Posted: March 17, 2009
Reluctance to Void Elections - Some Memorable Cases
The closeness and counting irregularities in the ongoing Minnesota Senate contest have prompted discussion of just voiding the result and calling a new election. Regardless of whether granting such a remedy is good policy, it is unlikely to happen under Minnesota law, just as it would be unlikely to happen in any state. In fact, despite the fact that I've read hundreds of election contest lawsuits, I've read only a handful that granted any kind of meaningful remedy, and even fewer that voided an entire election. Here are good examples of cases that appeared to have some merit but ultimately failed.
Election for Ohio Attorney General (1990). In this case, the Supreme Court of Ohio denied an election contest by Paul Pfeiffer claiming that he was the true winner of the 1990 election for AG. Pfeiffer lost the initial count by 1,234 votes but proved to the Ohio Supreme Court that the candidates' names on 94,869 ballots had not been rotated properly. In re Election of Nov. 6, 1990 for Office of Atty. Gen. of Ohio, 569 N.E.2d 447 (Ohio, 1991). The court acknowledged “that improper ballot rotation could have an effect,” but said that “the extent of this effect depends on the record developed in each case.” Id. at 454. After describing expert testimony from both sides regarding the effect of the improper ballot rotation, the court concluded that it affected vote totals somewhere between zero and ten percent, but “that the correct percentage would be closer to zero than ten percent.” Id. at 455. Using this percentage, the court determined that the contestant failed to prove by clear and convincing evidence that the improper ballot rotation made the true result of the election uncertain. Id. at 457. Paul Pfeiffer now sits on the Supreme Court of Ohio.
Election for Illinois Governor (1982). The initial count showed incumbent Jim Thompson ahead of Adlai Stevenson by 5,074 votes out of about 3.6 million cast statewide. In re Contest for Governor, 444 N.E.2d 170, 172 (Ill., 1983). Stevenson obtained a partial “discovery recount” in precincts in 70 counties to generate evidence for an election contest. Id. at 179. Based on that discovery recount, Stevenson filed an election contest alleging that some improper duplicate ballots were counted, that ballots were improperly counted despite the fact that they were not initialed or initialed only partially by election judges, that some were counted despite having identifying marks upon them, and that some were counted despite being cast by ineligible voters. Id. at 181. Stevenson alleged that if these errors were corrected, it would have put him ahead by 4,664 votes. Id. at 180. Stevenson hoped to use the discovery provisions of the election contest laws to find still more votes in his favor.
However, the Illinois Supreme Court dismissed the lawsuit, and did so in a curious way. Instead of following the normal standard that decides a motion to dismiss, the court did not assume, for purposes of the motion, that the facts stated in the complaint were true. Instead, the court went "behind the pleadings" to look at the conduct of the original partial recount and then dismissed the case because it said that Adlai Stevenson had no reasonable cause to complain about the conduct of the counting and recounting activities. A grand jury later determined that Adlai Stevenson had unwittingly benefited from some 100,000 illegal ballots that had been cast in Chicago in the 1982 gubernatorial election. U.S. to Probe Primary Vote Fraud, Chicago Tribune, March 11, 1987. The Illinois legislature later changed election contest procedures based on the court's ruling.
Election for Washington governor (2004). Two initial recounts showed that Rossi (R) was ahead but the third and final recount showed Gregoire (D) up by 129 votes out of 2.9 million cast. The case ended up in the Chelan County Superior Court where, despite having concluded that 1,678 illegal ballots were counted in the election, the court would not grant a remedy for Rossi's allegation that "it was impossible to determine which gubernatorial candidate received the greatest number of legitimate votes" (see here). The court refused to hear evidence concerning the political predilections of the voters who had cast illegal ballots.
Will the Franken/Coleman litigation join this dustbin of "close but no cigar"cases? Well, in general a plaintiff who wants to win an election contest has to have very credible evidence of who should have won. The defendant, on the other hand, in most states (including Minnesota) can usually prevail if the evidence is murky and the true result is unclear. Furthermore, in very very close statewide elections like Franken/Coleman, the result is always going to be "murky" in some way due to the close margin and the inability to eliminate small human errors. That puts the defendant in a pretty good position.