In the 1900s, even as state courts increasingly became the forum for resolving a major vote-counting dispute (as described in the previous post), there still was no role for the federal judiciary in these cases. That was because of Taylor v. Beckham, a U.S. Supreme Court decision in 1900 growing out of Kentucky’s 1899 gubernatorial election—the one involving the assassination of a candidate because of the dispute over the counting of ballots (as also mentioned in the previous post). Taylor ruled that the federal judiciary was powerless to protect the integrity of a state’s electoral process, even in a case of demonstrated outright ballot-box stuffing.
The hegemony of Taylor v. Beckham is seen most clearly a half-century later, in the dispute over Lyndon Johnson’s 87-vote victory in the 1948 election that propelled him to the Senate. Two hundred fake votes were added to Ballot Box 13 on Johnson’s behalf, and his opponent went to federal court in an effort to undo the outright fraud. (Texas was a state where, even in the middle of the twentieth century, one could not look to the state’s judiciary for vote-counting fairness, as Nixon knew in 1960—a point raised in the second of these posts.) But Johnson got the U.S. Supreme Court to squelch the federal-court challenge to his fraud-infested victory. It was a no-brainer case for the Court because of Taylor v. Beckham and that precedent’s progeny in the intervening decades.
A no-brainer based on precedent, but not necessarily sound in principle. Taylor v. Beckham itself had not been unanimous. It had provoked outrage from the Great Dissenter, Justice John Marshall Harlan, most famous of course for his dissent in the “separate but equal” case, Plessy v. Ferguson. Although not nearly as well known, Harlan’s dissent in Taylor v. Beckham matches in eloquence his Plessy opinion. “The overturning of the public will, as expressed at the ballot box,” Harlan wrote, “is a crime against free government.” Then, specifically invoking the Fourteenth Amendment as a basis for federal court jurisdiction to protect the “rights” of the “person elected, as well as the people who elected him,” Harlan added: “I cannot believe that the [federal] judiciary is helpless in the presence of such a crime.”
Full Article: Ned Foley: The Great Dissenter in Plessy Anticipated the Role for Federal Courts Embraced in Bush v. Gore—But Will the Court Repeat that Role Next Time and, If Not, What Then? | Election Law Blog.