EDWARD B. FOLEY, Ohio State University College of Law
Email: foley.33@osu.edu

Developing a research agenda to support a decade-long process of electoral reform requires, first, determining how ambitious reform goals should be for a single decade. This paper proposes a moderately ambitious goal of a “state of the art” voting infrastructure, in comparison to even more ambitious possibilities, and describes some of its key features - including “war-gaming” exercises to test for vulnerabilities and a Model Code to resolve disputes over the counting of presidential ballots.

EDWARD B. FOLEY, Ohio State University College of Law
Email: foley.33@osu.edu

In October 2008, Election Law @ Moritz (together with other co-sponsoring institutions) conducted an experiment to test the idea whether a specially designed court could achieve a greater appearance of impartiality in deciding a disputed presidential election than the kind of general-jurisdiction supreme courts, both state and federal, that adjudicated Bush v. Gore. This essay describes the genesis of this experiment and its results. The basis for the experiment was a hypothetical case raising equivalent issues to Bush v. Gore, involving both Equal Protection and the power of state legislatures to appoint presidential electors under Article Two of the Constitution, with these issues set in the context of a dispute over provisional ballots cast in Colorado on the assumption that this state (rather than Florida) determined the outcome of the 2008 presidential election. To test the hypothesis of the experiment, a specially designed tribunal was created to adjudicate this hypothetical dispute: two highly-regarded retired jurists from opposite political background (one Democrat and one Republican) were chosen and asked to select a third, neutral judge. These three judges then received briefs and heard oral arguments from two leading Supreme Court practitioners. The judges issued their decision, which turned out to be unanimous. The essay describes the reasoning of their opinion and discusses whether its unanimity can be regarded as successful outcome of the experiment, having a greater appearance of impartiality that the sharply divided supreme court decisions (both state and federal) in Bush v. Gore.

EDWARD B. FOLEY, Ohio State University College of Law
Email: foley.33@osu.edu

In 1792, the Founders of our Republic and its Constitution faced their own version of what our generation knows as Bush v. Gore. It occurred in the context of that year’s election for governor in New York. John Jay was challenging the incumbent, and Jay and his supporters believed that they were wrongly robbed of their rightful victory when the state’s canvassing committee – in divided vote that fell along party-line lines – disqualified one county’s ballots because of a technical defect in the delivery of these ballots from the county to the Secretary of State.

Although the 1792 dispute concerned the rules for ballot delivery, rather than hanging or dimpled chads, the same basic jurisprudential debate in Bush v. Gore existed in 1792. Just as Gore argued for avoiding the disenfranchisement of voters as a consequence of faulty electoral machinery, so too did Jay’s side claim that protecting voters from the loss of their fundamental (and constitutional) right to the franchise was justification for excusing a technical breach of the state’s ballot delivery law. Conversely, just as Bush’s legal team claimed that strict enforcement of Florida’s election rules was necessary to preserve the integrity of the electoral process, so too did Jay’s opponents make the identical argument.

Moreover, this debate about how best to operate democracy in the context of a dispute over the results of an important statewide election consumed the attention of the Founding Generation. Jay’s Federalist Papers co-authors, Hamilton and Madison weighed in with their views, as did Jefferson, Monroe, and Burr. Other important, but less well-known, Founders were also involved. For example, Edmund Randolph, the nation’s first Attorney General, forcefully expounded the integrity argument. James Kent, a Jay supporter who would later be known as “America’s Blackstone” for his Commentaries on American Law, condemned the canvassing committee for being structurally biased against Jay’s side in its membership.

This largely forgotten historical episode, with its similarities to the disputed presidential election of 2000, is more than just an interesting curiosity. Rather, the difficulties that the Founding Generation had with its own version of Bush v. Gore – especially its lack of an institution for resolving the dispute that was perceived to be structurally fair to both sides – helps to explain why our own generation had such difficulty with resolving the 2000 presidential election. We have inherited the constitutional system that the Founders bequeathed to us. But that system did not include an adequate mechanism for handling a disputed election for chief executive, whether governor or president. This Article explores the reasons for the Founders’ inability to equip us, or (as shown by the events of 1792) even themselves, with this necessary element of a well-functioning constitutional democracy. As a nation, we will continue to suffer from this inadequacy until we recognize that the Founders did not give us all that we need and thus we take it upon ourselves to add the missing institutional ingredient to the system they gave us.