The Stolen Senate of 1891
129 NY 449 (1891)
In the election of 1891, Roswell P. Flower, a Democrat, was elected Governor of New York, and the Democrats won the Assembly 67 to 61. The Senate, however, hung in the balance. Each party had won 14 seats but the election outcomes in four districts were being litigated in the courts. The political stakes were high and the Democrats eager to clinch absolute control of state government for the first time in a decade. A sweep would enable the party to dominate the legislative redistricting process scheduled to take place in 1892 and strengthen the presidential prospects of outgoing Governor David B. Hill.
In this highly charged partisan atmosphere, the Court of Appeals, consisting of five Democrats and two Republicans, decided the four disputed cases as follows. It unanimously awarded one seat to a Republican in People ex rel. Derby v. Rice (129 NY 461 [1891]); a sharply divided court upheld the invalidation of 1,252 Republican ballots, giving the Democrat a narrow victory in Nichols v. Onondaga Board of Canvassers (129 NY 395 [1891]); and a five to two majority determined that a third seat should be decided by the senate after disqualifying the successful Republican candidate as constitutionally ineligible to run for state legislative office in People ex rel. Sherwood v. State Board of Canvassers (129 NY 360 [1891]).
Control of the Senate thus hinged on the fourth election case, People ex rel. Daley v. Rice, in which the Court of Appeals unanimously concluded that the Dutchess County Board of Canvassers’ return in favor of the Democrat was illegal. This ruling arguably should have resulted in the seating of the Republican candidate, but in one of the “most far-reaching political scandals in the history of the State,” the State Board of Canvassers, acting under the sway of Democratic party leaders, managed to disregard the court’s ruling and seat the Democrat anyway, giving the Democrats control of the senate.[1]
The main actors in the drama were the Democratic Party’s counsel, Deputy Attorney General Isaac H. Maynard, who argued the case all the way up to the Court of Appeals, and Governor Hill, who masterminded the party’s efforts to gain control of the senate through litigation.[2]
At issue in Daley was the election result in the 15th senate district (comprising Dutchess and portions of Columbia and Putnam counties) where the Republican candidate initially came out ahead. That result changed after the Democrat-controlled Dutchess County Board of Canvassers invalidated some Republican ballots and transposed other votes from Republican to Democrat. When the Board issued a set of returns in favor of the Democratic candidate, the County Clerk, a Republican, refused to authenticate the return. The Board then appointed one of its own members to authenticate the return. The Republicans countered by obtaining a court order directing the new County Clerk, now a Democrat quickly appointed by Governor Hill, to certify a corrected return identifying the Republican candidate as the victor.[3]
The Special Term of the Supreme Court ruled in favor of the Republicans and the General Term of the Supreme Court in the Third Judicial Department affirmed. As the dispute made its way up to the Court of Appeals, Deputy Attorney General Maynard, who was representing the Democrats in the lower courts, personally removed the Republican return from the office of the State Comptroller, where it had been filed, while “other persons obviously acting in concert” removed copies from the offices of the Governor and Secretary of State.[4]
On December 29, 1891, the Court of Appeals, in an opinion by Judge Rufus Peckham, unanimously held that the Democrats’ return “contained the result of an illegal and erroneous canvass.” This ruling arguably should have resulted in the State Board of Canvassers canvassing the Republican return – but no such return was before the Board. Instead, on the same day the court handed down its decision unequivocally declaring the Democrats’ return illegal, the State Board of Canvassers, with Maynard in attendance, canvassed the Democrats’ return and seated the Democratic candidate. “Maynard was present and did not advise the state board that he had taken the [Republican] return from the comptroller’s office, although the Court of Appeals in its decision the same day held that the [Republican] return reflected the proper legal rulings on the disputed ballots.”[5]
When Maynard was appointed to the Court of Appeals only three weeks later to fill a vacancy created by the death of Chief Judge William Ruger, “[t]here was an immediate and statewide outcry of indignation, not only at Maynard’s part in what the state bar association described as ‘a scandalous robbery of public records,’ but at a gubernatorial ‘reward’ for his conduct leading directly to the bench of the Court of Appeals.”[6] According to the New York Times, “Maynard was simply [Governor] Hill’s tool in these scandalous operations, and his promotion to the bench of the court of last resort as a reward for services to the Democratic Party must give a shock to every lawyer and citizen who believes in maintaining the purity of elections and integrity of the bench.”[7]
The organized bar was deeply outraged. “No such public castigation has ever touched a judge of the Court of Appeals as that directed to Maynard by a special committee of the bar association of the City of New York.”[8] Led by distinguished lawyers such as Elihu Root, Frederic B. Coudert and William B. Hornblower, the City Bar’s special committee report publicly condemned Maynard for defying the Court of Appeals’ ruling and declared him unfit for judicial office. While Maynard could not be impeached for misconduct he committed before taking the bench, the special committee urged the legislature to remove him by a joint resolution. The legislature launched an investigation that produced competing reports. A majority report by the Democrats cleared Maynard and suggested a Republican conspiracy, and a minority report accused Maynard of committing a crime by unlawfully removing public documents.[9] In December 1892, Governor Flower appointed Maynard to a second one-year term to fill another vacancy on the court.
The backlash from these events greatly damaged Hill’s presidential aspirations and derailed the state’s Democrats for years to come. Within a short time, “the people took a decisive and unmistakably conclusive hand in dealing with the situation.”[10] It began with the 1892 election to replace the deceased Chief Judge Ruger, when the Republican candidate, Charles Andrews, defeated the Democrat, Robert Earl. When Maynard decided to run for a full term on the court in 1893, he “was defeated in a landslide by Edward T. Bartlett . . . by a majority of over 100,000, a popular decision of unparalleled proportion for the Court of Appeals, considering the size of the vote and the pattern of many years.”[11]
The degree of popular indignation aroused by Maynard was so great that he dragged down the rest of the Democratic ticket, leaving the Republicans with control of both houses of the legislature and the 1894 constitutional convention. It also dealt a severe blow to the presidential aspirations of Maynard’s longtime patron, David B. Hill, who purportedly contrived the Democrats’ theft of the contested senate seats and resulted in 16 years of Republican control over state government.[12]
This dramatic shift in the parties’ electoral fortunes is even more notable considering the Democrats had secured passage of legislation reapportioning election districts in their favor. Though too little and too late to change the result, the Republicans commenced contempt proceedings against the State Board of Canvassers. In People ex rel. Platt v. Rice (144 NY 249 [1894]), the Court of Appeals held the Board in contempt and fined it $831.28. Judge Gray’s majority opinion pointed to undisputed facts in the record sufficient to warrant a finding that the Board knowingly disobeyed and disregarded the court’s decision in Daley. Judges Earl and O’Brien dissented without an opinion.
Meanwhile, Maynard’s two-year presence on the Court of Appeals was undoubtedly awkward for that institution considering that the “public reaction was that the Democrats had succeeded with the help of the Court of Appeals in ‘stealing’ the senate,” leading to a “strong adverse feeling against the majority of the court.”[13] To his credit, Maynard appears to have made the best of a sensitive situation, establishing cordial relationships with his new colleagues and otherwise serving ably and productively.[14]
Maynard died of a heart attack in June 1896, shortly after returning to private practice.
[1] Roscoe C. E. Brown, Political and Governmental History of New York State, Vol III, at 365.
[2] David Sheridan, Ballot Reform and the Election of 1891, Judicial Notice, Iss. No. 7, 2011; Herbert J. Bass, “David B. Hill and the ‘Steal of the Senate,’” New York History, Vol 40, No. 3, July 1960, at 299-311.
[3] Id. at 305-07; Jason C. Rubenstein, Isaac Horton Maynard, The Judges of the New York Court of Appeals, Rosenblatt, ed., at 255-57.
[4] Bergan, The History of the New York Court of Appeals, 1847-1932, at 141.
[5] Id.
[6] Id.
[7] Maynard Gets His Pay, New York Times, Jan. 20, 1892.
[8] Bergan, at 142.
[9] Rubenstein, at 257.
[10] Bergan at 143.
[11] Id.
[12] Rubenstein, at 258.
[13] Bergan, at 140.
[14] Rubenstein, at 257-58.