Did Reeder have the power to set aside elections?

Andrew Horatio Reeder

Andrew Horatio Reeder

On the sixth of April, 1855, Andrew Reeder and his armed bodyguards faced off against an equally armed gang of proslavery men and announced to them that seven of the seventeen elections that the Missourians stole from Kansans would not stand. Instead, new elections would fill those seats. As widespread, flagrant fraud characterized both of Kansas’ previous elections, surely doing the same thing all over again would solve things. But what else could Reeder have done? He took precautions beforehand and appears sincere a year later in saying that he didn’t have the evidence at the time to set aside more elections than he did. He had no army on hand to stop Missourians at the border, nor an independent and sophisticated law enforcement apparatus to safeguard the polls.

Surprisingly, it seems that the third time delivered on the proverbial charm. The Howard Committee found no illegal voting in six of the districts that went back to the polls. Kansas improved its performance from one free election in eighteen to one in seven. That success, however, came with the fact that Reeder had not set aside the other elections. The Missourian border ruffians still had their way in those districts. Furthermore, by setting any elections aside Reeder exceeded the authority that the proslavery men thought vested in him. They thought that the legislature itself judged the qualifications of its members, not the territorial executive. Back in Washington, just that rule had held since the ratification of the Constitution.

A quick scan of the Kansas-Nebraska Act does not reveal any explicit authorization for Reeder to set aside elections. He did have powers related to elections, including calling them, drawing districts, and apportioning seats, but insofar as the results of those elections come under his power, I’ve found this:

the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the Governor shall appoint and direct

[…]

The persons having the highest number of legal votes in each of said council districts for members of the Council, shall be declared by the Governor to be duly elected to the Council; and the persons having the highest number of legal votes for the House of Representatives, shall be declared by the Governor to be duly elected members of said house: Provided, That in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the Legislative Assembly, the Governor shall order a new election

Stephen Douglas

Stephen Douglas

The KansasNebraska Act did specify who counted as a legal voter and required election by a majority of legal voters, but it did not clearly vest in Reeder the power to investigate illegal voting and set aside elections where it determined the outcome. Maybe Stephen Douglas and Phillip Phillips, with the approval of Atchison, his F Street cronies, and Archibald Dixon assumed that. The law did not, however, come out and say it. By the strictest, most parsimonious reading of the law, the governor’s power over elections expired with their conclusion. He could set out oaths, despite the Missourians’ claims, and require the swearing of voters, but possibly nothing more.

This does not make for a conclusive argument. Nor did the proslavery men take it up out of disinterested legal scholarship. They further did not burden themselves with contrary facts when it came to claiming that the Kansas-Nebraska Act authorized their cross-border voting. Even the more legally scrupulous often contented themselves with a fake claim or the argument that their presence that instant in Kansas counted as legal residence with intent to remain, conveniently ignoring then their conscious design to leave immediately after the election.

In this case, however, they appear to have really believed that Reeder had no such power. By setting aside elections, he had transgressed on their rights and stripped from them the essential power of white men in the white man’s democracy to elect their government to chart their future. Before now, they might have thought Reeder a secret abolitionist for his attempted neutrality. Now the governor had gone and proved it to any who still required proof. Kansas got at least some fair elections, but they came at the inevitable cost of further aggravating the proslavery party by taking away some of its late triumphs.

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