candidates was on the ballot, and they were thus able to use the incorrect ballot to make their choice.

Based on the returns, if these ballots were counted, the Republican candidate for this seat would win. Not surprisingly, the Democrats challenged these ballots on the ground that they were improper under the state’s new election law adopting the Australian ballot. In a 4-3 vote of the state’s highest court, the Democrats prevailed on this argument. The judges in the majority happened to be all Democrats, and they adopted a “strict compliance” standard for the new Australian ballot statute. The dissenters, two Republicans and one Democrat, argued vociferously for an interpretation of the statute that would prevent the disenfranchisement of innocent voters as a result of official error. “Assuming that [the statute] is susceptible to two constructions—one preserving the right of the voter, and the other forfeiting it—can it be doubtful which construction ought to prevail?” The dissenting position was a version of what Rick Hasen calls “the Democracy Canon” of statutory construction for disputed election cases, but that position did not carry the day, arguably due the partisanship of the majority in that case (although of course the judges in the majority articulated what they claimed were important policy justifications for strict enforcement of the new anti-fraud protections of the Australian ballot).

This 4-3 judicial victory in the Onondaga County seat brought the Democrats to a 15-15 tie in the state senate.

The resolution of the other outcome-determinative disputed election, in Dutchess County (where Poughkeepsie and other Hudson River Valley communities are located), was even more troubling. This dispute also concerned the new Australian ballots, but a different type of problem. Here, the problem was essentially a smudge that the printing process had left on the ballots. The Democrats claimed that these smudges were identifying marks that invalidated the ballots. If these ballots were invalidated, the Democratic candidate again would prevail. But this argument was too much for any of the Democrats on the state’s highest court, which unanimously ordered the certification of returns showing that the Republican had prevailed. (Because of the complicated judicial procedures involved in the case, and the posture in which it arrived at the court, the order was technically for the certification to occur once it arrived from the county to the Secretary of State.) The state canvassing board, which was controlled by the Democrats, however, refused to obey this judicial decree. Instead, the board certified a return that excluded the disputed ballots, and on the basis of this certification, the Democrats took control of the state senate. (They accomplished this obstruction of justice by falsely claiming that the judicially-approved return never arrived from the county to the Secretary of State’s office.) Later, the state’s highest court held members of the state canvassing board in contempt of court for this conduct, and it was quite a scandal in the state. New York adopted a new constitution in 1894 that attempted, not entirely successfully, to reduce the role of partisanship in the counting of ballots. In any event, these subsequent proceedings did not undo the successful partisan theft of the state senate that had occurred based on the combined outcome of these two disputed seats.

As we watch events unfold this year concerning the unsettled control of the state senate in New York, and the several elections on which that control depends, let’s hope that the current resolution contains nothing like the ugliness that afflicted the episode of 1891.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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