The following is the fifth of five guest posts by Ned Foley of Ohio State, about his new book Ballot Battles: The History of Disputed Elections in the United States:

Theme Five: In the 1900s, even as state courts increasingly became the forum for resolving a major vote-counting dispute (as described in the previous post), there still was no role for the federal judiciary in these cases.  That was because of Taylor v. Beckham, a U.S. Supreme Court decision in 1900 growing out of Kentucky’s 1899 gubernatorial election—the one involving the assassination of a candidate because of the dispute over the counting of ballots (as also mentioned in the previous post).  Taylor ruled that the federal judiciary was powerless to protect the integrity of a state’s electoral process, even in a case of demonstrated outright ballot-box stuffing.

The hegemony of Taylor v. Beckham is seen most clearly a half-century later, in the dispute over Lyndon Johnson’s 87-vote victory in the 1948 election that propelled him to the Senate.  Two hundred fake votes were added to Ballot Box 13 on Johnson’s behalf, and his opponent went to federal court in an effort to undo the outright fraud.  (Texas was a state where, even in the middle of the twentieth century, one could not look to the state’s judiciary for vote-counting fairness, as Nixon knew in 1960—a point raised in the second of these posts.)  But Johnson got the U.S. Supreme Court to squelch the federal-court challenge to his fraud-infested victory.  It was a no-brainer case for the Court because of Taylor v. Beckham and that precedent’s progeny in the intervening decades.

A no-brainer based on precedent, but not necessarily sound in principle.  Taylor v. Beckham itself had not been unanimous.  It had provoked outrage from the Great Dissenter, Justice John Marshall Harlan, most famous of course for his dissent in the “separate but equal” case, Plessy v. Ferguson.  Although not nearly as well known, Harlan’s dissent in Taylor v. Beckham matches in eloquence his Plessy opinion. “The overturning of the public will, as expressed at the ballot box,” Harlan wrote, “is a crime against free government.”  Then, specifically invoking the Fourteenth Amendment as a basis for federal court jurisdiction to protect the “rights” of the “person elected, as well as the people who elected him,” Harlan added: “I cannot believe that the [federal] judiciary is helpless in the presence of such a crime.”

Harlan’s position did not prevail in 1900.  But it did a full century later, in 2000.  Bush v. Gore (fifteen years old this week), by invoking the Fourteenth Amendment as the basis for stopping what it saw as ballot-counting improprieties in Florida, adopted essentially the same view of federal judicial power in this kind of case that Justice Harlan had advocated.

Whatever one thinks of the specific exercise of that power in Bush v. Gore itself, over time and in the aggregate the new role for the federal judiciary in these cases is likely to be a significant institutional improvements. Federal courts are by no means perfectly nonpartisan.  But on balance they are likely to be less partisan than state courts.  Thus, just as the twentieth century saw greater impartiality in these cases with the increased use of state courts compared to state legislatures, so too will the twenty-first century likely see even greater impartiality with increasing reliance on federal courts compared to state courts.  As the decades of this still-young century unfold, a growing body of Fourteenth Amendment precedent will constrain vote-counting abuses in all manner of elections, be they gubernatorial, senatorial, judicial, mayoral, or otherwise.  No state, including Texas, will be able to get away with the kind of affront to democracy that occurred with the ballot-box stuffing of 1948.

But what of the next disputed presidential election, whenever it will occur—as it surely will sooner or later? Will the U.S. Supreme Court intervene again, as it did in Bush v. Gore? Or will it sit the next one out, as it was urged to do in 2000, including by the four dissenters in that case?

One of the existing institutional inadequacies is the uncertainty on this point.  The Court’s jurisdiction is discretionary: it can intervene, or not, entirely as it chooses, without any need for explanation or justification for its choice one way or the other.  Yet, as any election law practitioner or scholar will say, one of the most important values when designing a system for the resolution of vote-counting disputes is the clarity and predictability in advance of casting the ballots to the rules that will apply afterward.  The Supreme Court’s discretionary power to involve itself, or not, is entirely contrary to this important value.  Yet it is a feature that remains unchanged in the aftermath of 2000.

There are additional institutional deficiencies that still afflict our system.  If the next dispute over vote-counting in a presidential election goes all the way to Congress—as 1876 did—then the controlling statute will be the Electoral Count Act of 1887, adopted a decade after Hayes-Tilden because something was necessary after the nation had come dangerously close to another electoral meltdown in 1884.  But as described in Chapter Six of Ballot Battles, the authors of the 1887 Act knew it was a horribly flawed piece of legislation.  It was just the best that they could accomplish at the time, and they hoped that Congress later would come back to improve the product.  Congress never has.

One possible solution would be to make the Supreme Court’s jurisdiction mandatory in a disputed presidential election, so the nation at least would know which institution is ultimately responsible in this situation.  But if one thinks that the Court, with its currently partisan 5-4 split, is less than the ideal body to decide this kind of case, there are other options.  Minnesota, for example, has used three-judge panels—two from each party to the dispute, with a neutral tiebreaker—to adjudicate the lawsuits over both its 1962 gubernatorial election and its 2008 U.S. Senate race.

If Congress does nothing, however, and the nation faces the next disputed presidential election with no institutional reform having occurred, then history teaches this lesson: the nation will be at the mercy of some individual character.  It might be a Supreme Court Justice like Anthony Kennedy.  Or it might be a Speaker of a House like Samuel Randall.  But it will be a person who will occupy an office that was not designed for the purpose of adjudicating a disputed presidential election.  Thus, we can only hope that this individual, when called upon to exercise this most arduous adjudicatory duty, will do so with the greatest sense of fairness and integrity that this particular person is capable of summoning.