Jerry Kopel

KOPEL: TOO SMART TO BE RIGHT

October victory didn’t stick in first election

Send me a politician. Let him or her be an attorney. Chances are high you will get a wrong answer to your question.

Unfortunate choices were part of the Colorado 1876 election and are still around to mock those “who know too much.”

Colorado’s first elections as a state took place Oct. 3, 1876. They followed the announcement by President Ulysses S. Grant on Aug. 1, 1876, welcoming Colorado into statehood. We elected a Republican governor, executive branch, judiciary and Legislature.

The Legislature, in turn, elected two Republican U.S. senators, one for a four-year term and one for a six-year term.

Republicans were ecstatic. They also had won one congressional seat “twice” with candidate James Belford.

Belford, who had been a Territorial Supreme Court justice from 1870 to 1875, beat Thomas Patterson, a Democrat who was serving as Colorado territorial representative.

Coloradans voted to have two terms for one seat in Congress, a short term and a long term. In the vote for the short congressional term — which ran from Dec. 4, 1876 to March 4, 1877 — Belford won 13,392 votes to Patterson’s 12,865. In the vote for the regular congressional term — which ran March 5, 1877, to March 4, 1879, in the 45th Congress — Belford took 13,532 to Patterson’s 12,544.

The state Republicans maintained that it was OK to hold elections for both congressional terms on the same day under the Enabling Act, which allowed Colorado to adopt a Constitution and become a state. You can find the Enabling Act on the pages directly after the U.S. Constitution in Volume 1 of the Colorado Revised Statutes.

Section 6 begins: “That, until the next general census, said state shall be entitled to one representative in the House of Representatives of the United States, which representative, together with the governor and state and other offices provided for in the Constitution, shall be elected on a day subsequent to the adoption of the Constitution, and to be fixed by said constitutional convention....”

Following the language of the state Constitution in the CRS is the “schedule” prepared by the constitutional convention. Section 11 directed that the first general election be held Oct. 3, 1876. Section 16 dealt with the election to Congress, stating, “the votes cast for representatives in Congress at the first election held under this Constitution....”

That sounds “plural” but Section 6 of the Enabling Act refers to one representative (singular).

Republican leadership ignored a law passed by Congress in 1872 that set the same November day for all congressional and presidential elections for the entire nation.

Patterson, although he wasn’t against holding the October election for the three-month term in Congress, “is on record as having repeatedly said in public that the Enabling Act did not warrant the election of a representative for the full term,” according to Jerome C. Smiley’s “History of Colorado, Volume 1.”

Patterson said the elections had to be on Nov. 7, the regular Election Day in the nation.

The Democratic Party, having lost both spots was “now believing Patterson’s view to be correct” according to Smiley “and that there had been no election for the 45th Congress, (and) decided to hold an election on Nov. 7 for the two-year congressional term.

“Meanwhile, the October returns had been canvassed, and a certificate of election to the 45th Congress had been issued to Belford.”

Based on that certificate, the Republicans refused to have anything to do with another election for the full term to Congress. They told their members to boycott the Nov. 7 election. That’s exactly what the Republicans did, even though Belford’s name was on the ballot as the Republican candidate.

The election, which did not have the blessing of Colorado’s secretary of state, a Republican, was held Nov. 7, 1876. Patterson received 3,580 votes, overwhelming Belford’s 172, and 77 votes were “scattered” for write-in candidates.

For what followed, I’m grateful to former U.S. Congresswoman Pat Schroeder who wrote about it in a December 1996 history column in the Rocky Mountain News.

“The whole mess was decided by the House of Representatives ... By a vote of 116 to 110, the House decided Patterson’s November win for the two-year term did invalidate Belford’s October victory...”

Of course it helped that the 1877 House was Democratic. Belford ran again in November 1878, won the two-year term and stayed in Congress for six years.

Patterson later became publisher of the Rocky Mountain News and, 10 years later, U.S. senator from Colorado, serving from 1901 to 1907.

The issue was resolved a second time on Dec. 2, 1997, when the United States Supreme Court ruled unanimously that “a state may not choose its members of Congress before the official federal Election Day,” which is the Tuesday after the first Monday in November.

The decision in Foster vs. Love, written by Justice David Souter, dealt with a Louisiana law allowing election of members of Congress in October instead of November if the candidate received a majority vote.

I believe that unfortunate choices continue to be made. There has rarely been a decision by the Legislature on legislative district apportionment that has not been changed by a state Supreme Court decision.

Jerry Kopel served 22 years in the Colorado House.