Posted: October 30, 2008
Post-Election Contests: Four States to Watch
Recently, friends of mine have been speculating about whether there might be a legal contest to the November 4 presidential election like the litigation that happened in 2000. To me this type of contest seems exceedingly unlikely because, if actual voting even somewhat mirrors the most recent polls, any legal victory in any particular state would be only symbolic and would not change the result of the election. Furthermore, the idea of a series of election contests being brought across the country to change the balance in the electoral college seems facially absurd. Instead, the real legal story that comes out of this presidential year, if a coherent story comes out at all, is likely to center on a series of important, though lower profile, contests for governor, US Senate, or House of Representatives. Here are four states to watch.
Ohio. You probably have already heard all the allegations of fraud in registration and early voting, but what you may not realize about Ohio is that it is home to no less than 5 hotly contested races for US House. One of these races, in the 2nd district, resulted in a recount in 2006, and the same candidates are running again this year. Ohio's confusing provisional balloting statute almost led to post-election litigation in another close House race in 2006, and as a practical matter that confusion probably still remains, although theoretically resolved (see here and here). A combination of high turnout and wordy ballot issues (election officials in the state's largest county predict it will take 18-to-23 minutes for the average voter to complete their ballot) could lead to excessively long lines and suits to extend polling hours. Because federal law requires any votes cast after regular hours to be cast on a provisional basis, that will only increase the opportunity for dispute. Provisional balloting is very common in Ohio even without these types of extensions. If a candidate for one of these House races wants to contest the result, it will be messy, because Ohio law currently attempts to deprive the state courts of any jurisdiction over such matters.
Florida. Like Ohio, Florida has 5 House races that are expected to be close. One of those races, in Florida's 13th district, is a re-match of the election in 2006, which led to a real smoker of a recount and an unsuccessful election contest based on the allegation that touchscreen voting machines had failed to record votes. The lingering bitterness over that fight is probably enough on its own to send the candidates back to the courts if the race is close. Furthermore, at least one Florida House district, the 21st, includes some territory with a history of absentee voting fraud (see this report, starting at page 11). Florida's well-publicized matching controversy and difficulties achieving adequate throughput in early voting locations may foretell of the kind of election day snafus that could form the basis of an election contest. However, Florida's provisional balloting rate is low.
Pennsylvania. Pennsylvania, too, has 5 House races predicted to be tight. None of these ended up being close enough to induce recounts and lawsuits in 2006, but there is always a chance. Adding to that chance is Pennsylvania's heavy reliance on controversial touchscreen voting devices without paper trails and potential confusion flowing from two last-minute legal fights, one seeking to stock dysfunctional polling places with paper ballots and the other seeking to force officials to identify suspicious registrations and force voters to cast provisional ballots. Pennsylvania also has a substantial history of absentee voting fraud, particularly in Philadelphia, though the phenomenon has recently appeared to be in hibernation. See this report, p 8-9 and footnotes 74-76. There was an important House recount in Pennsylvania in 2006 in the 8th District, but that district apparently this year is not as closely contested.
Georgia. Georgia is expected to have 2 tight House races and, along with Minnesota, North Carolina, and Mississippi, currently has one of the closest US Senate races in the country. Unlike those other states, however, Georgia has experienced a significant amount of elections litigation, including significant lawsuits over matching and voter ID that could affect conduct of the election.
Other states to watch include North Carolina and Washington state, both of which are experiencing close gubernatorial contests (the one in Washington is a re-match from 2004, when it resulted in an ugly lawsuit). However, my impression from research and talking to officials is that North Carolina has one of the better-run elections systems in the country, and Washington's Secretary of State claims to have vastly improved their system by, among other things, cleaning up voter rolls that permitted many ineligible felons to vote in 2004. Other states with House races expected to be close, and which also have experienced significant administrative controversies, include Colorado, New Mexico, and Virginia.
Is any candidate actually going to file an election contest? Well, election contests are pretty rare, both because very close races are rare and because courts hardly ever grant in an election contest any sort of meaningful remedy even when a very close race is marred by serious problems (the FL-13 litigation and Washington gubernatorial race of 2004 are good examples). Nevertheless, the high concentration of tight House races in states that just so happen to have troubled elections systems seems to suggest a higher than average risk that at least one election contest will be filed in a major race. That is still not a very high chance, but high enough, I hope, to make this article somewhat worth reading.