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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.

Weekly Comment

When Should a Presidential Election Be Over?

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November 17, 2004

As Ohio contemplates recounting all of its ballots, at the request of the Libertarian and Green Party candidates, the impending collision between the state's recount process and the meeting of the Electoral College necessitates a reconsideration of the state's timetable for reaching a final count.

This year the Electoral College meets on December 13. This date is specified by an Act of Congress, which states that "[t]he electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December." Congress, moreover, has specified that all controversies regarding the appointment of electors should be resolved six days before the Electoral College meets – in other words, before December 7 this year – in order for the vote of the state's electors to be binding on Congress when that body meets on January 6 to review the Electoral College votes and formally declare the winner of the presidential election. The earlier date is known as the "safe harbor" deadline and figured prominently in Bush v. Gore: the Supreme Court stopped the recount process in Florida because that deadline had arrived by the time of the Court's decision.

According to press reports, Ohio Secretary of State Blackwell plans to announce a certified statewide result in the presidential race between Friday, December 3 and Monday, December 6, after receiving certified results from each county by December 1. Even if Blackwell were to announce on Friday, there would be insufficient time to conduct a recount by the "safe harbor" deadline of Tuesday, December 7. Examining just the 76,068 punch card ballots that failed to record a vote for President, to see if that failure was the result of machine error, would likely take too long.

The state needs to shorten the process for reaching a certified result. Election Day was November 2 this year. It should not take until December 3, a whole month and a day later, to have an official count, which is then subject a possible recount. Instead, the state should be able to announce a certified result no later than two weeks after Election Day, so that any controversies over that certified result can be conclusively resolved by the "safe harbor" deadline, which is three weeks later.

Now, the state may object that it is difficult to achieve a certified result in two weeks when there are over 150,000 provisional ballots to evaluate for eligibility, as there were this year. But this point just demonstrates the necessity in future years of reducing the number of provisional ballots, as well as simplifying the judgment necessary to determine whether each provisional ballot is eligible.

It is not a good thing when over two percent of all ballots cast are in this "provisional" category, which must be examined one by one to see if each counts. Nor is it good if determining whether a provisional ballot is eligible requires anything more than a split-second decision that is transparently straightforward and thus undeniably correct. Otherwise, it is quite likely that in a future presidential election the nation will be waiting for the provisional ballots to be evaluated in order to know which candidate won, and the candidates will be fighting over which provisional ballots to count.

If it takes more than two weeks to reach an official certified result that includes an initial count of the provisional ballots, it would seem difficult to resolve any disputes over these provisional ballots by the "safe harbor" deadline. Even expedited litigation takes some time. Suppose a complaint is filed over the counting of provisional ballots two days after the announcement of a certified result, with a response to the complaint two days later. Suppose a hearing on the complaint occurs exactly one week after the announcement of the certified total, with a decision just a day later. There still needs to be time for appellate review of the decision, with the possibility of Supreme Court review if necessary. If the announcement of the certified result does not occur until three weeks after Election Day, because of the time it takes to process the provisional ballots initially, there does not seem to be enough time to fit in any challenges to the official determinations made regarding the counting of provisional ballots.

Unless Congress changes it, the "safe harbor" deadline is five weeks after Election Day. If the initial count of provisional ballots eats up three of these five weeks, because there are so many of them and each one requires some considered judgment, then there seems little hope of resolving controversies over these judgments in the two remaining weeks before the "safe harbor" deadline.

Thus, a goal for future presidential elections should be to adopt a provisional ballot process that is susceptible to an initial certified result within two weeks of Election Day. Even more, one might hope that the process for evaluating and counting provisional ballots can be sufficiently straightforward that it is always extremely unlikely that this process can affect the result of the Election Night returns. Ideally, provisional ballots should play no greater potential role in presidential elections than overseas absentee ballots have in the past. For this to occur, their numbers would need to drop considerably below the 2.5% of ballots that they exceeded this year.

Americans want their presidential elections decided by the morning after Election Day, if at all possible. There may be some elections that are too close for that to happen, and unfortunately, sometimes it may be necessary to resort to recount or other post-election procedures to settle who is the winner. But this year's election has demonstrated – thankfully in a circumstance where the result is not in doubt – that the process for officially certifying and potentially recounting election results needs to be streamlined, at least in Ohio, in order to fit within the five-week period before the "safe harbor" deadline.