In a prior post picked up by Volokh, Instapundit, and others, I raised this question.  In light of further research, with much thanks to those who pointed me in the right directions, I now think the answer might very well be: yes.

I brought this issue up of historical curiosity about America’s relatively unique experience of holding elections amidst a civil war.  But the issue can be seen to raise enduring and profound questions about the tension that sometimes exists between democracy — the processes of legitimate elections — and liberalism — the realization of moral values like freedom (see, e.g., Egypt today).  This is also a story about what it’s like, in the early history of democracy, to run elections during a war when military forces are on the ground controlling territory — including the polling locations.

On the history, there are two questions:  was there a substantial amount of fraud/intimidation and the like, and was it decisive enough to determine the balance of power and keep the House in the control of Lincoln’s Republican Party — despite the precipitous drop in his popularity (from even the 40% of the vote he received in 1860) during the first national elections after the Civil War commenced?

The second question now seems relatively easy to answer.  My initial source, Thomas Fleming’s A Disease in the Public Mind: A New Understanding of Why We Fought the Civil War, only alluded to fraud in Kentucky’s elections.  I pointed out that even if fraud/intimidation flipped control of Kentucky’s complete congressional delegation, that would not seem to have been enough to change partisan control of the House.  But it turns out the patterns of intimidation in Kentucky were present in the other border states with a large presence of Union troops — in Missouri for sure, and very likely in Maryland as well.

With the American political system fragmenting under enormous stress, five political parties were represented in the 38th Congress (Dec., 1863).  Republicans had 46% of the seats, Democrats 39%; the balance of power lay with the “Unconditional Unionists” – all elected from border states.  With their support, the Republicans kept control; if the more conservative “Unionist” candidates had filled these border-seat states, the Democrats would have controlled the House.  Thus, it’s fair to conclude that, if the elections in the border states illegitimately kept Unionists out of these seats, Lincoln would have lost control of the war-Congress.

Now to the first question:  was there fraud/intimidation and the like, what was its nature and causes, and how credible are claims that these border-state wartime elections were effectively rigged to change outcomes?  Although I used the word “fraud,” the better terms are probably intimidation and manipulation.  The legal mechanism involved the creation in the border states of new loyalty oaths as a requirement to be eligible to vote.  The enforcement “mechanism” for these laws was the presence of Union troops and loyal state militias at the polling locations in the border states. Even when the text of the laws limited disfranchisement to those who were serving in the Confederate army, the test for “loyalty” was in practice a wholly subjective one, enforced by Union troops, militias, and election judges.  They often refused to let anyone vote who was suspected of not being loyal to the Lincoln administration and the Union cause (here is one blog post that recounts an alleged family example).  [UPDATE:  And remember, there was no secret ballot in this era.  The political parties produced the ballots.  Voters voted on “party tickets” and in public; it was not difficult to discern for which party someone was voting]

Kentucky, for example, passed the “Expatriation Act of 1862,” which barred from voting anyone who had “voluntarily” provided “aid, assistance, or comfort” to anyone in rebellion.  Union commanders required a further oath that dropped the requirement that the aid be voluntary — which meant, concretely, that those whose property or labor had been impressed by Confederate forces could not take this oath.  Here is yet another version of an oath that was required:  “You do solemnly swear that you will support the Constitution of the United States, the present administration, and etc. etc.”

But the point of these oaths was not so much what they said or required.  Even voters who swore the oaths were often forcibly removed from the polls if troops still suspected they were not sufficiently loyal.  Three days before the election, Major General Burnside imposed martial law in the election proceedings themselves — purportedly to ensure order — which gave troops control of the polls. [ UPDATE: To be sure to be clear on this, the point is not that statues were passed that banned confederate soldiers from voting in the border states.  The point is that these laws then became the excuse to block far more people from voting, based on the judgment that they were “disloyal,” well beyond what formal law actually required.  The statutory exclusions are minor in this story  What’s significant is that these statutes were then used to keep out anyone who seemed likely to vote the wrong way – even though they were in fact eligible voters].

I won’t go further into the details, but a rich, highly detailed study — the best I have found — is in Ch. 6 of The American Ballot Box in the Mid-Nineteenth Century, by the eminent historian, Richard F. Bensel (the whole book is eye-opening about 19th century American democracy).  Reading his work, based on hearings before Congress involving disputed elections, it’s impossible not to conclude that military forces and Union loyalists equated national loyalty with partisan political support; they did everything possible to ensure the electoral triumph of their allies in these critical border-state elections.  Here is just one way Bensel expresses this conclusion:

In practice, because the Republican Party controlled the border state and national governments, loyalty to the Union became almost completely identified with support for the northern war effort and, through that identification, with the Republican Party.  And this is the way that federal troops and state militia came to see the matter.  Because of the conflation of party and nation, there was only one loyalist, and thus acceptable, outcome in an election:  Republican victory.  Democrats could vote only in numbers that did not threaten that outcome.

Sobering stuff. Those interested might also consult William B. Hesseltine’s Lincoln’s Plan of Reconstruction, which concludes, on this subject, that: “In 1862 it was the army-controlled votes of the Border States that overcame Democratic victories in the Northern states and enabled the Republicans to retain control over the House of Representatives.” [UPDATE:  And here is a tidbit from Rude Republic: Americans and Their Politics in the 19th Century 174-75 (G. Altschuler & S. Blumin):  “In Kentucky, for example, a Madison County election judge named L.G. Witt testified to have been approached by Union officers with a list of seventy names of men who should not be allowed to vote.  Any who did, he was told, ‘would be a dead man or [Witt] himself would be hauled to town a dead man.’  The solders stayed at the polling place to make sure their orders were obeyed.”]

I won’t open up here my own thoughts on the meaning of all this.   I will leave that to readers for now.  For sending me down productive research paths in response to my initial post, I want to express deep gratitude to Charles Hallinan, William Burr, James Ridgway, Ned Foley, and others.