Prior to the Depression Era, judicial department elections were partisan, and candidates for judicial office -- Supreme Court, circuit court, and district court -- were listed on the ballot by their political party.1 Furthermore, Supreme Court justices were elected at large.2If more than one Supreme Court justice position was open, then all incumbents and challengers competed against all other incumbents and challengers for all of the open positions, with the positions going to the top vote-getters.3 One interesting example of how the election process worked occurred in 1914, when a man who would later be an important Oregon politician lost the Republican nomination to the Oregon Supreme Court by one vote.
For almost 27 years -- from 1917 to 1944 -- Charles L. McNary served as a United States Senator from Oregon, and in 1940 he was the Republican nominee for Vice President.4 In 1914, however, he was an incumbent justice on the Oregon Supreme Court; he had been nominated by Governor Oswald West to fill one of the two new positions created the previous year, when the court had been expanded to seven justices.
For the 1914 election, four of the seven positions on the Supreme Court became open. The political parties, then, would each nominate four candidates for the four available positions. Eight Republican candidates competed for the four Republican nominations. In the votes cast in the Republican primary of May 15, 1914, incumbent justices Thomas A. McBride and Henry J. Bean quickly took a significant lead over the other candidates, thus securing two of the four nominations. As more returns came in, it became clear that Lawrence T. Harris had secured the third nomination.
But the fourth nomination became a neck-and-neck battle between McNary and Henry L. Benson. The lead shifted between the men as returns trickled in from around the state. On May 19, unofficial returns showed Benson leading by just 20 votes -- 31,810, against 31,790 for McNary. The next day, McNary led by two votes (32,985 to 32,983). When unofficial returns were complete on May 22, they showed Benson with a 120-vote lead (34,510 to 34,490). The official returns, however, favored McNary. On June 5, 1914, the Secretary of State announced that McNary had won the fourth nomination by 13 votes -- 34,618 to 34,605.
That might have ended the matter, but for the determination of the candidates. Investigations by both candidates discovered counting errors in the vote tabulations, and so McNary and Benson agreed to a "recount" (actually a misnomer; the official tabulations were checked for possible errors, but no ballots were recounted). The two candidates stipulated to recount only certain identified precincts.
By June 22, McNary and Benson were tied for the nomination. The recount continued through July and August, but the tie was not broken until August 24, when Benson gained one vote. The recount was not complete; although all of McNary's identified precincts had been recounted, only two of Benson's identified precincts had been. But time was running out -- the last day that a candidate could accept the nomination was September 8 -- and Benson decided to rest on his lead without completing the recount of the precincts that he had identified. He refused to enter into any further stipulations regarding the nomination.
That decision upset Governor West. News had broken that a precinct in Curry County, one not identified by either of the candidates, had located 15 ballots that had not been counted. Governor West wanted those missing votes to be counted before he issued the certificate of nomination. But without Benson's consent, the Curry County votes could not be considered -- and Benson contended that travel conditions in that part of the state meant that there was not enough time left to obtain official results on the uncounted ballots in Curry County. (Benson's contention seems to have had merit; the proposed extension of time to recount the missing Curry County votes was until September 22.) On September 8, Governor West delivered the certificate of nomination with shockingly bad grace:
"'While I am firm in my conviction that a complete and correct return of the votes cast at the [primary] election, or even of those precincts where errors have been reported, would have shown Judge McNary and not yourself to be the successful candidate, you have succeeded, through sharp practices and methods which would put to blush the meanest pettifogger in the land, in producing a result upon the face of the returns which leaves this office no alternative, but that of issuing you the certificate.'"
Benson responded, correctly, that there was no evidence McNary had received more votes than Benson. Benson also noted that he had no obligation to wait for a recount of his own identified districts.
With that, Benson became the fourth Republican nominee for the 1914 general election. In November, he won a seat on the Supreme Court. Benson would remain on the Court until his death in October of 1921. 5