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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Tuesday, February 5
 
Super Tuesday & Possible Delegate Selection Disputes
This Super Tuesday is like no other, both in terms of the large number of delegates at stake but also because of the national attention that today's national primary is receiving. From here on in, the focus is likely to shift (as it should) from who "won" each state's popular vote to how many delegates each candidate picked up.

Like many others, I've been trying to understand the parties' complicated delegate selection rules, particularly on the Democratic side, and to anticipate legal issues that might emerge. Here's my attempt to pull together sources I've found on the delegate selection rules and to speculate about the possibilities for post-election legal disputes.

Today's Wall Street Journal has this report on the delegate selection rules of both major parties. While several Republican states have winner-take-all primaries, the Democratic Party allocates most of its delegates proportionally by district, as displayed in this graphic from the New York Times. The Green Papers site has both the Republican and Democratic delegate vote allocations for each state, along with this handy glossary of terms and definitions. You can find the Democrat's Delegation Selection Rules here.

Over at the Atlantic, Marc Ambinder has this post on how the Democrats' district-based allocation creates an incentive to focus on those congressional districts with an odd number of delegates. Those are the ones in which a candidate can net-gain a delegate by getting one more vote than his or her opponent. See also this post on Blue Oregon, which relies in part on stories from Time, the AP, and the SF Chronicle.

As I write this post, it's looking increasingly likely that there won't be a runaway winner in terms of delegates, at least on the Democratic side. This opens up the possibility of post-election disputes, mentioned in a post earlier today by my colleague Steve Huefner and this one from Rick Hasen on Slate.com.

We can divide potential disputes into two categories. The first type might be termed "home run" cases, in which a candidate challenges the party's rules for allocating delegates. We might imagine, for example, a "one person, one vote" challenge to a state Republican party's rules giving disproportionate weight to districts with small numbers of Republican voters. For reasons that Rick explains, it's unlikely that such a challenge would succeed in court, since these types of disputes are generally left to the parties to resolve internally. We might see floor fights, but probably not lawsuits.

The other type of dispute we might envision is a "small-ball" case of the sort that Steve envisions. Rather than challenging the party's rules, the dispute would be over the vote totals in a particular district. Such a district-level dispute is possible in districts where a few more votes would yield an additional delegate. For example, suppose that in a California congressional district with five delegates, Clinton has just a few more votes than Obama; each candidate would get two delegates, and there could be a fight over the third. Or in a district with four delegates, Obama has just over 62.5% of the vote (the dividing line for a 3-1 split instead of a 2-2 split). These would still seem to be cases in which a candidate might ask for a recount, and perhaps even litigate the issue if it's close enough.

Will be see district-level lawsuits over delegates? At this point, I doubt it since I don't think the benefits of such litigation are likely to outweigh the costs. But in a race this close, it can't be ruled out.
Friday, February 1
 
Electoral College Symposium
The Michigan Law Review has published this online symposium on "Recent Proposals for Electoral College Reform." It includes my contribution, entitled "An Unsafe Harbor: Recounts, Contests and the Electoral College," which addresses the interaction between federal laws structuring the Electoral College process and state laws regarding post-proceedings. From the introduction:
Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. 5, the so-called "safe harbor" provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn't provide states enough time to complete recount and contest proceedings in the event of a close, contested election....

This Commentary addresses the tension between the federally prescribed Electoral College dates and state procedures for resolving close elections. I first discuss the federal timetable for selecting electors and counting their votes. I then move to a discussion of the difficulties in fitting state post-election proceedings into the federal timetable. Finally, I propose changes to federal law designed to give states more time to resolve post-election disputes.
The symposium also includes commentaries from Thomas Hiltachk, Sam Hirsch, John Mark Hansen, Ethan Leib & Eli Mark, Alexander Belenky, and Daniel Rathburn. All are mercifully concise and well worth reading. A PDF of the entire symposium is available here.

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Moritz College of Law The Ohio State University