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Election Law @ Moritz


Commentary

Auditing a Stateís Laws for Resolving Election Contests

Each state in the nation needs to develop a regular institutional process by which it easily updates, in light of the experience of other states, its own laws that will govern in the event that a close election in that state ends up in a legal dispute.

The need for this routine rule-revising regime is an idea developed in a paper entitled The Analysis and Mitigation of Electoral Errors: Theory, Practice, and Policy, which I presented last month at the Conference on Elections and Democracy at Stanford Law School. The paper will be published by the Stanford Law & Policy Review, one of the conference’s co-sponsors.

The paper endeavors to contribute in several different ways to current discussions of how to improve voting administration. The first part of the paper continues the conversation on how one might measure the quality of a state’s voting administration, a topic energized by Heather Gerken’s proposal for the creation of a “Democracy Index,” which I have discussed previously in this space, as has she. The second part presents a preliminary analysis of one portion of a five-state study of voting administration that my Election Law @ Moritz colleagues and I are conducting with the support of the Joyce Foundation. The third part identifies some policy proposals suggested by this preliminary analysis.

In this commentary, I wish to highlight one of these policy proposals, which builds upon an idea originally propounded by Rick Hasen. The idea is that states periodically should audit the rules and procedures applicable in the event of a dispute over the outcome of an election. The purpose of these periodic audits is to discover ambiguities or other uncertainties with these rules and procedures, since these legal uncertainties would exacerbate the difficulties associated with any disputed election. To the extent that a state’s law unambiguously specifies how to resolve any particular dispute that might arise, the scope of disagreement is narrowed considerably, if not eliminated entirely. As a result, the party that ends up losing the dispute is much more likely to accept the winner’s legitimacy—an end result surely worth striving for in a democracy.

In echoing Rick’s suggestion, I want to emphasize two points. First, while a periodic audit of the full range of a state’s voting administration laws might be valuable, a particular institutional mechanism should exist to focus specifically on those laws that might affect the resolution of a post-balloting dispute over who is the winning candidate. To distinguish these focused audits from more general ones, we can call them Election Contest Law Audits (or "ECLAs," for short), as "election contest" is the generally prevailing term for any legal dispute that arises over the outcome of an election, and thus the law applicable to the resolution of an election contest would be Election Contest Law.

This body of applicable law, to be sure, encompasses more than just the procedures for conducting the election contest itself. It necessarily also includes any substantive rules that govern the resolution of any particular disputed point serving as the basis for the legal contest. For example, because the outcome of an election contest might turn on the rules for what an eligible voter must do to become registered, these registration rules would form part of the state’s Election Contest Law even though they do not concern the procedures for conducting the contest itself. Consequently, as a practical matter, there is likely to be a considerable overlap between a state’s Election Contest Law and the full range of its laws concerning voting administration. Even so, the overlap will be far from complete, as many details of voting administration cannot serve as the basis for contesting the outcome of an election. For example, a state’s voting administration law may include provisions for the payment of poll workers, which would be irrelevant to the identification of the winner.

In any event, the important conceptual point here is that an ECLA would look specifically for ways in which uncertainty in a state’s law might complicate the resolution of an election contest. The ECLA would not review a state’s laws for the purpose of making voting more convenient or making voting administration less expensive or achieving other efficiencies or improvements. While these other objectives are certainly worthwhile, they should be pursued in other ways. The purpose of the ECLA is the single-minded pursuit of reducing legal uncertainty that might arise in the context of an election contest.

Second, to maximize the effectiveness of an ECLA in each state, it is necessary to create a multistate clearinghouse of information, so that each state can learn from the election contests that have occurred in other states. This point is the extension of Rick’s initial suggestion that results from the five-state analysis presented in my Stanford paper. Simply put, each state has uncertainties in its own Election Contest Law that could be eliminated merely by adopting another state’s position on the particular issue.

Uncertainty exists in part because it is difficult to anticipate all the specific circumstances likely to arise in an election contest. Fortunately, election contests are sufficiently infrequent that no state "has seen it all before," or indeed has seen very much of what specifically has occurred elsewhere. "The devil is in the details" is an aphorism especially apt for election contests, and it matters little that a state’s Election Contest Law has sound general principles but has not anticipated how to handle the myriad of devilish details that emerge in actual disputes. If each state undertook to clarify in advance how it would resolve all the specific issues that have arisen in election contests in other states, then the scope of uncertainty in each state would reduce dramatically.

In principle, it should be fairly straightforward to establish a multistate clearinghouse that could easily convey to each state the collective wisdom from all states, including updates in time for each state’s next periodic audit. These updates would digest the details of all new election contests from around the country since that state’s last periodic audit. In this way, each state’s ongoing reduction of uncertainty would be based on not only its own experience with disputed elections, but the recent experience of all other states.

Surely, one of the existing multistate organizations concerned with voting administration law—National Association of Secretaries of State (NASS), the National Association of State Election Directors (NASED), the National Conference of State Legislatures (NCSL), the National Center for State Courts (NCSC), or the U.S. Election Assistance Commission (EAC)—could take on the creation of this clearinghouse of information as a project. (If they have done so, I confess that I am unaware of it, and would welcome learning of its existence. As far as I know, the clearinghouse that the University of Florida has contracted with the EAC to provide is not focused on identifying, and reducing, uncertainties in each state’s Election Contest Law in the way that I have described.) There is no need for the clearinghouse to take a position on what the correct answer to a disputed issue should be. If states that already confronted a particular question diverge on how they answer it, the clearinghouse can simply identify the states on each side of the issue. What is important is simply that the clearinghouse alert all states that the issue is one that needs an answer. As a bonus, the clearinghouse can provide alternative answers for each state to consider, based on the experience of others states with the same issue. The utility of this clearinghouse would be proportionate to the quality of the organization by which it conveyed its essential information to the states. As I was reminded by the research undertaken for my Stanford paper, there is no dearth of available information concerning how states have resolved election contests that have occurred over the years. The challenge, however, lies in organizing and presenting this abundance of information in a way that is most accessible for each state when engaged in the focused task of spotting holes in its own set of contest-resolving rules.

For any state to take advantage of the service that this kind of clearinghouse would provide, the state would need the flexibility to make frequent changes to its own Election Contest Law after completion of each periodic audit. As I indicate in the Stanford paper, flexibility of this sort presumably would require that states authorize administrative agencies to update their Election Contest Law, rather than insisting that their legislatures retain this revision authority. Legislatures are simply too busy with too many different kinds of pressing public policy matters to devote the attention necessary to fill gaps in their Election Contest Law exposed by recent election contests that have occurred in other states.

States would do well, then, to consider how this sort of administrative agency should be structured and what mechanism might exist for its revisions of the state’s Election Contest Law to be put before the legislature for review. (One possibility is that the agency’s revision takes effect unless the legislature within 60 days acts to repudiate the revision.) States have a lot on their plates right now in terms of potential election law reforms: most are still undertaking the implementation of their HAVA-mandated databases, and some are reconsidering the voting equipment they purchased with HAVA funds just a few short years ago. Many states are also still struggling to implement effectively HAVA’s provisional voting requirements, and virtually all states are coping with the increasingly difficult challenges of recruiting and training highly competent poll workers. In this context, it might seem too much to ask states to develop an institutional reform that would lodge the authority to revise a substantial portion of their voting administration laws in an agency that is either entirely new or at least never entrusted with this degree of legislative power.

The overriding value of this regular auditing process, however, is too great to neglect. As important as all the other reforms are, they are in some respects superfluous in elections that are not close enough in their outcomes to be worth contesting. The rules matter most in a situation where they can make a difference as to which candidate will win a tight race. It is not surprising, then, that the public expresses the greatest concern about voting procedures when they potentially affect the result of a race that the public particularly cares about. Thus, there is an inherent efficiency in focusing the efforts of election law reform on reducing the uncertainties that might arise if a close election is disputed. If law reformers were able to identify and eliminate in advance of the next election every uncertainty that might form the basis of a challenge in a close vote, the reformers would have put in place an exemplary set of voting procedures, which should satisfy both public and expert opinion on the need for change.

Accordingly, among all the activities that states are currently undertaking to improve their systems for voting administration, a high priority should be placed on the development of the auditing process I have described. Its key features would be new institutional arrangements in each state authorized to update expeditiously the Election Contest Law there, in light of the flow of well-organized information from a multi-state clearinghouse that tracks disputed elections.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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