CHAPTER 5 THE ADMINISTRATIVE CHALLENGES FOR RECOUNTS, CONTESTS, AND POST-ELECTION AUDITS
RACHEL PROVENCHER AND JOHN HARDIN YOUNG
Election recounts, contests, and post-election audits are highly publicized events. It may be surprising then that, despite the high stakes and media attention, election administration jurisprudence on recounts, contests, and audits remains unsettled.
As this chapter will demonstrate, several factors account for the inability to create bright-line rules. First, recounts and contests are generally governed by state law regardless of whether the office sought is state or federal; these laws can be complex within a state, and they vary greatly when comparing provisions across states. Second, the Constitution has created a tension between state and federal powers. Under the Elections Clause of Article I, Section 4 of the Constitution, "[t]he times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof."1 As such, the Supreme Court has long held that the Elections Clause provides the states broad powers related to the regulation of elections, which it has described as being the powers "to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved."2 However, the Constitution also provides under Article I, Section 5 that "[e]ach House shall be the judge of the elections, returns, and qualifications of its own members."3 Third, the role of the courts in supervising the recounts process and interpreting constitutional notions of equal protection and due process is still evolving. Recount and contest litigation has become concerned with equal protection and due process violations after Bush v. Gore4 in 2000. The Supreme Court in Bush, however, did not provide a clear set of standards to apply in subsequent election administration litigation. As a result, following Bush, post-election administration decisions have remained inconsistent. Fourth, election administration cases involve the unique and unpredictable possibility of "constructive election administration jurisprudence," a phenomenon in which judges might select certain standards and apply them in a particular way in order to reach a desired decision based upon politics.
I. Recounts
A recount is a process to determine which candidate in an election actually received the most votes by retabulating votes after the initial results have been counted.5 The Supreme Court has interpreted the Constitution to mean that recounts are a state power under Article I, Section 4 and "an integral part of the . . . electoral process."6 Generally, the outcome of which candidate is to be seated is a nonjusticiable question under state law.7 On the federal level, post-election cases involve a two-step process in which, first, the state has the power to determine "who won," and second, Congress determines "who sits."8 Recount laws throughout the United States vary and have a range of different provisions and levels of complexity. These laws are open to scrutiny because election night returns are often incomplete or inaccurate, leading to uncertainty in close elections as to which candidate in fact received the most votes.9 Regardless of the wide variety of recount laws, the process for a recount always begins with an election, initial tabulation of the votes, and canvass of the vote totals.10 Given the inherent need for a candidate to either take office or secure his name on the ballot from a primary election, recount statutes generally include short timelines.11
State recounts may be either mandatory or requested. Some states require a mandatory recount when discrepancies are discovered or elections are very close; however, these statutes contain different provisions for what kind of discrepancy mandates a recount12 and different definitions for determining when an election is so "close" that it triggers a recount.13 When recounts are not mandatory, states differ with regard to who may demand a recount and who must pay for the recount. Generally states provide that the candidate who did not qualify for a general election or who did not win the election may demand a recount.14 Some state statutes also identify additional parties who may be able to demand a recount. For instance, some statutes provide that recounts can be court ordered,15 demanded by an election official,16 or requested by a voter.17 Further, statutes generally specify as to who will pay for a recount, with some requiring that the initiator pay the costs under certain circumstances,18 others requiring the state or county to pay,19 while still other state statutes provide that it depends on the outcome of the recount.20 Additionally, some statutes include provisions with information regarding how the cost will be determined or who will determine the costs.21
Many state statutes include specifications regarding which ballots are to be included in a recount. First, there is the question of the scope of the recount; state laws differ regarding whether, and the circumstances under which, the state will conduct a partial or a full recount.22 Additionally, state statutes provide varying levels of requirements to determine which ballots will be included in the recount; for instance, sometimes a state will specify whether the recount will include provisional or absentee ballots.23
A major issue in any recount is what to do with those ballots that do not strictly adhere to all voting instructions. Most statutes include standards for determining voter intent on ballots,24 although some statutes are silent on the matter.25 Whether provided for in statute or not, the "voter intent" standard can often be vague and leave open to recount officials and the courts the ultimate decision to determine voter intent. As such, a comparison of these laws demonstrates that they vary greatly in the number and kinds of standards provided. For instance, Florida specifically delegates to the Department of State both the power and the obligation to adopt rules for determining voter intent on a write-in absentee ballot and for each voting system.26 Minnesota, on the other hand, has written into statute numerous scenarios in which a voter's intent may be uncertain and, in those instances, how to interpret voter intent and whether to accept a ballot; for example, under Minnesota law, when a voter places a mark beside the name of more than one candidate for office or nomination, the ballot is defective only with regard to that one office.27 The Virginia Administrative Code recognizes the Virginia State Board of Elections' detailed chart of acceptable and unacceptable examples of ballots as being the proper guidelines to determine a voter's intent.28 Several states also acknowledge "under" and "over" votes29 in their election laws and how to deal with these votes. For example, Florida law explains when over votes and under votes should be recounted and, when recounted, the proper procedures to follow.30
The level of transparency afforded in the election and recount process is a critical element that shapes public opinion as to the legitimacy of the process and the election results. Particularly in the case of a recount, the public—or at least the media—demands the details of the recount process, and the extent to which it may be observed. State statutes generally specify who is responsible for conducting the recount. Who conducts a recount varies across states, with many states providing this responsibility to groups such as election officials,31 a court,32 or a recount commission or canvass board.33 Additionally, states typically provide general rules for how the recount will be conducted and whether it will be a machine count,34hand count,35 or a combination of methods.36 Critical then to the perceived legitimacy of the overall process, state statutes can include a multitude of different degrees of specification regarding the level of transparency afforded in the recount. States differ with regard to whom they permit to observe the recount, and many state statutes clarify whether candidates, political parties,37 and/or the public38 may attend. For example, in Washington, canvassing board proceedings are public and subject to "reasonable and equitable guidelines"; all interested persons are permitted to attend and witness the recount.39
As this section demonstrates, recount laws are varied and few provide anything close to a roadmap for a fully conducted recount. While states have unique election laws and political contexts, all states grapple with similar challenges in election law jurisprudence. Traditionally, all states have had to balance the inherent tension between the state and federal government as under the Constitution, states have the delegated power to determine "who wins," while Congress possesses the constitutional power in federal elections to determine "who sits." Thus, there has always been the need in election law jurisprudence for constitutional standards that courts can apply when analyzing specific state laws and regulations.
II. Contests
Election contests are distinct from recounts, although the two processes can become intertwined, and recount and contest jurisprudence often overlap. An election contest is not a right,40 although it can take the form of litigating constitutional rights alleged to have been violated during an election; as such, an election contest generally involves a challenge based upon a claim that fraud or substantial misconduct on behalf of an election official or other involved party affected the outcome of the election.41 Like recount statutes, the requirements for contests include little specificity about the actual election process. Contests can involve both judicial proceedings and legislative processes.42 State statutes generally provide the requirements surrounding time frames, legal standing, the relief...
