Readings Relevant to Recounts & Other “Extra Innings” Issues


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on October 20, 2012, 1:00 pm

Election Law @ Moritz has started to pull together in one place materials that might be useful for anyone interested in the topic of elections going into overtime.

Steve Huefner has already written an explanation of the American Law Institute project that he and I are working on, including the draft versions of the 5-week and 9-week calendars we are developing for the resolution of disputed elections. (Here’s a more recent, simplified description of the 5-week calendar.)

I’ve written a chapter of the newly published LAW AND ELECTION POLITICS: THE RULES OF THE GAME (edited by Matthew Streb). The chapter is an introduction to the topic of recounts and other issues concerning elections in overtime. Therefore, I hope it is useful to anyone who wants an accessible overview.

In October 2011, I gave a presentation to a “federal bench and bar” conference on the possibility that a vote-counting dispute over ballots cast in Ohio might cause problems for this year’s presidential election. Recently, I gave an updated version of the presentation. For whatever it’s worth, a year ago, I guessed that the chances that this year’s presidential election might become mired in a vote-counting dispute over Ohio’s ballots were only about 1 in 10,000. Now, however, based in part on probabilities indicated by Nate Silver on his FiveThirtyEight blog, I believe that the risk of this scenario has risen to perhaps as a high as in 1 in 100—still low, but definitely higher. This presentation offers suggestions on ways that the federal judiciary might manage any litigation that arises over Ohio’s ballots so that the state remains able to meet the congressional Safe-Harbor Deadline (Tuesday, December 11—exactly five weeks after Election Day, November 6) for resolving all such disputes.

Finally, for those who want to dig much deeper into this topic, I have written a trilogy of pieces for the ELECTION LAW JOURNAL on Minnesota’s disputed U.S. Senate election in 2008, between Democratic challenger, Al Franken (who eventually won), and Republican incumbent, Norm Coleman:

The Lake Wobegone Recount

How Fair Can Be Faster

A Tale of Two Teams

The purpose of this trilogy, in addition to telling the inherently interesting story of how this disputed election was resolved, is to assess what lessons it teaches for the disputed elections, presidential or otherwise, that inevitably will occur sometime in the future.

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Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

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