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Election Law @ Moritz

Election Law @ Moritz


Election Night: Do We Really Need to Know Results Before We Can Sleep?

When the nation went to bed on Election Night, 2006, numerous races remained without clear winners. For several days after the election, the nation waited for results in the races that would determine control of the U.S. Senate. Over a week after the election, the Franklin County, Ohio, Board of Elections announced that it will not release results in the 15th Congressional District race between Debra Pryce and Mary Jo Kilroy until November 27. Another congressional race in Ohio remains undetermined and other federal, state, and local races around the country continue to be disputed as votes are being counted. What should we make of this delay in knowing the outcome of elections? Is it something we should embrace and encourage as an indicator that every vote is being counted or is it important to achieve a sense of finality immediately after Election Day? As more voters choose to vote by absentee ballot or are required to use provisional ballots, those ballots, which require boards of elections to gather additional information for verification purposes, may push back the date on which a board of elections knows the outcome of an election. One response would be for states not to disclose any election results until all absentee and provisional ballots are counted. Many states delay the counting of provisional ballots for some days after Election Day to allow voters to provide supplemental information to assist boards of elections in determining the voter’s eligibility to vote. In close races, these ballots determine the outcome, so results of the election cannot be known until those ballots are counted. By holding announcement of all winners until all votes are counted, Election Day would become the final day for casting ballots, not the day on which winners are announced. An increasing number of states permit early voting, and voters do not expect that results from those early returns will be disclosed until all voters have cast their ballots. It could be argued that announcing votes during early voting, after which other voters may still be casting ballots, may discourage people from voting if it seems that their votes will not impact the outcome, and thus the situations differ. A similar argument can be made, however, that there is less incentive for provisional voters to return to boards of elections with supplemental information if the outcome of an election has already been announced before all absentee and provisional votes have been counted. While Election Day is the last day to cast a vote, as many states give provisional voters extra time to provide supplemental information, it is not the last day for voters to act. If we can wait for results until all votes have been cast, why not wait until all votes have been counted? One problem with delaying publication until all votes are counted is that states vary in their official certification dates. While not problematic for state and local elections, rolling results in a federal election can be confusing. A solution to the problem of varied dates might be for Congress to influence dates on which federal election results could be announced, as it did for the date on which elections are held. Congress could simply establish a date before which counting could not occur. Setting such a date for federal elections would probably encourage states to set the same date for state elections, as a two-tiered process would be difficult to administer. In addition, presidential elections ultimately lie in the hands of the Electoral College, and some states already need to better align their certification, recount, and contest timeframes with the date on which the Electoral College meets. Another problem with delaying the announcement of election results is that some of the public already distrusts the “chain of custody” surrounding the entire voting process, and may argue that delay provides additional opportunity to negate actual voter intent. The converse could also be argued: increased time allows increased care with the ballots and provides additional time to make sure that every ballot cast by an eligible voter is counted. Perhaps a response would be to permit the wider use of paper ballots for those who do not trust alternative forms of voting, since the additional time required to count paper ballots would present less of a problem if results were not expected to be instantaneous. Establishing clear and complete protocols for transporting and securing any type of vote is critical and something that the states should be improving regardless of the timing of releasing results. Delaying results until all votes are counted would also go a long ways toward quelling persistent rumors that absentee and provisional ballots are counted only when elections are close. This mistaken belief may lead people in some circumstances not to vote, and being assured that all votes are counted before results are announced may encourage those people to participate. A potential fiscal benefit to delaying election results is the reduced need for vote counting technology. Some counties in Ohio are buying additional scanners in order to process the increased number of absentee ballots in a timely manner. A slower rollout of results would negate the need for as many ballots to be processed simultaneously. Moving announcement of results back several weeks would require a psychological shift in our assumptions about the election process, as we have come to expect an immediate result and consider delays an unfortunate aberration. News outlets might return to exit polling to try to anticipate the outcome of an election before results were announced to sate our desire to know a winner. Over time, however, the media would begin to treat Election Day as merely the final day of voting, shifting its focus to the day results are announced. As Riverside County, CA, continues to count a reported 120,000 absentee and provisional ballots, election results there are on hold. In numerous other counties and states results are unknown. While it may be hard on the candidates, democracy is not jeopardized by waiting for a few additional days or weeks to learn the outcome of our elections. Ned Foley has recently argued here and here that elections are successful if a loser accepts results as fair and accurate by the time the winner is to take office. But why should those candidates in jurisdictions casting fewer absentee or provisional ballots have finality while others in districts with more provisional or absentee ballots wait for days and weeks to know their fate? While the thought of delaying the announcement of results raises numerous questions, it might be time to seriously consider how the expectation that we immediately know winners and losers impacts our entire electoral process.

Terri Enns has been part of the Election Law @ Moritz team since the beginning of the project. Prior to coming to Moritz to teach in the Legislation Clinic, Ms. Enns served as Legal Counsel to the Ohio Senate Minority Caucus, where she regularly delved into Ohio's statutory oversight of campaigns and elections, working with election law both as it was being created and as it was applied. Enns has provided input for a variety of panels focused on election issues, including Campaigning with Character for the Bowhay Institute for Legislative Leadership Development; Current Controversies in Election Law for a panel at Marshall University, and Don't be Disenfranchised: Know Your Voter Rights and Election Law at the Feminist Majority Foundation's Get Out Her Vote 2008: Ohio Summit. View Complete Profile


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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