The Stolen Senate of 1891
129 NY 395 (1891)
In the election of 1891, the Democrats won the governorship and the Assembly and were eager to take the Senate and clinch absolute control of state government for the first time in a decade. The stakes were high. Legislative redistricting was scheduled to take place in 1892, and the outgoing Governor, David B. Hill, was counting on a Democratic sweep to solidify his presidential ambitions.[1] Each party had won 14 senate seats. Control hinged on the outcomes in four disputed elections that had made their way to the Court of Appeals.
The five Democrats and two Republicans on the court unanimously awarded one seat to a Republican in People ex rel. Derby v. Rice (129 NY 461 [1891]). In People ex rel. Sherwood v. State Board of Canvassers (129 NY 360 [1891]), a five to two majority disqualified the Republican victor, and the vacant seat was left to be filled by the senate majority. In People ex rel. Daley v. Rice, which ultimately gave the Democrats control of the senate, the court unanimously ruled that the election return certifying the Democrat as the winner was illegal, 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, disregarded the court’s ruling and seated the Democrat anyway.[2]
Of the four cases decided by the Court of Appeals, Nichols v. Onondaga Board of Canvassers (129 NY 395 [1891]) was the most closely contested and involved important legal issues arising from the new Ballot Reform Law of 1890. Adopted to prevent vote-buying by politicians, the new law provided that all ballots were to be printed by the government (rather than by the parties) in such a manner that they would appear identical to any observer trying to verify which party the voter was voting for. “The proponents of the legislation reasoned that no one would try to bribe a voter without some way to verify that the bribe-taker (by definition dishonest) had actually carried out his part of the bargain.”[3]
In the 25th Senatorial District covering Onondaga and Cortland Counties, many of the official Republican Party ballots were somehow sent to the wrong voting districts. The mix up became apparent on the morning of election day when it was discovered that the ballots had the wrong district printed on them, but it was too late to correct the problem by exchanging the ballots. When all the votes were counted, the Republican candidate came out ahead, but if the 1,252 Republican ballots with the wrong district were discounted, then the Democrat would be victorious.[4] The Democrats argued that the ballots with the wrong district were invalid under the Ballot Reform Law since any observer aware of the mix up who saw a voter casting such a ballot would know that that voter was casting a Republican ballot.
On November 18, 1891, the Republican candidate, Rufus Peck, obtained an order from Onondaga Supreme Court Justice George N. Kennedy, a Republican, directing the County Board of Canvassers to certify him as the victor. The outgoing Democratic Governor, David B. Hill, countered by appointing Brooklyn Supreme Court Justice Morgan J. O’Brien, a Democrat, to preside over an extraordinary special term in Onondaga County. Justice O’Brien, who would later serve as Presiding Justice of the Appellate Division, First Department, apparently made the best of an awkward assignment.
He arrived in Syracuse at a time of great political excitement: crowds surrounded his hotel and followed him to the Court House. There were fears that the two Justices would act in opposition to each other. Justice O’Brien at once consulted Justice Kennedy and arranged for harmonious proceedings. No clashing orders were issued, and before each step was taken a mutual understanding was reached. The excitement was allayed, and before Justice O’Brien left Syracuse the Republican lawyers gave a dinner in his honor.[5]
On December 4th, the Democrats obtained an order from Justice O’Brien ruling that the Republican ballots with the erroneous district should not be counted and that the Democratic Candidate, John J. Nichols, should be certified as the winner.
The General Term of the Supreme Court in the Third Department affirmed Justice O’Brien’s order without opinion and the case proceeded to the Court of Appeals for a final resolution.
The Court of Appeals split four to three. Judge Denis O’Brien (no relation to Justice Morgan O’Brien), writing for the majority, described the intent of the Ballot Reform Law:
[T]he principal mischief which the statute was intended to suppress, was the bribery of voters at elections, which had become an intolerable evil, and this was to be accomplished by so framing the law as to enable, if not compel, the voter to exercise his privilege in absolute secrecy. When it was made impossible for the briber to know how his needy neighbor voted, the law makers reasoned that bribery would cease.
In Judge O’Brien’s view, a strict construction of the statute was required to preserve the “true policy and intent of the law.” The use of ballots indorsed with the wrong district “necessarily disclosed to the election officers, watchers, and such of the bystanders as could and desired to observe, the candidates voted for, and thus not only the letter of the statute was disregarded, but its very purpose and intent defeated.” The majority was not swayed by the argument that voters casting their votes in good faith should not be disenfranchised by an error that was not of their making and of which they were unaware. Judge O’Brien reasoned that it was better to invalidate the votes than to ignore the fundamental purpose of the law and reopen the door to the evils of vote buying that it was intended to eliminate.
In a concurring opinion, Chief Judge William Ruger, took an even harder position, suggesting that local Republicans intentionally mixed up the ballots so that they could continue to monitor who had voted for whom, and pointing out that the law “plainly contemplate[d]” disenfranchisement for its violation.
In a separate concurrence, Judge John Gray agreed that even if the mistake was unintentional and the voters blameless, the court could not avoid the result, however harsh.
This is not a case for the court to strain after explanation, in order to remedy an apparent hardship; when to do so simply results in emasculating a provision of the law, the existence of which is calculated to exclude all attempts at fraudulent or corrupt practices at the polls. It will not do to break down any of the provisions of this law framed against a possible corrupt vote, lest in doing so the way be left open for a more radical destruction. The people are supremely interested in protecting the citizen against the prostitution of his character in the casting of a venal ballot.
Three judges dissented, including one of the five Democrats on the court, Rufus W. Peckham, Jr., who considered the majority’s construction of the statute overly technical, leading to an absurd, unjust result that was not intended by the framers of the law, and which “certainly tends to bring the law itself into contempt.”
In a separate dissent, Judge Charles Andrews thought it inconceivable that the legislature intended to disenfranchise voters for a technical error when the ballots were correct and official in every other way. He stated that the purpose of putting the election district on the ballot was not to make the ballot official but merely to assist the county clerks in making sure they prepared and distributed enough ballots to each district. In his view, the majority’s ruling would actually promote fraud, since “[c]orrupt officials can, with reasonable safety, tamper with the distribution of ballots and allege mistake, which it will be hard to disprove.”
The Ballot Reform Law of 1890 “was the culmination of a long struggle by reformers in New York State against what they perceived as widespread corruption of the electoral process by machine politicians.”[6] The new law brought such an abrupt change to the state’s election process that none of the judges in Nichols was able to cite a New York case in support of his particular construction of the statute, but the majority opinion did cite to nine cases from other jurisdictions in support of its strict constructionist approach, suggesting that the decision was “very much in step with other states’ interpretations of their election reform laws.”[7] In New York, the public policy in favor of strict compliance with election law requirements has persisted down to the present day as the best means of guaranteeing the “sanctity of the election process” and the “uniform application of the law.”[8]
[1] Herbert J. Bass, “David B. Hill and the ‘Steal of the Senate,’” New York History, Vol 40, No. 3, July 1960, at 299-311.
[2] Roscoe C. E. Brown, Political and Governmental History of New York State, Vol III, at 365.
[3] David Sheridan, Ballot Reform and the Election of 1891, Judicial Notice, Iss. 7, at 21.
[4] Bergan, The History of the New York Court of Appeals, 1847-1932, at 177-81.
[5] Morgan J. O’Brien Dead at Age of 85, New York Times, June 17, 1937.
[6] Sheridan, at 32.
[7] Id.
[8] Matter of Gross v. Albany County Bd. of Elections, 3 NY3rd 251, 258 (2004).