Page:Johnson v. Benson (162286) (2020) Order.pdf/12

12 But in the context of presidential elections, all these episodes pale in comparison to the contest of 1876, which resulted in challenges and changes that helped set the stage for the present dispute. As with the current case, many of the ballot-counting contests in 1876 focused on the work of canvassing boards and the function of courts; they also involved the role of Congress itself, which created an electoral commission to adjudicate the dispute and help Congress select a victor. See Nagle, How Not to Count Votes, 104 Colum L Rev 1732 (2004) (reviewing books on the 1876 election); see also Ewing, History and Law of the Hayes-Tilden Contest Before the Electoral Commission: The Florida Case, 1876-77 (Washington, DC: Cobden Publishing Co, 1910), pp 148-153 (discussing the litigation in Florida courts over the role of canvassing boards).

Among the modes for challenging the election in 1876 (and in the earlier election of 1872, among others) were lawsuits brought to obtain a writ of quo warranto. See Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla L Rev 541, 573 (2004). With no common-law action available to directly contest an election, Bickerstaff, Counts, Recounts, and Election Contests: Lessons from the Florida Presidential Election, 29 Fla St U L Rev 425, 431 (2002), the archaic writ of quo warranto became the tool in England and in this country to dispute an ostensibly successful candidate’s right to office. Conscientious Congressman’s Guide, 56 Fla L Rev at 570-571. A quo warranto proceeding was instituted to “try titles to office” based on claims that the officeholder had wrongfully intruded into or usurped the office. See Gildemeister v Lindsay, 212 Mich 299, 303 (1920) (citation and quotation marks omitted); see also Cooley, Constitutional Limitations (5th ed), p 788 (“[T]he proper proceeding in which to try [challenges to election results] in the courts is by quo warranto, when no special statutory tribunal is created for the purpose.”).

The problem, as the elections in the 1870s revealed, was that quo warranto actions were ill-suited to keep pace with the Electoral College: in the two presidential elections of that decade, none of the proceedings “even had their trial phase completed before the electors balloted.” Conscientious Congressman’s Guide, 56 Fla L Rev at 573. In response, Congress passed the Electoral Count Act in 1887. Id. at 542, 583. The statute encourages states to adopt procedures to try election contests involving presidential