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Election Law @ Moritz

Election Law @ Moritz


Counting Ballots Pursuant to Law is Not Stealing an Election

It has been less than 72 hours since polls closed on the 2018 congressional midterm elections, and for candidates and their supporters who do not yet know the outcome of close contests, patience – not unsubstantiated or false allegations of election rigging – MUST be the order of the day.

As any close observer of U.S. elections knows, once the polls close each state then conducts a carefully structured process of tallying the votes. Critically, as any close observer also knows, the Election Night “results” are not only unofficial, they are also still entirely preliminary and will almost inevitably change, perhaps considerably. With the dramatic rise in the use of mail-in absentee voting over the past decade, election officials increasingly must deal after Election Day with a significant volume of paper ballots that have arrived around Election Day (each state sets its own rules for when the ballots must arrive). Meanwhile, provisional ballots also require individual review and processing after Election Day. These post-election processes are not some mere afterthought; rather, they are critical components of determining the official election outcome, and they must be respected as essential to the overall integrity of the election.

Although these processes occur as part of every election, they understandably do not attract much attention when the unofficial results reported on Election Night are not close. But for election officials, it is a routine part of their duties after every election to undertake the laborious and thoroughgoing canvassing processes now occurring everywhere, not just in states like Florida, Georgia, and Arizona (where some high-profile races are quite close or essentially even). In every election, these processes need to occur in ways that promote public trust, and election officials must be required to adhere to the law that governs these processes. (The American Law Institute has just published an extensive set of legal principles and related commentary designed to promote the fair resolution of disputed elections, developed after several years of collaborative work with a team of expert advisers, in which my Moritz colleague Ned Foley and I also participated as the project’s “Reporters.”) Correspondingly, candidates and the general public should be able to insist that election officials perform these duties properly.

Thus, it is beyond unseemly – indeed, it is downright destructive of public trust in our elections, and fundamentally inconsistent with the health of our representative democracy – for candidates to assert or imply that the reason that Election Night results have been changing in the past few days is because election officials have engaged in some sort of irregular or unlawful conduct to manipulate the results. For anyone who cares about democratic institutions, the responsible position is to let the counting proceed according to state law, and then if necessary to take advantage of recount, audit, and contest processes to ascertain whether any defects occurred in these processes.

We can revisit for future elections whether our system has come to rely too heavily on counting ballots days after Election Night. But that is a policy question for a later date, and all ballots cast in this year’s elections must be scrupulously counted according to the laws established for this year’s elections. Leaders of both parties, with the support of all concerned citizens, ought to condemn any effort to undermine this essential stage of the electoral process.

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


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