Disputed 1984 Indiana Vote a Bad Omen for Sanchez?

Try to tell folks in this graying industrial city about Robert K. Dornan and Loretta Sanchez, and they’ll tell you they’ve heard it all before.

A super-close congressional election. The winner heading to Washington unsure of final victory. The loser crying foul.

“I don’t think about it much anymore,” said Rick McIntyre, a youthful-looking judge in a town just north of here. “But that was one of the nastiest fights I was ever caught up in.”

Thirteen years ago, McIntyre lost one of the closest congressional races in U.S. history. With McIntyre and his opponent a few votes apart, a Democratic-controlled House swooped in from Washington, counted the ballots its own way and handed the victory to the Democrat.

Weeks later, 179 Republican congressmen stormed out of the U.S. Capitol to protest what they called a stolen election.

In many ways, the voter fraud dispute of former Rep. Dornan (R-Garden Grove) and current Rep. Sanchez (D-Garden Grove) played out here first.

The lesson that many took away from the Indiana race was that the party that controls Congress decides the close elections.

This time, the Republicans are in charge.

People who have studied the 1984 Indiana race, one of only a handful in this century decided by a vote of the House of Representatives, say it is directly relevant to the Sanchez-Dornan voter fraud dispute. They point out that the Republicans, as the majority party, exercise sweeping authority in deciding who won the Sanchez-Dornan race. Some say that even though it would be highly unlikely, the Republicans could go as far as hold a new election without coming up with 984 invalid votes--the margin of Sanchez’s victory.

The courts and the Constitution, the experts say, make Congress the final judge of who sits in its chambers.

“That race set a terrible precedent, it was a nightmare, and nobody wants it to ever happen again,” said Mark Braden, counsel to the House Oversight Committee and a veteran of the Indiana showdown. “But one thing that election made clear was that Congress is free to do pretty much whatever it wants.”

Some experts, however, say that Congress would hesitate before taking the drastic step of removing one of its own members for a fleeting partisan advantage.

“Congress would be very reluctant to do anything that made it look like they were stealing an election,” said Charles Tiefer, former deputy counsel to the House of Representatives and now a professor at the University of Baltimore.

Right now, the Republicans say they want to fully investigate Dornan’s claims of voter fraud, and that they won’t call a new election unless Dornan can show that but for the fraud he would have won.

So far, Dornan doesn’t have enough. Sanchez beat him by 984 votes. California Secretary of State Bill Jones found that as many as 303 people registered to vote before they became citizens and then voted in the 46th Congressional District race.

Those numbers could change, however. Bill Thomas (R-Bakersfield), the chairman of the House Oversight Committee, is demanding that the Immigration and Naturalization Service check the citizenship of all of Orange County’s 1.3 million registered voters.

If the INS finds that more noncitizens cast ballots in Orange County last November, Congress could be faced with deciding whether to invalidate the results of the Sanchez-Dornan race and hold a new election.

And that, experts say, is where the 1984 election contest in Indiana’s 8th Congressional District--a contest dubbed the “Bloody Eighth”--offers clues to how and why Congress might act.

“The Indiana race was the ugliest and most spectacular contested election in the 20th century,” said Bill Kimberling, a deputy director of the Federal Elections Commission.

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The race for Indiana’s 8th District, featuring an incumbent Democrat, Frank McCloskey, and the Republican McIntyre began quietly enough.

The two faced off in a 15-county congressional district that spanned Evansville, a city of about 130,000, and a mostly rural outlying area that includes the town of French Lick, best known for producing the professional basketball star Larry Bird.

Ronald Reagan was in the White House, at the peak of his popularity, and McIntyre hoped to sweep into Washington on the coattails of the incumbent president.

On election night, however, McCloskey appeared to have beaten back his Republican challenger by a mere 72 votes out of 233,610 cast.

The next day, election workers in two precincts in rural Gibson County discovered they had mistakenly passed the ballots through the counting machine twice. When they subtracted the extra ballots, McIntyre, the Republican, appeared to have won by 34 votes.

With that, Indiana’s secretary of state, also a Republican, handed McIntyre his official certificate of victory.

The official Indiana recount later determined that the Republican McIntyre won by 418 votes. Under Indiana law, designed to guard against voter fraud, some 4,800 ballots were not counted because they had been improperly completed.

But things didn’t end there.

When McIntyre came to Washington, then-Majority Leader Jim Wright, a Texas Democrat, refused to seat him.

“The election procedures to date have simply not yielded a result on which the House can rely,” Wright said as McIntyre stood nearby.

The Democratic-controlled House dispatched a task force to Evansville to determine who won the election.

Three congressmen sat on the task force: Reps. Leon Panetta of California and William Clay of Missouri, both Democrats; and Thomas, the Republican now handling the Sanchez-Dornan dispute.

Richard Young, an attorney who represented McCloskey, remembers when the task force came to Evansville.

“They made it clear that they were going go to do things their own way,” said Young, who is now a judge. “They ran their own show.”

Said Joseph H. Harrison, a Republican on one of the local election committees:

“Their approach was: ‘We really don’t care what you think down here.’ ”

At the direction of the Democrat-dominated task force, a team of federal election workers received specific instructions: Instead of adhering to Indiana law, they were to go through all the ballots again and try to determine “voter intent.”

That meant that many of the 4,800 ballots that had been excluded would be counted if the election workers could determine who the voter was trying to choose.

Democrats asserted that Indiana’s Republican officials had disqualified ballots improperly, and said that race and geography played a role in throwing out votes from predominantly black and Democratic districts around Evansville.

The critical moment came when the task force had to decide whether to count 32 absentee ballots that lacked signatures or notarization. The task force had already decided to count a similar batch of such ballots.

This time, the task force voted 2 to 1, along party lines, not to count the ballots. The Democrats said they were not certain the ballots were secure.

That made the Democrat, McCloskey, the winner by four votes.

McCloskey’s victory ignited a firestorm of anger among the Republicans.

“It was a rape,” Thomas said at the time.

The Republicans’ main gripe was that the Democrats had ignored Indiana law and written their own set of rules. Then, when those rules didn’t suit them, they ignored those too.

McIntyre, the loser, appealed repeatedly to the federal courts but was rebuffed. The judges cited the U.S. Constitution, which deems Congress the “judge of the elections, returns and qualifications of its own members.”

On May 1, 1985--almost seven months after the election--the House of Representatives voted to seat McCloskey. Ten Democrats crossed the aisle and voted with the Republicans against seating McCloskey.

Many of the Republicans wore buttons that day that said: “Thou shalt not steal.”

The Democrats countered that the Republicans would have found fault in any process that did not name them the winner.

“I believe that if the College of Cardinals had conducted their recount and found for someone not to their liking, the Republicans would accuse God of stealing the election,” said Clay, one of the task force’s Democratic members.

Today, on the wall of McIntyre’s office hangs the State of Indiana’s certificate declaring him the winner. On another wall is a framed photograph of McIntyre standing with the Republican representatives who had walked out of the Capitol in protest.

“If they had counted the votes fairly,” McIntyre said, “I would have won.”

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Thomas, the Bakersfield congressman now overseeing Dornan’s election challenge, says he hasn’t forgotten the Indiana race. But he dismisses as “hogwash” the suggestion that he is seeking revenge.

“I want to create a fair process that will never, ever result again in what happened to the Republicans,” Thomas said.

Yet Thomas is equally forceful when he says that the House of Representatives is free to decide the Sanchez-Dornan race in any way it sees fit.

“Congress, not the courts, will decide this,” Thomas said.

Stanley Brand, former counsel to the House of Representatives and now an attorney for Sanchez, says that if Thomas and the House Republicans try to unseat Sanchez without convincingly demonstrating widespread voter fraud, the courts would block them.

“The Supreme Court will reign in Congress when it acts in an unconstitutional way,” Brand said.

Just when the courts might step in, though, is unclear. Ordinarily, judges are wary of questioning congressional authority, particularly when it comes to deciding a House race, experts say.

“It is a hard to imagine a case where the federal courts would get involved on the question of who won,” said Kate Stith, professor of law at Yale University. “The Constitution makes Congress the final judge of the election of its members.”

One famous example occurred in 1969, when the U.S. Supreme Court ruled that Congress erred when it refused to seat New York City Congressman Adam Clayton Powell, who was embroiled in a dispute over his alleged misconduct. Powell got his seat back.

Still, most contested elections are left up to Congress. And most of the time, Congress turns them down. Every two years, a handful of losing House candidates challenge the results, and they always lose.

According to the Federal Elections Commission, some 500 House elections have been contested in the nation’s history but a congressman who has been officially seated has never been ousted. In the Indiana election, the seat was kept open until the task force decided who had won.

Ultimately, whether Dornan gets a rematch may turn not just on how many invalid ballots he finds, but on how many friends he has in Congress. Back in 1984, the Democrats outnumbered Republicans by a 70-vote margin. Today, the Republican majority is just 21.

“I don’t think the Republicans will go to the mat for Bob Dornan,” Sanchez chief of staff Steve Jost said. “He wasn’t popular on either side of the aisle.”

Thomas, the congressman involved in both the Sanchez-Dornan and McCloskey-McIntyre disputes, said he is not choosing sides, but is adamant on one point:

“Congress can do whatever it wants.”

Times researcher Robin Cochran in Washington contributed to this story.