By Justin Levitt

Associate Professor of Law, Loyola Law School

Recently, in this space, Ned Foley, Steve Huefner, and Josh Douglas have offered some characteristically thoughtful comments on election overtime. Ned reminded us that patience is a virtue; we have a process to work through narrow margins of victory, and even in a world a-Twitter, we should let the process run its course without panic. Steve mentioned a model calendar for shaping that process, at least in the context of a Presidential dispute. And Josh discussed the fora provided by state law in which to work through the details.

At the kind invitation of the Moritz team, I would like to add a fourth element to the discussion: neither the appropriate emotional disposition for a post-election process nor timing nor location, but the substantive standards to be deployed. I think it extremely unlikely that the Presidential race will head into overtime. But it is virtually certain that some race, somewhere in the country, will. And it is therefore important to be prepared.

In overtime, the problem is often, though not always, that the margin of potential error is greater than the margin of known victory. There are ballots lying about — provisional ballots or disputed absentee ballots or ballots that have not been read properly by an optically scanner. Somewhere along the line, something has not gone as planned. The question is whether the ballot should be counted despite the blip.

In these circumstances, many states seem to resort to an uncomfortable counting rule. They recognize that some problems should render the ballot invalid, and some should not. So far, so good. But then they attempt to deal with the blip in two unfortunate ways. First, they try to see whether the potential error causing the dispute is “major” or “minor.” And then they try to determine whether the error was the fault of the voter or an official.

The problem with the distinction between “major” and “minor” is that the terms are not self-defining. One judge’s major mistake is to another judge quite minor; without any grounded reference point, distinctions quickly become ad hoc. The problem with focusing on fault is that the investigation can be extensive, and nets little benefit for the expense. There isn’t a very good theory explaining why the appropriate remedy for a procedural glitch is to refuse to count the ballot of a voter otherwise known to be eligible and cast without fraud.

In a forthcoming paper, and in a more bite-sized distillation of that paper now offered at the Legal Workshop (a compendium of abbreviated works from top law journals), I argue for a better mousetrap. That mousetrap is a substantive standard for resolving deviations from procedure based on materiality. If an error is material to determining the voter’s eligibility or true ballot preference, the ballot should not count. But if it is immaterial — if no reasonable observer would doubt either eligibility or preference — count away.

In the paper, I discuss the mechanics of the rule in considerably more detail. It is essentially a reframing of the evaluation process, with a different focus on the evidence at hand. And it necessarily means counting more votes cast by valid electors than any legitimate alternative, at little to no incremental cost.

This materiality principle is already embedded in some law, though it has been curiously under-acknowledged in past overtime disputes. At least eight states’ statutes already employ the concept, in provisional or absentee voting, and sometimes beyond. It is the principle reflected in liberal rules for the write-in votes of service-members and other citizens overseas. And it is the driving principle behind an important provision of the federal Civil Rights Act of 1964 whose power has not yet been tested.

The paper explains how the principle works today, and offers some suggestions for the future. Ned has been gracious enough to include it in the ongoing discussions of the ALI’s project on election law, which is still in its early stages. But in many respects, current law already reflects a materiality principle better able to resolve post-election disputes than any competing substantive standards. Now all we have to do is be ready to use it.

Election Law @ Moritz has been hosting a running colloquy about the impact on the election of Hurricane Sandy.

By David Stebenne

If modern American political history is any guide, every effort will be made to conduct the election on its regularly scheduled date in all states affected by Sandy, for the simple reason that the USA (and the world, given the USA’s out-sized importance to it since the 1940’s) needs to have a result very quickly in order to make a smooth, effective transition possible if the challenger wins.  That real-world pressure heavily affected the Bush v. Gore litigation’s resolution.  And so unless conditions are truly unworkable, in major metro areas especially, I expect the election to go forward on Nov. 6th, even if the results are messy in the sense that some voters don’t show up for weather-related reasons and some machines fail and voters are asked to fill out paper ballots for that reason.

By Joshua A. Douglas

Assistant Professor of Law, University of Kentucky College of Law

[This post continues a colloquy begun yesterday. Read Steve Huefner’s initial post here; read John Fortier’s first post here;  read Ned Foley’s first post here; read John Fortier’s second post here.

National disasters bring the country together. In the aftermath of the shooting at a “Congress on Your Corner” event featuring Representative Gabby Giffords in Tucson, Arizona, the United States reflected on our politics and civil discourse. Indeed, just two weeks later Members of Congress sat next to their political opponents at the State of the Union address to exhibit a sense of bipartisanship. The country demonstrated similar rallying behind President George W. Bush after the terrorist attacks of September 11, 2001.

Could the destruction from Hurricane Sandy create a similar sense of compromise, even a week before Election Day in one of the most heated election seasons in history? I have previously written about how the use of alternative dispute resolution strategies in the election setting can help to improve civil discourse. Might these lessons be applicable in the current political environment to deal with the storm? Perhaps, but only if the presidential candidates negotiate the parameters on how to handle the next seven days before Election Day.

The most important matter, of course, is assisting those that Hurricane Sandy has affected. The government must have as its number one priority providing aid and relief to individuals suffering from the storm. That means that campaigning is a secondary matter. Both President Obama and Governor Romney have largely suspended their campaigns out of respect for the storm’s victims (and, in the President’s case, to direct the federal government’s response). They should not resume hard-core campaigning until we have a better understanding of the storm’s aftermath.

But beyond providing disaster relief, we must deal with the imminence of Election Day, which is just one week away. A negotiated compromise – agreed to now – could help to tamper down partisan-laden decisions regarding the election. One way to avoid electoral chaos is for the presidential candidates, in the wake of the storm, to agree to a set of criteria for handling the election. Here are some specific, bipartisan items that both candidates should agree to honor:

1. States that Hurricane Sandy hit shall be given leeway and flexibility to conduct their elections while also recovering from the storm. This might mean keeping polls open an additional day or providing more access for absentee and provisional balloting. (For example, the Pennsylvania Governor has extended the application deadline for absentee ballots.) The underlying principle shall be greater access for voters to cast their votes, and neither candidate will challenge a state’s decision to expand voting opportunities for those dealing with the storm. Of course, however, states should do all they can to complete their elections on November 6 if at all feasible.
2. States not affected by the storm should not count or report their voting numbers until the last state that the Hurricane hit has completed its Election Day procedures. That is, all states should count their ballots and report the results on the same day. This will ensure that the country is not waiting on a single state (such as Virginia or New Hampshire) that could determine who wins the Electoral College. Although the federal government or the candidates cannot prohibit states from counting their ballots, both candidates should call on all states to wait to tally the results until all states have finished voting, with of course the hope that all states can actually complete their elections by next Tuesday.
3. Neither candidate will contest the result in a post-election challenge on the basis of reasonable actions that the states might take to increase electoral access to their residents because of the storm – so long as those actions are non-discriminatory. That is, the only permissible challenges based on post-Hurricane voting accommodations will be to changes that are clearly unreasonable or that have the purpose or effect of favoring certain classes of people (i.e., race, sex, political affiliation, etc.).
4. The Department of Justice will agree not to object to a voting change in a Voting Rights Act Section 5 “covered” jurisdiction (which includes Virginia and parts of New York and New Hampshire) stemming from the storm.
5. The candidates should agree to suspend all negative advertising through Election Day. In a time when the country is trying to “come together” to help storm victims, negative ads—throughout the country—can adversely affect public discourse
6. The candidates should agree to donate at least half of the amount in their campaign bank accounts to Hurricane relief efforts. The Federal Election Campaign Act allows candidates to donate money to charity, and donating this money to the recovery will provide a bipartisan display of support that can help to improve political discourse—and may facilitate compromise in the other logistical areas regarding the election.

Although we should not underestimate the havoc that Hurricane Sandy is causing for millions of Americans, maybe there is a silver lining. National tragedies can bring the country together. Hurricane Sandy occurred at a unique time, just a week before Election Day. By endorsing the principles listed above, the candidates can help to ease any turmoil Hurricane Sandy might cause on Election Day. Most importantly, by agreeing not to object to or challenge the results based on reasonable and non-discriminatory post-Hurricane fixes states may take, the candidates can signal through a negotiated agreement that the Hurricane will not adversely affect the operation of the election.

By John C. Fortier

[This post continues a colloquy begun yesterday. Read Steve Huefner’s initial post here; read John Fortier’s first post here; read Ned Foley’s first post here.]

The winds are still blowing here in Virginia, so the question of how the storm might affect our election is a live one. Ned Foley, as he often does, has deepened the discussion of this question, and he has turned our focus to the exact issue at hand.

My original piece considered the possibility of the storm directly disrupting election day so that a postponement might be warranted. If this storm were hitting on Monday or Tuesday of next week, this would be the right question. But Ned rightly points out that the real area that deserves our attention is on the lingering effects of a storm that will have moved on by election day.

My original post had a 9/11 paradigm: an attack on election day makes it impossible for officials to hold the election on November 6. This raises questions about the legality or legitimacy of postponing an election in a state or states, the political ramifications of states voting on different days, or even the possibility of a state legislature stepping in to directly appoint electors.

This set of issues was discussed in a piece I wrote with Norm Ornstein in the Election Law Journal entitled “What if Terrorists Attack our Presidential Elections?” Steve Huefner raised these issues in his post. And some others have written on the topic. I still believe that more work needs to be done in this area, but Ned’s focus on how the lingering effects of a storm might affect our election is new territory that deserves much more attention.

At the other end of the spectrum from the 9/11 paradigm of a cancelled election day, there is the case of Hurricane Katrina. Katrina did not hit on an election day, but the devastation of the region and the dislocation of the population caused an election scheduled well after Katrina hit to be postponed.

What Ned contemplates is the middle scenario, disruption of power over a large portion of a state, transportation problems, voting locations that are inaccessible, and perhaps a portion of the population in temporary shelters away from their local area.

And Ned’s realistic take on what we might face in the days ahead has led him to propose remedies that are substantial, but that would avoid the parade of horribles associated with postponing the election to a later day.

His remedy is to use paper ballots to accommodate voters who are at polling places where there are problems with voting machines or election day pollbooks. And he proposes that voters in areas with closed polling places to be able to cast last minute absentee ballots.

In general, Ned is right, it is preferable to find some practical solutions short of postponing election day, but his remedies strike me as difficult to implement and potentially opening up whole new forms of voting that would have unintended consequences.

For voters who can make it to a polling place but find that there is no electricity, and voting machines and electronic pollbooks are inoperable, paper might be part of the solution. It is not uncommon for polling locations to have paper ballots on hand as a backup contingency. And there is a type of paper ballot, provisional ballots, which is required to be available at all polling places. But there are some drawbacks. In particular, states might boost the number of available paper ballots, but would be hard pressed to do so on a couple of days notice during a major weather event. Also, for those locations that are election centers that allow voting county wide, there are many different ballot styles that would have to be accounted for. Ned recognizes that ballots in this circumstance would likely be cast as provisional ballots. But there is also the problem of getting the voter the correct ballot. Norm Ornstein has long proposed allowing domestic voters to be able to cast a federal ballot, as overseas voters are allowed to vote today. Essentially, this would allow a voter to vote for the federal offices without worrying about which state and local districts they reside in. Although, that is a reform to be considered for the future, not for next Tuesday.

Ned’s other reform is to allow voters with closed polling places or those displaced from their houses to cast emergency absentee ballots. How would election officials get these ballots to voters? Would the onus be on the voter or election officials to get the ballots? I presume that Ned would only advocate this measure in extreme cases where large regions of a state are unable to vote. But even this precedent might open the door to its more regular use.

This reminds of the controversies that frequently arise over extending polling place hours in the case of an emergency. It is fairly predictable that one side will favor extending polling hours in jurisdictions where they have a partisan advantage and the other will oppose it. If we enshrined the idea of emergency absentee ballots in cases where voters have obstacles to voting, there is no doubt that some would seek to extend this remedy to the many other “normal” obstacles and emergencies that pop up regularly at every election. We already have provisional ballots, but this could potentially become an additional form of “provisional” voting.

We should recognize that election officials deal with all sorts of difficulties every election, failed machines, power outages, fires in polling locations, closed roads, etc. They have many ways to make accommodations for voters. But if the obstacles are so great, and a whole region of a state is at risk of not voting, then it is probably better to bite the bullet and postpone voting at least in part of the state.

[Read Josh Douglas’s next post in this colloquy here.]

By John C. Fortier

With Hurricane Sandy and Election Day upon us, this perfect storm could lead to a very imperfect election. The storm raises three important questions.

This is the beginning of a colloquy concerning the response to Hurricane Sandy. Read John Fortier\’s complete first post here. 

Director of the Democracy Project, Bipartisan Policy Center

This is the beginning of a colloquy concerning how to respond to the threat that  Hurricane Sandy poses to Election Day. 

Ned Foley then continues with “Can Paper Save Election Day?” here.

John Fortier picks it up again with “Unintended Consequences” here.

Josh Douglas weighs in with “Some Room for Compromise” here.

David Stebbene’s sense that states will be “Making Every Effort to Vote On-time” is here.

Steve Huefner’s background primer on “Hurricane Sandy and Election Day” is here.

Could Election Day be washed out? With Hurricane Sandy and Election Day upon us, this perfect storm could lead to a very imperfect election.

Hurricane Sandy has the potential to disrupt elections in key swing states. It is already affecting Virginia and its future path could wreak havoc in New Hampshire or Ohio and other states with close congressional races.

Are we ready to run our elections under these trying circumstances?

The storm raises three important questions.

First, what if the storm were to cause election day itself to be compromised? On 9/11, New York City was holding a Mayoral Primary. New Yorkers had already cast votes at polling places when terrorists crashed planes into the twin towers. In the aftermath of the attacks, the primary election was far from most people’s minds. But something had to be done. Polling sites were inaccessible and voters occupied with the crisis. Allowing the election to go forward with many voters effectively disenfranchised was not an option. But New York law did not provide much guidance on what could be done. In this vacuum, election officials made an emergency petition to a court to cancel the ongoing election, and ultimately rescheduled the election for two weeks later.

Looking around the country, many states are like New York on 9/11, with few details in their law as to how to deal with an election that is severely disrupted. One exception is Florida, the state hit by the most hurricanes, which does lay out in some detail how to close polling places, reschedule elections, when to preserve votes already cast at polling places, and how to deal with lost votes. But in 2012, the danger is that a state with few contingencies plans in law, is hit by a storm or serious event. What then? Either state election officials and/or courts would have to make significant judgment calls. Should voting stop statewide, in some counties, in selected polling places? How should it be restarted, rescheduled? Would votes cast in polling places that were closed mid day be wiped out? What about votes cast early and what about incoming absentee ballots? The answer to each of these questions might be of great political import. Armies of lawyers from both political parties might try to intervene to ensure that no decision was made that would tip the electoral balance against their candidates.

Second, there are some real questions about how our voting technology would work in a hurricane or severe disaster. Increasingly, polling places rely on technology, and the loss of electricity and phone or internet access, could severely hamper voting. The casting of a ballot on our variety of machines is somewhat protected by emergency generators and battery power, and election officials can be ready with paper ballots if voting machines are inoperable. But there are real logistical issues about machines that fail part way through the day. And a greater difficulty arises because of the importance of computerized voter registration systems. Many states now allow voters a choice of voting location, sometimes at early voting sites, and sometimes on election day itself. To be able to offer a choice of location to voters, election officials must be able to track in real time who votes where. Power or internet outages could mean that voting centers cannot connect to voter registration databases and cannot have real time access to information as to whether the voter has already voted somewhere else. And in some states, voting centers have ballot printing machines that print up specific ballots for the voter based on their address. All of this reliance on technology presents significant challenges to running our elections during a disaster.

Finally, the presidential election is different from other elections. If voting were disrupted and postponed in one state, then we will likely know the results in all the other states before voting can resume in the affected state. If the affected state or states are determinative of the electoral college outcome, the pressure and focus on that one state would be enormous. And there are real logistical questions. Would the election begin again from scratch, wiping out votes cast before? What about absentee ballots? Would they count or have to be cast again? Would there be an extended deadline? What if the state had same day registration?

And with a presidential election, the timeframe for determining the winner is short. Aside from the logistical difficulties of rescheduling an election two weeks later, the postponement would leave only a few weeks until presidential electors cast their votes and a few more until the president takes office.

There are no easy answers, but one simple principle: like laws governing recounts, these questions are better answered in advance rather than in the midst of an election controversy. In the future, states should improve their laws for dealing with disrupted elections. For the present, election officials and the legal teams for both campaigns should try to clarify election disruption procedures before election day. And for the rest of us, let’s pray that Sandy does little damage to our already turbulent 2012 election. 

By Steven F. Huefner

With Hurricane Sandy expected to make landfall along the Mid-Atlantic Coast later today, many are wondering how this year’s election may be affected by this “perfect storm,” including even whether the Presidential election could be postponed. Although at this point it is simply too early to predict with any confidence how widespread any power outages will be or how other weather-related damage might affect voting on November 6, it may be helpful to identify key features of the laws concerning Election Day.

First, with respect to a Presidential election, the U.S. Constitution provides that Congress “may determine the time of [choosing] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

Pursuant to this Constitutional authority, Congress in turn has set Election Day by federal statute. This statute, 3 U.S.C. section 1, provides that: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year….“ This year, that Tuesday is November 6.

The next section of this federal statute, 3 U.S.C. section 2, provides that: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”

This is the basic federal constitutional and statutory law framework undergirding the question of postponing a Presidential election. Congress itself thus clearly has the authority to change the date for the Presidential election. But at this late date, a Congress on recess likely will not have the opportunity to do so, even should it wish to. And any congressional change would by its own terms only change Election Day for federal races, and not for any of the state and local races also being held at the same time. So absent corresponding state changes in all fifty states – a very difficult task at this point – congressional action alone likely would introduce additional problems and complexities for administering this election.

Individual states, however, do have some flexibility to deal with emergencies. New York City postponed a municipal election already underway when the September 11 attacks occurred, for instance. But the exact contours of this flexibility are unclear, precisely because it is not routinely exercised and in many states is not clearly spelled out.

Depending on whether Hurricane Sandy’s effects actually warrant it, a particular state might decide to keep its polls open longer than originally scheduled, or make any number of other adjustments to polling locations and processes being used on November 6. It bears note, however, that under the terms of the Help America Vote Act (42 U.S.C. section 15482(c)), any extension of voting hours that occurs within 10 days of the scheduled election will necessitate the use of provisional ballots for all voters not already waiting at the polls at the normal closing time. We are already within the 10-day period that prohibits extending voting hours without requiring provisional ballots.

The more difficult question is whether a state can postpone its entire federal election to deal with an emergency. If the Constitutional language quoted above were construed to require that all fifty states and the District of Columbia select their Presidential Electors on the same uniform day, rather than just that the Electors themselves cast their votes on the same day, then a state could not validly take unilateral emergency action to postpone its election. But the better reading is that the Constitution does not require that all states hold their selection of Presidential Electors on the same day.

Instead, it is the federal statutory provision that imposes this uniformity, and which therefore must be parsed to determine how much emergency flexibility states may have. In particular, can the language of 3 U.S.C. section 2, which provides a contingency for appointing a state’s electors on a subsequent date when a state “has failed to make a choice on the day prescribed,” be read to authorize a state to depart from the uniform national election day prescribed by section 1? Or does a state only have this alternative if it in fact still “has held an election” on the prescribed day, as the earlier portion of the section also reads? If so, should a state facing massive disruptions from this week’s storm then hold a pro forma election on November 6, while also scheduling another day, perhaps 7 or 10 days later, to accommodate most voters and conclude the election?

Various states have their own existing procedures for dealing with emergencies, typically through administrative or judicial action. But section 2 provides for an alternative appointment of Presidential Electors only through a legislative direction. Accordingly, an outright postponement, though it could be initiated by a Governor, might require a state legislative action to validate the new voting day. Simply extending voting hours, even for some substantial period, might less obviously require legislative response to comply with section 2, but perhaps not if the extension extends beyond midnight, into a new (and no longer nationally uniform) day.

Obviously, it would behoove Congress to address these questions. But although others, including Jerry Goldfeder, have previously suggested as much, no federal contingencies to deal with disasters or emergencies have yet been adopted. Meanwhile, it bears remembering that the prospects remain only small that election officials in affected states will not themselves have developed sufficient responses to this week’s storm by next Tuesday.

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:

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”

·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.