The disputed presidential elections of 1876 and 2000 were not isolated, aberrational events in America’s political system. Instead, they are merely the two most prominent peaks in an entire range of disputed elections running through American history from the Founding Era to the present. Like geologists who can detect the plate tectonics that underlie a mountain range, we can employ the historian’s tool to see the structural forces that underlie the pattern of vote-counting disputes that have erupted periodically in the past. America’s difficulties in employing fair and predictable procedures to count ballots in close elections are rooted in beliefs held—and choices made—at the time of Founding. The Founders, as we know, abhorred political parties and they hoped to design a constitutional system that, by using separation of powers, would keep factionalism from developing into organized political parties. Well, we know the plan did not work out as intended.
But what is less well understood is that this misjudgment had specific consequences in the context of a disputed statewide election, like that for governor or a state’s presidential electors. The head-to-head electoral competition between two organized political parties has particular ferocity in a statewide ballot-counting fight. But the Founders did not anticipate this particular problem, and thus did not provide an institution to handle it. They knew about vote-counting disputes in district-based elections for legislative seats, but those were relatively contained affairs that could be handled within the confines of each legislative chamber. It was an altogether different thing when partisan control of the government’s chief executive turned on the counting of a relatively few contested ballots. Before the Revolution, America had no experience with that: colonial governors were appointed, and the hereditary Monarch was hardly an elective office.
Full Article: Ned Foley: Florida 2000 Was Not a Fluke | Election Law Blog.