By Nathan Cemenska
Web Editor, Election Law @ Moritz
Moritz College of Law
Much has been said about the effect Super-Duper Tuesday might have on candidates and campaigns, but what about the effect it will have on election administration? I did some research on the subject but could come to only one firm conclusion: I cannot develop a firm conclusion.
My uncertainty arises from two sources. First, I do not have enough information regarding how the earlier primaries are affecting local election administrators. But second, even if I did have this information, I would remain uncertain about its meaning in the context of Super-Duper Tuesday. I would remain uncertain because the meaning of that day is currently being manufactured by our democracy and will not become apparent until after the fact.
I will address the lack of information, but first, let me provide an example of how the earlier primary could affect elections operations. In the course of another project, the Election Law @ Moritz team learned how the change is causing problems for election administrators in Illinois. Historically, Illinois has had a lot of ballot-access litigation that delays ballot printing and machine configuration until the last minute, forcing administrators to rush their work and increasing the risk of error. In the 2008 Presidential election, this problem will be doubly compounded, first by Illinois’ recent institution of early voting, and now by its earlier primary. Administrators from Illinois were concerned enough to write an editorial that warned that “there… [will] be little more than a month to handle any objections and court cases—all during weeks that include Thanksgiving, Hanukkah, Christmas and New Year’s Day. This is unfair to the many participants and increases the probability of balloting crises….” Earlier filing needed if primary is changed, Chicago Tribune, May 27, 2007. Lobbying efforts succeeded in getting the legislature to make some helpful changes, but those did not include moving back the schedule of the Presidential ballot access process and timing will still be a challenge compared to previous years.
The lack of information about how the earlier primaries are affecting administration in other states means it is impossible to determine the appropriate degree of concern. Still, it is hard to imagine that similar crunches will not occur in other states, and that could—could—lead to serious problems. The notorious Florida butterfly ballot of 2000 and the lesser known DRE ballot in the 2006 race in Florida’s 13th Congressional district have shown that carelessly designed ballots can taint elections, and we should take care to avoid creating conditions under which such carelessness is more likely to occur. Moreover, because the primary dates of some states are still potentially in flux, the risk of error may be further increased. Logistical problems, like the failure of Maryland election administrators in the 2006 primary to provide each polling place with the materials necessary to run an election, are more likely to occur when last-minute changes deprive election administrators of the opportunity to plan effectively. And there are probably other types of problems our early primaries could cause that I have not anticipated.
The second source of uncertainty is, even if we assume that the earlier dates do cause a serious problem in one or more states, we cannot be sure how that would affect the candidates. This is because, unlike in general elections, victories and losses in Presidential primaries are largely symbolic. The Iowa caucus that everybody fixes upon, for instance, does not select what Presidential delegates will go to the national nominating convention, but is merely the start of a delegate selection process that begins in precincts, moves to county caucuses, and ends finally in the statewide caucus that actually selects the Presidential delegates. There is no guarantee that what happens at the initial caucus will reflect the final result, but this does not stop us from investing a great deal of meaning in the outcome of the initial caucus. However, in a post-Super-Duper Tuesday world, it has become less clear what meaning to ascribe to such an outcome.
It is not inconceivable that this symbolic quality of primaries may lead to recounts and election contests because, in a sense, the candidates are not trying to win the early primaries per se, but instead are just trying to look strong. While they can certainly accomplish this by winning, when that is not possible they can accomplish it by muddying the result with a lawsuit, declaring victory, and hoping to stay alive until the next wave of primaries. By the time the lawsuit is resolved, the next wave will probably be completed, the candidates who are going to drop out will have dropped out, and it will not matter so much who won the original disputed election.
The peculiar rules that apply to presidential primary contests may also encourage litigation. The primaries of many states, including New Hampshire, do not operate on a winner-take-all basis, but instead allocate delegates in proportion to the popular vote (see Democratic Plan Rule 4(a), 2004 Republican rules). Thus, a candidate would only have to show a little inaccuracy in the original vote tally to pick up a delegate or two, increasing the incentive to litigate. However, because under this system the pot of delegates at the end of the election contest rainbow is so much smaller than under a winner-take-all system, candidates may decide it is not worth fighting over, perhaps making litigation less likely.
Another peculiar rule in New Hampshire is that, with certain exceptions, candidates must obtain a certain minimum percentage of the vote to get any delegates at all, and if they fail to meet this threshold then the residue is distributed among the remaining candidates (see Democratic Plan Rule 4(b), 2004 Republican rules). This, too, could lead to litigation if the dominant candidates want to knock another candidate below the threshold to steal delegates.
Finally, while some states allocate their delegates based on statewide totals, some, such as Florida, set aside part of them to allocate based on the vote within each of the state’s Congressional districts (see Democratic Plan, p. 26; 2004 Republican rules). This means that, if one of these districts experiences a voting snafu, there could be litigation even if it was not severe enough to change the result of the statewide count.
Do I think that any of this is going to occur? I would hope that the parties would have enough control over their candidates to persuade them to forego election contests except where it is pretty clear that serious errors occurred and probably changed the outcome. And my gut instinct tells me that there will probably not be so clear a case, because things are hardly ever so clear. Nevertheless, the lack of information on these issues is a threat in itself, and combined with the sheer newness of Super-Duper Tuesday it becomes a problem that deserves some more attention. If there is one thing we have learned at Election Law @ Moritz, it is that election systems function like ecosystems—everything is connected, and changing one little thing might create unforeseeable consequences in another area. With the advent of Super-Duper Tuesday, we have changed one big thing, and it is hard to see how that will not have important, if not negative, consequences for election administration, not just candidates and campaigns.