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Election Law @ Moritz

Election Law @ Moritz


Commentary

Situation Normal: Election Too Close to Call

The news that yesterday’s special congressional election in New York will depend on the counting of absentee and provisional ballots should not be viewed as another episode of abnormally bad “electoral weather,” following on the heels of the still-undecided U.S. Senate election in Minnesota. 

To be sure, most elections are insufficiently competitive such that initial Election Night returns are enough to predict the eventual official winner—and thus provoke a gracious concession from the inevitable loser. But our electoral system won’t be healthy unless and until the public perceives it capable of handling in a straightforward way a truly competitive election that actually requires counting every vote, including all the absentee and provisional ballots. 

An election in which the concession speech is given upon the declaration of the officially certified result—after administrative review of all the absentee and provisional ballots, and without protracted judicial litigation over the outcome—should be seen as a successful conclusion of the electoral process. Consider it another kind of “normal,” a resolution much less frequent than the Election Night concession speech but an equal (if not greater) vindication of democracy. Waiting for official certification before we know the outcome, in other words, need not be seen as evidence of a dysfunctional democracy. 

Another way to put this point is to remember what should be obvious but is often overlooked: elections that are too close to call on Election Night do not all play out the same way in their “endgame” scenarios. Some spin out of control into months or years of protracted judicial litigation. Others resolve themselves quickly in a matter of days or weeks.  The variables that affect the quality of the endgame resolution of these “initially too close to call elections” include the officially certified margin of victory (which might be quite a bit wider than the initial Election Night returns), the degree of sloppiness in the administration of the vote casting-and-counting process (which gives grounds for judicial litigation), and the quality of a state’s institutions for handling these electoral endgame scenarios. 

Even election results that end up in court fights, before a concession speech occurs, can yield different kinds of outcomes varying in the quality of their resolution from a perspective of public acceptance and democratic legitimacy. Better to avoid a court fight if possible; but if not, better that it be resolved relatively quickly and with a sense of impartial fairness. That’s why it is still too early to pass judgment on Minnesota’s U.S. Senate election: we do know that the combined recount-plus-contest has taken far longer than desirable, but we still don’t know what kind of closure ultimately will be reached.

To better understand these electoral endgame scenarios, and how their handling might be improved, my Moritz colleague Steve Huefner and I are in the process of researching and writing a book on this topic. Our work so far has caused us to be sensitive to distinctions between types of elections and the context in which close outcomes occur. The fact that this special congressional election in New York involves a House, rather than Senate, seat is an important factor even if this distinction does not appear in the doctrinal jurisprudence of New York law involving disputed elections. So too is the fact that the fight over Minnesota’s Senate seat, as national Democrats try to get one vote closer to a 60-seat filibuster-proof supramajority while national Republicans try to prevent that outcome, has much higher stakes than whether the House Democrats get one more seat to pad their majority in that filibuster-free chamber. 

But our work has also caused us to be cautious about overstating the significance of these kinds of political contextual distinctions. There are, for example, important differences between gubernatorial and U.S. Senate elections. Still, however, there are enough similarities between these two kinds of statewide races that comparison between Minnesota’s 1962 gubernatorial election and its current dispute over the U.S. Senate seat has been highly illuminating—just as long as that comparison is not taken too far. 

Our research for the book has also taken a historical turn, even before the comparison of the two Minnesota statewide examples showed the benefit of historical inquiry. Thus, before jumping to any conclusions about the significance of this new “too close to call” election in New York, it is worth putting it in the context of the fact that New York has seen over the centuries a lot of elections too close to call on Election Night, including the presidential elections of 1880, 1884, and 1888—when the outcome of the presidency depended on the resolution of New York’s Electoral College votes, but that outcome could not be known for days or in 1884 for a couple of weeks. Yet New York was able to bring these razor-thin presidential elections to relatively quick resolution and without resort to judicial litigation, in stark contrast to what had occurred in 1876 (or eventually again in 2000). Understanding why 1884 was successful whereas 1876 was not, for example, will be a major objective of our book.

To invoke another historical reference, New York had what appears to be the first major disputed election of our new nation: the dispute over its 1792 gubernatorial election between incumbent George Clinton and challenger John Jay. I invoke that historical example in the context of today’s “too close to call” election from New York for this specific reason: as I describe in a lecture on this “Original Bush v. Gore,” our Founding Fathers were uncertain about how to handle disputed elections. Their uncertainty is a legacy that persists to today. 

As part of the commentary over the disputed U.S Senate seat from Minnesota, there has been a dialogue between those who believe that some elections are simply too close for our vote-counting procedures to handle and thus there should be a run-off, or flip of the coin, when the apparent margin of victory is within a certain range. (Presumably, one would still need to wait for the counting of absentee and provisional ballots to see if an election fell within this “statistical tie” situation.) Others argue with equal vigor that an election system premised on one-person-one-vote must proceed, however difficult it may be, to declare a winner as long as one candidate is determined to have one more valid vote than the other; a coin toss or run-off must be reserved for an actual, not statistical, tie. 

The fact that we are having this dialogue in its current form, at the level of first principles about the purpose and design of our voting process, indicates to me how little we have progressed as a nation in developing a shared understanding on how to think about, and thus handle, elections with razor-thin results. This lack of progress is puzzling and another agenda item for our book to address. We’ve advanced our thinking in so many other fields of human endeavor: hard sciences, social sciences, educational practices, and so forth. Why not this one? It’s not as if close elections are truly infrequent phenomena. They may be relatively rare, especially in presidential elections, but our society has had enough “too close to call” elections for local races that the legal system recognizes it is a matter that requires attention. The problem is culturally we still haven’t really figured out what sort of attention we want our legal system to give it.

Maybe this new “too close to call” election from New York will disappear quickly. Maybe, for example, the count of absentee and provisional ballots will make the winner obvious. A gracious concession speech will occur, and this blip on the radar screen won’t even deserve a footnote in our book. That would be a victory for New York, indicating a successful result according to the alternative “normal” process described above.   But our societal or cultural uncertainty over how to think about “too close to call” elections, as evidenced by the “statistical tie” debate, will continue whatever happens with this particular episode.

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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