Law Professor Recounts U.S. Disputed Elections

Ohio State University Law professor Edward B. Foley discussed his new book, “Ballot Battles: The History of Disputed Elections in the United States,” at the Kennedy School’s Ash Center for Democratic Governance and Innovation on Thursday. He presented his findings on disputed elections throughout history and advocated for concrete legal measures to prevent future controversies.

Referencing the final U.S. presidential debate that took place Wednesday night, Foley began his talk by drawing a parallel between the current election and the 1876 presidential election, in which a divided Congress disagreed on the vote count days before the inauguration.

Foley attributed the “passive voice” in the 12th Amendment as cause for dispute in U.S. elections. That the 12th Amendment states “the votes shall then be counted” is, he said, “the Achilles’ heel in U.S. legislation.”

“The passive voice doesn’t assign responsibility,” Foley said. “Who actually counts the votes? [The founding fathers] never thought there would be an issue about it.”

Foley noted that personal virtue and a candidate’s respect for the electoral system can often resolve the issue in highly disputed elections. In the hotly contested 1792 New York gubernatorial election between John Jay and George Clinton, Foley explained, founding father Alexander Hamilton advised Jay to concede defeat. This set a precedent: The losing candidate should concede despite personal issue with the electoral rules.

In his talk, Foley gave other examples of U.S. election disputes. Some resulted in concessions, such as Nixon’s voluntary termination of his 1960 presidential bid, while others resulted in violence, such as the assassination in 1900 of a Kentucky gubernatorial candidate.

Foley argued that non-partisan courts are the best way to resolve disputed elections.

“Courts are better than legislatures—we risk the rawest of raw partisan greed if we let legislatures rule,” Foley said. “It is up to us to create an institution that is robust enough to handle any instances where the rules aren’t perfect.”

Following Foley’s talk, several Kennedy School students asked questions about the 2000 presidential election between George W. Bush and Al Gore ’69, as well as voiced their concerns about the current election.

“The most interesting thing to realize is how often this happened and how chaotic the process has been when it is a dire crisis,” said Seth N. Soderborg, a Graduate School of Arts and Sciences student who has studied disputed elections in Indonesia and Brazil. “There isn’t a single set of rules governing both how elections are administered and who is a voter in different parts of the country.”

Foley painted a picture of short-term pragmatism and long-term optimism at the end of his talk.