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  • Ballot Battles: The History of Disputed Elections in the United States by Edward B. Foley
  • Jack Rakove
Ballot Battles: The History of Disputed Elections in the United States. By Edward B. Foley (New York, Oxford University Press, 2016) 479 pp. $34.95

A noble purpose animates Foley’s detailed account of the historical failure of the American political system to develop and secure adequate mechanisms for the orderly resolution of disputed elections. Foley wants to use the ample evidence of history to prove that the absence of these mechanisms and institutions remains a telling indictment of the condition of American democracy. In proposing solutions for this problem, Foley is not a starry-eyed idealist. Probably the best solution we can plausibly attain, he concludes, is the establishment of “evenly balanced tribunal[s] with a neutral tiebreaker” to resolve the partisan divisions within the body politic that electoral or judicial review panels are likely to replicate (362).

To sustain this point, Foley patiently carries readers through a number of episodes, dating to the first congressional elections of 1789 and the New York gubernatorial election of 1792. Some familiar events receive especially careful treatment, notably including the 1876 Tilden–Hayes presidential controversy; Lyndon Johnson’s victory-wrenching maneuvers in the 1948 Texas Democratic senatorial primary; the presidential elections of 1960 and 2000; and the “Bloody Eighth” election of 1984, when Democrats in the House of Representatives played hardball to maintain a recently won seat in Indiana.

But other, now obscure, events merit equal importance. How many American historians today can recall the critical Kentucky gubernatorial election of 1899, when a Democratic legislature ensured the seemingly illicit victory of William Goebel, a state senator? Goebel was soon assassinated by a shot fired from the office of the Republican secretary of state. When Goebel’s running mate succeeded him as governor, the defeated Republican candidate filed suit, eventually carrying a Fourteenth Amendment claim to the U.S. Supreme Court. In its ensuing decision in Taylor v. Beckham, the Court kept the federal judiciary out of the election business, allowing the political-questions doctrine to restrict the judiciary’s ability to improve the workings of American democracy. [End Page 560]

Foley offers a number of provocative judgments about particular episodes. At the outset, he contrasts the emphasis that James Madison placed on attaining a “fair count—meaning awarding the victory to the candidate who genuinely received the most valid votes”—with Alexander Hamilton’s more pragmatic preference for taking a strategic view of the long-term political situation (23). Richard Nixon’s decision in 1960 not to challenge the election counts in Illinois and Texas thus qualifies as a moment of Hamiltonian genius. Nixon needed both states to win, and Foley indicates that the results in both states could have been fairly contested. Nixon instead played the long game.

By training, Foley is an election lawyer, and Ballot Battles is first and foremost an analysis of the legal mechanisms that have been available, in different states and at different moments, to resolve disputed elections. Like many legal scholars, he naturally writes as an advocate of a particular set of solutions to a recurring problem. Historians have no stake in deciding which of the solutions that Foley considers look best. However, they might want to pursue a comparative question that Foley leaves unexplored. How does American behavior compare with the electoral experience of other established liberal democracies? Are we an outlier (as one suspects), and if so, why is that the case? Foley’s engaging account should challenge historians to pursue those questions.

Jack Rakove
Stanford University
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