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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Meshing State and Federal Presidential Election Law: The Need for Reform

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November 30, 2004

As every Ohio school child should know by now, Ohio, on November 2, 2004, held an election for 20 individuals to cast electoral ballots on Ohio's behalf in the December, 2004 selection of a President and Vice-President of the United States.

Because elections can be close, and because close elections invite contests and recounts, Ohio adults might well expect that Ohio law anticipates this possibility, and prescribes an orderly process to mesh the state law of election dispute resolution with the federal process for casting and counting "electoral college" ballots.

It does not.

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.

To clarify the full extent of the confusion – and to document the many difficulties that are distressingly plausible – this essay will trace a scenario in which an Ohio recount proceeds, and changes the outcome of a presidential ballot. I do not mean to suggest that such an event is even remotely likely in 2004, but only to use this year's events to highlight issues that may prove even more troublesome in yet closer elections.

Recounts and Contests Under Ohio Law

Following a presidential election, county boards of elections are to canvass the returns, a process that starts between the eleventh and fifteenth days after the election, R.C. § 3505.32. That means the canvass cannot even begin officially until roughly a quarter of the time has elapsed between the popular vote and the electoral balloting.

The canvass is to end by a deadline specified by the Secretary of State. Although reports indicate that Secretary of State Kenneth Blackwell has set a deadline for this year's presidential race of December 1, 2004 – 29 days after the election – no state law explicitly instructs the Secretary as to what deadline is reasonable.

The clearest indication of any outer limit to the Secretary's discretion appears in R.C. § 3505.39. That section requires the Secretary to inform the victorious electors "immediately upon the completion of the canvass of election returns" of the time and place for the December meeting to cast their ballots for President and Vice President, and to mail the victorious electors a reminder letter "ten days prior to such meeting." It would appear that the Secretary could meet this obligation, so long as he sets a deadline for the county boards at least 11 days prior to the December meeting of the electoral college -- in other words, 30 days after the presidential popular vote. (Secretary's Blackwell's currently anticipated plan to certify the Electoral College winners on December 6, 2004, actually misses this deadline, but neither state or federal law attaches any specific legal consequence to this fact.)

The problem with this scheme, however, is that it takes no account of the prospect of close or otherwise disputable elections. Under Ohio law, a recount is automatically triggered if the margin of victory in a presidential (or any other statewide) election is less than one quarter of one percent of all votes cast. R.C. § 3515.011.

Even when there is a greater margin of victory, a presidential election falls within Ohio's very generous rules with regard to the availability of recounts. Specifically, any unsuccessful candidate in any election for public office may ask any county's board of elections "for a recount of the votes cast at such election in any precinct in such country for all candidates for election to such office or position." R.C. § 3501.01. Because the vote for presidential electors is a statewide vote, the application must be filed "within five days after the day upon which the secretary of state declares the results of such election." R.C. § 3515.02.

This year, when the Secretary of State apparently plans to declare the election results on December 6, or 34 days after the popular vote, an unsuccessful candidate is entitled to initiate a recount process through an application as late as 39 days after the election, or 2 days prior to the meeting of the electoral college.

The prospects regarding election contests are even worse. Under Ohio law, any group of at least "twenty-five voters who voted at the last election for or against a candidate for the office or for or against the issue being contested, or . . . the defeated candidate for said nomination or election" may contest the election result. Such a contest must be initiated "within fifteen days after the results of any such nomination or election have been ascertained and announced." R.C. § 3515.09.

If Secretary Blackwell sticks to his December 6 announcement date, the deadline for contest filings will be December 21, eight days after the vote of the electoral college.

In short, unless Ohio courts read Ohio law as barring recounts and contests that conclude after the casting of ballots by the certified electors on December 13, Ohio law virtually guarantees the prospect of a recount or contest concluding after the electoral college has met.

Missing the Federal "Safe Harbor"

The inattention to the electoral college calendar manifest in Ohio's laws on election recounts and contests means that Ohio, in any seriously disputed election, may find itself unable to take advantage of what has come to be known as the "safe harbor" provision in the federal law regarding the casting of electoral ballots. To appreciate the importance of the "safe harbor," it is helpful to revisit, from start to finish, the federal rules on presidential elections and electoral ballots.

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, but further provides: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct," 3 U.S.C. § 2.

The electors, in turn, have but one duty; they are to "meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct." 3 U.S.C. § 7. In 2004, that date is December 13.

Congress then convenes on the following January 6 to open the electors' votes and determine who shall be President and Vice President of the United States. 3 U.S.C. § 15.

Federal law contemplates that the November balloting in any state may well provoke a dispute as to the electors actually chosen. States have what has come to be called a "safe harbor" option for making sure that such disputes do not raise uncertainties as to the state's ballots when the electoral votes are counted on January 6. The "safe harbor" applies under the following conditions:

  • The state must "have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures"; and
  • "Such determination shall have been made at least six days before the time fixed for the meeting of the electors."

3 U.S.C. § 5. Under these conditions the "final determination . . . shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned." Id. In other words, states can be assured that their own processes of election dispute resolution will produce incontestable results in the electoral college if those processes of dispute resolution reach a determination no later than 35 days after the presidential popular vote.

Ohio law does not expressly provide for any special "process for the final determination of any controversy or contest concerning the appointment of all or any of the [presidential] electors" for Ohio. It does, however, have the process described above for reaching final determinations of election controversies and contests, in general. This process was enacted prior to Election Day, 2004. So, Ohio has presumably met the first of the federal safe harbor conditions.

The second condition, however, appears impossible to meet. Presidential electors are due to cast ballots on Monday, December 13, 2004. The "safe harbor" would apply only if a "final determination" of Ohio's election controversy were to occur by six days earlier, or Tuesday, December 7, 2004. Given that Secretary of State Blackwell has announced his attention to certify the winners of the Presidential election on December 6, 2004, it is plain that, if he maintains that schedule, Ohio's process for reaching a "final determination" of the electoral contest cannot yield an answer by December 7.

It would be surprising, moreover, if Ohio ever achieved the "safe harbor" in any truly close race. Because (a) Boards of Elections can canvass the presidential popular vote no earlier than 11 says after that vote, and (b) the "safe harbor" expires unless an election dispute reaches its final determination within 35 days, there are only 24 days under Ohio law for a slate of electors to be certified and for all recounts and contests to be initiated and resolved. This is not much time to deal effectively with any election in which well over 5 million voters are likely to cast ballots.

Recounts Concluding Prior to December 13

Assuming that Ohio's election recounts will not conclude prior to the "safe harbor" date, what would happen under state and federal law should a recount in Ohio determine before the meeting of the electoral college that a slate of electors won the presidential popular vote that is different from the slate of electors initially determined the victors by the Secretary of State?

Under Ohio law: "If the . . . election . . . concerning which a recount was made was submitted to electors throughout the entire state, the secretary of state shall canvass all amended abstracts received from the board of each county in the state in which a recount was made, and shall make an amended declaration of the results of such election throughout the entire state in the same manner required in the making of his original declaration of the result of such election." R.C. § 3515.05. The provision governing the original declaration of the result of a presidential election is R.C. § 3505.39, which requires the Secretary of State to "immediately upon the completion of the canvass of election returns mail to each presidential elector so elected a certificate of his election," as well as information regarding the meeting of the electors in December. In other words, if the recount determines a different slate of winners, then the Secretary of State must notify the new winners "immediately" of both their election and their duties.

Should this occur, there would presumably be no ambiguity about the interface of state and federal law, at least with regard to the casting of electoral ballots on December 13. Unless somehow stayed by judicial action, the victors certified pursuant to the recount would vote on the date specified by federal law, and, assuming they duly forward their ballots to Congress, their votes would be the ones counted on January 6. Of course, given the litigiousness of candidates and their supporters, it is always possible that legal action will continue past December 13 in the hope of overturning the recount result and restoring the original certification of electors.

Recounts Concluding Subsequent to December 13

Much less certainty – to put it mildly – surrounds the prospects for a state election dispute resolution process producing a different victor after there has been a vote of electors on December 13. This could happen either because a recount started before December 13 produces a different victor subsequently, or because a recount concluded prior to December 13 is itself subject to a legal contest that, after December 13, changes or overturns its result. To perceive the full range of potentially litigable issues, it is necessary to delve yet further into the details of federal law governing the electoral college process.

The Federal Law of Electoral Ballot Counting

Federal law obliges "the executive of each State" to communicate to the Archivist of the United States the identities of the electors appointed and the number of votes cast for all candidates for appointment. 3 U.S.C. § 6. This duty is to be performed "as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment." Id. (Emphasis added.) Although this sentence refers to "final ascertainment," it appears, in context, that the word "final" is misleading. The sentence most likely refers to the initial official ascertainment of the electors following the canvass of presidential ballots within the state. In other words, once the Secretary of State declares a slate of electors victorious, the state executive is obliged to forward their names to the Archivist of the United States.

The reason the word "final" is misleading is that the executive is required by a later sentence in 3 U.S.C. § 6 to "communicate under the seal of the State to the Archivist of the United States a certificate" of "any final determination in [the] State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State." This latter duty is to be performed "as soon as practicable after such determination."

This "final determination" is obviously different from the "final ascertainment." The juxtaposition of these two sentences necessarily implies that the "final ascertainment" to which the first sentence refers is an event different from, and earlier than, the "final determination" to which the second sentence refers. The reason why these provisions are critically significant will become clear momentarily.

When the electors meet to cast their ballots, each elector prepares six copies of his or her vote. 3 U.S.C. § 9. The six copies are then dispersed as follows: The electors mail one copy to the President of the Senate of the United States. The electors provide two copies to the Secretary of State. On the following day, the electors send two copies to the Archivist of the United States. The electors mail their sixth copies to the federal judge of the district in which the electors shall have assembled." 3 U.S.C. § 11. Each certificate showing the identities of the electors and the candidates for whom they voted is a "return" of the state. 3 U.S.C. § 15.

All of this is important because of the federal law regarding the counting of electoral ballots on January 6, codified at 3 U.S.C. § 15. After the state returns are opened and read, 3 U.S.C. § 15 provides: "[T]he President of the Senate shall call for objections, if any." Objections must be in writing, and signed by at least one Senator and one Representative. Objections are to be ruled upon separately by the House and Senate.

How Congress then proceeds depends upon whether Congress has received one or more than one return of electoral ballots from a state. The statute provides that no electoral votes may be rejected from any State that "shall have been regularly given by electors whose appointment has been lawfully certified to according to [3 U.S.C. § 6] . . . from which but one return has been received." (Presumably, this sentence is to be read as if the word "and" appears before the word "from.")

That would mean, unless there is more than one set of electoral returns from a state, the votes of those electors that are returned will count if (a) their identities have been duly certified to the Archivist and (b) both Houses of Congress agree that the certified electors cast their votes "regularly." Unfortunately, the statute does not define "regularly," and – at least for a state that misses the safe harbor deadline – a hypothetical possibility exists that electoral ballots cast by recount winners could be ignored by Congress on the ground that such ballots were not "regularly" cast.

If there is more than one "return" received, then the rules are more complex. If there has been a final determination as to a state's electors prior to the safe harbor deadline, then their ballots are to be counted. If more than one set of returns is protected by the safe harbor deadline – it is mysterious how this might happen – then the electoral ballots counted shall be those that are cast by persons "whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law."

If there is no final state determination of electors prior to the safe harbor deadline, then Congress must make two determinations. First, the Houses may determine, if they concur, which ballots "were cast by lawful electors appointed in accordance with the laws of the State." Those are the ballots that are to count, unless the House also concurrently determine that the ballots they have are not "the lawful votes" of those "legally appointed electors." In other words, the Houses must judge the lawfulness of both the electors and their ballots.

If there is no state determination protected by the safe harbor, and if the Houses cannot agree on which ballots count, then "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

Applying Federal Law to a Post-December 13 Recount

Given this federal law of electoral ballot counting, the following can be said with certainty regarding an Ohio recount that produces a different winner after a slate of electors has already met on December 13 and cast their presidential ballots:

  1. The recount will be of no significance unless the newly certified electors meet on a subsequent date after the recount and prior to January 6 and complete their own return to the Archivist of the United States.
  2. If the Archivist receives two returns from Ohio, then the House and Senate, if they concur, will get to determine which slate of electors counts in the final balloting.
  3. If the Houses do not concur, then which ballots prevail will depend upon which electors the state executive has certified to the Archivist of the United States.

Presumably – which means we are now leaving the world of certainty – if the executive does certify a new slate of electors to the Archivist, that later certification will either cancel, or act as a withdrawal of, the certification granted to the original slate of electors.

Each of the foregoing propositions, however, imagines a world of state government in which state officials cooperatively conduct any legally mandated recount and diligently take all possible steps to insure that the results of the recount are respected in the electoral balloting on January 6. One could imagine that the state executive might decide after December 13 either (a) to resist the completion of any extant recount on the ground that it was moot, or (b) to resist certifying to the Archivist that a new slate of electors has been appointed to cast ballots on behalf of Ohio, also on the ground that the certification duty expires with the meeting of the electoral college.

In either case, it is easy enough to imagine litigation seeking to force the state's hand. What is not clear is the outcome.

If the executive determines that December 13 ends the prospects for any legally effective recount, they might argue it is pointless to reconsider the election of officials who have already discharged their only legally authorized responsibility. The response might well be, of course, that Ohio law does not so limit the availability of a recount, and that, given the elaborate scenario offered above, it is not clear a recount would be moot.

This would presumably be litigated as a matter of Ohio law, although it is also possible to articulate an argument that a failure to complete a recount promised by state law is also a denial of due process (to candidates, voters, or both) under the Fourteenth Amendment.

If the executive refuses to certify a new slate of electors to the Archivist, then federal litigation is possible to enforce 3 U.S.C. § 6. It might also be argued that the failure to certify is a denial of voters' rights under the Fourteenth Amendment. The executive might respond that the duty to certify under 3 U.S.C. § 6 expires once a slate of electors has cast Ohio's ballots, and that constitutional rights are not implicated. Because there is no law directly on point, predictions, again, are hazardous.

It bears remembering, however, if the state executive does not certify a new slate of electors by January 6, then the votes of the old slate must be counted under 3 U.S.C. § 15, unless both Houses of Congress concur in counting the new ballots.

There is, of course, one other route that might be tempting – a lawsuit to mandate that Congress count only the new ballots. Given the Supreme Court's willingness to enter the terrain of presidential selection in 2000, one hesitates ever to say again that any lawsuit in this area is utterly implausible. Still, this one seems so. For the Supreme Court to purport to instruct Congress in how to count electoral college ballots would represent a significant adventure in separation of powers law, going beyond even Bush v. Gore.

Endless Scenarios?

Does this mean there would be no recourse (a) should a recount after December 13 determine a different winner from the original certification, and (b) Congress decide to count the original, not the subsequent electoral ballots?

There always seems to be a possible scenario to defeat the hope for absolute finality. Should a President of the United States ever determine he was elected illegitimately, he could ask his Vice President to resign, and with Congress's consent, appoint his opponent to be his Vice President. Then, the President could resign.

We can hope, of course, that the United States need never come to such a pass. But Ohio helps to make the unthinkable thinkable by failing, in its election law, to account fully for the need to integrate state law with federal. Unless the era of close presidential elections is over – and surely, no one thinks that – the need for attending to these issues is imperative.