Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Recounts, Contests and the Electoral College
There's been continuing attention devoted to the Ohio recount and contest efforts in recent days. The latest developments include the Kerry campaign's reported intent formally to join the recount litigation, and Rev. Jesse Jackson Sr.'s attempt to call attention to alleged irregularities. But the most significant issue, which few people seem to have noticed, is the structural flaw in Ohio's recount and contest laws -- which in a close election could degenerate into a genuine constitutional crisis.
Kerry Campaign Joining Recount Litigation
The Washington Post reports here that the Kerry campaign will be joining the Green and Libertarian party efforts to force Delaware County, just north of the Columbus area, to participate in the recount. Delaware County's prosecuting attorney had brought suit to avoid having to go through the recount and, on November 23, a state court judge issued this temporary restraining order preventing the candidates from requiring Delaware County to perform a recount. That case has now been removed to federal court -- in other words, the defendants have had the case moved to federal court. And the state judge's TRO expired, by its terms, at 12 noon today, the day that counties are supposed to have completed their official canvass of the votes.
I tend to believe that a recount is not likely to do much good. It won't address the very serious problems that materialized in Ohio's election, such as confusion over provisional voting, long lines at the polls, partisan election administration, and the continuing use of unreliable punch card voting machines that disproportionately harm minority voters. A recount won't change any of these things. And a recount certainly won't change the outcome of the election, as I've explained here.
Still, I don't see any reasonable basis for a court order preventing the Green and Libertarian candidates from seeking a recount in Delaware County or anywhere else in the state. Ohio's recount statute, described here, allows candidates to demand a recount, even if the election results aren't close. If Ohio wants to amend its statute, to limit recounts to cases in which the vote is close, fine, but as long as the current statute is in effect candidates are entitled to a recount -- assuming they're willing to put up the required ten bucks per precinct -- regardless of whether it will accomplish anything.
Protest and Contest
Meanwhile, civil rights advocates are descending upon Ohio, contending that the election results were fraudulent. The A.P. reports here on the efforts of activists such as Rev. Jesse Jackson, who's held rallies in the state in recent days. Democracy Now has this interview with Rev. Jackson, in which he calls for a federal investigation.
The A.P. also reports that activists are still planning a contest of the election results, although it's still not clear when the contest petition will be filed. See here for my earlier description of plans for a contest, which is heard in the first instance by the Chief Justice of the Ohio Supreme Court.
The Big Problem That Almost No One's Noticed
What few people seem to have noticed is the structural problem with Ohio's recount and contest laws. In brief, Ohio's statute doesn't allow for an election recount and contest to be completed in time for the state to meet the "safe harbor" deadline (December 7 this year) or even by the time the Electoral College meets (December 13 this year). I discussed the problem in this post a few days ago, and my colleague Peter Shane yesterday posted this more extensive analysis on the EL@M site. As he explains:
For a suggestion that federal law might be amended -- to move back the dates of the safe harbor, meeting of the electors in the states, and counting of electoral votes in Congress -- see this post by my colleague Steve Huefner.
Federal law requires states to appoint electors on the first Tuesday after the first Monday in November in every fourth year, 3 U.S.C. 1. The electors, in turn, are to meet and give their votes on the first Monday after the second Wednesday in December, 3 U.S.C. 7, which is to say, 41 days later. Yet, nothing in Ohio law purports to assure that Ohio's electors will be certified, and that any dispute regarding their certification will be resolved, within 41 days of the November balloting.
Moreover, Ohio law lacks clear guidance on how state officials should proceed if the recounts or election contests guaranteed under state law should determine, more than 41 days following a presidential election, that the slate of presidential electors entitled to cast ballots for Ohio is not the slate of electors originally certified winners by the Ohio Secretary of State.
As it happens, virtually no one regards the outcome of Ohio's 2004 presidential balloting to be seriously in doubt. Yet, the recount already demanded, and the prospects for additional contests, highlight the confusions engendered by Ohio's failure to prescribe a process that coordinates well with federal election law. Given that close presidential balloting may well be an ongoing feature of Ohio political life for many years, this is a problem that ought to be addressed.
Much of the criticism of the administration of Ohio's 2004 election has been directed toward Secretary of State Ken Blackwell. I've joined in some of this criticism, particularly as to his handling of provisional ballot and registration matters. But the structural problems in the state's election system go well beyond him, and at least some of the responsibility lies with the state legislature. That's particularly true when it comes to the replacement of punch card voting machines, setting standards for the counting of provisional ballots, limiting challenges to voter eligibility, and reforming the contest and recount process. All of these things represent failures on the part of the state legislature, in my view, and need to be addressed by the state legislature.
While my focus in this post has been on Ohio, other states face similar issues. The understandable desire to criticize partisanship in the administration of elections shouldn't blind us to the need to reexamine and revise state election laws -- and perhaps even the federal statute governing the Electoral College.