As Minnesotans wonder how long it will be before they have two U.S. senators, I’ve been wondering how long any such situation has ever dragged on and why. And I’ve turned up some lulus that might make us feel a little better, if a little less special. (I’m hot on the trail of some more cases, but I’m trying to write shorter, so I’ll give you the first few.)
I’ve written previously about the biggest recent snafu, arising from the New Hampshire Senate election of 1974, when various recounts showed that Democrat John Durkin had won by 10 votes and that Republican Louis Wyman had won by two votes. To recap for those who missed the previous post, the Senate took the case (the U.S. Constitution makes the Senate the final judge of its members’ elections), had the disputed ballots shipped to Washington, discussed the case in committee and on the Senate floor for months (with Durkin and Wyman sitting in the back of the room), couldn’t reach a filibuster-proof majority to award the seat to either one (six cloture motions failed) and finally declared the seat vacant so New Hampshire could hold a new election in the September after the first election. At the time, I thought that was probably the biggest cock-up ever, but it wasn’t. Here are several worse snafus from the 19th century. (You should start by recalling that from 1789 to 1913, U.S. senators were chosen, not by direct popular election, but by a vote in the state Legislature.)
In 1857, for example an Indiana Senate seat sat open for two years while Dems and the brand new Republican Party each fought off the other’s efforts to fill it with one of their own. It was in fact vacant so long that Indiana’s second Senate seat came open before the first one was filled, which gave them two to fill. The Dems got the upper hand and forced through the election of two Dems, but the Repubs howled that proper procedure wasn’t followed. They hung onto that complaint for a year until the next election gave them control, which power they used to send two new (Repub) senators to Washington with new credentials (even though the other guys were in the middle of their terms). But the Senate was under Democratic control that year and, not unreasonably, wouldn’t seat the two new Indianans.
Feeling any better about our little recount/contest yet?
One problem in those days before the 17th Amendment (that’s the 1913 amendment that provided for direct election of senators) was that the Constitution not only empowered the Legislatures to choose the senators, but provided no uniform system for doing so. In some states, the House and Senate would meet together for the purpose, which still didn’t guarantee a consensus choice. But in other states, the two houses would vote separately and didn’t send anyone to Washington until both houses agreed. In cases where each party controlled one house, you had a recipe for deadlock.
I used to assume that the 17th Amendment was passed mostly to make the system more democratic, but after reading selected portions from from the history of the Senate, by Sen. Robert Byrd of W. Va (the longest serving senator ever, still there at 91), it seems that the change was also motivated by the fact that other system produced wayyyy too many deadlocks.
According Byrd (and by the way, his four-volume history is the source for most of this post):
“During the fifteen years between 1891 and 1905, forty-five deadlocks occurred in twenty states. The most notable example of this frustrating situation took place in Delaware in 1895, where the legislature, in joint session, took 217 ballots over a period of 114 days and still failed to elect a senator. [At that point, the Legislature moved onto other business and the seat sat vacant for two years.]… Delaware continued to be plagued with such impasses in the following years. In 1899, 113 votes over 64 days produced no winner, leaving that seat vacant for FOUR FULL YEARS. Again in 1901 and 1905, Delaware went without representation in the Senate for up to two years.”
Byrd also sketches a scene from Missouri, during a 1905 legislative tussle over who would be senator, where one side tried to stop the clock on the wall so the House couldn’t adjourn, but needed a ladder to reach the clock. The other side grabbed the ladder and threw it out the window. Fistfights ensued. One resourceful and strong-armed legislator was able to stop the clock by throwing the inkwell from his desk and breaking the pendulum.
Makes the dueling daily press briefings by the Franken and Coleman lawyers and slightly rude Web videos look like dinner with Dons at the Oxford High Table.
Anyway, just to take the narrative a little further: The idea of direct popular election of senators (which the framers had rejected, stating, in the words of Constitutional Convention delegate Elbridge Gerry, that “the evils we experience flow from an excess of democracy”) had been around for more than a century. But problems like the ones above, and a campaign by the Hearst newspapers, turned the idea of a constitutional amendment on the topic into a real possibility. There were states — Oregon is the leader, in the Byrd telling — that started having a popular vote for Senate candidates, but the Legislature wasn’t bound by them and often ignored the results. In one instance the Oregon Legislature was unwilling to elect the plurality winner of the popular vote, which led, after five weeks and 42 ballots in the Legislature, to the election of a compromise candidate who had not run in the popular election and therefore hadn’t received a single vote.
The U.S. House passed a resolution every year from 1893 to 1902 to refer an amendment to the states for direct election of senators. But, can you imagine, the senators, who had been elected by the old system, thought the old system was working pretty well and wouldn’t adopt a resolution to switch. (One legendary giant of the Senate, William Borah of Idaho, said of the old system: “I would not have been here if it had not been practiced, and I have great affection for the bridge which carried me over.”)
What finally broke the dam was another of those obscure provisions of the Constitution that you hear about once every 20 years — if two-thirds of the states want an amendment, and Congress won’t approve the idea, the states can force the calling of a new constitutional convention to propose amendments. The states have the right to petition for a convention to amend the Constitution and bypass Congress. (It’s in Article V.) Although it’s never been successsfully invoked, the promoters of direct election were just one state shy of the magic number when the Senate itself finally caved in 1912 and allowed the proposed 17th Amendment to go to the states. It was quickly ratified by 1913, which gave us the glorious system for choosing senators that has given us Coleman v Franken and the eye-watering argument over which possibly-wrongfully-disqualified absentee ballots to look at for the third time. Minnesota has now gone three weeks without a second senator, and the clock ticks and ticks. It’s not pretty, but it probably beats having legislators throw inkpots at the clock to make it stop.
P.S. I have a couple of 20th century horror stories of disputed Senate elections under the new-fangled system, but I’m trying to write shorter pieces so I’ll save them for another day unless you beg me in the thread to just keep them to myself. What think?