//  10/21/20  //  In-Depth Analysis

This is the first post in a multi-part series about what past disputed elections for presidential electors tell us are the best ways for a state to resolve a very close contest.   

As we head toward an uncertain presidential election, we have been looking back at relevant elections from the past to understand what the future may hold. Much has been written about the disputed election of 1876, which featured a vigorous dispute in Congress over the choice between competing sets of returns from three states. But Congress can choose only from returns sent by electors “appointed” by a State. So the best way to avoid an uncertain scenario is to have each state resolve clearly and fairly what slate of presidential electors has been duly appointed.

Three particularly close statewide elections illuminate one right way and two wrong ways for states to resolve very close elections. As we’ll see at the end of this series, if there is a very close election this year, a state should use the model pioneered by Hawaii in 1960 to resolve it. Hawaii’s solution in 1960 is the best way to harmonize the Constitutional and statutory scheme for counting electoral votes with the time-consuming process of a statewide election contest.

But before we get there, let’s go further back, to 1796. That election is discussed in detail in the excellent work The First Presidential Contest. The title is apt: after George Washington’s all-but-inevitable selections in the first two elections, the election of 1796 was the first election between two emerging political parties with different views of the role of government.

In 1796, there was more diversity in elector appointment methods than there is now. Several states chose their electors by district and the electors chosen split their votes among multiple candidates; some state legislatures appointed electors directly. In the 1796 election Pennsylvania lived up to its nickname. It was a Keystone State because its fifteen electoral votes were critical (though, by a slim margin, not necessarily determinative).

Under the law in effect for that election, Pennsylvania’s voters went to the polls on November 4 to choose fifteen electors. But voting for president didn’t work the same way it does today. Today, we all vote for a presidential candidate, such as Trump or Biden and their entire slate of electors, rather than picking and choosing among the electors. Behind the scenes, the states treat a vote for Biden or a vote for Trump as a vote for everyone of that candidate’s presidential electors.

That is not how it worked in the Keystone State in 1796. In that election the voters chose the fifteen electors “one by one.” They could split their ticket and vote for some electors expected to support Adams and some expected to vote for Jefferson. Or they could vote for fewer than fifteen electors, either on purpose or by accident.

Returns were due to be delivered to the governor two weeks following the election. Initial returns received by November 22 showed all fifteen Adams electors ahead of all of the Jefferson electors. But it was close: the least popular Adams elector, Jacob Hay, had only 852 more votes than the most popular Jefferson electors, James Boyd. Here were the initial returns: remember, the top 15 electors win.

Candidate

Pledge

Initial Total

Candidate

Pledge

Initial Total

Robert Coleman

Adams

11,983

James Boyd

Jefferson

11,009

Samuel Miles

Adams

11,978

Thomas MacKean

Jefferson

10,984

Samuel Postlethwaite

Adams

11,977

John Whitehill

Jefferson

10,981

William Wilson

Adams

11,977

John Smilie

Jefferson

10,977

John Carson

Adams

11,952

Abraham Smith

Jefferson

10,974

Israel Whelen

Adams

11,947

James Hanna

Jefferson

10,966

Henry Wynkoop

Adams

11,934

John Piper

Jefferson

10,966

Thomas Bull

Adams

11,924

Jacob Morgan

Jefferson

10,964

Benjamin Elliott

Adams

11,919

Joseph Heister

Jefferson

10,959

Ephraim Douglas

Adams

11,911

Peter Muhlenberg

Jefferson

10,959

John Woods

Adams

11,905

William Irvine

Jefferson

10,935

John Arndt

Adams

11,903

William MacClay

Jefferson

10,897

Valentine Eckhart

Adams

11,900

Jonas Hartzell

Jefferson

10,827

Thomas Stokely

Adams

11,888

James Edgar

Jefferson

10,523

Jacob Hay

Adams

11,861

William Brown

Jefferson

10,363

These returns were partial; they did not include results from Westmoreland, Fayette, and Greene counties in the far southwestern corner of the state. Concerned that he would be accused of letting his political leanings interfere with his ministerial obligations, Governor Thomas Mifflin,[1] whose politics leaned toward Jefferson’s party, is reported to have dispatched notifications to the entire Adams slate declaring them elected.

Although Pennsylvania law required county returns to be delivered to the governor by November 18, that same law merely instructed the Governor to notify elector candidates of their election “on or before the last Wednesday in the said month,” which was November 30 that year. When the returns from two of the outstanding three counties—Westmoreland and Fayette—appeared by November 25, they changed the results and showed thirteen Jeffersonians moving into the top fifteen slots, with two Adams supporters taking spots 13 and 14, by only a handful of votes.

Candidate

Pledge

Revised Total

Candidate

Pledge

Revised Total

Thomas MacKean

Jefferson

12,306

Jonas Hartzell

Jefferson

12,201

James Boyd

Jefferson

12,294

Samuel Postlethwaite

Adams

12,197

William Brown

Jefferson

12,282

William Wilson

Adams

12,190

John Whitehill

Jefferson

12,280

Israel Whelen

Adams

12,185

Peter Muhlenberg

Jefferson

12,274

John Carson

Adams

12,175

Abraham Smith

Jefferson

12,271

James Edgar

Jefferson

12,173

Jacob Morgan

Jefferson

12,269

Henry Wynkoop

Adams

12,164

James Hanna

Jefferson

12,267

Thomas Bull

Adams

12,158

John Smilie

Jefferson

12,266

Jacob Hay

Adams

12,145

Joseph Heister

Jefferson

12,260

Benjamin Elliott

Adams

12,137

John Piper

Jefferson

12,260

John Woods

Adams

12,136

William Irvine

Jefferson

12,237

Valentine Eckhart

Adams

12,134

Robert Coleman

Adams

12,217

Ephraim Douglas

Adams

12,132

Samuel Miles

Adams

12,214

John Arndt

Adams

12,096

William MacClay

Jefferson

12,208

Thomas Stokely

Adams

12,071

This left Adams supporters Samuel Miles and Robert Coleman barely ahead of two Jeffersonian candidates who appeared to be out of the money. As this table shows, Coleman, the best performing Adams supporter, appeared to have captured only forty-four more votes than James Edgar, the poorest performing Republican.

When he received updated vote totals, Governor Mifflin swiftly recalled his premature notifications to the thirteen Adams electors no longer in the top fifteen slots. But even though the returns were still partial, he sent out notices to the thirteen Jefferson electors now elected. Adams supporters Robert Coleman and Samuel Miles, though, were not recalled, because they stayed in the top 15—at least at that moment.

The statewide counting wasn’t yet over. Returns from Greene County were still outstanding. Given Jefferson’s strong showing in western Pennsylvania in general, and in Westmoreland and Fayette counties in particular, surely Governor Mifflin expected that returns from Greene County would have elected the entire slate of Jeffersonian electors. When the returns from Pennsylvania’s most recently created county finally appeared in Governor Mifflin’s office, they did just that. Jefferson electors should have occupied all fifteen slots.

Was there time to fix it? In one sense, there certainly was: the electors had not yet met and voted for President and Vice President. But there was nonetheless a problem. The statewide deadline for Governor Mifflin to make yet another revision had already come and gone before the returns were complete. Mifflin thus did not certify any revised appointments after he saw the Greene County returns. He left undisturbed the certification of the two electors pledged to Adams along with thirteen pledged to Jefferson. So Adams gained two electors that he really should not have won.

Yet when the electors later met and voted, something unexpected happened. In apparent recognition that the voters of Pennsylvania preferred Jefferson to Adams after all votes were tallied, the Adams elector Samuel Miles cast one of his electoral votes for Jefferson rather than Adams.

How everyone in the room reacted is lost to history. We do know that someone calling himself an Adamsite made a well-known complaint against Samuel Miles. It is usually presented as

What! do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chuse him to act, not to think.”

A more complete rendition prefaces that remark as follows.

[W]hen I voted for the Whelen ticket [Whelan being an Adams elector who headed the Adams “slate”], I voted for John Adams; and if Israel [Whelen] had got in, I think he would have had sense enough to know it, and candour to act accordingly.

Was Samuel Miles the first faithless elector? He cast his electoral vote in accord with the wishes of all of Pennsylvania’s voters, even the ones whose votes came in too late to be counted in the official certification. So he was being “faithless” to his pledge but “faithful” to the returns in his state. It all depends on what “faithless” means.

More important than classifying his vote is understanding what went right and what went wrong in the process. From today’s vantage point, it seems both unfair and illegal for a governor to certify an elector slate on the basis of an incomplete count. But there was apparently no legal challenge initiated, and it is unclear if Mifflin in fact could have extended the deadline so that the official appointment would be made on the basis of an accurate count. So it’s unlikely this particular scenario would play out in exactly this way today. There are too many lawyers and judges around the process. The modern-day Governor Mifflin would never be able to certify an incomplete count without having to justify it in court.

Samuel Miles’ anomalous vote seems equally unlikely today. As the Supreme Court recently confirmed in the Chiafalo decision, history has shown that electors are supposed to be good party people, not good citizens who can be counted on to carry out the expressed will of the people. In theory, encouraging electors like Samuel Miles to vote in accord with the full vote count, rather than the premature one, could be a good way to solve the problem of premature elector appointment. But electors are unlikely to save us in 2020.

Electors are not the solution, then, but the problem persists. It can still take just as long to get an accurate vote count in 2020 as it did in 1796. As recently as 2000, Governor Jeb Bush certified a slate appointed based on what was, at best, an incomplete result, because a recount had not concluded. Forty years earlier, the acting governor of Hawaii signed a certificate appointing electors before the conclusion of a court contest that would determine the official winner of the statewide election.

We’ll examine what went right in Hawaii in 1960 and what went wrong in Florida in 2000 later in this series. For now, back to 1796. What happened after Samuel Miles and the other electors voted? Despite Jefferson’s unexpectedly picking up Miles’ vote, Adams narrowly won, with Jefferson—Adams’ bitter rival—finishing a close second and becoming Vice President. So we’ll never know if Samuel Miles would have been considered a hero or a traitor if his switch, done to match his vote to the late-arriving returns from Greene County, had made the difference. What we can be pretty sure of, though, is that there likely won’t be a Samuel Miles in 2020.

* * *

(1) “Mifflin” remains a prominent name in Pennsylvania. We may never know if the fictional Robert Mifflin—the founder of fictious Scranton, PA paper company Dunder Mifflin, of The Office fame—was a descendent of Pennsylvania’s first governor.

Co-author Michael L Rosin filed an amicus brief in the anomalous elector cases decided earlier this year. This posting is drawn in part from his article A History of Elector Discretion which will appear in two parts in volume 41 of the Northern Illinois University Law Review. 

 

 

 

 

 

 

 

 

 

 

                                                                                                                                               

 

 


 

* Co-author Michael L Rosin filed an amicus brief in the anomalous elector cases decided earlier this year. This posting is drawn from his article A History of Elector Discretion which will appear in two parts in volume 41 of the Northern Illinois University Law Review.

[1] “Mifflin” remains a prominent name in Pennsylvania. We may never know if the fictional Robert Mifflin—the founder of fictious Scranton, PA paper company Dunder Mifflin, of The Office fame—was a descendent of Pennsylvania’s first governor.

 


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