Posted: November 2, 2012
The Counting Rules for Overtime: Materiality
Recently, in this space, Ned Foley, Steve Huefner, and Josh Douglas have offered some characteristically thoughtful comments on election overtime. Ned reminded us that patience is a virtue; we have a process to work through narrow margins of victory, and even in a world a-Twitter, we should let the process run its course without panic. Steve mentioned a model calendar for shaping that process, at least in the context of a Presidential dispute. And Josh discussed the fora provided by state law in which to work through the details.
At the kind invitation of the Moritz team, I would like to add a fourth element to the discussion: neither the appropriate emotional disposition for a post-election process nor timing nor location, but the substantive standards to be deployed. I think it extremely unlikely that the Presidential race will head into overtime. But it is virtually certain that some race, somewhere in the country, will. And it is therefore important to be prepared.
In overtime, the problem is often, though not always, that the margin of potential error is greater than the margin of known victory. There are ballots lying about — provisional ballots or disputed absentee ballots or ballots that have not been read properly by an optically scanner. Somewhere along the line, something has not gone as planned. The question is whether the ballot should be counted despite the blip.
In these circumstances, many states seem to resort to an uncomfortable counting rule. They recognize that some problems should render the ballot invalid, and some should not. So far, so good. But then they attempt to deal with the blip in two unfortunate ways. First, they try to see whether the potential error causing the dispute is “major” or “minor.” And then they try to determine whether the error was the fault of the voter or an official.
The problem with the distinction between “major” and “minor” is that the terms are not self-defining. One judge’s major mistake is to another judge quite minor; without any grounded reference point, distinctions quickly become ad hoc. The problem with focusing on fault is that the investigation can be extensive, and nets little benefit for the expense. There isn’t a very good theory explaining why the appropriate remedy for a procedural glitch is to refuse to count the ballot of a voter otherwise known to be eligible and cast without fraud.
In a forthcoming paper, and in a more bite-sized distillation of that paper now offered at the Legal Workshop (a compendium of abbreviated works from top law journals), I argue for a better mousetrap. That mousetrap is a substantive standard for resolving deviations from procedure based on materiality. If an error is material to determining the voter’s eligibility or true ballot preference, the ballot should not count. But if it is immaterial — if no reasonable observer would doubt either eligibility or preference — count away.
In the paper, I discuss the mechanics of the rule in considerably more detail. It is essentially a reframing of the evaluation process, with a different focus on the evidence at hand. And it necessarily means counting more votes cast by valid electors than any legitimate alternative, at little to no incremental cost.
This materiality principle is already embedded in some law, though it has been curiously under-acknowledged in past overtime disputes. At least eight states’ statutes already employ the concept, in provisional or absentee voting, and sometimes beyond. It is the principle reflected in liberal rules for the write-in votes of service-members and other citizens overseas. And it is the driving principle behind an important provision of the federal Civil Rights Act of 1964 whose power has not yet been tested.
The paper explains how the principle works today, and offers some suggestions for the future. Ned has been gracious enough to include it in the ongoing discussions of the ALI’s project on election law, which is still in its early stages. But in many respects, current law already reflects a materiality principle better able to resolve post-election disputes than any competing substantive standards. Now all we have to do is be ready to use it.