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electionlineWeekly — December 17, 2015

Table of Contents

I. In Focus This Week

The Ghosts of Elections Past — and Yet to Come
Disputed elections, then and maybe now

By This email address is being protected from spambots. You need JavaScript enabled to view it.">Edward B. Foley
Director, Election Law @ Moritz 
Charles W. Ebersold & Florence Whitcomb Ebersold Chair in Constitutional Law
Moritz College of Law, The Ohio State University

Twas the week before Christmas and all through the land,
not a ballot was stirring — and wasn’t that grand!

It’s holiday season, so I’d like to offer some good cheer: folks in the election administration business should be glad that they do their work today, rather than in the nineteenth century. As I describe in my new book, Ballot Battles: The History of Disputed Elections in the United States, elections in the 1800s had an unfortunate tendency to descend into violence or outbreaks of civil unrest.

For instance, you might have thought Philadelphia was the City of Brotherly Love, but not so in 1834 when four died (and five buildings were burned) during armed conflict over the election in the city that year. Even more atrocious was the Colfax Massacre, when scores of African-Americans were brutally slaughtered during the fighting over Louisiana’s election of 1872. The century ended with an exclamation point of ugliness, when one of the candidates in Kentucky’s 1899 election for governor was assassinated by a bullet fired from the secretary of state’s offices! The secretary of state — the official supposedly responsible for running a fair election.

Compared to these and similar episodes, the tussles over hanging chads in Miami seem altogether tame. You don’t call it a “Brooks Brothers riot” to signify thuggery. And as for the litigation over absentee ballots in Minnesota in 2008, it seems like the epitome of a civilized way to resolve a disagreement over the counting of votes in a super-close and high-stakes election. If we can’t all agree on what ballots should count, the state’s supreme court essentially ruled, then we’ll pick a panel that’s as nonpartisan as possible to resolve whatever disagreement remains.

Thus, if you know an election administrator, or are one yourself, you might appreciate a copy of Ballot Battles for the holidays. (Please excuse this shameless self-promotion.) Reading it will put the present state of the field in some useful historical perspective. The early part of the twenty-first century looks a whole lot better than any part of the nineteenth. Surely, that realization is worth a toast of wassail.

Now, however, I’m afraid that I’m going to turn into a bit of a Grinch. Although we don’t face the risk of vote-counting violence that afflicted America in the 1800s, we do have a problem with the amount of time it takes to finish resolve vote-counting fights. The very polite fight in Minnesota over the 2008 U.S. Senate election did not finish until June 30 of the following year. The Senate seat remained vacant for six months—during a time of acute economic crisis. Not exactly the ideal way to operate a democracy, when major legislative matters were under debate in Congress.

Let’s consider the calendar for a moment. This time next year—on Monday, December 19, 2016, to be precise—the presidential electors in all fifty states are required to meet to cast their official Electoral College votes for president. The Constitution itself provides that “the Day” of these meetings must “be the same throughout the United States.”

If (God forbid) your state is confronted with a disputed presidential election next year, could it complete its resolution of the dispute by December 19? Recent history suggests not. On the equivalent day in 2008, Minnesota wasn’t even finished the automatic recount of its U.S. Senate election—not to mention the six months of litigation over absentee ballots that it still had to look forward to.

The same story was true of Washington State in 2004. On December 15, the day the presidential electors met that year, Washington was still in the midst of recounting ballots in its gubernatorial election that year. It, too, had another half-year of litigation ahead before achieving closure of the dispute over that election.

Washington was not the only state with a major ballot-counting dispute in 2004. North Carolina also had one, affecting its election for the state’s superintendent of public instruction. The state’s supreme court did not issue a ruling in that dispute, which concerned provisional ballots, until February of the following year. Who knows what would have happened if the dispute had affected the state’s presidential electors—and if North Carolina had been pivotal in determining the winner of an Electoral College majority that year.

Current prognostications indicate as many as nine or ten states might play the role of “swing state” next year, with the possibility of remaining “too close to call” even after all the preliminary returns are in on Election Night. The nine states, in order of size, are Florida, Pennsylvania, Ohio, Virginia, Wisconsin, Colorado, Iowa, Nevada, and New Hampshire—with North Carolina added as the tenth, although right now it’s the least likely of the ten to be the one that gives a candidate an Electoral College majority.

Imagine any one of these nine or ten states having a serious ballot-counting dispute next year, of the kind that ensnared Minnesota in 2008 or both Washington and North Carolina in 2004. Which ones, if any, can be confident that they would be able to conclusively resolve the dispute by December 19, the day for their presidential electors to meet and vote?

In light of research conducted for Ballot Battles, there is reason to think that Virginia stands in the best position to handle a disputed presidential election. In recent decades, it has had four major disputed elections, all of which were resolved fairly fast—without the kind of protracted litigation that has affected other states.

In 1978, Virginia had a disputed U.S. Senate election, but that dispute ended on December 17 that year. In 1989, the state had a disputed gubernatorial election, which ended on December 21. Then in both 2005 and 2013, Virginia had races for attorney general go into overtime. These ended on December 21 and December 18, respectively. This track record suggests that, if Virginia were hit with a disputed presidential election next year, it has a decent chance of finishing the dispute by the constitutionally critical date of December 19.

Don’t count on the other swing states being so well-positioned. Florida, for example, was the state with procedures so chaotic that the U.S. Supreme Court shut the process down—and while the state has eliminated its hanging chads, it hasn’t fixed its dispute-resolution procedures; so if the state next year has a dispute over absentee or provisional ballots, that fight easily could be consumed in litigation lasting until late December. And Ohio had a fight over provisional ballots cast in 2010 that lasted until the summer of 2012!

One lesson to be learned from all these experiences is this: don’t wait for completion of the canvass to start a required recount. Most of the major vote-counting disputes that have arisen since 2000 involve issues that concern the canvassing of returns: whether to count questionable provisional ballots, or whether absentee ballots were wrongly rejected, and the like. These issues surface prior to the certification of the canvass, and litigation commences before certification—in part because one candidate hopes to delay certification until after the litigation is resolved. If conducting the recount needs to await certification of the canvass, and certification is delayed because of litigation, then in a presidential election the clock may run out long before the whole process is complete.

Imagine in Ohio a federal court delaying certification while it considers issues concerning the counting of provisional ballots. (This is easy to imagine since it has happened in the past.) Suppose the federal court releases its final order on December 19, the day the state’s presidential electors are required to meet. Okay as far as it goes, but suppose pursuant to state law Ohio has been waiting to conduct its automatic recount until completion of the federal court proceedings—because the recount comes after certification, and certification was suspended during the federal-court litigation. Oops. Now Ohio has no time to conduct the mandatory recount.

With a little legislative adjustment, it would be possible for a state to start (and finish) a recount while canvass-related litigation remains underway. That reordering of the process would give a state like Ohio a much better chance of completing a ballot-counting dispute in a presidential election by the constitutionally mandatory date for the meeting of the state’s presidential electors.

This reordering is an idea that underlies a proposed set of Procedures for the Resolution of a Disputed Presidential Election, under consideration by the American Law Institute. (My colleague Steve Huefner and I are honored to serve as Reporters for this American Law Institute project.) It is an idea recommended to the American Law Institute by election officials who have experience with high-stakes recounts.

Thus, if I seem like a Grinch in raising the risk of a disputed presidential election that takes too long to resolve, at least I offer the gift of the American Law Institute’s proposal for a set of Procedures designed to enable a state to handle this kind of dispute within the constitutionally mandatory deadline.

It’s a gift that’s at least worth opening and inspecting. There is still time—a full year before this constitutionally mandatory deadline arrives—for a state to review its own procedures and to consider how well-positioned it is to handle a disputed presidential election in 2016.

No state wants December 19, 2016 to arrive and to be in the situation in which it does not know who its official presidential electors are—because the state is still engulfed in a battle over the ballots cast by ordinary voters on Tuesday, November 8.

Election officials in Ohio, Florida, and other swing states surely want the holiday season next year to be as calm and relaxing as this one. There is a better chance of getting this wish if, between now and then, they put in place a set of procedures that gives their state the maximum chance of resolving all ballot-counting disputes in a presidential election by mid-December.