Every election year, local and state election administrators across the country utter a prayer: “Please God, don’t let it be close!” Yet, every few years, a sufficiently close election is wracked by recounts and litigation. It keeps political copywriters occupied in the months (and even years) after Election Day. On Nov. 3, 1936, a New Hampshire recount began that would drag on for a year and a half.
It happened in New Hampshire’s 1st Congressional District. At the time, northern New England still belonged to the rock-ribbed Republican. Only Maine and Vermont did not vote to re-elect Franklin Delano Roosevelt for president that year. (The political axiom, “as Maine goes, so goes the nation” was modified by James Farley to “as Maine goes, so goes Vermont”).
Roosevelt narrowly carried New Hampshire, but the Democrats didn’t see any gains down-ballot. The Republicans held onto the governor’s office, the U.S. Senate seats and the state Legislature. In fact, it initially appeared that the Republicans had retaken the 1st Congressional District as well. There, the incumbent Democratic Congressman, William Nathaniel Rogers, had left the seat to run unsuccessfully for the Senate.
The Republicans had nominated Arthur B. Jenks, a banker from Manchester, for the open seat. The Democrats had nominated Alphonse Roy, a realtor, executive councilor and former state representative, also from Manchester. Roy was a Franco-American, an ethnicity that leaned Democratic at the time. The Democratic appeal lay in its working-class makeup, in Catholic allegiance to the party of Al Smith and in reaction to the more nativist Yankees in the Republican Party.
New Hampshire Recount Begins
On election night, Jenks was ahead in the tally with 51,920 to 51,370 for Roy. Another 500 votes went to two minor-party candidates. That gave Jenks a winning margin of only 550 votes. After Election Day, Roy asked that the secretary of state conduct a recount.
The New Hampshire recount of 1936 ended up as the first tied congressional election in over a century. The secretary of state tallied 51,679 votes for each candidate. Next, at the request of both candidates, the state’s Ballot Law Commission in early December rechecked 108 disputed ballots set aside by the secretary of state. The commission, despite its 2-to-1 Republican majority, concluded Roy won the election by 17 votes.
However, the outgoing Republican governor of New Hampshire, the infamous Styles Bridges, did not issue a certification of election. (He had done so, though, for other elections, including his own election to the U.S. Senate.) Jenks’ lawyer clamed that in the town of Newton 34 ballots counted for Jenks on election night had disappeared. He further argued those 34 ballots had not been included in any subsequent counts.
The town counted 458 votes cast on its election night tally sheet, with 296 votes for Jenks and 100 for Roy. But the sealed ballot box only contained 424 ballots when opened in Concord. Jenks received only 262 votes in the official recount. According to later Democratic testimony, the Ballot Law Commission had already considered and dismissed this information. In any event, no one ever resolved the discrepancy between the 262 paper ballots for Jenks and the 296 tallied.
Another New Hampshire Recount
In light of Jenks’ petition, the commission decided to conduct its own full recount, beyond the 108 disputed ballots they had already considered. This full recount yielded an additional seven votes to Roy, considered to have a 24-vote lead. The 34 paper ballots from Newton never turned up, but the Ballot Law Commission decided to count them anyway. That resulted in a final victory for Jenks by 10 votes.
Jenks took office in January of 1937, one of only 89 Republicans in the U.S. House of Representatives. However, Roy pursued his case to the House, which decided to consider the matter of the 34 disputed Newton ballots.
Seven members of the Democratic-dominated House Committee on Elections decamped to Newton in August of 1937 to determine the status of these phantom ballots. The town greeted the committee pleasantly, said Rep. James Wadsworth, a New York Republican.
“[P]erhaps they rather entertained the feeling that we had come up there to find whether they knew how to run an election honestly,” he said.
The committee mailed notices to all 458 people listed as having voted. Almost all of those people came to testify that they did vote. Many of the town’s voters cut their summer vacations short to testify before the committee.
The committee determined through this testimony that 458 votes had indeed been cast. A few couldn’t be accounted for or had died, but the committee took affidavits from people who saw them vote.
The House debate included whether the committee should have sought more information, or if any witnesses were intimidated into testifying. The subsequent Congressional debate, on June 9, 1938, on a resolution to unseat Jenks and seat Roy, hinged on the testimony of these voters.
The subsequent Congressional debate, on June 9, 1938, on a resolution to unseat Jenks and seat Roy, hinged on the testimony of these voters. The House later debated whether the committee should have sought more information, or if any witnesses were intimidated into testifying.
The Democrats in favor of Roy cited Congressional precedent from previous contested elections that a count of the ballots themselves was the best evidence for election results, not the tally sheets compiled on Election Day. This would point to Roy’s 24-vote victory. The Republicans argued in favor of these tally sheets and the sworn statements of the local election officials and Newton voters that voters cast 458 votes on election night.
Congressman Jenks himself stated, “I do not believe you want to say to the people in the town of Newton that this great House of Representatives sent a committee up there and that that committee came back here and said to its members, ‘We do not believe the people in Newton under oath’.”
The debate raised other facts complicating the dispute. The Democrats pointed out that recounts found errors in the election night count in 114 of 129 precincts in the 1st Congressional District. They also noted that, in light of the recount totals, the votes for the two minor-party candidates had been undercounted throughout the district on election night. These facts would indicate reasons to distrust any election night tally sheets, including those from Newton. Finally, they argued the ballots rom Newton had been handled by Republicans throughout the entire chain of custody, precluding foul play.
The Republicans, on the other hand, disputed this chain of custody. They also argued that each Republican candidate had also had his tally decreased by around 34 votes in Newton between the initial count and the count in Concord. They cited that as evidence that 34 straight Republican ballots were indeed missing, more than just a counting discrepancy.
End of the Debate
The debate ended with a vote of 227 to 109 to seat Roy. Some Democrats voted with the Republicans, Progressives and Farm-Labor Party members to let Jenks keep his seat. Roy took his seat on June 9, 1938, the same day as the debate.
Roy’s victory didn’t last long. Jenks defeated him by a decisive margin of over 7,000 votes in the next election five months later. Jenks beat him again in a rematch in 1940. Roy then worked for the City of Manchester for a time, and failed in later political comeback attempts in 1958 and 1960. He died in 1967. Jenks lost the Republican primary in 1942, and returned to his banking business, dying in 1947.
This contested election, remote as it may seem, has a lesson that can be applied to election disputes in 2020. In this case, partisans of both candidates could point to reasonable evidence proving their victory.
However, regardless of the evidence and arguments, the election was decided by raw power on both the state and federal level. In New Hampshire, the Ballot Law Commission, with a 2-1 Republican majority, had the opportunity to count 34 ballots that could not be proven to exist. They then exercised their power to do so.
Future House Speaker John McCormack, a Massachusetts Democrat, commented on what happened during the final congressional debate. “[The Ballot Law Commission] had reserved decision on 34 until the end. If the Democrats had lost by the 34 they would have thrown them out the window, or if the Republicans had won they would not have passed upon them. But after the recount Roy was 24 votes ahead, but Roy could be defeated if these 34 votes were counted for the Republicans.”
In Washington, the Democrats had the opportunity to discount their same ballots, and they exercised their power to do so. It is an important reminder as we look to the results of the 2020 presidential election: Who has the power to count the votes?
Tyler Wolanin, this story’s author, is a professional legislative drafter and policy analyst, and an amateur New England historian. He has been published in Lovecraft Annual, Spark & Fizz, and WGBH.com. You can find his book blog at tylerwolanin.com.
Images: New Hampshire Statehouse By AlexiusHoratius – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=23064208.