The battle over Florida’s 25 Electoral College votes in the 2000 Presidential election will certainly come to mind when any political analyst thinks of very close, very consequential American ballot disputes.
But as Edward Foley makes clear in Ballot Battles: The History of Disputed Elections in the United States (Oxford Press, 2016), a comprehensive and entertaining history of many such battles over more than two centuries, Florida was only the latest such example.
And in fact, there have been several such battles since the Supreme Court ruled in Bush v Gore in December 2000. These included the gubernatorial race in Washington State in 2004, and the Minnesota U.S. Senate race in 2008. The Minnesota dispute, which lasted well into 2009 before being settled, gave the Democrats the 60th seat in the U.S. Senate enabling the party to overcome a Republican filibuster and pass the Affordable Care Act (“ObamaCare”).
Foley argues, convincingly I think, that the Founding Fathers did not adequately consider the processes for settling ballot disputes, especially when partisans on the local or state level, could corrupt an honest vote count or even use force to pressure voters, and then submit the results they were seeking for certification on a state or Congressional level. Of course, at the time of the drafting of the Constitution, the plan was for U.S. senators to be elected by state legislatures, and U.S. presidents to be elected by electors chosen by these same state legislatures. The popular election of presidents did not begin for several decades with many states first adopting the practice in 1824, and the popular election of U.S. senators not until more than a century later when the 17th Amendment was passed. In any case, the direct election of senators and presidents did not bring with it much in the way of consistent or fair processes for determining the winners in ballot disputes.