ELECTION - The Law Mind Legal Dictionary

ELECTIONAuthored

The Law Mind • 1474 words

Definition

ELECTION has three distinct legal meanings that rarely intersect but are frequently encountered across different areas of the law.

Political election. The process by which voters select a person to fill a public office. The term encompasses the full arc of the process — nomination, balloting, certification of results, and the resolution of disputed returns — not merely the act of casting a vote. Courts have distinguished election from appointment as the two principal modes of placing persons in public office: election implies a popular vote; appointment does not.

Election of remedies. A doctrine requiring a party who has two or more inconsistent legal remedies available to choose one and, once chosen, to be bound by that choice, forfeiting the others. The classic application arises when a plaintiff could pursue either rescission of a contract or damages for its breach — two remedies premised on incompatible theories (that the contract is void versus that it is valid and broken). Making an unequivocal choice, or taking action inconsistent with preserving the alternative, can constitute an election that bars subsequent pursuit of the other remedy.

Election of rights or benefits (equity). The equitable principle that a person who accepts a benefit under an instrument — a will, deed, or settlement — must also accept all burdens and conditions imposed by that same instrument. The person cannot take the benefit while repudiating an inconsistent obligation. If a testator purports to give away property belonging to a third party while also leaving that third party a bequest, the third party must choose: either give up the property as the testator directed and take the bequest, or keep the property and forfeit the bequest (or compensate the disappointed legatee from the bequest).

Common Language

Modern common usage (Wiktionary): A process of choosing a leader, members of parliament, councillors, or other representatives by popular vote; more broadly, any conscious choice or option selected.

Historical common usage (Webster's 1913): The act of choosing; specifically the act of choosing a person to fill an office by ballot, uplifted hands, or viva voce; also, the power of choosing or free will.

The common meaning of election tracks legal meaning (1) closely enough that confusion between the two is rare. The research trap runs in the other direction: a researcher focused on political election law who encounters the word election in a contracts or equity case may not immediately recognize that an entirely different doctrine is at work. The equitable doctrine of election and the election-of-remedies doctrine share vocabulary with ordinary political elections but belong to separate bodies of doctrine with their own requirements and consequences.

Common Confusion

Election of remedies and waiver are related but distinct. Waiver involves the intentional relinquishment of a known right; election of remedies involves choosing between two inconsistent rights, where the choice itself extinguishes the alternative. A party may waive a single right without having any alternative; election presupposes at least two inconsistent options. In historical sources, the two concepts are sometimes conflated or addressed in close sequence, which can obscure the analytical distinction.

Election (equitable) and election of remedies share a name and a general logic of choosing between alternatives, but they arise in different procedural contexts and carry different consequences. Equitable election concerns property and testamentary instruments; election of remedies concerns litigation strategy and the consistency of pleaded theories.

Recognized Forms

/SUBTYPES

Political election: general election, primary election, special election, runoff election, recall election. These distinctions matter for statutory eligibility requirements, timing rules, and the scope of post-election challenge procedures.

Election of remedies: affirmative election (an overt, deliberate choice communicated to the opposing party) and constructive election (conduct so inconsistent with the alternative remedy that a court treats the party as having elected). Historical sources tend to discuss the latter under the language of waiver by conduct, complicating retrieval.

Equitable election: sometimes subdivided by instrument type (testamentary election versus election under a deed or settlement), though the underlying principle is uniform.

Why It Matters in Research

Researchers face a significant vocabulary collision problem with this term. A full-text search for election in a pre-1900 legal database will return results spanning all three meanings indiscriminately, and the source context does not always make the operative sense immediately apparent. Filtering by subject area (public law versus contracts versus equity/trusts) is the most reliable initial strategy.

For political election law, the corpus material from the nineteenth and early twentieth centuries reflects a period of dramatic doctrinal flux. Election contest procedures, the scope of legislative versus judicial authority to resolve disputed returns, and the evidentiary standards for ballot-counting disputes all shifted substantially across this period. Historical sources often address the question of what constitutes an election — whether a vote tainted by fraud or technical irregularity is void or merely voidable — in ways that do not map neatly onto modern administrative and constitutional frameworks.

For election of remedies, researchers should be alert to jurisdictional and period-specific variation in how strictly the doctrine is applied. The modern trend in many jurisdictions relaxes the traditional rule, allowing inconsistent pleading and deferring actual election until later in litigation. Sources from the late nineteenth and early twentieth centuries often state the doctrine in its strictest form; applying those statements to modern practice without verification risks overclaiming.

For equitable election, the doctrine is most fully developed in materials on wills and trusts. A researcher working on testamentary construction who does not recognize the equitable election issue may miss the governing principle entirely, since it may be addressed in equity or trusts sources rather than in the wills materials where the problem manifests.

The Bouvier note that election cannot be treated as synonymous with other modes of filling a position is a useful anchor for political election research: courts and legislatures in the historical period were careful to maintain the appointment/election distinction, and conflating the two in research queries will produce misleading results.

Historical Dictionary Support

The historical dictionaries converge on the core definition of election as free choice among alternatives. Burrill captures the common-law foundation most cleanly: election is where a man is left to his own free will to take or do one thing or another. Black's (1st ed.) supplements this with the internal, free, and spontaneous separation of one thing from another, without compulsion — language that tracks the equitable doctrine particularly well and reflects the influence of Coke's Institutes on the common-law conception.

Bouvier adds a practically important gloss for political election research: the word, in its ordinary signification, carries the idea of a vote, and cannot be held to be the synonym of any other mode of filling a position. This signals that courts scrutinized the term carefully when determining whether a particular selection process qualified as an election for statutory or constitutional purposes.

What the historical dictionaries collectively underperform is coverage of election of remedies as a discrete procedural doctrine. The concept is present implicitly in discussions of alternative obligations and waiver, but it is not systematically developed as its own doctrine in the sources surveyed. Researchers seeking the historical development of election of remedies will find richer material in nineteenth-century equity treatises and contracts authorities than in the general legal dictionaries.

Jurisdictional Note

The election-of-remedies doctrine varies significantly in its stringency across American jurisdictions. Some states have substantially abolished the doctrine at the pleading stage, permitting inconsistent alternative theories through final judgment. Others retain the traditional rule that an unequivocal election bars inconsistent remedies even before judgment. Federal courts apply the doctrine with reference to the underlying state law in diversity cases.

Encyclopedia Cross-Reference

Election Administration, Voting Technology, and Post-Election Disputes (The Law Mind Administrative Law & Government Encyclopedia)
Defenses — Waiver and Election of Remedies (The Law Mind Contracts & Commercial Law Encyclopedia)
Remedies — Overview and Election of Remedies (The Law Mind Contracts & Commercial Law Encyclopedia)

ELECTIONmain

Black's Law Dictionary • 1891

The act of choosing or se- lecting one or more from a greater number of persons, things, courses, or rights. The choice of an alternative. The internal, free, and spontaneous sepa- ration of one thing from another, without compulsion, consisting in intention and will. Dyer, 281. The selection of one man from among sev- eral candidates to discharge certain duties in a state, corporation, or society. The choice which is open to a debtor who is bound in an alternative obligation to select either one of the alternatives. In equity. The obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is clear intention of the person from whom he derives one that he should not enjoy both. 2 Story, Eq. Jur. § 1075. The doctrine of election presupposes a plurality of gifts or rights, with an intention, express or im- plied, of the party who has a right to control one or both, that one should be a substitute for the other. 1 Swanst. 394, note b; 3 Wood. Lect. 491; 2 Rop. Leg. 480-578. In practice. The liberty of choosing (or the act of choosing) one out of several means

ELECTIONmain

Bouvier's Law Dictionary • 1928

Choice; selection. The selection of one person from a specified class to discharge certain duties in a state, cor- poration, or society. The word, in its ordinary signification, carries the Idea of a vote, and cannot be held the he synonym of any other mode of filling a position; 5 Nev. 111. See 28 Mich. 341; APPOINTMENT. Election has often been construed to mean the act of casting and receiving the ballots, the actual time of voting, not the date of the certificate of election; 54 Ala. 205. Both houses of congress, and parliamentary bodies in general, claim to be the sole judges of the elec- tion of their own members. This right seems to be derived from the declaration of rights, delivered by the commons to the king in 1604. Brown, Law Dict. In the United States this power is vested in congress and the state legislatures by the federal and state constitutions, and chancellor Kent considers that "there is no other body known to the constitution to which such power might safely be trusted. It is requisite to preserve a pure and genuine representa- tion, and to control the evils of irregular, corrupt, and tumultuous elections; and as each house acts in these cases in a judicial character, its decisions, like the decisions of any other court of justice, ought to be regulated by known principles of law, and strictly adhered to for the sake of uniformity and certainty:" 1 Com. 285. On the other hand, experience of the temptation to defeated members, which makes contests, in reliance (unfortunately too often well-founded) upon the irresponsibility of party majorities, leads Mr. Justice Miller to remark that: "This provision seems, from the experience of the past, to have been one of those principles adopted from the English house of commons which has not worked well with our institutions, and which the house of commons itself has been obliged to abandon. Contested elections are now, by the law of England, tried before the judiciary, and the judg- ment of the court is conclusive upon the subject. It is conceded on all hands that justice is in this way more nearly administered with accuracy than it was under the former system. Both in that country and in this, under the former method, the result of a contested election has been very generally forecast by a knowledge of the relations of the parties contesting to the political majority or mi- nority of the house in which the contest is carried on. As this is a constitutional provision, however, there exists no power in the legislature, without an amendment of that instrument, to refer these con- tested cases to the judiciary. The increasing number of contested election cases arising out of frauds supposed to be perpetrated at the elections them- selves, the investigation of which is always difficult, and the uncertainty of a fair and impartial deci- sion render it doubtful whether the entire provision on this subject is of any value." Miller, Const. 198. Much may be said in support of the views of each of these learned commentators, and there is a pos- sible middle ground practicable under existing constitutional conditions, which might be suggested. That would be to provide for a judicial determina tion of the contest in the first instance, reserving to the legislative body the final decision only on ex- ception or appeal under such limitations as would preserve and emphasize the judicial character of the proceeding. This would, on the one hand, pre- serve the absolute independence of the legislature as one of three co-ordinate branches of the govern- ment, a basic principle, it may be remarked, of American and not of English governmental policy, - and at the same time add to the difficulty and prob- ably lessen the frequency of partisan decisions, contrived in the comparative secrecy of committee rooms and consummated by the mere brute force of a majority. Distinguished from Transfer. Elec- tion is simply what its name imports; a choice shown by an overt act between two incon- sistent rights either of which may be asserted at the will of the chooser alone. Transfer is different from election and requires acts of a different sort on the part of the owner and corresponding acts on the part of the transferee. 205 U. S. 340. Election of Public Officers. The right to vote is not a natural one but is derived from constitutions and statutes. Each state determines for itself the quali- fications of its voters, and the United States adopts the state law upon thesubject as the rule in federal elections in accordance with Section 2, Article 1 of the Constitution of the United States, which provides that "the house of representatives shall be com- posed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifi- cations required for electors of the most numerous branch of the state legislature." The power of the state governments, however, to prescribe the qualifications of electors is limited by the Fifteenth

ELECTIONmain

Bouvier's Law Dictionary • 1928

candidates brought forward by the nomi- nating conventions; whether other persons of the same name resided in the district from which the officer was to be chosen; and if so, whether they were eligible or had been named for the office; if the ballot was printed imperfectly, how it came to be so printed, and the like, -is admissible for the purpose of showing that an imperfect ballot was intended for a particular candidate, un- less the name is so different that to thus ap- ply it would be to contradict the ballot it- self, or unless the ballot is so defective that it fails to show any intention whatever, in which case it is inadmissible." See on this point, 4 Wis. 430; 8 Cow. 102; 27 Ν. Υ. 64. The case in 1 Dougl. Mich. 65, which is con- tra, was overruled in 16 Mich. 283, and the rule above laid down by Judge Cooley ap proved and followed. Thus votes for "E. M. Braxton," "Elliot Braxton." and " Brax- ton" have been counted for Elliot M. Brax- ton in the 42d Congress. See McCrary, Elect. 296. Ballots cast for "D. M. Carpen- ter," "M. D. Carpenter," "M. I. Carpen- ter," and "Carpenter" were counted for Mathew H. Carpenter; 4 Wis. 430. Ballots for "Judge Ferguson" were counted for Fenner Ferguson; 1 Bartl. 267. Ballots cast for "E. Clark" and "Clark" were counted for E. E. Clark; those cast for "W. E. Rob- so," "Robertson," " Robers," and "Rob- in-" were counted for W. E. Robinson. Where the only candidates for an office were Caleb Gumm and Joel D. Hubbard. votes for "J. D. Huba," "J. D. Hubba," "J. D. Hub," and also one for "Huber," and one for "D. Huber," are properly counted for Hubbard; 97 Mo. 311. See opinion of judges of supreme court of Maine, printed in Maine Laws, 1880, App. p. 225. A ballot containing the names of two can- didates for the same office is bad as to both, but is not thereby vitiated as to other names of candidates on the same ballot; 4 Wis. 420; s. c. Bright. Elect. Cas. 258; 29 Neb. 341; where a ballot contains the names of three persons for the same office, and there is only one vacancy to be filled, it should be re- jected; 67 Hun 169. Where there are statutory provisions as to the marking of ballots, the paper on which they are printed, etc., a ballot not comply- ing with the law should not be received; the direction is mandatory; 3 S. & R. 29; 130 Ind. 561; but see 15 III. 492, where the law required white paper without any marks, and blue-tinted paper, ruled, was used, and the ballot declared legal; and where the law required the marking of the ballots with ink, if otherwise regular and marked with a pencil, they were ere counted; 34 Neb. 116. In 46 Cal. 398, the court held, in this connection, that as to those things over which the voter has control, provisions as to the appearance of ballots are manda- tory; and as to those things that are not under his control, such provisions are direc- tory. Ballots on which a printed name is erased and another name written in its place are valid; 22 N. Y. 309; 17 Oreg. 189; but see 44 La. Ann. 796. Where a law provides that the voter may insert in the blank space provided there- for any name not already on the ballot, it was held that such insertion might be made by the use of a "sticker" as well as by writ- ing the name of the candidate; 146 Pa. 529. The fact that some of the ballots cast at an election were marked, and thereby ren- dered void by the election law, does not invalidate the ballots that were regular; 69 Hun 596. Australian Ballot. This system, the leading features of which have now been adopted in many of the states, is the first important gift to civilization from the con- tinent of Australasia. It originated in South Australia soon after the beginning of the present century as the result of the efforts of Mr. Francis S. Dutton, and thence passed from state to state in Australasia, then to the mother country in Europe, afterward to Canada, and eastward to con- tinental countries, and finally westward again to the United States within the last few years. It has been said that a some- what similar system had been in vogue in England in Maryport for many years be- fore the modern system was introduced in Australasia. But the Australasian system seems to have been purely indigenous, and was developed without any copying or even knowledge of the system at Maryport. The cardinal features of the system, as everywhere adopted, are an arrangement for polling by which compulsory secrecy of voting is secured and an official ballot printed and distributed by government au- thority containing the names of all candi- dates. The details of the system include methods by which candidates may be nom- inated, prescribing the number of persons necessary to nominate a candidate, forms in which the various party nominations and information for the voters shall be printed on the ballots, arrangements for small closets or rooms into which the voter can retire and mark his ballot in secret, reg- ulations for allowing him to take into the closet with

ELECTIONn.

Websters Unabridged Dictionary (1913) • 1913

The act of choosing; choice; selection. The act of choosing a person to fill an office, or to membership in a society, as by ballot, uplifted hands, or viva voce; as, the election of a president or a mayor. Corruption in elections is the great enemy of freedom. J. Adams. Power of choosing; free will; liberty to choose or act. "By his own election led to ill." Daniel. Discriminating choice; discernment. [Obs.] To use men with much difference and election is good. Bacon. Divine choice; predestination of individuals as objects of mercy and salvation; -- one of the "five points" of Calvinism. There is a remnant according to the election of grace. Rom. xi. 5. The choice, made by a party, of two alternatives, by taking one of which, the chooser is excluded from the other. Those who are elected. [Obs.] The election hath obtained it. Rom. xi. 7. To contest an election. See under Contest.  -- To make one's election, to choose. He has made his election to walk, in the main, in the old paths. Fitzed. Hall.

electionnoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

A process of choosing a leader, members of parliament, councillors, or other representatives by popular vote. | The choice of a leader or representative by popular vote. | An option that is selected. | Any conscious choice. | In Calvinism, God's predestination of saints including all of the elect. | Those who are elected.

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