The controversy now rapidly coming to a conclusion in the House over who actually won last November in the 8th District of Indiana inevitably raises one question: Can it ever be determined with certainty who won in such a close election? The proceedings before the three-member Task Force, which has concluded, 2-1, that Democrat Frank McCloskey beat Republican Richard McIntyre by four votes, suggests that the answer to this question is no. In an election so close, neither contestant should be seated. The House, embroiled in an ear-splitting dispute over the outcome, should in fact declare the seat vacant and let Indiana hold another election.
We reach this conclusion not because we think the Task Force acted unfairly or negligently. On the contrary, it seems clear that it counted the votes it believed were cast with great accuracy and that it reached its conclusions as to which votes were cast on principles that can readily be defended as impartial and fair. We don't agree with Republicans who are describing the Task Force's proceedings as a "rape."
But at the same time, to decide which votes should be counted, the Task Force had to make exceedingly fine judgments about which, inevitably, fair-minded people might reasonably disagree. By a 2-1 bipartisan vote, for example, the Task Force decided to count absentee ballots that were not notarized and were sent by county clerks to precincts. But by a 2-1 partisan vote, the Task Force decided not to count unnotarized absentee ballots that were retained by county clerks. A defensible decision, we think. But one that, in the inevitably highly charged partisan atmosphere of a closely contested election, is likely never to be accepted as fair by the party on the losing end.
Contests over House elections were common in the 19th century and routinely took up much of the time of Congress. That may be one reason party lines were stronger and partisan wrangles more bitter then: contests in which the issue is whether a Republican or a Democrat should be seated inevitably make members of one party suspicious of the motives of the other. There is no way for the majority party to avoid dealing with such contests. The Constitution makes the House the final judge of the qualifications of its members, and sturdy precedent exists for the House to go behind the technicalities of state law and determine which candidate actually received more votes. That is what the Task Force did here, and, we think, ably. But when the margin is so close, doubts inevitably remain, and the candidate who is declared the winner will hold the office, so far as some of his colleagues and constituents are concerned, under a cloud. In these circumstances the by no means unusual or cumbersome redy of a special election is in order.