AuthorWright, Sean J.

    Following the 2016 presidential election cycle, it is easy to imagine that a future vote-counting dispute in a presidential election could spill over and engulf the country in a new constitutional crisis. Only seventeen years ago, the Supreme Court's infamous decision in Bush v. Gore, (1) avoided a political and constitutional crisis over a long-running disputed presidential election. (2) Then, some commentators decried the decision as judicial partisanship, while others lauded the decision for its pragmatic approach. (3) Since Bush v. Gore, the academy has evaluated the meaning of electoral disputes and refocused on the importance of historical disputed elections and their continuing influence. (4) Recounts and disputed elections present particular challenges in the hyperpolarized atmosphere of contemporary politics. Many scholars have also looked to the infamous 1876 Hayes-Tilden disputed presidential election, which resolved a dispute about presidential electors through a first-of-its-kind Electoral Commission, for guidance. (5) Their analysis reveals significant vulnerability in the administration of elections. In fact, there is growing concern that the next disputed presidential election could force the country over the brink, prompting civil disorder or democratic breakdown. (6)

    While disputed presidential elections have garnered significant academic and public analysis, (7) contested elections in the U.S. House of Representatives have gone largely unexamined. Besides one study published in 2004, "no published studies focusing exclusively on contested [House] elections have appeared in the post-WW II era to update our collective knowledge." (8) Resolving contested elections in the U.S. House of Representatives is markedly different from addressing disputed presidential elections. (9) Those important disputes can be adjudicated under the Twelfth Amendment, which continues to remain a "ticking time bomb," (10) as well as an act of Congress. (11) Contested congressional elections, however, should be resolved under Article I, Section 5 of the U.S. Constitution, which provides each chamber of Congress the authority to adjudicate contested elections. (12) Just as contested congressional elections remain unexamined, so too does the constitutional provision governing the resolution of such disputes. As one scholar recently described, "[r]arely does a constitutional provision escape notice [yet Article I, Section 5 of the U.S. Constitution] suffers from uncertainty and neglect." (13)

    Electoral contests are not a new phenomenon. Between 1789 and 2002, there were "601 contested election cases in the House... or an average of just over 5.6 per Congress." (14) Recounts and election disputes have been a part of the American experience since the Colonial Era. (15) This raises an important, and unaddressed, question: How did the Founders conceptualize a method of addressing electoral disputes? This point has not been vigorously addressed, but the few scholars to opine on this important question have observed that "the Founders struggled with vote-counting disputes generally." (16) This puts it mildly. In the first elections after the ratification of the U.S. Constitution, there were major disputes in congressional, gubernatorial, and even presidential elections. (17) Yet, very little scholarly attention has been placed on the causes and continuing impact of these disputed elections.

    Particularly in congressional elections, the difficulty relates back to the founding. Article I, Section 5 of the U.S. Constitution provides that each House of Congress "shall be the Judge of the Elections... of its own Members." (18) This largely unexamined and undebated provision vest both houses of Congress with the ability to judge the elections and returns of its members without providing clear rules and procedures for resolving disputes. (19) "Although Article I, Section 5 empowers each House of Congress, neither body has clarified the reach of this constitutional protection, [and t]he federal courts have likewise failed to fill the gap, [which means that] an ad hoc, state-based regime dictat[es] the adjudication of congressional election contests." (20) This inconsistent administration began during the early years of the republic. (21) At the same time, however, resolving contested elections was not just a problem of congressional elections, but rather, the Founders also struggled to address electoral disputes in major state-wide executive elections--such as the disputed 1792 New York gubernatorial election between George Clinton and John Jay. (22)

    This fact, then, raises a simpler question--did the Founders fail to conceptualize a universal method for resolving electoral disputes? If they did, then that oversight helps explain the increasingly frequent disputes over the procedure and forums of high-profile election recounts in modern American politics and a reason Article I, Section 5 remains unexamined. To answer this question, Part II of this Article will review contemporary historians' perspectives on the theories of democracy espoused by the Founders and conclude that regardless of which theory is correct, each theory supports the need to have developed a framework for responding to electoral disputes. In turn, Part III tests how the Founders' theories responded to contested elections by reviewing three geographically diverse contested elections from the Second and Third Congresses, and the legal and political developments of the 1790s, to highlight the development of informal and irregular procedures for resolving such disputes, which was marked by constant struggle given the lack of constitutional guidance. Looking to contested House elections is a useful lens into the Founders' approach to electoral disputes because the U.S. House of Representatives was viewed as the "People's House" and the "more 'immediate representatives'" of the people in government. (23) The Founders would have been particularly concerned about the representational nature of the House, and ensuring appropriate and fair adjudication of contested House elections. (24) In addition, recent reform in the resolution of disputed parliamentary elections could have informed the Founders' approach. (25) Finally, this Article will conclude that the Founders' failure to clearly develop a universal framework for resolving disputed elections was a significant oversight. Not only did it promote lingering effects still felt today--leaving us ill equipped to address electoral disputes since the founding--but was also a failure in implementing the Founders' theories of democracy.


    To understand early republican recounts and disputed elections, and particularly what they mean for our contemporary approach to recounts, we first must understand how the Founders would have perceived contested elections. By reviewing the Founders' theory of democracy, we can begin to establish how the Founders would have been concerned about disputed elections. After analyzing the ramifications of their understanding of democracy on recounts and disputed elections, it is essential to discern whether actual substantive mechanisms were put in place to address contested elections.

    Contemporary historians have engaged in significant dialogue on the exact confines of the Founders' theory of democracy--rarely finding common ground--but each theory suggests the Founders would have been concerned with electoral disputes. (26) While this Article does not seek to comprehensively examine the large body of scholarship geared towards discerning the ideological makeup of the Founders--which was not monolithic--this approach does establish three main lenses upon which to examine competing perspectives on the republican form of government. First, the liberal tradition based upon the writings of John Locke and Montesquieu imbibed with a modern understanding of the market economy has historically been seen as a major motivating force in early republican thinking. (27) Second, Bernard Bailyn and Gordon Wood, in contrast, focus on the influence of the English opposition in the seventeenth and eighteenth century. (28) Finally, J.G.A. Pocock argued that the Founders' thinking is best understood "as the last great act of the Renaissance." (29)

    1. The Liberal Interpretation: Charles Mcllwain, Steven Dworetz, and Joyce Appleby

      Every high school-age history textbook describes the profound impact John Locke and Charles-Louis de Secondat, Baron de La Br de et de Montesquieu (Montesquieu) had upon the foundation of American democracy. (30) From Locke's argumentation for life, liberty, and property (31) to Montesquieu's celebrated small-republic theory, (32) the foundations of our democracy seemingly rest upon their insights. (33) Various figures have advocated for the liberal tradition. (34) In the early 1920s, Charles Mcllwain extolled the virtues of natural rights philosophy (35) as embodied in our Constitution just as Historian Joyce Appleby ably stated the influence of the market system on the Founders. (36)

      Most commonly, the Revolution has been viewed "as an expression of the natural rights philosophy." (37) The ideas of "the social contract, inalienable rights, natural law, and the contractual basis of government" (38) permeated the writings of the Founders. (39) As early as 1923, Mcllwain began describing the development of revolutionary thought in line with adoption of natural rights. (40) In particular, he discerned three distinct developmental stages in colonial ideology. (41) First, the colonists relied on charter rights. (42) Next, the English constitution guaranteed to its subjects the rights of a free people. (43) And finally, the English constitution indicated that rights existed "as the rights of man in general." (44) A key feature of Mcllwain's understanding of the Founders was a belief that "the fundamental...

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