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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

November, 2010

Below are postings from November, 2010. (See Archives | Recent Headlines)

Looking Backward: Instant Runoff Voting in the 2010 Midterm Elections

Nov. 30 - In some states, the recent midterm elections are far from over. However, in those races where the winners have been determined, these election results are a veritable goldmine of data. Continuing my interest in exploring alternative voting systems, looking at this data through the lens of Instant Runoff Voting (IRV) illuminates three conclusions: (1) how IRV would affect elections if broadly implemented; (2) that there are differences in voting efficiency between IRV and plurality voting; and (3) putting economics and broad application together, it is possible to answer the ultimate question of IRV: “is it better than plurality voting?”

Developments in Alaska and a new judicial election case in Ohio

Nov. 24 - In Alaska, Joe Miller has filed a complaint in state court claiming violations of Alaska law and the US Constitution in conjunction with the counting of write in votes for Murkowski. This follows the recent certification decision of the federal district court putting certification of the US Senate election on hold.


As for Ohio, a local judicial election was decided by 23 votes and there are questions about provisional ballots due to voters casting their votes in the wrong precinct possibly due to poll worker error. The Southern District of Ohio has partially granted a preliminary injunction, and a notice of appeal has been filed with the Sixth Circuit. For more information on these cases, see Miller v. Secretary of State Craig Campbell and Hunter v. Hamilton County Board of Elections on our Major Pending Cases page.

Abstention in Alaska

Nov. 20 - The federal court in Alaska has put certification of the U.S. Senate election on hold until state courts address whether Miller has a valid basis for contesting Murkowski's apparent victory.  The case could go back to federal court if its disposition in state court raises tenable constitutional questions, but as a practical matter there seems little likelihood that either a state or federal court would end up nullfying the outcome of this election given the number of ballots for Murkowski that Miller is not challenging.  More information on Miller v. Lieutenant Governor Craig Campbell is available on our Major Pending Cases page for this case.

The 2010 Statewide Ballot Issues

Nov. 16 - The November election had 160 statewide ballot measures before voters. There were numerous local measures on ballots as well, of course. The results are not all in (nine are too close to call), but there is much to say about those results that are final.

Miller files federal case over counting write-in ballots in Alaska

Nov. 10 - Late yesterday, candidate for Senate Joe Miller filed a complaint in federal court asking the court to permanently enjoin election officials from counting any write-in ballot on which the spelling of the candidate’s name varies in any way from the name as written on the candidate’s write-in declaration of candidacy. Miller argues that the Director of the Division of Elections is violating the federal Elections Clause and Equal Protection Clause, as well as some state laws, by permitting officials to use discretion when determining whether a write-in ballot should count. Miller claims that Alaska statutes mandates that any written-in names not deviate from the declaration of candidacy, and any ballots that do so are “statutorily invalid.”

At issue are 92,528 write-in ballots, which constitute over 40% of the total votes cast for the Senate race. According to the Alaska Division of Elections, Miller currently has 35% of the vote. Incumbent Senator Lisa Murkowski ran as a write-in candidate after losing the Republican primary to Joe Miller, and the current battle focuses on the spelling of her name on write-in ballots.

Citing Bush v. Gore, Miller’s Equal Protection argument states that, while intent of the voter is a starting point, there must be “specific standards” and “uniform rules” to guide officials when determining voter intent. His claim is that Alaska statutes already provide that specificity, and the Director’s new guidance contradicts those standards.

Washington Supreme Court race still up in the air

Nov. 10 - After leading in vote counting for the past week, incumbent Washington Supreme Court Justice Richard Sanders now trails challenger Charlie Wiggins by 3,601 votes. With approximately 175,000 more votes to be counted in the next few days, the outcome of this race remains uncertain. Sanders is seeking his fourth term after a contentious campaign that saw him take the lead on election night, dwindling down to approximately 4,000 votes as of Monday. With more ballots counted today, Sanders now trails Wiggins.

In Washington, the recount process is fairly simple. If the margin is less than 2,000 votes and the candidates are within one half of one percent of the votes cast for both candidates, then state law mandates an automatic recount. RCS 29A.64.021. A candidate can also request a recount within 3 business days of certification of the results. RCW 29A.64.011. The candidate must pay twenty-five cents per every ballot requested to be recounted in the jurisdiction if by hand, or fifteen cents if by machine. RCW 29A.64.030. More information can be found here and here.

CT Gov race over: Republican candidate concedes

Nov. 8 - At press conference, Republican candidate announced that there is insufficient basis for challenging the outcome.

The Election of 1960 Fifty Years Later

Nov. 8 - November 8, 2010 marks the fiftieth anniversary of the presidential election of 1960, which still very much interests those who care about disputed elections and how best to resolve them. The clearest sign of that continuing interest is the steady stream of new scholarly books on that subject.

CT gov race: Bridgeport votes in, Dem appears ahead

Nov. 5 - Bridgeport numbers, announced early this am, show the Democratic gubernatorial candidate leading by about 5000, above Connecticut's 2000 threshold for a recount.  But this topsy-turvy race won't be over until there is a final certification and/or concession, neither of which has occurred yet. 

Alaska Recount Process

Nov. 5 -  

With 78% of the precincts reporting, Republican Joe Miller leads Democrat Scott McAdams 34% to 24%. But over 41% of the ballots were cast for write-in candidates. The obvious beneficiary of these write-in ballots is Republican incumbent Lisa Murkowski, who lost the Republican primary to Miller. But the official winner will not be declared until it is determined which write-in ballots actually are for Murkowski. This is a process that could take several days.

Election officials in Alaska only begin counting write-in ballots if they exceed, in the aggregate, the number of votes received by the highest candidate on the ballot or if this difference is less than the amount necessary for a recount. Alaska Admin. Code tit. 6 § 25.085. Currently, 83,201 votes were cast for write-in candidates and 69,762 votes were cast for Miller. Although there were 161 names registered as write-in candidates, Lisa Murkowski is expected win the bulk of these write-in ballots.

The next move for Miller’s camp may be to challenge write-in ballots counted for Murkowski on the basis of incorrect spelling. Minor misspellings are likely to be counted by the state but significant misspellings could lead to disqualification. Both sides preparing for a legal battle over the counting of the write-in ballots and Miller’s campaign recently stated that “Previous write-in campaigns in Alaska have demonstrated that as much as 5 to 6 percent of returned ballots have not met the standard to be counted as a valid vote.”

If that is the case, then the margin of votes in Alaska might be enough to trigger a recount. Miller’s campaign will bear the cost of the recount if the margin between Miller and Murkowski is greater than 0.5% of their total combined votes. The state will bear the cost if the difference is equal to, or less than, 0.5%. Alaska Stat. § 15.20.450.

Any recount must be completed within 10 days. Alaska Stat. § 15.20.480. If a candidate wishes to challenge the result of the recount the candidate must appeal to the Alaska Supreme Court within 5 days of the recount certification. Alaska Stat. § 15.20.510.

CT Gov Race Remains Yellow Alert; Others OK

Nov. 4 - Both candidates in CT gov race still claiming victory; SoS to re-announce results at noon, but a recount and/or litigation may follow.  Meanwhile, Alaska is still blue until write-in ballots are reviewed.  All remaining undedided major statewide races -- Wash Sen, Illinois Gov, Minn Gov -- remain green based on current info.

Few Rejected Absentee Ballots in MN

Nov. 4 - AP reports that only about 3000 absentee ballots were rejected statewide in Minnesota this year, according to state officials, far fewer than the over 12,000 rejected absentee ballots that deviled the state's U.S. Senate election in 2008.  This reduction in rejected ballots is likely the successful result of changes in absentee voting procedures that Minnesota made in the interim.

Connecticut Remains in Confusion

Nov. 4 - Rather than re-announcing a result in the CT gov election, as she initially intended, SoS Susan Bysiewicz has now said that there will be no further announcement until she receives the results from Bridgeport, where Tuesday's troubles occurred.  Consequently, the race remains in limbo.

Washington State Recount Procedures

Nov. 4 - The Washington state Senate race between incumbent Democrat Patty Murray and Republican Dino Rossi continues to be tight, although Murray's lead has been increasing. As of today, Murray is leading Rossi by 27,464 votes with 71% of precincts reporting. According to the Secretary of State's website, almost 600,000 votes have yet to be counted, with King County, a democratic stronghold, having a couple hundred thousand votes uncounted.

Under Washington law, an automatic recount can be triggered when the margin of victory is under 2,000 votes and also less than one-half of one percent of the total number of votes cast for both candidates. RCW 29A.64.021. Looking at the current numbers, it is unlikely that an automatic recount will be triggered. However, if there is no automatic recount, a candidate can request a recount within 3 business days after certification of the results. RCW 29A.64.021.

Minnesota Recount Procedure

Nov. 4 - We have already reported that Minnesota’s gubernatorial election should be considered green based on our current information, which includes our recent report that only 3,000 absentee ballots were rejected this year, far different from the 12,000 ballots rejected in the 2008 Senate race. The gubernatorial race is still very close, with vote counts indicating that Tom Emmer has 43.21% (910,437 ) of the vote and Mark Dayton with 43.63% (919,212) votes. In fact, some reports indicate that after the votes are reviewed by the state canvassing board on the 23rd of November, there is the possibility the candidates could request a recount or contest the election.

Minnesota has broad recount and contest statutes. The first step, an automatic recount by state officials, is triggered when the margin of victory is less than .5% of the total votes cast for the office. MSA § 204C.35. However, if an automatic recount is not triggered, then a candidate for any statewide office, like Governor, may request a recount. MSA § 204C.35. This type of recount would have to be petitioned within seven days after the canvass is completed and is paid for by the candidate. Id. The final step, contesting the election, is authorized by statute. MSA § 209.02. If there is an ongoing recount, then a contest petition does not have to filed until the recount results are certified; but if there is no recount ongoing then the petition must be filed within ten days of certification. MSA § 204C.35, 204C.36.



And then there were three ...

Nov. 4 - As of now, there are three remaining undecided statewide races: CT gov (yellow); AK Senate (blue); MN gov (green).

Races Still Too Close to Call

Nov. 3 - A handful of races across the country have yet to be decided and some could be headed toward recounts. Gubernatorial races in Connecticut, Florida, Illinois, Maine, Minnesota, Oregon, and Vermont, as well as U.S. Senate races in Alaska, Colorado, and Washington remain close. Also, three states – Florida, Washington, and Minnesota -- that underwent recounts in the 2000s have chances to show lessons learned this year.  UPDATE: The gubernatorial races in Florida, Maine, and Vermont are now settled, and news organizations are declaring a winner in Colorado.

An Overview of Illinois Recount Procedure and Some Considerations for a Hypothetical Recount

Nov. 3 - After over 3.5 million votes cast in the Illinois gubernatorial race, approximately 8,000 votes separate the incumbent Pat Quinn from challenger Bill Brady. That difference represents a mere 0.2% of votes cast in the race with 93% of the precincts reporting. Regardless of who wins the election, this margin would be enough, in most states, to trigger an automatic recount. However, Illinois has no provision that establishes a threshold requirement for an automatic recount. 

Recount Procedures in Colorado

Nov. 3 - 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.

Conflict in Connecticut?

Nov. 3 - News outlets are reporting that the Connecticuit Secretary of State has declared the Democratic candidate for governor as the winner of that state's close, and troubled, election.  But the same reports are saying that apparently the Republican candidate is not yet conceding.  (UPDATE:  The New York Times has a similar story that Republican candidate is still exploring options.)  Stay tuned for further developments.

Connecticut Recount Procedures

Nov. 3 - The Connecticut gubernatorial race between Thomas C. Foley and Dan P. Malloy has been called for Malloy, but the race still carries the potential to trigger litigation or a recount, or both (especially as Foley, the Republican, has told the New York Times that he has not ruled out any option). Problems in the state’s largest city, Bridgeport, caused the polls to be kept open for an additional two hours last evening, with a resulting delay in counting the votes. Additionally, some of the ballots may be challenged because polling places were forced to photocopy ballots when they ran out of ballots.

A recount is triggered in Connecticut when the margin is less than one-half of one percent of the total votes but not more than 2000 votes, or is less than 20 votes, unless the defeated candidate submits a written waiver. CGSA §9-311a. Such a “close vote” recount shall take place “forthwith” after the election or the tabulation by the Secretary of State, and according to the Secretary of State’s election calendar, the last day for such recounts is November 9.

Recount Procedures in Oregon

Nov. 3 - The Oregon gubernatorial race between Chris Dudley and John Kitzhaber continues to be close and some reports indicate that there are more than 150, 000 ballots left to be counted. Both Multnomah and Lane counties have ballots that are as of yet uncounted. Dudley is little more than a percentage point ahead of Kitzhaber, at 47.94% to 49.14% (a margin of 15,000 votes). Of note is that in Multnomah County, more than 90,000 voters turned in ballots on the last day to do so, slowing counting.

Oregon law requires that a recount occur at the county level when the difference between the number of votes cast between the winning candidate and the closest opponent is not more than 1/5 of one percent of the total votes cast for both candidates. Or. Rev. Stat. § 258.280. If an automatic recount is not triggered in a county, a candidate can request a recount no later than 5 days after the Secretary of State declares the result of the election. Or. Rev. Stat. § 258.161. County clerks have to declare their official vote tallies to the Secretary of State by the 20th day after the election. Or. Rev. Stat. § 254.545.


Alaska Write-in Process Gets Go Ahead from U.S. Justice Department

Nov. 2 - The U.S. Department of Justice has issued this letter preclearing Alaska's process for providing a list of certified write-in candidates to voters.  Because Alaska is covered by Section 5 of the VRA, any voting changes it makes have to be precleared before they can go into effect.  The letter from Justice removes a legal roadblock to Alaska's write-in process, mooting a federal lawsuit claiming that the state was violating federal law by failing to get preclearance.  But as noted here, the likelihood of an extended count -- and perhaps further litigation (now more likely in state court) -- remains high.

Early Votes in Nevada and Elsewhere

Nov. 2 - Although polls haven't yet opened in Nevada, most voters there have probably cast their ballots already.  The Wall Street Journal reports here.  Almost 60% of Nevadans voted early in 2008, according to this report from the Election Assistance Commission (Table 29.A).   Other battleground states with high numbers of absentee or early votes include California, Colorado, and Florida.  Michael McDonald has updated early and absentee voting stats here.

Rejected Absentee Ballots in Pennsylvania

Nov. 2 - With more voters choosing to cast absentee ballots, there's a risk that some of these voters will run into problems.  An example is Bucks County, Pennsylvania, where over 900 absentee ballot applications have been rejected due to mismatched signatures and incorrect dates of birth, according to this report. In addition, the Republican Party challenged 270 absentee ballot applications on Friday afternoon.  Such problems, which Charles Stewart has called "'leakage' in the absentee ballot pipeline" could make the difference in a close election and even fuel lawsuits over the outcome.  

Smackdown! DOJ vs. WWE

Nov. 2 - World Wrestling Entertainment chief executive Vince McMahon has reportedly backed away from a plan to distribute WWE merchandise at Connecticut polling places, in response to a letter from the U.S. Department of Justice warning that giving away a thing of value for voting would violate federal law.   McMahon, whose wife Linda McMahon is the Republican candidate for U.S. Senate, complains that DOJ's action is "heavy-handed bullying from big government and would appear to be a desperate political activity in closely contested elections in Connecticut." 

California absentee ballot story a cause for worry? Maybe, maybe not

Nov. 2 - News comes from San Jose that less than 40% of absentee ballots requested in California have been returned, as of early Monday afternoon. This is just one example of why Charles Stewart has previously written that California is one of the states to watch today, and why it’s going to take a long time to get a final count of the vote. One thing to keep in mind, which is not mentioned in the Mercury News report, is that California has “permanent absentee voting,” which is associated with a low return rate of absentee ballots to begin with. According to data released by the EAC, for instance, in 2008 19% of mail ballots in California that were sent out were not returned by the voters. So, it’s not quite clear what to make of a non-return rate of 40% in a midterm election.

Kansas Democratic Party files complaint alleging voter intimidation

Nov. 2 - According to the Morningsun, the Kansas Democratic Party has filed a complaint with the Kansas Attorney General's office alleging voter intimidation from an unnamed Republican organization telling voters that they need to remember to bring a voter registration card and proof of home ownership when they go to the polls. However, Kansas does not require proof of either in order to vote. Furthermore, the calls reminded voters to vote on Nov. 3 instead of Nov.2. Under Kansas law, voter intimidation is "threatening, coercing or attempting to intimidate, threaten or coerce any person for the purpose of interfering with the right of such person to vote or to vote as he may choose."

Foley: Close Elections are Healthy - If We Trust the Refs

Nov. 2 - Read Ned Foley’s new comment, “Close Elections are Healthy – If We Trust the Refs,” here.

State Recount and Contest Statutes

Nov. 2 - Moritz researchers have compiled a spreadsheet of state statutes coverning recounts and contests, as well as  information about the number of absentee ballots cast in selected states. The states are listed in the order that polls close.

Allegations of Voter Intimidation and Fraud

Nov. 2 - Salon.com offers this rundown of reports of voter intimidation and voter fraud across the country.  They include the South Carolina Democratic Party's allegation that Tea Party activists were harassing student voters from historically black Benedict College this morning.  It also discusses alleged incidents in Delaware, Pennsylvania, and Minnesota. As is typically the case on Election Day, it's difficult to corroborate these reports, but we'll continue to follow them as the day proceeds. UPDATE: The New York Times also provides a round-up of reports of intimidation.

ACLU of Ohio requests extended hours in Delaware County

Nov. 2 - The ACLU of Ohio today asked local elections officials in Delaware County, Ohio, to extend voting hours at some polling places because polling locations were changed without prior notice to voters. The ACLU of Ohio also asked the Secretary of State to look into the matter. According to a media advisory, Delaware County elections officials sent officials to the former polling places to help direct voters to the correct location. UPDATE: According to this report, the Secretary of State has permitted Delaware County elections officials to provide provisional ballots to those voters who went first to the incorrect polling place and who arrive at the correct polling place after 7:30.

Democrats in Illinois File Ballots Challenge

Nov. 2 - According to this report, Democrats in Illinois filed a Freedom of Information Act request to examine provisional ballots after some voters were allegedly denied the chance to cast provisional ballots after requesting absentee ballots.

Voter intimidation complaint filed against Reid campaign

Nov. 2 - After already complaining of early voting discrepancies last week, Nevada senate candidate Sharron Angle has filed a complaint alleging voter intimidation by Harry Reid's campaign.

Mississippi First District issues

Nov. 2 - According to local news, in the Mississippi First District, Democratic candidate Travis Childers' campaign sought a court order to allow voters in Desoto County to vote at a specific traditional polling location. Recent redistricting changed polling locations, splitting voters amongst voting precincts and causing voter confusion. The Childers' campaign sought to allow voters an opportunity cast a ballot in their original precincts.

Connecticut GOP files complaint about ballot integrity

Nov. 2 - Some polling locations in Bridgeport, Connecticut ran out of ballots, ordering only 21,000 ballots for 69,000 registered voters.  Election volunteers photocopied ballots while waiting for more ballots to arrive.  State GOP Chairman Chris Healy has filed a complaint with the Election Enforcement Commission alleging the ballots violate state law and undermines ballot integrity.  Furthermore, voter turnout was so heavy that polling hours have been extended two hours.

NC voting machine suit settled

Nov. 1 - On October 29, 2010, the North Carolina Republican Party filed suit in federal court alleging that voting machines were obstructing Republican voters from casting the ballots of their choice.  On October 30, the parties settled, requiring the North Carolina Board of Elections to instruct polling place officials to tell every voter to read a sign entitled "Voter Alert." The sign brings attention to the sensitivity of the voting machines and asks the voters to double-check their votes before casting them.

Further Developments in Alaska

Nov. 1 - Five voters, including an Alaskan native, filed a suit in federal district court in Alaska seeking an injunction against the list of write-in candidates provided by the Alaska Division of Elections to voters. The suit, brought under Section 5 of the Voting Rights Act, claims it is a violation of federal law to distribute a list of write-in candidates because such action was not cleared by the U.S. Department of Justice before implementation. [See the complaint] [See Alaska Supreme Court's opinion]

MD District Court issues preliminary injunction in UOCAVA absentee voting case

Nov. 1 - On Oct. 29, a District Court in Maryland granted relief on a constitutional claim by a member of the Maryland National Guard and the Military Voter Protection Project. The complaint alleged that the state of Maryland violated the U.S. Constitution, as well as the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), because it failed to provide enough time for absentee voting by military and overseas voters. The court granted a preliminary injunction on the constitutional claim, explaining that "where a state has authorized the use of absentee ballots, any restriction it imposes on the use of those absentee ballots which has the effect of severely burdening a group of voters must be narrowly tailored to further a compelling state interest." The court went on to find that the interest of having the ballots of absentee voters counted outweighed the state's interest in enforcing the Nov. 12 deadline. The opinion may be found here. Professor Spencer Overton offers these thoughts on its significance.

Election Day 2010: What We'll Be Watching

Nov. 1 - Since 2004, the Election Law @ Moritz project has been providing information, analysis and commentary on legal issues surrounding the electoral process. As in past years, we’ll be keeping close track of issues that arise on Election Day. What should we expect? If there’s a general lesson to be learned from past elections, it’s that we should expect the unexpected. Invariably, there are problems that arise which few people anticipated. The problems that wind up seeming most significant will depend, in large part, on which contests wind up being the closest.  With that qualification in mind, here are three issues to which we’ll be paying close attention tomorrow . . .


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

more commentary...

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.

more EL@M in the news...

Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

more info & analysis...