Posted: October 25, 2012
Resolving an Election In Extra Innings
As the prospects of a close Presidential election this fall show no signs of abating, it is worth reflecting on what might – and should – happen after Election Day in the event of an election that is too-close-to-call. My colleague Ned Foley has already addressed one aspect of this “what if” scenario, namely, the possibility that a swing state like Ohio, because it has a large number of provisional ballots or late-arriving absentee ballots, may not be able to declare a winner until some ten days after Election Day. But beyond that reality of the regular election processes, what if alleged errors or mistakes in the casting or counting of ballots lead to an election contest over the outcome in a particular state? How well prepared are states to handle post-election litigation on a very compressed timetable, and under the glare of the national spotlight?
This is an issue that the American Law Institute currently has under consideration. The ultimate goal of this multi-year ALI project on election law is to promulgate principles that individual states could adopt to assist them in fairly, reliably, and expeditiously resolving post-election disputes. But those principles are still in their formative stages, and the ALI has not yet taken any official position on what principles to recommend. Nevertheless, the work to date of the ALI project may offer some guidance in the event of an election contest this year.
As part of this ALI project, Ned Foley and I, who serve respectively as the Reporter and the Associate Reporter on the project, have been working – with the help of advisory panels the ALI has set up for this project – on a model calendar for resolving a Presidential election dispute in just five weeks. Five weeks is the critical period for resolving a Presidential election because that is the time between Election Day and the “safe harbor” date by which states must have selected their Presidential Electors, if they wish to take advantage of the federal statute that protects their Electors against congressional challenge. While no state would likely be able to follow the precise details of this timetable this year, the model calendar nonetheless may offer some ideas for managing a disputed election, if one occurs, in the limited time available.
In the five-week period between Election Day and the safe harbor date for picking Electors, a state with a disputed Presidential election outcome will need to accomplish an incredible amount of work. Typically, that work includes a set of tasks handled by election administrators, and a distinct set of tasks handled by state courts:
(1) Canvassing the returns at the local level;
(2) Processing provisional ballots and including eligible ballots in the canvass;
(3) Processing absentee ballots and including eligible ballots in the canvass;
(4) Certifying the canvass at the state level;
(5) Conducting a recount.
State Courts or Other Tribunals:
(6) Considering claims of fraud or illegality in the casting or counting of any ballots included in the original canvass;
(7) Considering petitions to reconsider the eligibility of specific provisional or absentee ballots not included in the original canvass and add them to the count;
(8) Considering claims about legal issues arising during the recount;
(9) Providing claimants an opportunity for judicial review of all such legal issues by the state’s high court.
Handling all of these tasks well, in just five weeks, requires careful coordination and deliberate preparation. As the model calendar reflects, substantial gains can be accomplished by beginning some aspects of the judicial contest process before the official recount is complete. In the event of a close election for which a judicial contest is likely, a Secretary of State (or the state’s chief elections official) should take all possible steps to facilitate the commencement of the judicial contest as soon as possible, even before a recount is complete. Indeed, our model calendar contemplates giving the Secretary of State the authority, by statute, to trigger the use of a highly expedited process in the event of a close election. In particular, litigation about claims of fraud or illegality could begin even before a recount, and litigation about the eligibility of ballots not counted in the canvass could begin while the recount is underway. This is the main lesson of the model calendar. Similarly, election officials who have been consulting on the ALI project have also suggested that the recount of ballots initially counted on Election Day could begin immediately, while the process of verifying provisional or absentee ballots is underway. This suggestion has been incorporated in a simplified, week-by-week schematic version of the five-week calendar.
Unfortunately, laws currently on the books in some states may at least complicate, if not preclude, efforts to manage a disputed Presidential election most expeditiously. Nonetheless, until some subsequent statutory changes remedy these defects, state judges and election officials should still do all in their power to make the best use of the available five weeks. At the very least, courts and litigants must establish a sensible briefing schedule for addressing the several types of legal issues likely to arise in an election contest. The model calendar offers one possible template in that regard. The model calendar also includes a number of specific “Reporter’s Notes” about various aspects of handling an election dispute, which we hope also might be of some value in the event of a disputed Presidential election this year.
Ohio, perhaps the most likely swing state this year, has an even more confounding state statute in the event of a close Presidential race: Ohio Revised Code section 3515.08(A) deprives Ohio state courts of jurisdiction over any election contest concerning a federal office. The result is that federal candidates might be forced either to litigate state election processes exclusively in federal court, or to try to litigate more creatively in state court, as through using a quo warranto or other proceeding, without relying on the statutory election contest process. Regardless of court or proceeding, however, the need for expedition will be unchanged.
Of course, any number of federal or state races other than the Presidential race could be close enough to lead to an election contest. Although only the Presidential race has the December safe harbor date that limits to five weeks the time available to resolve the dispute, all close races also deserve expedited resolution. To that end, the ALI project also has been working on a nine-week model calendar, also with its own set of accompanying Reporter’s Notes. This calendar incorporates many of the lessons about expedition contained in the five-week model calendar for Presidential elections, but builds a little more breathing room into the timetable. It seeks to provide state courts with a template for completing an election contest, again including appellate review, roughly by New Year’s Day. In most races, this degree of expedition is critical if the ultimately victorious candidate is to be able to assume office on the scheduled date, which for congressional offices and many state offices is often at or near the beginning of the calendar year.
In the event that any race this November is close enough to lead to a post-election contest proceeding, these two model calendars may at least merit consideration, to whatever extent they can contribute to managing effectively and expeditiously the post-election phase. At the same time, these timetables remain works in progress, and ALI and the Reporters would welcome feedback about them. Post-election litigation is a unique type of proceeding, and additional thought about how best to deal with its unique aspects is needed.
Steven F. Huefner has wide-ranging election law experience and interests, including the specific areas of contested elections, term limits in state legislative elections, military and overseas voting, legislative redistricting, and poll worker responsibility and training. Prior to joining the faculty at Moritz, Professor Huefner spent five years in the U.S. Senate's Office of Legal Counsel, where his responsibilities included advising the U.S. Senate in matters of contested Senate elections, as well as assisting in the 1999 presidential impeachment trial. View Complete Profile