Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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Recent News & Analysis

Below are the most recent News & Analysis posts on Election Contest. See All News & Analysis on Election Contest

5/15/09
Coleman Files Reply Brief

The Appellants have now filed the Reply Brief (5/15) with the Minnesota Supreme Court.

4/27/09
Tedisco Concedes in NY 20

Republican Jim Tedisco on Friday (4/24) conceded the closely contested New York congressional election to Democrat Scott Murphy.  The concession marks the end of the contest that began in late January, when Kirsten Gillibrand vacated the seat to become New York's junior senator. 

4/16/09
NY-20 update - Tedisco challenges Gillibrand's ballot

Candidate Jim Tedisco has challenged the ballot of Senator Kirsten Gillibrand who used to hold the seat he now seeks in Congress. Challengers allege that she was in the county on election day and should have voted in person. Senator Gillibrand says she was not in the county and that Tedisco is targeting Democratic voters unfairly. A judge is expected to rule soon on the counting of some challenged ballots and the possibility of extending the deadline for military and overseas ballots.  Murphy currently leads by 86 votes.  See today’s Saratogian coverage here. New York law allows persons who will be out of the county on election day to vote by absentee ballot. 8-400. The voter must sign a statement on the ballot application affirming that he or she “expects in good faith” to fall into one of the categories of voters who may vote absentee. Challengers may challenge voters on the grounds that they were not entitled to cast an absentee ballot. 8-506. 

Voting both by absentee ballot and in person on election day is controversial. During the 2008 presidential primaries, a New Jersey county court ruled that voters who cast their ballots before some candidates pulled out of the presidential race could get a replacement absentee ballot. In Minnesota, voters who cast an absentee ballot may vote in person without penalty; their absentee ballot is then not to be counted because poll workers should see that the voter signed the poll roster and voted in person before opening the voter’s absentee ballot. The practice is not necessarily encouraged but it is permitted. Some argue that actively allowing a second ballot to be issued to a voter unfairly gives that voter two chances to vote even if only one ballot is ultimately counted. In New York, when two absentee ballots are received from one voter, the one that is dated earlier in time is opened and counted. 8-506. This may imply a preference in New York election law for counting a voter’s first set of choices rather than giving the voter a second chance to make his or her voting decisions. 

4/14/09
Minnesota contest - possible next steps

Eric Black of MinnPost.com has a nice summary and analysis of what may happen with respect to issuance of a certificate of election in Minnesota's U.S. Senate race.  Until recently, Governor Tim Pawlenty has been saying that, after the Minnesota Supreme Court hears and decides an appeal, a federal court might stay issuance of a certificate if possible federal appeals are pending.  Yesterday, however, the governor implied that he himself might have some discretion in withholding the certificate if he thinks there are issues outstanding that would make a delay prudent.  Attorney Ben Ginsburg said today that Coleman's appeal of the contest court's decision will likely be filed next week.  See Jay Weiner's MinnPost.com piece here.

4/7/09
NY-20 congressional race: absentee ballots to be counted tomorrow

The Supreme Court of New York in Dutchess County has ordered the counting of absentee ballots in the NY-20 congressional race to begin Wednesday, April 8. The state Republican Party had argued that absentee ballots should be counted with military and overseas ballots which have until next Monday to arrive under a consent decree entered with the federal government. The court found that the order does not apply to regular absentee ballots and that the ballots should be counted immediately rather than remaining in storage until Monday. See our case page here.  The New York State Board of Elections has Tedisco leading by 97 votes but a recent report from someone who has spoken to county officials has Murphy leading by 83 votes.  See the Politico coverage here.  UPDATE (4/8): The absentee ballot count is under way. 

Recent Commentary

Below are the most recent Commentaries on Election Contest . See All Commentaries on Election Contest

11/5/09
Uncounted Ballots: A Measure of Vulnerability

Guess what? Ohio ranks especially vulnerable.

10/20/09
Election Commissions and Supreme Courts

Today's news from Afghanistan prompts some thinking on the institutional uncertainty that exists in the U.S. in the event of a disputed presidential election.   Do we want our Supreme Court to have the last word, or would we prefer a special-purpose Electoral Commission structured to be politically neutral between the competing candidates and parties?

7/1/09
The Rhetoric of a "Stolen" Election

The following is an email I sent to Rick Hasen's Election Law "listserv" when I saw his reference to the Wall Street Journal's editorial on the resolution of the U.S. Senate election in Minnesota:

I was very disappointed to see the Wall Street Journal editorialize: “Mr. Franken now goes to the Senate having effectively stolen an election.”   This provocative accusation is highly irresponsible, both (a) in terms of U.S. domestic politics and the public's understanding of its own democracy and (b) our consideration of international standards regarding the conduct of elections, brought so dramatically to the fore by Iran. 

6/30/09
Impressive Unanimity: the Historical Significance of Coleman v. Franken

The Minnesota Supreme Court's decision in the Franken-Coleman case will begin its life as one of the most legally significant resolutions of a disputed election in U.S. history.

6/1/09
Conscientious Judging on Display

For anyone watching the Minnesota Supreme Court in today’s oral argument of Coleman v. Franken, the impression should have been one of judges striving to find the right answer according to the law and the record of the case. 

Recent News Stories

Below are the most recent News Stories on Election Contest. See All News Stories on Election Contest

8/29/09
Election challenge sent to attorney general

The Georgia State Election Board voted Thursday to refer five of seven what it termed potential violations by Douglas County election officials to the state attorney-general’s office for investigation.

8/29/09
Douglas County Elections Board issues statement on election allegations

On Thursday, August 27, 2009, the State Board of Elections considered issues raised in an investigative summary by the Office of the Inspector General of the Secretary of State regarding allegations by James Quarterman arising out of the November, 2008 general election.

8/17/09
Rosamond seeks judicial review of Canton Ward 1 election

The controversy over Canton’s Ward 1 alderman election is continuing, as Ray Rosamond -- the incumbent who lost to Rodriquez Brown in a Democratic runoff -- is seeking a judicial review of his complaint. Rosamond wants the election results thrown out because of alleged fraud and illegal voting in the May 19 runoff between he and Brown.

7/29/09
Supreme Court may hear election queries in October

Supreme Court justices could consider two questions about election administrators during their October or February sessions, the clerk said Wednesday.

6/16/09
Settlement made in Ohio lawsuit from 2004 election

The League of Women Voters of Ohio and the Ohio Secretary of State's office reached the federal court settlement Tuesday regarding the election overseen by then-Secretary of State Ken Blackwell.

Current Litigation

There are no active cases on Election Contest that Election Law @ Moritz is covering at this time. See All Archived Cases on Election Contest