Lewis Dembitz and the Australian Ballot

28Sep14

About a year or so ago, I was contacted by a producer (I have since forgotten his name) for the radio show / podcast Back Story with the American History Guys. He said they were thinking about doing a show on the history of elections in America. One of the topics they were researching was the Australian ballot, a form of secret ballot that was printed by the government and distributed at the polling places. While pretty much standard now, according to this producer, Louisville was the first city in America to implement this style of election and Louis Brandeis’ uncle, Lewis Dembitz, was said to be the man who wrote the bill that enacted it. He asked me if I knew anything about the matter and after a little research, I found that the matter was a little bit more complicated than that. I gave my information to the producer, but as far as I can tell, it was never used. The episode seemingly never materialized. Either they lost interest in the subject or they are still working on it. (Or it’s there and I can’t find it.) However, I hate to see my research go to waste, so I decided to share here what I found out.

Louisville was indeed the first city to implement the Australian ballot. It was enacted by the Kentucky General Assembly on February 18, 1888. (Massachusetts would implement it shortly thereafter and it would be quickly followed by most of the other states in the country.) It was introduced by a Louisville legislator named Arthur M. Wallace and consequently the bill became known as the Wallace Law. Notwithstanding Wallace’s name being attached to the bill, it has become historical lore that Dembitz was the originator and author of the bill.

There are two reasons for this. The first is a letter that Dembitz wrote that was published in the January 14, 1892 issue of The Nation. Here is the relevant excerpt:

The article in the January Forum on the Australian Ballot reminds me that before it is too late I should put in my claim as first inventor, or, in other words claim the authorship of the first “Australian Ballot Law” in the United States … The skeleton of the act was read by me, with comments upon its main features, at a meeting of the “Conversation Club,” one of the two leading literary societies of Louisville, in October, 1887. Mr. Arthur Wallace had been elected to the Legislature from Louisville in August of that year, and had resolved to put through a radical measure of reform. He knew that I took an interest in the subject, and that I had some experience in framing municipal laws. I was then Assistant City Attorney, and drawing charter amendments was in my line of duty. But this particular amendment was not of the kind which the authorities would request me to frame; in fact, the men most powerful in the city councils were bitterly opposed to it.

In conference with Mr. Wallace, I drew up the bill substantially as it passed, yielding those points to him, of course, which he insisted on; all but the new criminal clauses, in which, knowing the laxity of our punitive justice, I felt very little interest. Mr. Wallace, by giving up all and every private object, and concentrating his endeavors solely on the great object of reform, succeeded, with the aid of the country members, in getting the bill passed…

Dembitz probably repeated this claim a number of times orally and in print, but the other historically significant place this claim appeared was in the entry for Dembitz in the Funk and Wagnalls’ early 20th century The Jewish Encyclopedia, which states plainly:

In 1888 Dembitz drafted the first Australian ballot law ever adopted in the United States, to govern elections in Louisville.

As a result, Dembitz’ claim is generally accepted and is continually repeated. It is in various web pages, it is in The Louisville Encyclopedia, and it is even in Melvin Urofsky’s authoritative biography of Dembitz’ nephew. And it is in the only reference source that seems to matter any more: Wikipedia. (Or at least it was as of this writing.) This isn’t too surprising since most of its Dembitz article is lifted directly from The Jewish Encyclopedia — which probably explains its disconcerting use of the present tense about a man who has been dead for over a hundred years.

The only problem with all this is that it probably isn’t true. Arthur Wallace, the man whom the act was named after, certainly didn’t think so and he took pains to say so in an article in the January 24, 1892 issue of The Louisville Courier-Journal and in a letter that was published in the February 4, 1892 issue of The Nation. Wallace considered the creation of the bill as a joint effort of four people, with Dembitz playing a relatively minor role. The Courier-Journal article goes into detail about the matter:

… I got my first idea of applying the Australian ballot system to our elections from an article by Mr. Henry George in the North American Review , some months before my election to the Legislature. About that time I spoke to Hon. F. P. Strauss about the matter and he promised to aid me in drawing such a law if I were elected in the ensuing August election. I next asked Judge B. F. Buckner to give me his opinion on the constitutionality of such a measure, which he did, citing authorities in its favor.

Soon after my election … Frank Strauss and I set to work on the proposed bill, using a copy of the Australian ballot law that he had gotten from Hon. Joshua F. Bullitt, Jr. We had worked at the bill for fully six weeks when Mr. Dembitz happened in Mr. Strauss’ office on business. While he was in the room I told him of the work on which we were engaged, and upon his expressing interest in our work, I asked if he wouldn’t assist us, and he consented to do so. After this I had about three or four conferences with Mr. Dembitz at his residence, during which time the first twelve sections of the bill were drawn up, the Australian law being as closely adhered to as circumstances would permit, the alterations being made at my suggestion, owing to my practical knowledge of the workings of our existing system. This ended Mr. Dembitz’s connection with the bill, and the work done in conference with him was afterward revised and completed by Judge Buckner, Frank Strauss and myself, who added upward of twenty sections, and the completed bill was shown by me to Messrs. Dembitz and C. B. Seymour before its introduction.

…As I have previously said, I received as much aid from Judge Buckner and Frank Strauss as from anybody else in framing the bill which I conceived. I have, on all occasions that offered, expressed my grateful appreciation to the three gentlemen that assisted me to frame the bill, and I think Mr. Dembitz should recognize that to the four of us belongs the credit of the framing of the “Wallace Law” and not to any single individual. In fact, that law would have been framed and passed even had Mr. Dembitz never heard of it.

The article concludes with letters from Strauss and Buckner that collaborate Wallace’s version of events. I have been unable to find any printed response from Dembitz to either the Courier-Journal article or the Nation letter. The article and letter seem pretty convincing to me but history has determined otherwise. Given the prevalence of Demitz’ claim in books and on the Internet, it seems unlikely that Wallace’s version of events will ever take hold.

There is an interesting footnote to all of this. In researching the matter I came across the book Deliver the Vote: A History of Election Fraud, and American Political Tradition 1742-2004 by Tracy Campbell (no relation) Carroll and Graf, 2004. Professor Campbell devotes a chapter to Louisville politics and the efforts of reformers to combat election there. After briefly mentioning the passage of the Wallace Law (interestingly he makes no mention of Dembitz) Campbell describes how the Democratic machine came under the control of brothers, and burlesque theater owners, John and James Whallen. The Whallens adapted to the new law and quickly adopted new and increasingly brazen tactics to control the city’s elections, eventually culminating in the 1905 election, which was so blatantly corrupt that the results were thrown out by the state’s Court of Appeals. And who named as one of the Whallens’ bagmen who was handing out stacks of cash to election officers? None other than former state legislator and reformer Arthur M. Wallace. Maybe his account on the bill’s creation isn’t so trustworthy after all.

Update: After telling my colleague Kurt Metzmeier about this post, he mentioned that he had taken some pictures of the Whallen brothers’ crypt in St. Louis Cemetery and he has graciously allowed me post one them here. If you look closely you can even see a picture of Jim, the younger brother. Arthur Wallace’s connection to the Whallen brothers must have been strong, for when Jim Whallen died in 1930, Wallace was one of his pallbearers.

whallen bros

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