Posted: November 3, 2010

This Morning's View

As I look over the undecided statewide races, this is what emerges for me this morning:

Connecticut is the only state that I would label as “yellow alert” so far, using my alert system, given that litigation has already occurred to extend the polling hours in Bridgeport, and more litigation is anticipated.

Otherwise, the processes are proceeding as they should—my "green" category.

Colorado potentially deserves a "blue" because of the Denver Post's report of the large number of uncounted provisional ballots that could affect the outcome. I can't yet tell whether any of the other states (besides Alaska) similarly deserve "blue" rather than "green" status. The key difference in my mind between "green" and "blue" is that provisional ballots by definition have an uncertain eligibility status and need eligibility review before being counted. The mere fact that some ballots, like absentees, still need to be counted is not enough to shift a state from green to blue. UPDATE: The Denver Post has called the Senate race for Bennet.

For a similar reason, Alaska deserves a "blue" since the write-in ballots need to be removed. I don't think Alaska deserves a yellow based on the previous litigation, since it was resolved without apparently affecting the result. If there is new litigation, that would convert Alaska back to yellow.

Another interesting part of the narrative: the states with the three big recounts of the 2000s -- Florida, Washington, Minnesota -- all have undecided statewide races at the moment (although that might change quickly with Florida--UPDATE: Florida is, indeed, settled with a concession from the Democrat). These states can show that they specifically have improved their processes, after having been put under the microscope recently.

Finally, with respect to all the undecided races, these states have an opportunity to be "laboratories of democracy," to invoke the famous Brandeis phrase. It will be interesting to watch how the New England states differ in handling their close races. The same holds with a side-by-side comparison of Oregon and Washington. The Midwest can compare Minnesota and Illinois--states with very different rules and political cultures.

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