President Trump’s challenge to certification of election results and the just ended blockade of transition support for President-Elect Biden has brought to mind a chapter in our own state’s history. It’s the “Count Out” of ‘79, an episode where two sets of governments each contending to be the legitimate authority sat in Augusta at the same time as the state teetered on the brink of civil war.

It’s 1879. The sitting incumbent governor, Lewiston physician Alonzo Garcelon, a Democrat, was up for re-election. Among several challengers, Republican Daniel Davis, with 49 percent, and Greenback candidate Joseph Smith, with 34 percent, breeze by Garcelon who comes up with a mere 16 percent in the popular vote. (Smith and Garcelon supporters were often in the same camp, however, in a coalition then referred to as “Fusionist.”)

What next happened to settle up the gubernatorial election results had a familiar ring: the process of “certification.” Because no one won a majority – over 50% – Maine then provided that the election was thrown into the incoming legislature whose members would in effect be an electoral college.

Before Senate and House members – in whose hands selection of the next governor would be decided – could show up and be sworn in, votes for them had to be certified by the outgoing seven-member Executive Council, then controlled by Democrats. (Garcelon also had a seat at the table in this process but his vote counted for no more than the other seven.) The Council knew that if it could certify more Democratic or Fusion candidates than Republicans for legislative seats then Davis would stand no chance of being the next governor.

In this, the Council displayed – depending on one’s point of view – either remarkable ingenuity or blatant favoritism.

In Portland, initial returns showed five Republicans running for the House of Representatives racking up a 640-vote plurality over their Democratic opponents. The Council refused to seat them. The grounds? The City reported 143 “Scattering” – meaning those cast for minor candidates. Even though as the State Supreme Court later ruled the scattered votes would make no difference in the outcome, the Governor and Council seized upon this anomaly to seat the Democratic nominees instead.

In the Newcastle-Nobleboro district votes for the Democrat “Clark” and “Clarke” were validated as being for the same candidate. Those cast for the Republican “Edward K. Hall” and “E.K. Hall” were deemed to be for separate individuals even though if those for both the “Edward K” and the “E.K.” were treated as being for the same person, Hall would have been elected.

A similar curious interpretation was imposed in a district near Bangor. There, when returns were reported as being for “Francis W. Hill” in one town but “F.W.Hill” in another, it was put down as having two different identities. The result: the Republican Hill was “counted out” and a qualifying certificate given for his Fusionists opponent.

The process was then more vulnerable to such fastidiousness because uniformly pre-printed vote tabulation reporting forms that became a standard feature of the subsequent 20th century were not introduced in most states including Maine until over a decade later, about the same time as Australian or secret ballot voting was also adopted.

The Council’s practice of trading in losing candidates of its own party for those of the otherwise victorious Republicans was also illustrated in dozens of other races in both the House and the Senate.

Some Democrats refused to go along with such gambits. Farmington’s Louis Voter, for example, had been “counted in” when the Council tried to throw out all votes from by far the larger town in the district – home town of both candidates – on the grounds that four of the 842 ballots cast there were blank and that the returns were not signed and sealed in an open town meeting. It sought to seat him by substituting his 14 to 13 plurality in Perkins Plantation for the 36 vote plurality his opponent Cyrus Thomas had won in Farmington. Instead of taking his seat under such circumstances, Voter sent in a letter of declination.

(One arena of contention that did not make a foray into 1879’s but has been at the forefront of this year’s election: absentee voting. Mail in procedures were not constitutionally recognized until 1921, just after the last pandemic and World War I.)

A Republican complaint that has a familiar ring with recent contentions of Trump attorneys is that the Council was restricting public monitoring of their auditing of legislative results even though they were not doing so with county office tabulations.

Overall, enough Democratic candidates and their Fusionist allies were finessed into power by the Council’s vote certification to give them control of the House and Senate. They then in January 1880 chose Smith, the Fusionist nominee – who had run over 21-thousand votes behind the GOP’s Davis in the popular vote – as governor.

Republicans, relying on initial Secretary of State tabulations showing them in the lead, met at the same time and chose Davis.

Grounds at and around the State House meanwhile took on the atmosphere of an armed camp, partisans of both parties showing up from throughout the state ready to do battle.

Supreme Court opinions that came down on the side of the Republicans did not seem to quell the anxiety. A turning point came when faced with threatened outbreaks of violence from an angry mob outside the Capitol, Civil War General Joshua Chamberlain, who had taken a leave of absence from the presidency of Bowdoin to take charge of the state militia, made a dramatic appearance just outside the State House door.

The hero of Little Round Top and himself a former four term governor unbuttoned his coat and defied anyone to shoot him down. At that point, a Civil War veteran who had pushed through to the front of the crowd declared, “By God, the first man who lifts a hand against you, General is a dead one.”

The tension just broken; violence was averted.

It was January 16, 1880.

Some Fusionist/Democrats still purported to meet as a legislative body but their vote for a seven-month adjournment signaled their effective acquiescence in the Supreme Court rulings.

We’ve haven’t seen anything like it in Maine ever since.

I hope we never do!

Paul Mills is a Farmington attorney well known for his analyses and historical understanding of public affairs in Maine; he can be reached by e-mail [email protected]

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