Ballot Battles: The History of Disputed Elections in the United States

by Edward B. Foley

Overview

The 2000 presidential race resulted in the highest-profile ballot battle in over a century. But it is far from the only American election determined by a handful of votes and marred by claims of fraud. Since the founding of the nation, violence frequently erupted as the votes were being counted, and more than a few elections produced manifestly unfair results. Despite America's claim to be the world's greatest democracy, its adherence to the basic tenets of democratic elections-the ability to count ballots accurately and fairly even when the stakes are high-has always been shaky. A rigged gubernatorial election in New York in 1792 nearly ended in calls for another revolution, and an 1899 gubernatorial race even resulted in an assassination. Though acts of violence have decreased in frequency over the past century, fairness and accuracy in ballot counting nonetheless remains a basic problem in American political life.

In Ballot Battles, Edward Foley presents a sweeping history of election controversies in the United States, tracing how their evolution generated legal precedents that ultimately transformed how we determine who wins and who loses. While weaving a narrative spanning over two centuries, Foley repeatedly returns to an originating event: because the Founding Fathers despised parties and never envisioned the emergence of a party system, they wrote a constitution that did not provide clear solutions for high-stakes and highly-contested elections in which two parties could pool resources against one another. Moreover, in the American political system that actually developed, politicians are beholden to the parties which they represent - and elected officials have typically had an outsized say in determining the outcomes of extremely close elections that involve recounts. This underlying structural problem, more than anything else, explains why intense ballot battles that leave one side feeling aggrieved will continue to occur for the foreseeable future.

American democracy has improved dramatically over the last two centuries. But the same cannot be said for the ways in which we determine who wins the very close races. From the founding until today, there has been little progress toward fixing the problem. Indeed, supporters of John Jay in 1792 and opponents of Lyndon Johnson in the 1948 Texas Senate race would find it easy to commiserate with Al Gore after the 2000 election. Ballot Battles is not only the first full chronicle of contested elections in the US. It also provides a powerful explanation of why the American election system has been-and remains-so ineffective at deciding the tightest races in a way that all sides will agree is fair.

Product Details

ISBN-13:	9780197775844
Publisher:	Oxford University Press
Publication date:	05/10/2024
Pages:	552
Product dimensions:	6.00(w) x 8.90(h) x 1.70(d)

About the Author

Edward B. Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. He is a contributing opinion columnist for the Washington Post, and in 2020 served as an NBC News election law analyst. The first edition of Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016) was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice”. Foley’s most recent book, Presidential Elections and Majority Rule (Oxford University Press, 2020), provides a basis for reform that would enable the Electoral College to operate according to its majority-rule objectives.

In 2013 Foley was awarded a Guggenheim Fellowship to write his next book, which will address the relationship between America’s bedrock constitutional principles and the development of electoral system design, including alternative forms of ranked choice voting. As Reporter for the American Law Institute’s Project on Election Administration, Foley drafted Principles of Law: Non-Precinct Voting and Resolution of Ballot-Counting Disputes. He also co-authored Election Law and Litigation: The Judicial Regulation of Politics (2014). Foley clerked for Chief Judge Patricia M. Wald of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry Blackmun of the United States Supreme Court. He also served as State Solicitor in the office of Ohio’s Attorney General.

Table of Contents

Acknowledgments

Preface to the Revised Edition

Prologue: The Missing Institution of Impartiality

Introduction: Understanding the Past for the Sake of the Future

Chapter One: Uncertain Vote-Counting in the Founding Era

Chapter Two: The Novelty of Chief Executive Elections

Chapter Three: The Entrenchment of Two-Party Competition

Chapter Four: Counting Votes at Times of Crisis

Chapter Five: Hayes-Tilden: To the Edge of the Constitutional Cliff

Chapter Six: The Gilded Age: An Era of Hypercompetitive Elections

Chapter Seven: The Progressive Era: Missed Opportunities at a Time of Reform

Chapter Eight: America in the Middle of its Century: A Tarnished Ideal

Chapter Nine: The Sixties and Their Legacy: The Rise of Democratic Expectations

Chapter Ten: The Eighties and Nineties: Reemergence of Intensified Partisanship

Chapter Eleven: Florida 2000: Avoiding a Return to the Constitutional Brink

Chapter Twelve: After Bush v. Gore: Reinvigorated Demand for Electoral Fairness

Chapter Thirteen: Donald Trump and the Advent of Election Denialism

Conclusion: The Enduring Quest for a Fair Count

Appendix

Editorial Reviews

"The vitality of democracy depends on honest elections and a fair count of the ballots. Yet as Edward Foley demonstrates in this eye-opening study, many close elections at all levels of American government since 1792 have resulted in contested outcomes that violated one or both of these requirements. With no standard mechanism in place to determine fairly the winner of disputed elections, the instability and bitterness that has marked past elections will likely persist into the future, he predicts, unless we can come up with an accepted means of arbitrating disputed results."-James McPherson, George Henry Davis 1886 Professor of American History (Emeritus), Princeton University, and author of Battle Cry of Freedom

"Ballot Battles isn't just the most comprehensive study of recounts to date; it's also a lens into our democracy. Foley pairs the clear-eyed perspective of an election lawyer with the idealism of a democratic theorist. He tells us not just who won and why, but who should have won and why we should care. The book is sure to become a touchstone for anyone interested in recounts and of interest to anyone interested in democracy."—Heather Gerken, J. Skelly Wright Professor of Law, Yale University

"Professor Foley is the national expert on recounts, and his book is required reading for anyone who cares about the history and future of American election controversies. Those interested in the history will marvel at the detailed and dramatic retelling of contested election controversies stretching from the Founding Era to our own. For students of contemporary politics and election law, the book provides a sobering lesson on the entrenched features of the American constitutional system that make resolution of such controversies so difficult and unlikely to be solved any time soon."—Nathaniel Persily, James B. McClatchy Professor of Law, Stanford University

"It's hard not to feel outrage and a little dread reading Edward Foley's retelling of ballot battles dating back to the nation's Founding. That's because, as Foley argues beautifully, American democracy lacks a fair, unbiased, non-partisan way to resolve contested elections. What will happen next time an election's outcome is in limbo? Ballot Battles makes a compelling argument that it could well be messy."—Tamara Keith, White House correspondent, NPR News

"Foley's examination of the most recent, and best known, ballot battle in 2000 bookends his study of the phenomena...Foley's view of the 2000 controversy may seem counter-intuitive to many, but his exhaustive scholarship and powerful argumentation mean that it is a view that should be taken seriously."—Sean Ledwith, Reviews in History

From the Publisher