Posted: December 9, 2008
If the Minnesota Recount Involved a Presidential Race…
Happy Safe Harbor Day. No, it’s not to celebrate measures to secure seaports against terrorist threats, although that’s certainly a worthwhile goal.
Instead, it’s the day that Congress has set for states to resolve all controversies concerning the counting of votes for President, if the states wish their resolution to be binding when Congress meets to declare officially the election’s winner.
Eight years ago, it was the day that the U.S. Supreme Court ended the Florida recount in Bush v. Gore. Under the Electoral Count Act of 1887, which Congress passed in the wake of the disputed Hayes-Tilden election of 1876, Safe Harbor Day is always the fifth Tuesday after Election Day, and six days before the Electoral College meets in each state.
This year we can surely celebrate that there are no controversies over the counting of presidential ballots that would implicate this deadline. Still, we should not overlook the fact that, if such a controversy had occurred, the procedures for handling it cannot be expected to wrap up five weeks after Election Day.
Minnesota is just now transitioning to a new phase of its proceedings over the disputed U.S. Senate race between incumbent Norm Coleman and challenger Al Franken. The state’s canvassing board still must review the thousands of challenged ballots set aside during the hand recount that occurred there over the past several weeks. Potentially even more time-consuming will be the issue of rejected absentee ballots, which were not part of the initial recount process.
If the Minnesota proceedings had involved a presidential rather than a Senate race, the state could have compressed its recount schedule somewhat in an effort to meet the Safe Harbor Deadline. But it is unrealistic to expect that it could have been completely successful, even with its best efforts. The absentee ballot issue still would have involved legal questions requiring judicial consideration, a process that takes more than five weeks even at breakneck speed—as Bush v. Gore demonstrated.
It was one thing for the U.S. Supreme Court to stop the Florida process in 2000, given its ruling that the procedures for reviewing “hanging” and “dimpled” chads was inherently and irremediably flawed. But there is nothing flawed about the way in which Minnesota is going about dealing with its issue of rejected absentee ballots. It is now separating those ballots into different piles according to the four permissible reasons for rejecting them under state law, with a so-called “fifth pile” for ballots rejected for non-statutory (and thus presumably impermissible) reasons. After this sorting, the state will need to figure out not only how it treats this fifth pile, but also what it does with allegations that local officials sometimes misapplied a legitimate ground for rejecting a ballot (for example, saying that the signature on the absentee ballot envelope did not match the signature on file, when upon further inspection the signature looks close enough). With an estimated 12,000 rejected absentee ballots statewide, and perhaps as many as 1000 wrongly rejected, the procedures that the state uses to settle this matter will be crucial to identifying the winner, when the margin of victory after reviewing all other ballots is likely to end up less than a few hundred votes.
If it were a presidential election hanging in the balance, and the state simply stopped this process because it had run out of time, there would be justified outrage nationwide. The sophisticated perspective may say that this Minnesota election—like the 2000 presidential vote in Florida—is a “statistical tie,” too close to identify a true winner based on an accurate count of all ballots. Nonetheless, we still need a non-arbitrary and fair process for handling this situation. It does not seem fair, or appropriate in light of the one-person-one-vote principle underlying our democracy, to say: (1) the counting process is almost finished but not quite; (2) the remaining ballots will actually make a difference, if only to confirm that the result is inside the margin of a “statistical tie”; yet (3) we are going to stop the process in the interest of speed, and (4) declare whoever is ahead right now the winner. I also don’t think we want to elect a President based on a flip of the coin, as some have suggested we do for Minnesota’s Senate seat. But we need some new procedure for handling extremely close presidential elections, because our current “time’s up” one is unsatisfactory.
Moreover, Minnesota’s situation is a relatively straightforward one, as is illustrated by another congressional race this year: Ohio’s fifteenth House district. That election was finally decided Sunday night after the counting of 27,000 provisional ballots, which had been tied up in litigation that had bounced between state and federal courts. But if it had been the presidential election hinging on Ohio’s provisional ballots, the litigation over them would have lasted even longer, missing the Safe Harbor Deadline.
And all that Ohio litigation occurred before the time for mandatory recounts in close races, like the one in Minnesota. In other words, if Sunday night’s announcement of the result in OH-15 had been a margin as close as Minnesota’s, Ohio just now would be starting the recount that Minnesota began weeks ago. Minnesota avoided these preliminaries, because it has Election Day registration and thus no need for provisional ballots. But Ohio has large numbers of both provisional and absentee ballots, and thus a close presidential election in Ohio is likely to involve disputes over both, being at least twice as complicated as Minnesota’s situation.
We avoided all that mess this time, but for the future Congress should adopt better procedures for resolving disputes over presidential votes, including a deadline that states reasonably can meet.
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