THE VOTING WARS: FROM FLORIDA 2000 TO THE NEXT ELECTION MELTDOWN
BY RICHARD L. HASEN
Yale University Press
"It's not the voting that's democracy; it's the counting."--TOM STOPPARD, JUMPERS
Voting rights are in the news again, and they're back as a national issue. In Florida, Texas, Pennsylvania, and several other states, the coming election showdown on November 6 has been shadowed by a rising concern among Democrats over voter-ID requirements, restrictions on vote canvassing, and changes to early voting. How many of those worrying this year know that it was a series of late-19th-century political battles that helped decide how we cast and count our ballots? Or that this strange, only dimly remembered history leads straight to the mess we're in today?
In the years after the Civil War, Republicans who had fought for the Union continued to struggle with Democrats over how to implement a great democratic achievement. It was a first in world history. Black adult men, someone else's property only a few years before, were now to be citizens--and being citizens meant they were supposed to be able to vote.
Easier said than done. In the post-war Reconstruction, a strong cabinet agency would be needed to direct criminal enforcement of new federal elections statutes in the South. In 1870, Congress created the Department of Justice, and President Ulysses S. Grant appointed to it strongly pro-voting-rights lawyers. Southern Democrats saw this as federal interloping. Their massive resistance grew into the presidential standoff of 1876 between Democrat Samuel Tilden and Republican Rutherford B. Hayes. Hayes had the support of Southern blacks, but in Louisiana, South Carolina, and Florida, amid turmoil on the ground, getting an undisputed vote count proved impossible. The Electoral College, the presidency, and Reconstruction itself hung in the balance.
Just how both sides eventually arrived at the so-called Compromise of 1877, after months of impasse, is still an active research question for scholars. But a compromise was reached, and its consequences were clear. President Grant ordered federal troops in the South back to the barracks. Republican control in the three contested states collapsed. In return, by the 8-7 decision of an electoral commission, Rutherford B. Hayes--Democrats soon dubbed him "Rutherfraud"--was sworn in as America's 19th president.
Though it's commonly assumed that the Republican retreat from Reconstruction marked the effective end of Southern black male suffrage, in fact, for the next eight years, attorneys general under Republican presidents continued to prosecute elections violations. Under an 1871 statute that survived into the early 1890s, the federal government even deployed elections marshals in Northern urban areas and criminally prosecuted local interference. It may surprise our modern ears--used to hearing that the government's entry into voting-rights protection was a 20th-century first--to learn that long ago, federal enforcement enjoyed the firm backing of the United States Supreme Court.
America's first great round of voting battles was serious, sometimes murderous, business. By 1888, the Republican Party had elevated "a free ballot and a fair count" in the South to the top plank in its platform. In 1889, a Republican congressional candidate in Arkansas trying to prove he had won was assassinated in a far corner of that state.
During the 51st Congress and the presidency of Benjamin Harrison, Republicans, who had unified control of the federal government, set out to establish a national system of federal canvassing boards, supervised by U.S. Courts of Appeal. The system would have operated mainly in the South, but it would have offered the first national institution for supervision of federal elections. Had the bill passed--and it came amazingly close--it might have meant the beginning of a national system for administering our elections. …