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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Close Elections Are Healthy - If We Trust the Refs

Folks have been quoting the Election Administrators’ Prayer lately: “Lord, Let This Election Not Be Close.” You can understand why: there are widespread predictions of significant statewide races—U.S. Senate or gubernatorial—that could be close enough to require recounts.

While we wait for the early returns that will either bear out or refute these predictions, it is worth keeping the following points in mind:

First, a recount is a process, not a problem. The mere fact that an election requires a recount is, by itself, not a bad sign at all. All it means is that the particular election was extremely competitive, a sign of a vibrant democracy. This point especially applies to statewide races, which necessarily involve the state’s entire electorate and are not complicated by the potential problem of gerrymandering. (In other words, one close congressional race in a state with ten or twenty congressional districts is not necessarily a good sign at all.)

A recount means that the two top vote-getting candidates were almost equally successful in appealing to the average voter who, going into the campaign, was open to persuasion from both sides. Democracy at work. Recounting the ballots is just an indication that the legal system considers elections important enough to take the time and effort to double-check the results, in an effort to make sure that they are correct.

Second, before there can be a recount, it is necessary to complete the initial count. The public is starting to get used to the fact that we don’t always have a complete initial count of all ballots cast in an election on Tuesday night, after the polls close. Two developments over the last decade have accentuated this tendency. One, the existence of provisional ballots, mandated by the Help America Vote Act of 2002, which give voters an opportunity to cast a ballot even if there is question about their eligibility. Because it takes at least a few days to verify whether or not these provisional ballots are indeed eligible for counting, it is impossible to declare a winner in an election where there are enough provisional ballots to conceivably make a difference. Two, as more states increasingly rely on absentee voting—and as they permit absentee ballots to arrive after the polls close as long as they are postmarked by election day—these last-arriving absentee ballots can also make a decisive difference in the outcome.

But neither of these developments are a sign of a malfunction in the election system. On the contrary, there are expected and appropriate byproducts of the policy choices to require provisional ballots and to permit election day postmarking of absentee ballots. If and when the public hears that a statewide race is “too close to call” because of yet-to-be-counted provisional and absentee ballots, the public should not immediately jump to the conclusion that something must be wrong and that there is a danger of the electoral will being nullified in the ballot-counting process. Instead, by itself, the announcement that “calling the race” requires waiting for the counting of these ballots is a sign of the system working properly—and that democracy is capable of identifying a winner when the electorate is closely split between the two leading candidates.

Of course, waiting to start a recount until all the provisional and absentee ballots have been counted initially does delay the process of identifying the winner for at least a couple of weeks. A public tired of a long season of campaign ads, as well as perhaps several weeks of early voting, may be anxious for a result in a major statewide race. Still, even more than answer, the public wants the count to be correct, and thus the public will be patient for the results of a recount as long as it remembers that the recount itself is not a sign of the system going awry, but an integral part of the system itself in order to properly handle the exceptionally close races.

Third, the commotion of the candidates and their supporters is not a sign of system weakness. We can be sure that, where there is a recount, there will be a lot of noise coming from both camps in an effort to sway public opinion towards one side or the other. This noise will include allegations of improprieties and irregularities, as well as pious comments about “counting all the votes” or “the need to bring closure to the election” (you can easily guess which side will say which, depending on who is ahead after the initial count). But the public would do well to filter out this noise and focus instead on the statement of the officials responsible for conducting the recount and bringing the election to a conclusion.

Consider the analogy of the noise among the crowd in a stadium at an important sporting event. If the game has gone into overtime, and a championship is at stake, of course the fans on both sides will be shouting. They are excited and rooting for their team. In the heat of the moment, they may even shout invectives at the referees. But observers who are not particularly partial to one team or the other—or even fans who are when they get a chance to calm down—can recognize if the refs are basically officiating the game fairly. And if they keep their eyes on the refs as they watch the end of the game, they know that all the noise in the stands from the fans on both sides won’t make a difference to the propriety of the outcome. The game will be fair, whatever the noise, because of what happens on the field, not in the stands.

There are different ways to express this key point. ALLEGATIONS of improprieties do not by themselves prove the EXISTENCE of improprieties. Or, as I like to say: in the context of elections at least, where there is smoke does NOT necessarily mean there is fire.

The candidates and their most ardent supporters have the incentive to “make allegations first, attempt to substantiate them later.” The public as a whole, however, should not be bamboozled by these charges. Wait and see what the refs have to say about them—and see if the refs conduct themselves properly, in a way that makes the competition a fair one.

This brings us to our most important point.

Fourth, if there is litigation over the outcome of an election, watch for whether the judges agree or disagree about what the result should be under the law.

The existence of lawsuits over the counting of ballots after the polls close is analytically distinct from the existence of a recount, and it is very much worth keeping this distinction in mind as events unfold. Unlike recounts, lawsuits are something of a warning sign. It does mean that one side or the other thinks there have been problems that are potentially outcome-determinative—not merely a close vote that deserves recounting.

Remember, of course, that allegations of problems are just allegations—unless and until a court accepts them as proven facts based on adequate evidence. The filing of a lawsuit is just a formal form of alleging improprieties. The mere filing does not prove them true. Moreover, candidates and their attorneys are quicker to file lawsuits in recent years than in the past, and thus a kind of discount factor can reasonably be applied to the mere filing of a lawsuit in the aftermath of balloting.

If there is this kind of lawsuit, it all comes down to how the judiciary handles it. If several judges look at the lawsuit, at both the trial and appellate levels, and especially if the judges who do so come from different political backgrounds, and they all reach the same conclusion that the lawsuit lacks merit, then the public essentially should treat the result as if the lawsuit never happened. In other words, it was just a very close election; one side tried to prevail by going to court, but they couldn’t make it happen. The system worked. The outcome can be trusted. The situation is essentially equivalent to a recount without a lawsuit at all.

If conversely the judges all agree that the lawsuit HAS merit, then the situation is somewhat different, but not critically alarming. The fact that the lawsuit was correct in alleging problems in the vote-counting process means, regrettably, that there WERE problems that required the court’s attention. It would have been better, obviously, if there hadn’t been the problems in the first place. But if the judges, regardless of their political backgrounds, all agree what the problems were and what should be done to remedy then, then the public can be confident that the election system has well-working judicial “safety-value” to protect the system from problems that can (and, again regrettably, do) arise. The public can trust the outcome of the election in this situation—indeed, more so than if the judiciary had not acted to remedy the problem.

It is only when the judges split in their rulings that we have cause for anxiety. At the very least, a split among judges means that the law or evidence was unclear and thus it was possible for judges to go either way. In this situation, we can’t completely trust the results of the election, even if the judges acted in good faith to the best of their judicial abilities, because how do we know which judicial position was the correct one? If one good-faith judicial position says Candidate A should win the election given the law and evidence, but the other good-faith judicial position says Candidate B should win given the same law and evidence, then by definition the election is being decided by the judges and not just the voters. Moreover, there is inevitably some arbitrariness to this split judicial decision, no matter how well-reasoned both good-faith judicial positions are articulated. How come there were more judges who adopted the one point of view rather than the other? The other candidate would have won this important election if it happened that more judges adopted the alternative good-faith position. That luck-of-the-draw is inevitably unsettling to an electoral system and in some basic sense inconstant with the democratic idea that the voters themselves should determine the outcome of the election.

Of course, the situation is even worse—much worse—if the split among the judges tracks their differing political backgrounds. If Democratic judges rule for Democratic candidates and Republican judges rule for Republican candidates, as disturbingly happens from time to time, then there is no trusting the result. In this situation, the litigation neither validates nor corrects the result of the recount (or initial count), but simply indicates that partisan judicial fiat determines which side prevails. If a system of election integrity monitoring had a set of “alert levels” comparable to those for terrorist warnings, this situation of a partisan split among the judges responsible for deciding litigation over the counting of ballots would qualify for the highest Red Alert level.

But here on Election Day, as we contemplate the potential process of resolving races “too close to call” tonight, let’s not jump to any premature conclusion that we are going to have anything like this kind of Red Alert situation. Let’s hope instead that the process unfolds just as it is supposed to: with the counting of provisional and absentee ballots and the conduct of recounts, if necessary. In the absence of any litigation, there wouldn’t be the need for an heightened alert level. But even if litigation occurs, adjust the alert level only to yellow until we see how the judges handle it. If they split, but not along partisan lines, that warrants an orange-level alert. Let’s save Red Alert for a partisan judicial split. If we do end up seeing it, then let’s call it out: Red Alerts do deserve dramatic attention. But let’s be sophisticated and nuanced enough to be able to distinguish those situations that deserve Red Alert from those that do not.

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


Edward B. Foley

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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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