If a poll were taken of Americans asking if they could name their state’s secretary of state, it is doubtful the number who could would eclipse one or two percent. If the poll included the follow up question, “Are you aware your state has a secretary of state,” the number would likely rise only a few percentage points. Voters are preparing to go to the polls in November to provide a referendum on the first two years of the Biden administration. Battleground Senate and House races dominate the country’s attention. Americans though are ignoring at their own peril twenty-seven potentially crucial contests — the twenty-seven states electing a secretary of state. But why should Americans care about a post many don’t even know exists?
Michael J. Trapani explains.
William Pennington, Governor of New Jersey from 1837 to 1843.
The answer to the question of why Americans should care is that secretaries of state are responsible for certifying the results of statewide elections. While their other duties vary from state to state, they share in common the role as their state’s chief election official. As Trump and his team were crafting “the big lie” following Joe Biden’s 2020 victory, phones buzzed in the offices of secretaries of state from closely contested states. Most notably, the defeated president pressured Georgia’s Republican Secretary of State, Brad Raffensperger, to “find 11,780 votes,” to swing the state in his favor and threatened legal repercussions if Raffensperger did not comply. Raffensperger ultimately stood his ground, informing Trump that the reported result of Biden’s narrow victory was correct.
Trump and his most loyal supporters maintain that Biden’s win was fraudulent and had state election officials, secretaries of state chief among them, acted correctly, the 45th president would be enjoying a second term. Team Trump, although sustaining publicly that their man won, is now scheming to ensure that should a similar scenario arise when the former president presumably runs again in 2024, Trump will emerge victorious, regardless of how the voting shakes out. Their plan is to install as many Trump loyalists as possible into positions that hold authority in state-run elections. Among Trump’s top prizes is the secretary of state of Arizona, for whom the former president’s coveted endorsement has gone to state lawmaker Mark Finchem — a man whose victory, according to a recent article in The Guardian, “should terrify the nation.” As a member of the state legislature, Finchem signed his name to a joint resolution calling on Congress to reject the legally certified electoral vote for Biden and award Arizona’s votes to Trump. Simply put, if Finchem and others like him are elevated to positions to oversee their state’s elections, Trump and Trump acolytes on the losing end of close (or perhaps even lopsided) elections could be declared victorious.
The Broad Seal War
But could a secretary of state actually determine an election? History shows that yes, they can. While the stakes were not as high as those of a presidential election, New Jersey’s 1838 disputed congressional election ended in a hullaballoo that cost the state five-sixths of its congressional representation for over three months.
New Jersey was politically divided in the late 1830s. The state awarded its eight electoral votes to Whig candidate William Henry Harrison in the 1836 presidential election — a victory secured by a mere 545 votes. The Whigs also narrowly won the state’s six congressional seats, which represented a complete reversal of the 1834 congressional election that sent six Democrats to Washington.
The 1838 statewide congressional election continued the trend. So close were the results that when the 26th Congress convened in December 1839, two slates of delegates, one Whig and one Democratic, arrived in Washington, D.C. Each contingent came bearing commissions as the duly elected members of Congress. Only the commissions of the Whigs bore the governor’s seal, the legally required certification of victory. The Democrats’ commissions bore the seal of the office of James D. Westcott, the secretary of state. The ensuing debacle would later be dubbed, The Broad Seal War, after the governor’s seal affixed on the Whig delegation’s commissions.
On the first day of the session, the House clerk began the customary roll call to seat the newly elected members. When he got to New Jersey, he read off the name of Whig Joseph F. Randolph (whose victory was not disputed). He then stopped, claiming that because the remaining five seats were contested, he would be unable to seat the rest of New Jersey’s members.
The dispute centered on the certification of votes from South Amboy in Middlesex county and Millville in Cumberland county. In the case of South Amboy, it was alleged that the legally chosen official whose duty was to certify the township’s results and submit them to the county was prevented from doing so and that another official was unlawfully substituted in his place. In the case of Millville, the township’s votes were not received by the state in a timely manner according to the law and the town’s election officials made public their intent to accept votes of aliens (to use the term of the day). At this time, New Jersey members of Congress were elected at-large, meaning voters cast up to six votes and the top six vote-getters would be elected. Whig Governor William Pennington decided to throw out the vote of the two townships in question and certify the election without them. Had the discarded votes been included in the final statewide tally, the Democratic slate (minus Joseph Randolph) would have scored a razor-thin victory. The unaltered results, presented by the Democratic delegation, were signed and stamped with the seal of the secretary of state.
The situation paralyzed the House for weeks. Whigs attacked the clerk for unilaterally deciding whose certifications were legitimate and whose were not. The New Jersey Whigs had presented the credentials legally mandated by the state; who was the clerk to do anything but seat those members? If further investigation was warranted, the House would do so once organized. Democrats fired back that had the clerk seated the Whig delegation, he would be effectively deciding on a disputed matter, a weight far beyond his responsibility to bear.
The parties bickered over how to proceed. One solution proposed having the clerk read the rest of the uncontested names so a quorum could be reached at which point, those members present would rule on the members claiming their seats under the governor’s seal. This was met with disproval by those who felt this gave the Whigs an unfair advantage. A counter proposal: Establish a quorum and rule on all those claiming the New Jersey seats. When a vote was called, a fracas broke out over whether the New Jersey delegation should be allowed to vote. Which delegation, Whig or Democratic, would be permitted to vote? Both? Neither? Wouldn’t permitting neither to vote deprive New Jersey of its constitutionally granted representation? Finally, two weeks into the session, members voted along partisan lines to elect a speaker so the House could be properly organized. Following the vote, another two weeks of arguing ensued over whether the full House or the Committee of Elections would decide on the matter. On January 14, the House voted to move the matter to the Committee of Elections, thus allowing the House to move on with its business.
The committee consisted of five Democrats and four Whigs (one of whom was future president Millard Fillmore). The partisan majority report, submitted on March 5, 1840 declared that the votes of South Amboy and Millville should be counted and therefore, the Democrats bearing the seal of the secretary of state, not the governor, were the rightful claimants to the contested seats. On March 16, the House voted 111 to 80 to seat the Democrats, finally giving New Jersey its full representation.
Final Thoughts
In 1838, the power of the office of the New Jersey secretary of state was enough to overturn an election in which votes were discarded due to technicalities. In 2020, secretaries of state refused to employ that same power to overturn the results of lawfully conducted elections. Both cases demonstrate the influence the office could have on the outcome of closely contested elections. And both cases demonstrate why we need to pay attention to the twenty-seven states holding secretary of state elections this November.
What do you think of the role of secretaries of state? Let us know below.
References
U.S. Congress, House of Representatives. Committee on Elections. New Jersey Election (26th Congress, 1st Session, House Report no. 506, March 11, 1840. U.S. Serial Set no. 371).
Cong. Globe, 26th Cong., 1st Sess. 1-121 (1839-40).
Ed Pilkington, “’This should terrify the nation’: The Trump ally seeking to run Arizona’s elections,” The Guardian. February 21, 2022. https://www.theguardian.com/us-news/2022/feb/21/mark-finchem-trump-arizona-elections-secretary-of-state.
