By Joshua A. Douglas
Assistant Professor of Law, University of Kentucky College of Law
Will 2012 be another 2000? Might the election continue beyond Tuesday night? Political pundits and election law scholars have been opining about the likelihood of an election going into “extra innings,” especially with last-minute changes in early voting and lawsuits through Election Day about provisional balloting. With the polls so close, it seems increasingly likely that there will be some post-election challenge for some race somewhere in the country. It may not be in the presidential election. There could be a close gubernatorial election, or a razor thin congressional race. But, although I wish it were not so, I predict that the 2012 election will endure for some race. We just do not know which one.
If past is prologue, then the likelihood of a post-election contest is not far-fetched. There have been post-election challenges in every presidential or midterm election year since 2004. Of course, challenging a close election as a regular part of campaign strategy came to the fore after 2000 and Bush v. Gore. In 2010, both the U.S. Senate race in Alaska and a Juvenile Court Judge election in the Cincinnati area went to the courts. In 2008, litigation over the Norm Coleman-Al Franken U.S. Senate race in Minnesota took over six months to resolve. In 2006, a congressional race in Florida went into overtime. 2004 saw election challenges in the Washington gubernatorial election. Unfortunately, then, the question over the next few days will likely be not whether we will have an election contest, but instead which race will produce the challenge.
There are a few reasons why election contests have become normal operating procedure. First, our election system is simply more polarized than it has been in years. This leads losing candidates in tight races to fight to the bitter end. The “horse race” aspect of campaign coverage and social media saturation fuel the partisan frenzy, making it harder for candidates to concede when the election is within the “margin of litigation.”
Second, local election administrators – who are often partisans themselves – have a ton of discretion on how to run the election. This opens the door for a losing candidate to challenge certain ballot casting and counting rules, such as the standards for provisional or absentee ballots. Mechanisms such as provisional ballots, which are intended to improve voter access, instead become tools to wield in post-election disputes. Indeed, questions over provisional and absentee ballots were the basis of the recent post-election challenges mentioned above, and they are likely to be the focus of any post-election litigation again this year. Moreover, courts or other tribunals that decide post-election cases have few substantive standards to guide them, opening another level of discretion. A losing candidate might think that a sympathetic judge will use that discretion in ruling on a challenge, helping the candidate make up a small differential in the vote count.
Finally, it is not that hard to contest an election. There are few logistical or procedural hurdles for a candidate who wishes to continue the fight. So long as a candidate or his or her supports can find the lawyers to take the case – and this occurred even in a relatively low-stakes judicial race in Cincinnati in 2010 – then the courthouse doors are open to candidates who are down after the initial canvass. Preparing for post-election litigation has become a routine part of campaign strategy, and there are few structural impediments to bringing a post-election adjudicatory proceeding.
But election contests are not necessarily good for our system. They can cut against the ideals of finality and legitimacy. And they rarely succeed.
Election contests thwart the need for finality because they continue the fight beyond Election Day. It took over six months for the Minnesota courts to resolve the Coleman-Franken dispute, and during that time the citizens of Minnesota enjoyed the representation of only one U.S. Senator. The Juvenile Court Judge race spent a year and a half in both state and federal courts. Elected officials need to start governing, and protracted post-election challenges impede that work.
In addition, when an election goes into overtime and requires judicial resolution, there can be a feeling that the “courts,” and therefore not “the people,” are deciding the race. This might negatively impact the ultimate winner’s legitimacy – especially when the tribunal resolving the case has an ideological bent. Indeed, some people still feel that the U.S. Supreme Court “decided” the 2000 presidential election, which haunted President George W. Bush’s legitimacy during his first term.
Election contests, after an administrative recount and final certification of the vote, rarely succeed. In fact, only one of the post-election disputes listed above – the Hamilton County Juvenile Court Judge litigation – actually changed the outcome, and that case never had a final certification before the litigation because the challenge involved whether to count certain provisional ballots in the first place. None of the recent election contests – post-recount and post-certification adjudicatory procedures – were successful. This suggests that we should be skeptical of increased post-election challenges.
To be certain, we should not eliminate all possibility of post-election litigation. Ultimately, we want to make sure that the candidate who received the most votes actually wins. Accuracy must be the guiding principle. Moreover, sometimes we learn things about our election system through post-election litigation that can lead to reform; for instance, we largely modernized our voting equipment in the wake of the lessons from the 2000 presidential election. But on balance, we have probably seen too many election contests in the past few years. Finality and legitimacy are important virtues in a successful election operation.
How can we reduce the number of election contests? One idea is to increase the hurdles on losing candidates who want to continue the fight. For example, we could require losing candidates to post a fairly high bond if they want to challenge the result in an election contest. Virginia’s election contest bond requirement is probably the most stringent in the nation, although it applies only to legislative and gubernatorial elections, not elections for the state’s presidential electors. A losing candidate in Virginia must file a bond with surety set at $100 per precinct in the district for legislative elections and $10 per precinct for gubernatorial elections. Virginia had 2,497 precincts in 2008, meaning that a losing candidate who wants to contest a statewide election must post a bond with surety of almost $25,000, which the candidate forfeits if he or she loses the contest. This would pose a significant but not insurmountable hurdle on losing candidates, ensuring that those who move forward with an election contest have a financial incentive only to bring the case if there is really strong likelihood of success. Other states that have bond requirements, such as Colorado or Iowa, set those bonds at a few hundred dollars, which provides little deterrent on election contests. In the long run, we should consider adopting a Virginia-style rule to all post-election litigation.
For 2012, however, we might have to rely on candidates to police themselves better when contemplating whether to bring an election contest. To that end, I urge candidates who are down by a small margin in the next few days to consider carefully whether it is worth continuing the fight, recognizing the negative consequences to finality and legitimacy that an election contest will engender. Our election administration needs more consensus and compromise. Can we agree that once a recount is complete, a candidate will not bring an election contest unless there is a strong likelihood of a constitutional violation or other problem that significantly calls the certified result into question? Increased election contests are not necessarily good for our system. Will losing candidates heed the message?
Note: The ideas in this post form the basis of a new Article I am writing for the University of Richmond Law Review Symposium. Feedback and ideas are welcome as I continue to develop these thoughts.