Who Decides a Post-Election Dispute? | Election Law @ Moritz

By Joshua A. Douglas

Assistant Professor of Law, University of Kentucky College of Law

This post highlights a chart containing information about who would decide a post-election challenge in each of the fifty states, broken down by type of election. To access the chart, click here. For a summary and further analysis, read on.

Doomsday scenarios abound regarding an election that might last into extra innings. What will happen if, on the morning of Wednesday, November 7, we do not know who won the presidential election, or other races? More menacingly, what happens if post-election challenges last several weeks, beyond the routine provisional ballot and recount procedures?

One important aspect of understanding a post-election proceeding is recognizing who decides an election contest. Importantly, an “election contest” is a challenge to the result after a recount is complete and the state has certified a candidate as the winner. Of course, who decides can matter to the outcome. Once we are through with a recount and there are alleged election irregularities or other questions, what mechanisms have states created to handle an adjudicatory election contest? For example, after the initial recount in 2000, Al Gore initiated an election contest in the Florida courts—which eventually made its way to the U.S. Supreme Court and became Bush v. Gore. How would a post-recount election contest proceed in 2012?

All fifty states have statutory schemes covering election contests, and they all direct an election contest to a particular tribunal, such as a trial court, state supreme court, legislature, or other body. I have compiled a chart that depicts how each state would resolve an election contest, broken down by type of election. This chart is an Appendix to a forthcoming article, Joshua A. Douglas, Procedural Fairness in Election Contests, 88 Ind. L.J. ## (2013). Special thanks to the Indiana Law Journal for allowing me to post this Appendix before publication of the article; a draft version of the full article is available here. (One caveat: this Appendix is still a draft version and has not yet been fully cited or cite checked. That said, it should still provide a useful resource for those wondering how an election contest would proceed. Citations to all of the state’s statutes are available in the full draft article.)

The chart – and the underlying statutes on which it is based – reveals some interesting ways each state would resolve a disputed election. Notably, some states give their state Supreme Courts original jurisdiction over a post-election dispute; others treat the case like a normal trial; and still others create a special court or tribunal to hear the case.

Here are some highlights:

Contested Presidential Election

Election Law@Moritz has identified 8 “swing states” that could tip the presidential election. Here is who would decide an election contest for the state’s presidential electors in each of these states:

·Colorado:

oState Supreme Court; no appeal

·Florida:

o Leon County Circuit Court; appeal allowed

·Iowa:

oSpecial court consisting of the Chief Justice of the Supreme Court and four judges of the district court that the Supreme Court selects; no appeal

·Nevada:

oDistrict court; appeal allowed

·New Hampshire:

oFive-member ballot law commission: New Hampshire Speaker of the House and President of the Senate each select two members (one from each major party), and the Governor selects the last person, who must be qualified in election procedure; appeal to the Supreme Court allowed, but issues of fact are “final if supported by the requisite evidence”

·Ohio:

oContests for presidential electors prohibited; any election challenge would have to be in federal court

·Virginia:

oCircuit Court in Richmond by a special court composed of the Chief Judge of the circuit court and two circuit judges from different circuits “not contiguous to the City of Richmond” who the Chief Justice of the Virginia Supreme Court appoints

·Wisconsin:

oCircuit Court; appeal to 4th District Court of Appeals

Contested U.S. Senate Election

There are several states holding an election for U.S. Senate that appear to be close. Here is who would resolve an election contest for U.S. Senate in those states:

·Arizona:

oState election contest likely unavailable, pushing any contest to federal court; Statute seemingly excludes (by implication) contest over federal elections

·Connecticut:

oAny judge of the state Supreme Court, who decides the case with two other Supreme Court judges the Chief Court Administrator selects

·Indiana:

oState recount commission

·Massachusetts:

oInquest in District Court; Superior Court then has jurisdiction; appeal directly to the Supreme Court

·Montana:

oDistrict court of the county in which the certificate, declaration, or acceptance of the person’s nomination is filed or in which the incumbent resides

·Nevada:

oContests for Congressional elections prohibited; any election challenge would have to be in federal court

·North Dakota:

oTrial court in county of contestee’s residence; appeal directly to the Supreme Court

·Virginia:

oNo specific guidance in state statutes; likely use same process as for primaries for U.S. Senate, which is resolved in Circuit Court in Richmond by a special court composed of the Chief Judge of the circuit court and two circuit judges from different circuits “not contiguous to the City of Richmond” who the Chief Justice of the Virginia Supreme Court appoints

·Wisconsin:

oCircuit Court; appeal to 4th District Court of Appeals

Contested Gubernatorial Election

There appear to be 3 gubernatorial elections that will be close. Here is who would decide an election contest in those states:

·Montana:

oDistrict court

·New Hampshire:

·Washington:

oAny justice of the supreme court, judge of the court of appeals, or judge of the superior court has jurisdiction; possible appeal to the Supreme Court from a decision of the Superior Court

While many states such as those listed above employ a litigation-type model and use their courts, other states have different mechanisms. For example, a joint session of the legislature would decide a post-election challenge to the gubernatorial election in West Virginia.

What is missing from these statutory provisions is a structural or procedural way to ensure impartiality in the decision maker. To take one somewhat absurd example, Texas directs its Governor to resolve a dispute over the state’s presidential electors. It is implausible that the Electoral College will come down to Texas this year or that Texas will be close, but that example demonstrates how states have largely failed to consider impartiality in the election setting. Few would think that the Texas Governor would be an impartial arbiter over a post-election dispute. The full article on which this chart is based provides some strategies for achieving impartiality and procedural fairness in election contests.

In sum, states have widely varying procedures for who would decide an election contest, depending on which office is involved. Hopefully this chart will not be needed on the morning of Wednesday, November 7 or thereafter, as we will not be facing the prospect of post-election litigation. But if we do, this chart should provide an easy reference for determining who would decide that dispute.