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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

Recount Procedures in Colorado

The Denver Post is reporting that  the Colorado Senate race between incumbent Democrat Michael Bennet and his Republican challenger, Ken Buck, is now decided in Bennet's favor, although with a fairly narrow margin. If the vote tallying trend for Bennet reverses, the race could head for a recount. But the recount might not happen for a few weeks because Colorado election law allows time for both the canvassing boards and the Secretary of State to tally the results.


November 19th: Date by which canvassing boards must certify results of the election to Secretary of State. Colo. Rev. State. § 1-10-101.5.

November 26th: Date by which Secretary of State must compile and total the returns and order a recount if necessary. Colo. Rev. Stat. § 1-10-103.

Recounts can occur in two ways in Colorado. The first is an automatic recount that is triggered when the margin of votes between the winning candidate and the next highest candidate is less than 0.5% of the votes cast for the winning candidate. Colo. Rev. State. § 1-10.5-101. Currently, this statute would not be triggered because the vote margin is only 0.9% of the total votes received by Bennet. However, Buck would only need to pick up about 53% of the 100,000 votes outstanding to trigger an automatic recount. This seems likely given the number of military votes yet to be counted.

The second is when a losing candidate or other interested party requests a recount. Colo. Stat. 1-10.5-106. When recounts take this form, the requesting party bears the expense of the recount. This money is placed in escrow and will be returned if the recount reverses the result of the election. Requests for a recount must be made before the November 26th deadline.

At any time during the recount process, a party to the recount may challenge the recount if the party believes that it is being conducted unfairly. Recounts can be challenged on a county-by-county basis at which time the Secretary of State will then conduct the recount. Colo. Rev. Stat. § 1-10.5-109.

The Secretary of State recently issued amended rules on recounts that spell out in detail the actual procedures to be used by the canvassing boards. Those rules can be found here.

Another wrinkle to consider is that the Secretary of State in Colorado, Bernie Buescher, a Democrat, will likely be defeated by his Republican challenger, Scott Gessler, as Buescher currently trails by over 100,000 votes. How a new chief elections official might handle a contentious recount is interesting.

If partisanship does become an issue, it is important to note that five of the seven Colorado Supreme Court Justices were appointed by Democrats.


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Daniel P. Tokaji

Tokaji Testimony for Senate DISCLOSE Hearing

Professor Tokaji has submitted the following writing testimony for today's hearing before the U.S. Senate Rules and Administration Committee on the proposed DISCLOSE Act.


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