Chapter 5: The Administrative Challenges for Recounts, Contests, and Post‑Election Audits

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.” 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.” 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.” 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. Gore 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. 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.” Generally, the outcome of which candidate is to be seated is a non-justiciable question under state law. 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.” 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. 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. 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.

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 recount and different definitions for determining when an election is so “close” that it triggers a recount. When recounts are not mandatory, states differ with regard to who may demand a recount and who must pay for the recount. . . .

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. 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.

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, although some statutes are silent on the matter. 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. . . .

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, a court, or a recount commission or canvass board. Additionally, states typically provide general rules for how the recount will be conducted and whether it will be a machine count, hand count, or a combination of methods. 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, and/or the public may attend.

. . . 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, 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. Like recount statutes, the requirements for contests include little specificity about the actual election process. Contests can involve both judicial proceedings and legislative processes. State statutes generally provide the requirements surrounding time frames, legal standing, the relief available to petitioners, costs, and, although not always, guidelines for whether the election laws must be substantially or strictly adhered to. In almost all instances, the burden is on the challenger to prove that fraud was prevalent in the election process to a degree that would change the outcome of the election. However, while contest laws vary across the states in scope and substance, election contests only provide for a limited number of potential remedies. For instance, an election arbiter might reject the challenge to the official returns, correct the election outcome and declare a new winner, or annul the election and require that a new one be conducted. . . .

In order to provide some stability in the process and to prevent contestants from going unjustified under politically motivated efforts, elections are generally presumed to be valid, and significant barriers exist requiring contestants to specify the grounds for an election contest claim. . . .

In addition to having to satisfy certain requirements, a contestant in an election contest must also overcome a significant legal burden to prevail. To win an election contest, a contestant must generally be able to produce sufficient evidence to show that (1) the conduct or action alleged did in fact occur, (2) that this action or conduct violated the law, and (3) that this action or conduct changed the outcome of the election or prevented an ascertainable outcome in the election. Therefore, although a contestant may bring forth a claim that an election law has been violated, he or she may still not win an election contest without a showing that the alleged action or conduct changed the outcome of the election. . . .

To be credible, an election contest must include a fundamentally fair process that ensures adjudication before a knowledgeable and impartial arbiter; this impartial arbiter must also have the power to provide a remedy when certified election results are not accurate. State statutes vary with regard to who the arbiter is, and often statutes require different arbiters based upon the office or type of election; however, these arbiters are often the courts, state legislature, Congress, or a state official. . . .

In contest proceedings, the line between a recount and a contest becomes blurred and can turn on how the petitioner frames the controversy. While Bush v. Gore is described by many as a recount, . . . the controversy involved elements of both a recount and a contest. . . .

As these first two sections demonstrate, recount and contest cases such as Bush v. Gore can include multiple layers of complexity. While recounts and contests can overlap within cases, both are governed by different sets of requirements that are diverse across states and include varying degrees of specificity within states. With two complicated sets of requirements for both contests and recounts within each state, and the nature of these court decisions as being politically sensitive, there is a particular need for bright-line rules to assist judges in their decision-making and to ensure that decisions are made based upon specific requirements and standards, as opposed to a judge’s personal opinion or politics.

III. The Search for “Constitutional Standards” in the Post-Bush v. Gore Era

Most of the litigation involving both recounts and contests has revolved around constitutional standards as courts struggle with the process; however, these cases offer neither clear standards nor provide clean lines to distinguish between recount and contest cases. This section will consider the impact of Bush v. Gore on election administration litigation and how the Supreme Court’s opinion in Bush changed the way courts analyze election administration cases, resulting in a lack of clear standards for courts to easily apply. . . .

The cases discussed in this section [Anderson v. Celebrezze; Burdick v. Takushi; Bush v. Gore; Crawford v. Marion County Election Bd.; Wexler v. Anderson; Miller v. Treadwell; In re Contest of General Election Held on November 4, 2008 (Coleman); Hunter v. Hamilton Cty. Bd. of Elections; Obama for America v. Husted; Ron Barber for Congress v. Bennett; Northeast Ohio Coalition for the Homeless v. Hustard] demonstrate a surprising lack of clarity in election administration jurisprudence in the post-Bush v. Gore era. For instance, while some courts have distinguished the facts of their present case from Bush v. Gore to support applying a different equal protection standard, other courts have distinguished facts from Bush v. Gore to support a different holding under the same equal protection standard. … Within this confusing era in election law jurisprudence in which courts and judges apply different standards or the same standards differently, there is the concern that judges may manipulate the law to arrive at the outcome they seek. This phenomenon of courts using the law as a tool to arrive at a particular conclusion may be referred to as “constructive election administration jurisprudence.”

IV. Post-Election Audits

In addition to recounts and contests, states are increasingly relying on post-election audits to determine the efficacy of their voting machinery. In the United States, these audits are not tied to the electoral outcome, but rather to attempts to improve election administration. . . . [A] post-election audit is a routine procedure that follows an election. . . . Post-election audits have been found to detect areas of possible fraud and increase voter confidence in election results. In addition to preventing fraud and increasing voter confidence in future elections, auditing provides information that can improve voting technology and election administration.

Post-election audits vary greatly in how they are conducted—even across the United States. In fact, not all states have statutory provisions requiring that a post-election audit take place. However, under the Help America Vote Act of 2002 (HAVA), all voting systems in an election for federal office are required to have a [manual] audit capacity. . . . Thus, with the federal law providing such a minimum requirement surrounding post-election auditing, the variety of requirements and procedures is not surprising as nationally the country looks to determine what best practices are, and states individually must further consider what works best within the context of their respective election laws.

There are three basic categories for audit models, [including “adjustable percentage” and “polling audit” models] although a majority of the states that require a post-election audit have adopted what is known as the “fixed-percentage audit model,” [where] jurisdictions randomly select a fixed percentage of precincts or machines to audit, and all voter-verifiable paper records for those precincts or machines are counted by hand for comparison against electronic tallies. . . .

Although most jurisdictions have selected the fixed-percentage model, their implementation of the model can vary greatly when comparing the different statutory provisions. One basic distinction in audit laws when comparing across all states is that while some provide that audit results are binding upon official results, others do not include this requirement. States also differ in what is audited, with some states requiring precincts to be recounted and others requiring that individual voting machines be recounted. However, statutes can be even less specific in providing for what is audited . . . Additionally, as with recounts, audits can vary in scope. States can have different requirements regarding a minimum percentage of precincts or machines to be audited. Further, state statutes vary in how many contests are viewed within an audit, with some states requiring all races on a ballot be audited and others requiring only one. State statutes also provide different methods for selecting precincts or models to be audited. . . .

A heavily debated topic in auditing is the level of transparency afforded to the public in the process. . . .

V. Conclusion

Recounts, contests, and audits are fact-intensive exercises. They occur under extreme political and time pressures. By far the best means of easing these pressures is clear standards in place well before the recounting or audit process is undertaken; for contests, the pleading rules for proof of fraud or serious malfeasance are best established pre-election along with standards for the admissibility of evidence. These standards may be developed prior to the election through the passage of statutes or rules adopted by the election management body, or after the election through adjudicatory proceedings. In either case, the process must be carefully thought out and must be as comprehensive as possible. . . .