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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 Recount Procedures. See All News & Analysis on Recount Procedures

6/30/09
MN Supreme Court Rules in Coleman v. Franken

The Minnesota Supreme Court has issued an opinion (6/30) affirming the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled to receive the certificate of election as U.S. Senator from the state of Minnesota [See EL@M case page for additional information].

4/30/09
Coleman Files Brief in Minnesota Recount Case

The first brief has been filed today (4/30) by the appellants with the Minnesota Supreme Court.

4/24/09
Minnesota Recount - Order Setting Date for Arguments

The Minnesota Supreme Court has entered an Order (4/24) establishing a schedule for briefs and has set a date of Monday, June 1 to hear arguments on the election dispute.

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
NY-20 congressional race - vote-counting continues as do court battles

Votes are still being counted in the NY-20 congressional race that took place roughly two weeks ago.  Yesterday was the deadline for arrival of military and overseas ballots.  Candidate Tedisco wants this deadline to be extended and Candidate Murphy has said he would be amenable to extending it as well.  However, the judge who was to preside over a hearing on the matter yesterday fell ill and was hospitalized.  He is expected to hear the matter as early as tomorrow.  See local coverage here.  The judge will likely also hear arguments over whether challenged ballots may be counted immediately when county elections commissioners from both parties agree that they should be opened and counted.  Tedisco's challengers in Columbia County have so far insisted that the challenged ballots be held aside until a judge can rule on them.  See the Times Union coverage here.  Democratic candidate Scott Murphy is currently ahead by 56 votes according to the New York State Board of Elections website.

Recent Commentary

Below are the most recent Commentaries on Recount Procedures . See All Commentaries on Recount Procedures

4/1/09
Situation Normal: Election Too Close to Call

3/11/09
What has to happen to unring this Bell?

What has to happen to unring this Bell? 

The Minnesota Supreme Court’s 1975 decision in Bell v. Gannaway, 303 Minn. 346, (Minn. 1975) has received quite a lot of attention lately. A couple of things about Bell need more discussion. First, how significant to the court’s holding was its finding that candidates had the opportunity on election day to challenge invalid absentee ballots? Has that law and practice changed? Second, would the court have reached the same conclusion if it had been dealing with a contest of a statewide race like Coleman v. Franken? Does that matter now? Finally, what factual findings and reasoning would lead today’s contest court to reach a different conclusion than the court in Bell? 

3/2/09
Un-counting votes in Minnesota’s U.S. Senate race

Question: Assuming that invalid absentee votes have been cast and counted in Minnesota’s U.S. Senate race without any way to retrieve them, what remedy does Minnesota law provide when the number of such invalid absentee ballots exceeds the margin of victory?

12/9/08
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.

11/25/08
Eyes Now Turn to Ohio Supreme Court

The U.S. Court of Appeals for the Sixth Circuit today sent back to the Ohio Supreme Court the case that involves disputed provisional ballots that might determine the outcome of one congressional and two state legislative elections.   It is important now how the Ohio Supreme Court handles the case on the merits.  Its ruling will affect the state's reputation on voting administration--and potentially may also influence how the U.S. House of Representatives handles a disputed congressional election, depending upon how events unfold.

Recent News Stories

Below are the most recent News Stories on Recount Procedures. See All News Stories on Recount Procedures

6/23/09
Absentee voters overwhelmingly vote against mayoral recall

The recall election of Akron Mayor Don Plusquellic went down in flames among absentee voters. Out of about 8,000 voters, 84 percent voted against the recall.

4/7/09
Absentee count to start Wednesday

Elections officials in the 20th Congressional District will begin opening absentee ballots Wednesday, a state Supreme Court judge ruled Monday.

4/7/09
NY House race ballot counting to begin this week

County Boards of Election in New York's 20th Congressional District can start counting paper ballots Wednesday in the too-close-to-call special election, according to a Supreme Court ruling issued Monday.

2/25/09
Ritchie discusses election issues

Secretary of State Mark Ritchie visited Beltrami County on Monday to talk election issues, and Beltrami County Auditor-Treasurer Kay Mack spent Tuesday in St. Paul talking absentee ballots.

2/18/09
Three-vote margin spurs Palm Beach mayoral ballot recount Saturday

A hand recount necessary to certify a winner in Tuesday's mayoral race will take place Saturday and be open to the public, Palm Beach County Supervisor of Elections Susan Bucher said.

Current Litigation

Below are the Active Cases on Recount Procedures . See All Current and Archived Cases on Recount Procedures