Race, Party, and Contested Elections to the US ...

Race, Party, and Contested Elections to the U.S. House of Representatives

June 16, 2006

Matthew N. Green Assistant Professor Department of Politics Catholic University of America 620 Michigan Avenue NE Washington, D.C. 20064 [email protected] w: (202) 319-5667

Abstract Recent studies of contested elections in the House, particularly those from the late nineteenth century, have pointed to party goals as motivating their resolution in Congress. However, little systematic research has been conducted on why such elections were contested to begin with. Using historical data and new statistical analysis, I find that, in contrast to the claims of some scholars, national partisan goals only partly tell the story of these elections. Election conditions, particularly the means by which southern white Democrats attempted to repress the vote of southern blacks, independently influenced the probability of contestation. This finding has implications for our understanding of changing party strategies and electoral conditions in the South during the period, as well as the origins of contested elections at other times in American history.

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In the mid- to late-nineteenth century, the House of Representatives seemed habitually preoccupied with resolving appeals over election outcomes. Not only were such appeals common, often consuming considerable time to resolve, but their resolution was routinely condemned as having little, if anything, to do with the actual merits of the given case. As one former House committee chairman argued, “(e)ach case is coming to be a mere partisan struggle…[the process] is becoming an engine of political parties working out their ends, and involving the institutions of the country in their purposes and fate.”1 This unusual phenomenon has drawn the attention of several scholars who have sought to explain the origin, resolution, or political significance of congressional contested elections. Most have viewed them as an instrumental means for majority parties to win additional seats in Congress. In a recent paper, Jeffrey Jenkins provides compelling evidence that contested elections have been a partisan tool, particularly for House Republicans during the latter half of the nineteenth century. During this period, he argues, as Republicans and Democrats closely competed for control of Congress, the Republican Party “turned to contested elections as an institutional equalizer, a tool to maintain a sufficient number of southern seats to retain majority control of the House.”2 Jenkins analyzes how congressional majority parties have resolved contested elections, but leaves unexamined a central related question: why are such elections contested to begin with? Understanding the origin of contested elections is important for several reasons. First, though such elections may be helpful for congressional parties seeking to gain legislative seats, they cannot serve as a partisan tool if they do not happen in the first place. Second, the frequency of contested elections has been a critical measure of institutional development in the United States. Most notably, Nelson Polsby argues that one characteristic of the House’s

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institutionalization, the replacement of particularistic with universalistic criteria for making decisions, is reflected in how the House resolved contested elections. While Jenkins argues persuasively that contested elections have remained partisan in their resolution even after institutionalization, he leaves open the question of whether contested elections are a measure of other institutional changes within or outside of the House.3 Third, determining more general causes of contested elections may give us greater insight into the American electoral process and how it has changed over time. The evidence presented here will show that viewing contested elections as a means of expanding majority party strength misses the more complex relationship between party goals and election conditions that influenced contestation in the latter half of the nineteenth century. The goals of the majority party in the House could motivate contestation, but unlike others who have made the same claim, I argue that these goals were variable, multifaceted, and could be only imperfectly achieved through contested elections. Furthermore, using both historical and statistical analysis, I demonstrate that the specific conditions of individual elections also independently influenced the likelihood of contestation, particularly when they were related to fundamental and genuine conflicts over voting rights for southern blacks. The discussion proceeds as follows. I begin with a short review of how I define contested House elections and how they have fluctuated in frequency over time. Next, I introduce a series of hypotheses to explain why an election would be contested and, using regression analysis, test these hypotheses for elections that occurred between 1866 and 1910, when nearly half of all challenges occurred. I then elaborate on the degree to which the goals of both major parties during that period could be satisfied by contested elections, and how changes in both conditions and party goals led to the steep decline in contested House elections by 1900. Finally, I discuss

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the applicability of these findings for other historical periods, and their implications for our understanding of American elections and congressional party politics.

Methodology and Data I define a contested election based on both the election result and the extent to which the legislature hears, reviews, and determines the outcome of the election in question. A contested election case is one brought by any individual or group (the “contestant”) challenging the right of one or more newly elected representatives (the “contestee”) to be seated, on the basis of the validity of the election. To be included here, such a case must be filed with the House, referred to the appropriate committee, and reported back by committee to the full House (with a final floor decision usually, but not necessarily, following).4 House elections have been officially contested for a variety of reasons, ranging from disputes over the proper qualification of voters or candidates, to blatant fraud or even violence at the polls.5 Though some cases suggest that partisan motives explain how they are resolved,6 others illustrate challenges that occurred for substantive reasons regardless of their resolution in the House. For example, in an 1888 Mississippi case (Chalmers v. Morgan), the House elections committee documented considerable fraud and abuse, including local judges tampering with ballots, polls closed in Republican precincts, and even voter intimidation by Democratic militias “organized and drilled just previous to the election.” In a Louisiana case from 1868, Darrell v. Bailey, the contestant alleged that “in one parish…over 200 negros were killed” over a two day period, while in another parish the local sheriff and judge, both Republicans, were murdered, “and a reign of terror prevailed.”7 Figure 1 shows the percentage of all seats that were contested in each House from 1828

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(the 21st Congress) to 1934 (the 74th Congress), when the majority of contested election cases occurred.8 The data mirrors that of other research showing that contested elections were relatively rare until the Civil War, increased in the 1860’s, peaked in the 1880’s and 1890’s, and declined in number starting in the 55th Congress (1897-99).9 Note, however, that contested elections continued to occur in the decades after 1900, peaking slightly after the 1910 and 1932 congressional elections.

[Figure 1 About Here]

Origins of Election Contestation: Hypotheses Assuming that a congressional seat is of value to all election candidates, the loser of any given election to Congress should be inclined to contest the outcome, provided there exists even a marginal chance that the result is overturned in his or her favor. Yet there are also costs associated with such action: time, money, and other resources may be required to sustain a challenge, or a challenger may earn a reputation among the electorate as a “sore loser,” hindering future election chances. Consistent and blatant disregard for election results is also less likely in stable democratic systems, because citizens value stability and wish to avoid risk.10 Given this mix of incentives and disincentives, why would a congressional election be contested? Existing literature on the topic suggests three possible and not necessarily exclusive explanations. The first is that the procedures for contesting an election encourage a would-be contestant to bring a case to Congress. If the appeal procedure is relatively simple and efficient, and appeals are heard directly by the House rather than another adjudicating body (such as state courts), contestation may be more likely. In his 1956 doctoral dissertation on contested elections,

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John Dempsey argued that part of what drove the decline in contestation in the early twentieth century was congressional deferral to state election laws and decision-making in the 1930’s and 1940’s.11 While plausible, this explanation unrealistically assumes that other costs associated with a challenge are minimal. At best, this factor may be a necessary, but not sufficient, reason for an election to be contested. A second hypothesis is that the internal political characteristics of the House signal would-be contestants that they are likely to win. The most commonly-alleged such characteristic is whether Congress considers election cases in a partisan fashion. Polsby and others have argued that the partisan resolution of contested elections encourages future election losers to appeal the results. Thus, cases disappeared in the late nineteenth century when Congress developed a norm of accepting election results on their merits rather than using them as a means to gain seats.12 However, given the potential costs associated with an election challenge, even the most strident partisan contestant should seek some legal or factual basis on which to propose overturning an election result. In addition, as Jenkins notes, legislators continued to cast partisan floor votes on contested election cases well after they declined in number in the 1890’s, with no subsequent reemergence of cases.13 Other factors internal to Congress could also motivate contestation. Richard Bensel has argued that congressional support for contested elections in the late nineteenth century was driven, at least in part, by the majority party’s attempt to increase its size – suggesting that smaller majorities were more likely to overturn cases in their favor – and a desire by House Republicans in particular to compel southern states to permit black suffrage.14 Similarly, Jenkins finds that close competitiveness between Republicans and Democrats after the 1860’s led Republicans to use contested elections both to “fight Democratic-sanctioned fraud, intimidation,

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and violence in the South, and promulgate hopes that a southern wing of the Republican Party could be resuscitated.”15 The third hypothesis is that certain election conditions increase the likelihood of contestation. According to this explanation, an election is more likely to be contested if it somehow did not reflect the “true” preferences of voters because of illegal activity, errors, violence at the polls, or other such conditions. Scholars have pointed to poor administration of elections, fraud at the ballot box, battles over the readmission of southern states after the Civil War, and post-Reconstruction election practices in the South as examples of conditions leading to election contestation.16 Jenkins suggests that this last factor was an important basis for contested elections in the second half of the nineteenth century (see quote above), but implies that it was a means to an end, not a sufficient cause in itself. The Republican Party, he argues, exploited southern electoral challenges when it needed to do so to maintain its strength in Congress, and abandoned contested elections when the Party found them an unavailable, ineffective, or unnecessary means of securing control of the House.17 In the next section, I examine aggregate data and use statistical analysis to test the effect of various factors on the contestation of elections from the mid-1860’s through 1910.18 I then draw from historical data to further explore the relationship between national party goals and election contestation during this period.

Contested Elections, 1866-1910: Summary Statistics and Regression Analysis As shown in Figure 1, during the thirty-year period from 1866 to 1896, the House was often plagued by election contestation, with the largest concentration of contested seats in House history occurring during this interval of time (323 seats, or a little more than fifty percent). Then,

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starting in the 1890’s, contested elections went into a considerable decline. What was driving these contestations and their subsequent disappearance? Summary statistics suggest that the answer lies in changes in the conditions under which congressional elections were conducted, particularly in the South.19 Other studies have shown that the South was the dominant source of contested elections between the Civil War and the early 1900’s.20 This is further illustrated in Table 1, which gives the percent of cases from 1789 to 1941 broken down by region.

[Table 1 About Here]

Southern states were a growing source of contested elections following the Civil War, making up over half of all cases between 1882 and 1901. The two cases mentioned above are among the many elections during this period that suggest how widespread electoral fraud, violence, and other illegal methods were in the region. Figure 2 shows how contested elections were distributed geographically, by county, within ten of the eleven states of the South (plus Kentucky).

[Figure 2 About Here]

The map underscores the importance of black voters in driving contestation in many southern states during this period. More frequent election cases appear to correspond closely to higher population densities of African-Americans during this period. The highest concentration of cases centered in New Orleans, central Alabama, and South Carolina, and often concerned endemic

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problems of false balloting, disqualification of ballots, and other means to throw out unwanted votes in Black Belt counties.21 Although this data suggests that politics in the South are to blame for contested elections during this historical period, a more rigorous method is needed to determine the relative importance of these election conditions in motivating contestation. Pooling data from all House elections during this period,22 I employ regression analysis to determine the independent effect of multiple factors on the probability that a given election to the House was contested. Because only a small proportion of all House elections were actually contested, I use the rare events logit regression model,23 which estimates coefficients using robust standard errors to compensate for a bias towards underestimation.24 The first explanation discussed above, that institutional rules or precedents in the House governing the consideration of cases encourages or discourages contestation, does not apply to cases heard during this period. Contested House elections were considered under the provisions of an 1851 elections law, which did not change significantly until after the nineteenth century.25 The regression does include a number of variables designed to test the effect of election conditions. One is the marginality of an election. Elections for which a shift in a very small number of votes would change the result are theoretically more tempting to contest, if only because proof of a small degree of irregularity may be sufficient to convince the House to reverse the election’s outcome. I test this factor using the logged margin of victory (in percent of total vote) of the winner of each House race. Another election condition is whether the ballot process is prone to error, fraud, or abuse, which could encourage contestation on the legitimate ground that the election results were illegally altered. Such a condition is extremely difficult to measure systematically, and some historians dispute its prevalence in American elections in the 19th

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century.26 However, one significant institutional change designed to reduce fraud or error at the ballot box was introduced in the late nineteenth century: the secret, or Australian, ballot. Adopted in nearly every state by 1900, the Australian ballot allowed for greater privacy in vote choice and reduced the ease of vote buying or printing false ballots. Jenkins suggests that its adoption reduced the frequency of fraud and, therefore, the number of contested elections.27 I therefore include in the regression a dichotomous variable indicating whether the Australian ballot had been adopted by the state at the time of the given election. A final condition that could affect the likelihood of a contested election is the degree of dispute over the franchise, or the qualification of certain groups of voters. In particular, some have asserted that contestation during this period occurred due to conflicts over the voting rights of emancipated southern African-Americans after the Civil War.28 Disputes over black voting involved two particular phenomena. During the period of Reconstruction, the Republican North attempted to impose democratic rule and black suffrage directly in the South.29 As a result, fraud and violence occurred in many southern districts, as southern Democrats in areas with large concentrations of blacks (or Populist white voters) attempted to defeat Republican or third party candidates through extra-legal means. Since these conditions would be expected to increase the likelihood of contestation in the South, I add a measure of the percent black population in each House district in the regression on southern elections.30 The other franchise-related phenomenon, also unique to the South, occurred when southern states turned to legal and constitutional disfranchisement as a more efficient and permanent means of eliminating unwanted voters. Designed to deny blacks (and, in effect, poor whites) the right to vote, these efforts included poll taxes, literacy tests, and grandfather clauses.31 Jenkins suggests that because disfranchisement was less salient a campaign issue for

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Republicans than fraud or violence at the polls, election contestation became less attractive to the Party.32 But more importantly, because disfranchisement precluded the use of fraud and violence to reduce turnout, it removed an important substantive basis for reversing election outcomes in the House. To overturn an election held under disfranchisement, a contestant would have to overcome a much higher burden of proof, showing that disfranchisement had not only illegally prevented would-be voters from voting, but that those citizens would have voted for the losing candidate. Furthermore, by eliminating large numbers of voters, it created highly noncompetitive elections, further increasing a contestant’s burden of proof. Indeed, of the twenty cases between 1881 and 1901 in which House Republicans unseated winning Democrats, all occurred before the state had adopted disfranchisement.33 To test its possible effect, I include a dichotomous variable measuring whether the given House district had adopted disfranchisement prior to the election. Note also that the variables measuring election margins and Australian ballot adoption may also pick up its influence: disfranchisement reduced the prevalence of close elections, while the Australian ballot was part of disfranchisement in several southern states because it hindered the ability of illiterate voters (both blacks and whites) to vote.34 The final hypothesis is that characteristics of Congress affect the likelihood of contestation. One such characteristic, prior partisanship in deciding contested elections, could have encouraged losing candidates to contest their cases, no matter how frivolous, in the hopes of a favorable result. To test this factor, I use as a predictor the percent of cases in the prior Congress that were decided for the majority party. This does not necessarily measure “true” partisanship, since such a case could have been decided on its merits, rather than on any party consideration. Nonetheless, because such an outcome is visible and easily interpretable as partisan, it would probably be used most commonly by potential contestants as a signal of

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partisanship.35 I also attempt to capture the effect of partisanship with a dichotomous variable measuring whether the election winner is of the opposite party from the majority in the House. Presumably, if partisanship motivates contestation, an election challenger would assume that the House majority would decide such cases in its own favor.36 In the event that contestants seek both partisan signals and ideal election conditions for making a case, I also include an interaction effect between this variable and the margin of the election outcome. In addition to partisanship in and of itself, other internal characteristics of the House related to party goals may encourage or discourage contested cases. A smaller party may wish to maximize its share of seats in the House, especially since such majorities have greater difficulty managing the legislature and are more vulnerable to party defections.37 I therefore include in the regression a variable measuring the log of the proportion of House seats held by the majority party.38 Contested elections were also more frequent under Republican majorities, at least during the late-nineteenth century, and Jenkins and Bensel both claim that this derived, at least in part, from the GOP’s drive to advertise southern election fraud.39 To capture this effect, I add a dummy variable for whether the Republican Party controlled a majority of House seats. Since Republicans presumably sought to target Republican-leaning districts in the South (or at least ones where greater election improprieties occurred), I also use a variable capturing the interaction between Republican control and the percent of African-American residents in each southern district. Finally, I include four controls in the regression analysis. The first measures whether the election winner was an incumbent legislator, since an incumbent may have allies in the House willing to support any challenge against him. I also include a dummy variable for whether the election filled an open seat, in the event that this also affects the likelihood of contestation.40

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Additionally, because elections which occur relatively late in a term of Congress (such as special elections) may be less likely to be contested, I add a dichotomous variable equal to 1 if the election occurred at least a year after the given Congress first convened. Finally, though I run the regression analysis separately for southern elections, I also include a dichotomous variable for the South in the regression when using the entire dataset. The results of the rare events logit analysis are given in Table 2, and the first-order differences for the regression on southern elections alone (Model 2) are provided in Table 3.

[Tables 2 and 3 about here]

In support of the Polsby hypothesis, election candidates – at least in the South – did seem to be encouraged by the appearance of partisanship in the resolution of cases, though its marginal effect on the probability of contestation is small (1.7%). Candidates from the minority party in Congress who won election were also more likely to be subject to contestation, both within and outside the South, with a greater marginal effect (6%). The regression also supports the assertion that contestation during this period was driven by Republican attention to southern election conditions. The presence of a Republican majority had a significant effect on the likelihood of an election being contested, and in the South its marginal effect is quite sizeable (13%). Though more black-populous southern districts were, oddly, less likely to be contested under a Republican-controlled House, this is probably because Republican majorities tended to win control of such seats to begin with: between 1866 and 1910, Republican candidates won 106 southern seats with 40% or more black residents when the GOP controlled the House, but only 51 such seats under Democratic majorities.41

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However, not all party goals were seemingly satisfied by contested elections. The majority party rarely used them to expand narrow seat margins in the House: in fact, larger majorities in Congress, not smaller ones, increase the likelihood of contestation. Indeed, in only two congresses (both Republican-controlled) did a small majority party gain many seats from reversing election outcomes, the 47th Congress (1881-1883) and the 51st Congress (1889-1891).42 Would-be contestants were perhaps enticed by a belief that large majority parties could more easily marshal the floor votes necessary to decide these cases in their favor.43 More importantly, electoral conditions, especially in the South, had an independent effect on the likelihood of contestation. Not only were southern elections themselves more likely to be contested, but the percentage of blacks in such congressional districts had both a statistically and substantively significant effect. It was these districts, more than any others in the South, which served as the source of continuing violence, friction, and corruption in attempts to prevent black voters from casting their ballots. The results also reveal a statistically significant and negative effect of the imposition of disfranchisement on contestation. Finally, as one would expect, the greater the margin of victory of an election winner, the less likely that the victor was challenged. In the context of the South, it provides further evidence of the effect of disfranchisement, which, as noted above, increased southern election margins substantially.44 Some additional factors show varying degrees of influence on the probability of contestation. Adoption of the Australian ballot reduced the likelihood of contestation, though the effect is less statistically significant when dividing the data by region, and the small marginal effect (at least for southern elections) challenges Jenkins’ argument that the ballot played a major role in the decline in cases in the 1890’s.45 Incumbents who won reelection were also less likely to face election challenges, suggesting a possible perception of “incumbency bias” within the

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House that deterred would-be challengers. Neither the timing of an election nor whether an election was held to fill an open seat has any statistically significant effect; the sole exception is non-southern races, for which late elections have an unexpectedly positive effect.

Contested Elections and Satisfying Party Goals The regression results illustrate that a party goal approach to understanding contested elections is incomplete. However, they do seem to partially support the view of Bensel and Jenkins that the presence of Republican majorities in the House between 1866 and 1910 increased the likelihood of election contestation, though it leaves unexplained why this may have been so. A closer examination of historical data suggests that existing explanations – hurting the reputation of Democrats and building a southern base – are incomplete, and also overstate the Party’s ability to encourage contestation. As early as 1868, actual and threatened violence against black voters plagued elections in Alabama, Arkansas (where one congressman was murdered), Georgia, Louisiana, and South Carolina. Election-related violence and fraud in the South declined when the Republicancontrolled Congress passed a series of national election laws in 1870 and 1871; but in 1876, with Democrats controlling the House and the national Republican Party losing enthusiasm for enforcing those laws, it returned.46 Though southern contested elections declined in number when Democrats controlled the House (1874-78 and 1882-86), fraud and violence continued to plague elections in the region, as reflected in reports from southern states, the number of cases brought under federal anti-fraud enforcement laws, Republican legislators who pressed the issue in the House, and the call of southern state GOP organizations for national legislation to ensure fair elections.47

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Bensel and Jenkins argue that these conditions gave Republicans the opportunity to overturn congressional elections in order to secure a foothold in the region and maintain majority status in Congress. To be sure, this was a major goal for the Party, particularly as Democrats became competitive in congressional races and Republicans won far fewer southern districts than the size of the black population would predict.48 However, the difficulty of winning southern elections without white votes became apparent as early as the mid-1860’s, and many Republicans believed that courting southern white voters, rather than enforcing black voting rights, was a better means of strengthening the Party’s southern presence.49 Thus, as Jenkins himself notes, the GOP often wavered between courting white voters and enforcing black voting rights as a method of building up southern Republican Party organizations.50 For example, Republicans focused on election improprieties in 1880 following reports of increased violence and fraud in the South and congressional Democrats’ attempt to nullify federal election laws, and did so again after 1884 when Democrats won control of the White House. In 1878, 1882, and 1888, however, Republican leaders deliberately shifted focus away from protecting the black vote and towards winning over white southerners.51 Some southern Republican legislators also opposed partybuilding via protection of black voting rights,52 and as early as 1882, it was apparent that Republicans who were awarded southern seats in this fashion could be both less loyal to the Party and less secure in their seats.53 In short, building a southern party to secure House majorities does not seem to be a sufficient explanation for why Republican congresses consistently heard a disproportionate number of contested elections from the South. Another possible motivation for Republicans to encourage cases was to publicly counter fraud and abuse in the region. One purpose in doing so may have been to tarnish the reputation of the Democratic Party by advertising election fraud.54 However, the Party did not consistently

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follow this strategy, given the changing placement and wording of the southern suffrage issue in the party’s presidential platform throughout the 1870’s and 1880’s.55 This also does not explain why the number of southern cases declined when Democrats controlled the House, since Republicans could have still used them to advertise southern election conditions through committee report language and speeches on the House floor. The second purpose for fighting southern election fraud was out of genuine policy concerns: many Republicans were opposed on principle to the use of fraud and violence to repress the black vote. Though largely ignored by scholars, Republican outrage over these conditions was real: it helped keep the Party unified during the period, motivated even reluctant Republicans to pass election laws in 1870 and 1871, and remained a continuing worry of legislators such as George Hoar of Massachusetts.56 In other words, the conditions themselves were sufficient to encourage Republicans to overturn southern congressional elections. Furthermore, both parties could gain in other ways from contested elections. Four years after the contentious 1876 presidential election, House Democrats may have considered using a contested election in Minnesota to establish a Democratic majority in the state’s delegation, in the event that the 1880 presidential election was determined in the House. Observers sometimes suggested that contested elections were used to achieve specific legislative outcomes as well. For example, one Republican in 1870 was accused of voting to admit the Democrat in a Louisiana case in order to build a majority coalition on the iron. In 1876, House Democrats allegedly voted to seat the Democratic candidate in a Virginia election in exchange for his help in blocking a legal tender bill. Six years later, one newspaper accused House Republicans with seating a Greenback Party candidate in exchange for his votes against all other Democrats in future contested elections.57 Such allegations may have been more rumor than fact, but they do

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suggest that majority parties could gain in other ways from contested elections. Finally, even if contested elections were helpful to congressional majority parties, one should consider how much influence they had in instigating them. On the one hand, because several months usually passed between November elections and the swearing-in of a new Congress, a party would have had ample time to encourage losing congressional candidates to contest their cases. After the 1880 elections, for instance, when Republicans had regained control of the House, the Washington Post alleged that the GOP was encouraging contestation of a number of southern seats before the new Congress would meet.58 On the other hand, the majority party could not influence key election conditions that encouraged contestation, such as narrow election margins, fraud, or violence at the polls. Election losers may have been encouraged to challenge their elections by the presence of a same-party majority in Congress – especially southern Republican candidates who were greatly hindered by electoral fraud and abuse – but action by the party was not necessary for a case to come to Congress. In short, both Republicans and Democrats could satisfy distinct policy and political goals using contested elections, but those goals varied in importance and intensity over time. For Republican in particular, concern with voting conditions at times combined with a desire to build southern state party organizations and embarrass Democrats.59 Contested elections also depended on factors that were not necessarily in either party’s control, making them less than ideal mechanisms to achieve party goals.

Explaining the Decline of Contested Elections Though the presence of Republican House majorities increased the probability of election contestation between 1866 and 1910, the number of cases began to decline in the 1890’s at the

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same time that the Republican Party began consistently winning a majority of House races. Jenkins notes three reasons that this occurred: a lack of enthusiasm among congressional Republicans about using contested elections to gain seats, the electoral insecurity and voting disloyalty of southern Republicans, and the absence of the need for victories in southern states for the GOP to control the House.60 While these explanations are plausible, evidence indicates that two broader and more general factors were key to the decline: a broader change in the Republican Party’s political and policy goals, and a shift in election conditions in the South. After the 1894 election, Republicans kept control of both the House and Senate for fourteen years without winning many southern congressional districts; but even before that year, the national Republican Party had begun moving definitively away from identifying itself with black voting rights. Throughout the 1880’s there had been a steady increase in the number and influence of House Republicans who wanted to de-emphasize “waving the bloody shirt,” as well as lobbying from northern businesses who sought to improve regional relations so as to increase commerce with the South, and a rise in prominence of white nationalist ideology. Furthermore, the last Republican attempt to impose supervision over southern elections – the Force bill, passed by the House in 1890 – not only failed to become law but was followed by a major presidential election loss and, in the subsequent Democratic Congress, the repeal of all federal enforcement laws governing elections.61 These factors contributed to the Republican Party’s declining focus on improprieties in southern election conditions even before 1894. At the same time, those conditions began to change: when the South turned to disfranchising laws and new constitutions that systematically denied the voting rights of blacks, elections in the South become much less competitive, while large numbers of southern blacks vanished from voter rolls. Disfranchisement thus effectively made the contested elections process too onerous to redress the

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denial of black suffrage for the many Republicans who still wanted to do so. The first contested election cases that did come to a Republican Congress based on disfranchisement revealed both changes in attitudes among many House Republicans towards the South in the 1890’s, and how those attitudes, together with new southern electoral conditions, could hinder contestation. After the Party lost its majority in the House in 1890, Arkansas, Florida, Mississippi, and Tennessee adopted disfranchisement,62 and when Republicans regained control of the House in 1894, only one of those four states, Mississippi, sent cases the 54th Congress. All three cases from the state were based on the contention that Mississippi’s new constitution violated federal law and the U.S. Constitution, but the elections committee ignored this claim and otherwise found insufficient evidence to overturn the election results.63 Four contested races from South Carolina, decided in the same Congress and by the same committee, more clearly revealed a key bloc of Republicans who believed that these cases could not, or should not, be decided in their Party’s favor. South Carolina had not yet adopted formal disfranchisement, but it had enacted a registration law in 1882 that effectively prevented thousands of black Republicans from registering, and all four cases were based at least partially on allegations that the state’s new registration laws unconstitutionally hindered black voting.64 In one case, Murray v. Elliott, the committee majority argued that there was sufficient evidence of fraud to overturn the outcome and seat the Republican contestant.65 However, in two other cases (Morrman v. Latimer and Wilson v. McLaurin), the committee refused to seat the contestant, arguing that his evidence was insufficient, that the election should not be overturned solely on the basis of the registration law, or that the Democrat would still have won more votes even if the law had not been followed.66 In the fourth case, Johnston v. Stokes, the elections committee issued three separate reports: a majority report for the Democratic contestee, signed

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by all three committee Democrats and two Republicans (John Jenkins of Wisconsin and James Codding of Pennsylvania); a minority report for the Republican contestant, signed by Republicans Jesse Overstreet (IN), James Walker (VA), and Henry Thomas (MI); and a third report, signed by Republican Chairman Samuel McCall of Massachusetts, to seat neither candidate. Over three days of floor debate on the case, Congressman Jenkins revealed himself as the committee Republican most clearly opposed to the use of contested elections to seat southern Republicans. On the one hand, he noted that he was a loyal Republican, agreed that South Carolina’s registration law was unconstitutional, and insisted that the Republican candidate’s main problem was that his primary evidence – “voter lists” of would-be voters’ intended vote choices, compiled outside of polling booths or after the election – was too unreliable and not legally admissible. Yet Jenkins also complained that his party had hurt itself in these cases by “usurping rights that never belonged to it under the Constitution” and that “[p]artisanship ought no longer to exercise any influence or have any control in determining” cases. Perhaps even more telling, he claimed that not only had the election been “as fair an election as was ever held in the state of South Carolina,” but that “[m]atters are improving in the South” and, in his opening remarks, touted his introduction of a resolution to impose educational qualifications for voting because “there is danger in allowing the ignorant to vote.”67 The statements of the remaining Republicans on the committee showed how disfranchisement posed a challenge even for those who believed that southern elections were unfairly denying votes to southern blacks. Congressman Codding, the other “defecting” committee Republican, asserted that he “would prefer…to advocate the cause of the contestant,” but that the committee’s majority had thrown out too many of the contestant’s voter lists as evidence. Furthermore, he argued that many of the remaining lists were still inadmissible as

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evidence, and that even accepting some of the rejected lists would still be insufficient evidence to overturn the outcome.68 Though the remaining four committee Republicans argued that the registration law was unconstitutional and had sharply restricted black Republican voter turnout, thereby unfairly giving the election to the Democratic candidate, they differed on whether the voter list data was sufficient evidence to indicate voter intent. Chairman McCall, disagreeing with the other three committee Republicans, insisted that it was not, and that therefore the seat should be considered vacant.69 Jenkins, Codding, and McCall were not alone among their colleagues who were unsympathetic towards the Republican candidate. When the House voted, first, to seat the Republican contestant, 41 of 135 Republicans voted with all 58 Democrats and 6 Populists to reject the motion, 95-105; on the next vote, to deny the seat to the contestant, 38 of 136 voting Republicans joined 59 Democrats and 6 Populists to pass the measure (103-99). At that point, Republicans began offering a series of motions to delay any further votes while more supporters of the contestant could be summoned to the floor.70 When the matter returned to the floor three days later, a deal had apparently been reached between McCall and Jenkins: the Republican dissenters, including Jenkins, voted with a unified Democratic Party to vacate the seat, 130125.71 As late as 1896, then, a majority of House Republicans still believed that the repression of black voting rights in the South was a legitimate grievance, but were hampered by two conditions: a contentious form of evidence to support their case, and the presence of a large faction of the Party that no longer wanted to grant such cases to Republican candidates and could form cross-party voting coalitions with Democrats.72 The House remained in the hands of Republicans for the next fourteen years, but the spread of disfranchisement led to a rapid decline in the number of cases from southern states. As

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a sign that the Republican Party could not fully control contestation, a few cases from the South continued to come to the House, even though they were consistently ruled in favor of the Democratic incumbent.73 But it was an election committee’s verdict of the next case to originate from South Carolina, Dantzler v. Lever in the 58th Congress (1903-5), which established with certainty that disfranchisement was an insufficient basis by which the House would overturn contested elections. Ruling directly on the validity of South Carolina’s state election law, the Elections Committee (No. 1) argued that the Supreme Court, not Congress, was the “proper forum for the decision of constitutional and other judicial questions,” and that ruling for the contestant would have the undesirable consequence of refusing to seat all southern representatives elected under disfranchising constitutions.74 This in effect endorsed southern disfranchisement, given that the Supreme Court had already ruled in Williams v. Mississippi (1898) that two methods of disfranchisement, the poll tax and the literacy test, were not unconstitutional. Undeterred, South Carolina Republicans continued to bring (and lose) disfranchisement-based cases to the House, while individual Republicans seeking to reverse disfranchisement through other means, such as denying the South congressional states gained from reapportionment, failed to get very far in their efforts.75 By 1912, the Republican Party’s presidential platform had dropped any mention of protecting the suffrage or ending voting discrimination.76

Discussion and Conclusion I have provided evidence that both partisan factors and election conditions influenced whether congressional elections were contested in the latter half of the nineteenth century, when a majority of contested cases took place. Losing candidates were more likely to contest an

23

election against a non-incumbent, or if they perceived that Congress resolved cases in a partisan matter. While Republicans’ partisan goals after the 1860’s also generally encouraged the contestation of Southern elections, this contestation was contingent upon election conditions on the ground that not only denied the Party southern seats, but did so in blatantly illegal ways, including fraud and violence, that raised genuine alarm about black voting rights. In the early 1890’s, contestation of congressional races declined both because of shifting Republican goals and because changes in state legal codes and constitutions gave a disproportionate advantage to Democratic candidates. Thus, unlike other research on this subject which emphasizes the importance of national party interests, this analysis shows that election conditions were just as important, if not more so, in explaining contestation. To what extent can this finding be generalized to contested House elections in other periods of U.S. history? While intense conflict over southern black voting rights and the imposition of disfranchisement was unique to post-Reconstruction America, ethnic and racial disputes have been an important basis for contested elections at other times as well. Before the Civil War, for example, some cases stemmed from the activities of the “Know-Nothing” Party, a temperance and anti-immigrant party that used intimidation and violence to deter immigrants and potential opponents from Baltimore voting booths.77 A large proportion of the cases from urban areas after 1900 reflected partisan political conflicts and election illegalities by party machines, but also, at times, the suffrage rights of immigrant voters.78 And, while only a small number of congressional seats have been challenged in the House of Representatives since the 1920’s,79 the few cases that have occurred often illustrate the same intersection of race, ethnicity, and the suffrage that motivated cases in the nineteenth century. For example, a 1965 challenge to five seats from Mississippi was based on discrimination against African-American voters at southern

24

polling places; and, in the 1998 case of Dornan v. Sanchez, the losing contestant sought to overturn his 979-vote loss on the basis of fraudulent voting by illegal, primarily Hispanic, immigrants.80 To be sure, not all contested elections have occurred as a result of racial and ethnic conflicts. Ambiguity or change in the election process, due to unsettled election laws and uncertainties about the qualifications of voters and candidates, led to many initial contested House elections.81 Disputes involving territories and the admission of states, usually stemming from fluctuating geographic boundaries, undeveloped local governance structures, and remote locations, contributed to a number of cases.82 Nonetheless, race and citizenship have been a common thread connecting many contested elections. Even the infamous “Broad Seal Case” from the 25th Congress (1837-39), in which Democrats transparently won control of the House by ruling in favor of the same-party contestants, was based on allegations that non-resident immigrants had voted in the election.83 The findings presented here have several implications for our understanding of electoral history and institutional development in the United States. First, changes in the frequency of contested elections indicate the potential political consequences when the franchise itself is subject to party conflict, as it was from the 1860’s to the early 1890’s. In this period, congressional elections became part of broader political battles between the two parties, as each sought to define the voting rights of emancipated slaves in the South. Together with the intensive battles over whether the federal government could regulate southern elections, these cases provided a significant source of party conflict within the House.84 When suffrage rights became subject to partisan agreement – in no small part because of institutional changes taken at the state level, with the cooperation of the federal judiciary – the frequency of contested elections

25

and the partisan conflict surrounding their resolution declined. Second, contested elections are less a major cause of change within Congress as they are an important measure of institutional development in the United States. Jenkins does note two institutional changes within the House that were due to contested elections: the 1890 adoption of rules to limit minority party power, introduced during debate over an 1888 contested election; and the creation of two additional election committees in 1895 to handle the growing number of contested election cases.85 However, these changes were limited to two specific moments in congressional history, and for at least one of them (the 1890 rules change) a contested election seems to have served as a pretext for change, rather than its direct cause. By contrast, while contested elections may not be a convincing measure of the institutionalization of the House of Representatives,86 their decline in the 1890’s does pick up at least one significant institutional development in the United States: the adoption of disfranchisement in the American South. Disfranchisement ended almost all southern black voting, allowing for the firm establishment of a Democratic bloc in Congress that, with the seniority system, gave the South disproportionate influence on congressional politics for nearly six decades. Most contested elections during the late nineteenth century thus measure what Desmond King and Rogers Smith describe as the affirmation of a racial institutional order in the South, one that had important consequences for congressional development and national politics.87 Contested elections from other historical periods may similarly measure transitions in how the suffrage has been defined and delimited within the electorate and by both parties. Finally, the evidence presented here strongly suggests that the rhetoric surrounding contested elections should be carefully reconsidered. Contested elections have often been accused of being “partisan,” with two implications: national party goals have been most

26

important in explaining their occurrence and resolution, and they have been based on irrelevant or frivolous complaints.88 Sometimes, however, party goals conjoin with honest concerns about election conditions, as they did for Republicans after Reconstruction. Furthermore, the term as used in the late nineteenth and early twentieth centuries may have been as much an attempt to reframe the debate over African-American and immigrant voting rights as a description of fact. Regardless of their true motives, House election committees did generally base their decisions on the facts of particular cases, not by “political” criteria (such as ideology or majority party size), and partisan disputes usually centered on the interpretation or selection of these facts. The demand for an end to “partisanship” – as Republican Congressman Jenkins described the attempt to overturn corrupt elections in the South after Reconstruction – and the laudatory praise for the end of “frivolous” contested election cases issued by many observers and legislators in the early 1900’s, was not only inaccurate, but perhaps disingenuous as well. In truth, the decline in significant levels of partisan dispute surrounding election outcomes at the turn of the century signified the complete abandonment of southern blacks and their constitutional rights for the next six decades. The end of “partisanship,” then, marked a regression as much as a progression in American politics.

27

Notes 1

Henry L. Dawes, “The Mode of Procedure in Cases of Contested Elections,” Journal of Social

Science 2 (1870): 56-68 (pp. 64, 68). 2

Jeffery A. Jenkins, “Partisanship and Contested Election Cases in the House of

Representatives, 1789-2002,” Studies in American Political Development 18 (Fall 2004): 112135, p. 113; see also Nelson W. Polsby, "The Institutionalization of the U.S. House of Representatives," American Political Science Review 62 (1968): 144-168, and O.O. Stealey, Twenty Years in the Press Gallery (New York: Publishers Printing Company, 1906), 147. 3

Polsby, “The Institutionalization of the U.S. House of Representatives,” 144-168; Jenkins,

“Partisanship and Contested Election Cases,” 125-26. 4

Note that a contested case could include more than one contested congressional seat; Jenkins,

“Partisanship and Contested Election Cases,” 115. As with Jenkins’ data set, contested cases were obtained from congressional reports and studies of contested elections, as well as the Congressional Record index. See John Thomas Dempsey, Control by Congress Over the Seating and Disciplining of Members (Ph.D. Dissertation, University of Michigan, 1956); Merrill Moores, Digest of Contested Election Cases in the House of Representatives, 1901-1917 (U.S. House of Representatives, Doc. 2052, 1917); Chester H. Rowell, An Historical and Legal Digest of Contested Elections in the House of Representatives from 1789 to 1901 (U.S. House of Representatives, Misc. Doc. 510, 1901); Angie Welborn, House Contested Election Cases, 1933 to 2000 (New York: Novinka Books, 2003). In contrast to Jenkins, I exclude cases which were not evaluated by a congressional committee, in order to eliminate frivolous or unmerited cases, and include territorial contests. For details on the institutional process by which contested election

28

cases were resolved in the House, see Jenkins, “Partisanship and Contested Election Cases,” 112135. 5

See Table 2 in Jenkins, “Partisanship and Contested Election Cases,” 117.

6

These were the so-called New Jersey “Broad Seal Case” in the 26th Congress (1839-41), Smith

v. Jackson in West Virginia in the 51st Congress (1889-91), and Kunz v. Granata from the 72nd Congress (1931-33). Jenkins, “Partisanship and Contested Election Cases,” 118-120. For more on the “Broad Seal Case,” see below. 7

Rowell, An Historical and Legal Digest, 246, 457.

8

In the first twenty congresses (1789-1829), 60 seats were contested, or fewer than 10% of all

such elections. For a chart of all contested cases since 1789, see Jenkins, “Partisanship and Contested Election Cases,” 116. 9

Jenkins, “Partisanship and Contested Election Cases,” 115.

10

Angelo Artale and Hans Peter Grüner, “A Model of Stability and Persistence in a Democracy,”

Games and Economic Behavior 33 (2000): 20-40; Barry R. Weingast, “The Political Foundations of Democracy and the Rule of Law,” American Political Science Review 91 (1997): 245-263. 11

Dempsey, Control by Congress, 45.

12

Committee on Elections No. 1, “Proceedings in Cases of Contested Elections of Members of

the House of Representatives” (U.S. House of Representatives, Report 1595, 1923), 3; Dawes, “The Mode of Procedure in Cases of Contested Elections,” 65; Dempsey, Control by Congress, 44-45; Polsby, “The Institutionalization of the U.S. House of Representatives,” 144-168; C.H.

29

Rammelkamp, ”Contested Congressional Elections,” Political Science Quarterly 20 (1905): 421-442. 13

Jenkins, “Partisanship and Contested Election Cases,” 125-26.

14

Richard Bensel, Sectionalism and American Political Development, 1880-1980 (Madison:

University of Wisconsin Press, 1984), 87. 15

Jenkins, “Partisanship and Contested Election Cases,” 126-27; quote p. 128.

16

Bensel, Sectionalism and American Political Development; Dempsey, Control by Congress;

Rammelkamp, ”Contested Congressional Elections,” 421-442. 17

Jenkins, “Partisanship and Contested Election Cases,” 113, 128-30, 133-34.

18

Though Jenkins examines cases through 1908, I include 1910 because it allows for variation in

both party control and the number of cases: the 1910 election was the first in nearly two decades in which the Democrats won control of the House, and represented one of the last major increases in contested elections after the 1890’s. 19

I define the “South” here as the eleven states that were members of the Confederacy during

the Civil War: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia. 20


21

See for example Allen Johnston Going, Bourbon Democracy in Alabama, 1874 – 1890

(University of Alabama Press, 1951). 22

Inter-university Consortium for Political and Social Research, Candidate and Constituency

30

Statistics of Elections in the United States, 1788-1990 [Computer file], 5th edition (Ann Arbor, MI, 1994). 23

The rare events logit model was implemented using the ReLogit function in Stata ver. 8.2.

Michael Tomz, Gary King, and Langche Zeng, “ReLogit: Rare Events Logistic Regression,” Journal of Statistical Software 8 (2003). 24

The dataset may also suffer from temporal dependence, which could affect the estimates of

standard errors in the regression; Nathaniel Beck, Jonathan Katz, and Richard Tucker, “Taking Time Seriously: Time-Series-Cross-Section Analysis with a Binary Dependent Variable,” American Journal of Political Science 42 (1998): 1260-1288. However, the variables measuring congressional factors, particularly the size of the majority party, are unique to virtually every Congress, and are thus highly collinear with fixed effects variables. 25

Congress enacted minor amendments to the 1851 Act in 1873, 1879, and 1887 to alter time

limitations, particular procedural rules, and limits on reimbursement of contestants. The precedent allowing the reimbursement of the expenses of contestants and contestees, practiced through much of the mid- to late-nineteenth century, could have encouraged cases, but it is not clear when the practice started or was discontinued. Rammelkamp, ”Contested Congressional Elections,” 426-27, 434. 26

Allen and Allen, for example, assert that election fraud was much less prevalent than reformers

at the time claimed, while Argersinger argues that fraud was prevalent after the Civil War and occurred throughout the United States. Howard W. Allen and Kay Warren Allen, “Vote Fraud and Data Validity,” in Analyzing Electoral History: A Guide to the Study of American Voter Behavior, eds. Jerome M. Clubb, William H. Flanigan, and Nancy H. Zingale (Sage: Beverly

31

Hills, 1981); Peter H. Argersinger, “New Perspectives on Election Fraud in the Gilded Age,” Political Science Quarterly 100 (1985-86): 669-687. 27

Jenkins, “Partisanship and Contested Election Cases,” 135n86. Unlike Jenkins, I do not assert

that the Australian ballot eliminated fraud entirely; indeed, fraud could still be committed with a secret ballot, as was often alleged with respect to elections in urban areas in the early 1900’s, as I discuss below. See for example Tracy A. Campbell, “Machine Politics, Police Corruption, and the Persistence of Vote Fraud: The Case of the Louisville, Kentucky, Election of 1905,” The Journal of Policy History 15 (2003), 269-300; and Earl R. Sikes, State and Federal CorruptPractices Legislation (Durham: Duke University Press, 1928), 62-63. 28

Allen and Allen, “Vote Fraud and Data Validity,” 177-78; Sectionalism and American

Political Development; C. Vann Woodward, Origins of the New South, 1877-1913 (Baton Rouge: Louisiana State University Press, 1951), 326. 29

Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper

and Row, 1988). 30

Since district-level census data on black population exists only at the county level, it is

unavailable for districts that comprise subsets of counties, which includes a number of northern congressional districts. Thus, the data is used for a regression on southern House elections only. 31

Note that Georgia had effectively disfranchised most black voters through the poll tax, adopted

in 1877; constitutional disfranchisement was not adopted in that state until 1908. Gerrymandering was also employed in some cases to reduce the black vote, with Mississippi’s “shoestring” 6th district in 1877, Tennessee in 1889, and South Carolina in 1885 among the most prominent examples. Unlike disfranchisement, however, gerrymandering was less efficient and

32

could not guarantee the permanent elimination of black voters at all levels of government that southern Democrats ultimately sought. See Foner, Reconstruction, 589-590; J. Morgan Kousser, “The Voting Rights Act and the Two Reconstructions,” in Controversies in Minority Voting, eds. Bernard Grofman and Chandler Davidson (Washington, D.C.: Brookings Institution, 1992), 14445; Michael Perman, Struggle for Mastery: Disfranchisement in the South, 1888-1908 (Chapel Hill: University of North Carolina Press, 2001), 13, 281, 293. 32

Jenkins also suggests that disfranchisement was more important in preventing a re-emergence

of cases in the 1910’s than in causing its disappearance in the 1890’s. Jenkins, “Partisanship and Contested Election Cases,” 135n86. 33

Table 12 from Jenkins, “Partisanship and Contested Election Cases,” 133. Not all southern

states saw a major decline after disfranchisement. In Georgia, cases from 1892 and 1894 were based on claims of bribery and intimidation, not disfranchisement laws, while three pairs of later cases involved the same individual in the same district (68th and 69th, 80th and 82nd, and 90th and 91st Congresses). Rowell, An Historical and Legal Digest, 489-91, 510, 513. Two other states that brought a significant number of cases, Mississippi and South Carolina, I discuss in more detail below. While cases from these states indicate that disfranchisement did not uniformly reduce the likelihood of contestation, they also show that Republican Party leaders could not keep some persistent southern Republican candidates from bringing cases to the House on the basis of disfranchising laws. 34

Joel Williamson, A Rage for Order (New York: Oxford University Press, 1986).

35

Jenkins uses several alternative measures of partisanship, including whether the majority party

33

overturned an election to seat its own candidate, if a committee was “rolled” on the floor by its party, or if a recorded floor vote on a contested elections is highly partisan. I do not use these measures because some of them would have been less visible to the public and would therefore be less likely to influence would-be contestants’ behavior. In measuring this variable, duplicate contests for the same seat (such as special elections) were not merged together, since they could have been resolved differently, and same-party and abandoned cases were not included. 36


37

Bensel, Sectionalism and American Political Development; Jenkins, “Partisanship and

Contested Election Cases,” 132; Committee on Elections, “Proceedings in Cases of Contested Elections of Members of the House of Representatives,” 2. 38

The variable ranges from a theoretical maximum of 0 (the natural log of 1, in which the

majority controls all seats) to -0.69 (the natural log of 0.5, or half of all seats), though it could be smaller than -0.69 in practice. This occurred in the 19th, 25th, 31st, 34th-36th, and 65th Congresses. This is the predictor most likely to be endogenous in the regression, since the number of majority party seats might conceivably affect the supply of contested elections. While not a problem in itself, adding an interaction effect between majority party size and whether the election winner was of the opposite party does introduce multicollinearity, since majority party size is inversely proportional to the number of elections won by the opposite party. 39

Bensel, Sectionalism and American Political Development; Jenkins, “Partisanship and

Contested Election Cases.” 40

Because very few congressional seats in the South were open seats, this variable is omitted for

34

the regression analysis for southern districts. 41

A chi-square test comparing the distribution of southern Republican seats by black population

under Democratic versus Republican majorities shows a statistically significant difference (Pearson chi-square = 21.03, p = .004). 42

Jenkins, “Partisanship and Contested Election Cases,” 127n56.

43

Though some Republicans believed that southern vote fraud had sometimes robbed them of

absolute majorities, they could not rectify this by reversing election outcomes while in the minority. Xi Wang, The Trial of Democracy (Athens, GA: University of Georgia Press, 1997), 222-23; Richard Valelly, “Partisan Entrepreneurship and Policy Windows: George Frisbie Hoar and the 1890 Federal Elections Bill” (Forthcoming, 2005). This finding does not preclude the possibility that House Republicans wanted to strengthen their position in southern congressional districts specifically. See below. 44

As Republicans cemented their control over northern districts, marginality in elections from

those districts increased as well. Nationally, winning House candidates won election with an average margin of 15% to 20% through 1896, while the average margin increased every year thereafter, reaching a high of 46% three decades later. 45

Jenkins, “Partisanship and Contested Election Cases,” 135n86.

46

Foner, Reconstruction, 342, 454-59, 569-574; Alexander Keyssar, The Right to Vote (New

York: Perseus, 2000), 106; Rowell, An Historical and Legal Digest, 334-337. 47

Stanley P. Hirshson, Farewell to the Bloody Shirt (Bloomington: Indiana University Press,

1962), 45-46, 119-120; Keyssar, The Right to Vote, 107-8; Valelly, “Partisan Entrepreneurship

35

and Policy Windows”; Wang, The Trial of Democracy, 161-162, 217-218, 229-230, 300. This conflict was not limited to rhetoric: in the 1888 Arkansas case of Clayton v. Breckinridge, the Republican contestant was murdered while preparing his case. Perman, Struggle for Mastery, 50. 48

Hirshson, Farewell to the Bloody Shirt; Valelly, “Partisan Entrepreneurship and Policy

Windows.” 49

Foner, Reconstruction, 294, 314.

50


51

Hirshson, Farewell to the Bloody Shirt, 26, 28, 79-80, 99-107, 143, 162-168; Keyssar, The

Right to Vote, 108. 52

This opposition appeared, for example, during House debate of the so-called Force Bill in

1890. Wang, The Trial of Democracy, 239-240. 53


54

Bensel, Sectionalism and American Political Development.

55

Valelly, “Partisan Entrepreneurship and Policy Windows.”

56

Foner, Reconstruction, 456; Valelly, “Partisan Entrepreneurship and Policy Windows”; Wang,

The Trial of Democracy, 163. 57

“The Democrats ‘Fixing’ Things,” New York Times (12 February 1880), p. 1; “Washington,”

New York Times (21 April 1870), p. 1; “Washington,” New York Times (31 July 1876), p. 1; “Facts for Careful Contemplation,” Washington Post (31 May 1882).

36

58

“The Short Congressional Session,” Washington Post (9 November 1880), p. 2.

59

This is similar to the “mixture of partisan and principled reasons” the Republican Party had for

federal monitoring and enforcement of election laws, particularly in the South, during the decades after the Civil War. Bensel, Sectionalism and American Political Development, 170; Keyssar, The Right to Vote, 109. 60


61

A series of federal court rulings also limited the powers of Congress over southern elections.

Hirshson, Farewell to the Bloody Shirt; Kousser, “The Voting Rights Act and the Two Reconstructions,” 29-33; Michael W. McConnell, “The Forgotten Constitutional Moment,” Constitutional Commentary 11 (1994): 115-144; Perman, Struggle for Mastery; Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997), 383-85; Wang, 259; Woodward, Origins of the New South, 325-26. 62

Key, V.O, Southern Politics in State and Nation (New York: Knopf, 1949); Perman, Struggle

for Mastery. 63

The few disfranchisement-based cases that came to Democratic Houses before 1895 suggested

that Republicans, at least those serving on election committees, were increasingly disinclined to award seats based solely on the illegality of disfranchisement laws. In Thrasher v. Enloe (53rd Congress), committee Republicans argued that, although Tennessee’s use of the Australian ballot was effectively an educational qualification for voters, the Tennessee state supreme court had held it to be constitutional, and that therefore, their report concluded, “we feel constrained to follow that decision in the present case.” Rowell, An Historical and Legal Digest, 489, 541.

37

64

Perman, Struggle for Mastery, 94.

65

This case was actually decided after Johnston v. Stokes, and Republicans voted almost

unanimously on the floor to seat the Republican contestant. However, the contestant’s case was partially based on a registration law that applied only to parts of the district (the city of Charleston), as well as allegations of fraud specific to that election (Congressional Record, 3 June 1896, p. 6073). Of the 52 Republicans who had voted in Johnston v. Stokes to vacate the seat, 30 voted to seat the Republican in Murray v. Elliott, while the other 22 did not vote. 66

Rowell, An Historical and Legal Digest, 530, 541-46.

67

Congressional Record, 5756-57, 5770, 5908, 5910.

68

Congressional Record, 5875, 5913.

69

Congressional Record, 5900-01. The Republican dissenters in Johnston v. Stokes argued that

prior cases heard by the House had accepted the use of lists of voter intent. House Republicans had heard one previous case from South Carolina based on its registration law (Miller v. Elliott) in the 51st Congress (1889-91), but while the majority of the committee ruled in that case that the state’s registration law was unconstitutional, it found sufficient evidence of illegal activities to reward the black Republican contestant the seat on those grounds alone. Rowell, An Historical and Legal Digest, 461-64, 533. 70

“An Election Case Shelved,” New York Times (30 May 1896), p. 3; “Divided Over the

Contest,” Washington Post (30 May 1896), p. 4. 71

While this was not the first time the Republicans had divided on a floor vote over a contested

election, it was the first in which the case was based on election laws and secondary evidence of

38

voter intent, rather than evidence of fraud or violence. 72

This implies that House Republicans began shifting away from using contested elections two

years before Jenkins alleges; Jenkins, “Partisanship and Contested Election Cases,” 129. Voting patterns suggest that election committee members recruited fellow state delegations to vote with them: most legislators from Massachusetts voted against the Republican challenger, while Indiana and Michigan Republicans were strongly supportive of seating him. A simple logit regression analysis of the second vote, to deny the seat to the Republican, suggests that – controlling for ideology (as measured by DW-NOMINATE scores), region, and term in office – Republicans ideologically closer to Democrats were more likely to oppose the Republican challenger, while those from New England states were less likely to do so. 73

In the case of Patterson v. Carmack in the 55th Congress (1897-99), the Republican-controlled

elections committee awarded a Tennessee seat to the contestant (a Democrat endorsed by the GOP), primarily on the basis of fraud and irregular election-day activity, but poor floor attendance and the defection of a few Republicans allowed the Democrats to pass a measure awarding the seat to the incumbent Democrat. Rowell, An Historical and Legal Digest, 574-77. 74

Moores, Digest of Contested Election Cases, 25-27.

75

Perman, A Struggle for Mastery, 224-244. A few brave (or at least persistent) southern

Republicans did not give up. In Houston v. Broocks (59th Congress, 1905-7), the contestant argued that the Texas poll tax deprived him of likely supporters, but the elections committee ruled against him, in part because doing so would mean unseating all incumbents from that state. Four years later, in Warmuth v. Estopinal, the contestant challenged the 1908 congressional election results based on the constitutionality of Louisiana’s white primary. He was rebuffed by

39

the House election committee, which based its decision in part on Dantzler v. Lever. Moores, Digest of Contested Election Cases, 33, 41-42. 76

Donald Bruce Johnson, National Party Platforms, 1840-1976 (Urbana: University of Illinois

Press, 1978). 77

Eric Foner, Free Soil, Free Labor, Free Men (New York: Oxford University Press, 1970),

226-238; Rowell, An Historical and Legal Digest, 156-59, 168-170. 78

On St. Louis election improprieties, for example, see James Neal Primm, Lion of the Valley,

2nd ed. (Boulder, CO: Pruett Publishing, 1990). Patterns of election fraud and electoral competition varied over time across cities. Reform movements in New York, for example, were arguably a greater challenge to the Tammany Democratic machine in the 1890’s than in the 1900’s through 1920’s, and election fraud was probably less frequent during this later period as a result. Charles Garrett, The LaGuardia Years (New Brunswick: Rutgers University Press, 1961). 79

This low number is likely due to a combination of factors. Improvements in election

administration, such as the use of mechanical lever ballot machines, the standardization of election practices, and the deployment of professional election workers may have discouraged fraud. Changes in congressional rules and norms may have further dampened the enthusiasm to challenge election results. These include deference to state-certified winners by default, a practice adopted informally as early as the mid-1930’s, and a requirement that only losing candidates could contest election outcomes, a restriction first established by precedent in 1941 and later enacted into law in 1969. Congressional Record, 10 January 1941, 101; Dempsey, Control By Congress.

40

80

Congressional Quarterly, Guide to Congress, 5th ed. (Washington, D.C.: CQ Press, 2000),

836; Committee on House Oversight, Dismissing the Election Contest Against Loretta Sanchez (U.S. House of Representatives, Report 105-416, 1998); Congressional Quarterly, Guide to Congress, 836-37; Bill Lambrecht, “GOP considers options in case Carnahan wins” (St. Louis Post-Dispatch, 1 November 2000). 81

Kenneth C. Martis, The Historical Atlas of United States Congressional Districts, 1789-1983

(New York: Free Press, 1982), 5; Rammelkamp, ”Contested Congressional Elections,” 429n2. 82

See, for example, the cases of H. Sibley, Wisconsin Territory, 30th Congress; Almon Babbitt,

Utah Territory, 31st Congress; Miller v. Thompson, Iowa Territory, 31st Congress; and Fuller v. Kingsbury, Minnesota Territory, 35th Congress. 83

Jenkins, “Partisanship and Contested Election Cases,” 118n29; Rowell, An Historical and

Legal Digest, 112. 84

Bensel, Sectionalism and American Political Development, 73-88.

85

Dempsey, Control By Congress, 57; Jenkins, “Partisanship and Contested Election Cases,”

115, 119; Eric Schickler, Disjointed Pluralism (Princeton: Princeton University Press, 2001), 39. 86

Jenkins, “Partisanship and Contested Election Cases.” This and other scholarship suggests that

institutionalization theory may not be as useful in explaining the development of Congress. See for example Jonathan N. Katz and Brian R. Sala, “Careerism, Committee Assignments, and the Electoral Connection,” American Political Science Review 90 (1996): 21-33; and Joseph Cooper and David W. Brady, “Toward a Diachronic Analysis of Congress,” American Political Science Review 75 (1981): 988-1006.

41

87

Desmond S. King and Rogers M. Smith, “Racial Orders in American Political Development,”

American Political Science Review 99 (2005), 75-92. 88

Jenkins’ analysis looks only at the former definition of partisanship. It is extremely difficult, if

not impossible, to determine from party voting behavior whether a majority party decides a contested case in its favor based on the actual case (e.g. based on fraud or illegality), or solely to expand its majority irrespective of the facts of the case.

42

Table 1. Contested Election Cases by Region 1788-1841

1842-1861

1862-1881

1882-1901

1902-1921

1922-1941

South

35.3%

13.6%

49.6%

58.6%

32.0%

25.5%

Urban, Non-South

7.4%

20.5%

8.1%

8.6%

24.0%

27.5%

Territory

11.8%

27.3%

6.7%

2.9%

6.7%

2.0%

Other

45.6%

38.6%

35.6%

30.0%

37.3%

45.1%

Note: South is defined as Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia. Urban Non-South is defined as New York City, including Brooklyn (before 1898), Boston, Philadelphia, Chicago, St. Louis, Baltimore, Detroit, Cleveland, and Cincinnati.

43

Table 2. Rare Events Logit Analysis of Contested Elections, 1866-1910 Variable

Model 1 (All Elections)

Model 2 (South Only)

Model 3 (Non-South Only)

election margin (logged)

-.212*** (.026)

-.191** (.064)

-.232*** (.031)

Australian ballot

-.377* (.160)

-.451^ (.245)

-.161 (.214)

black population (%)

---

.062*** (.017)

---

disfranchised ballot

-1.009*** (.256)

-.794** (.279)

---

.682* (.344)

1.437** (.481)

-.017 (.482)

winner from party opposite of House majority

1.706*** (.164)

1.511** (.461)

1.869*** (.250)

winner from party opposite of House majority * margin (logged)

.002 (.031)

-.107 (.138)

.026 (.037)

Size of majority (logged % seats)

3.028*** (.601)

3.253*** (.789)

2.716** (.940)

GOP majority

.577*** (.160)

3.110** (1.025)

.273 (.214)

GOP * black population

---

-.036* (.018)

---

-.498*** (.136) -.421 (.523) .463 (.330) 1.988*** (.149)

-.464* (.195) ---.084 (.432) ---

-.541** (.209) -.234 (.557) 1.194** (.430) ---

Constant

-2.854*** (.600)

-4.641*** (1.052)

-2.966*** (.779)

N

7750

19261

5817

Election Conditions

Partisanship % partisan (t-1)

Other House Characteristics

Other Factors incumbent wins seat open seat late election Southern state

^p