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America Is Woefully Unprepared for Another Disputed Election

The Court’s jurisdiction in Bush v. Gore was entirely discretionary and that feature of the system has not changed at all.

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The following is an excerpt from the new book Ballot Battles by Edward Foley (Oxford University Press, 2016): 

Following the 2000 presidential election, there was a concerted national effort to fix the ballot-casting problems that had surfaced. With the enactment of the Help America Vote Act (HAVA) of 2002, Congress eliminated the punch-card voting machines that had produced the hanging chads at issue in Bush v. Gore. The Act also mandated the availability of provisional ballots so that no one wrongly purged from the voter rolls would be without a remedy. Federal law now required that these provisional ballots be counted if the voter in fact was entitled to participate in the particular election.

But Congress made no effort to change—or even clarify—the procedures to be used in the event of another disputed presidential election. The safe harbor deadline remains exactly five weeks after Election Day, with the constitutionally required meeting of the presidential electors in all states six days later. The National Commission on Federal Election Reform, chaired by ex-presidents Carter and Ford and established to make recommendations in light of the 2000 fiasco, looked at the five-week length of the safe harbor deadline but advocated against any change: “Though we do not recommend pushing the ‘safe harbor’ deadline even earlier than December 12, we also do not recommend setting this date any later.” The Carter-Ford Commission believed that “five weeks . . . allows enough time for counting and recounting ballots and some time for resolution of contests as well.” Yet the decade after 2000 yielded multiple disputed elections, including two major statewide ones, that cast serious doubt on the ability of even a well-run state to resolve a disputed presidential election fairly and accurately within five weeks.

The Carter-Ford Commission also observed that the most serious defect of the entire 35-day period during which the 2000 presidential election remained unsettled was the uncertainty of what procedures would be used to achieve a resolution: “Everyone who observed the 2000 election crisis was struck by the sheer unreadiness of every part of the system to deal with a close election.”

Yet a key element of that unpredictability remains unaddressed. It was a surprise to most that the US Supreme Court intervened in the 2000 dispute. Would it be a surprise if the Court did—or did not—intervene the next time?

The Court’s jurisdiction in Bush v. Gore was entirely discretionary and that feature of the system has not changed at all. There is no requirement that the US Supreme Court get involved in the next disputed presidential election. Nor is there a requirement that the Court stay out of the fight. If one side or the other frames an issue of federal law for the Court to consider, then the Court can take the case—or not—as it chooses. This unbridled discretion is a severe defect when, as the Carter-Ford Commission explained, “to the maximum extent possible, partisans on both sides should be able to foresee, before a recount, how a vote will be [treated in that recount].”

In the very next presidential election after 2000, the country came much closer than many realize to the possibility of having to confront this unsettling situation. In 2004, the outcome again turned on a single state, this time Ohio. On Election Night that year, it looked as if Ohio might be close enough to provoke another ballot-counting fight like the one that had occurred four years earlier. To be sure, the fight would not have been over punch cards. Instead, the provisional ballots that Congress in HAVA had just mandated as a form of voter protection would have been the obvious target of opportunity for eager litigators waiting to pounce at the direction of their respective candidates. Being inherently questionable in their status—if the provisional voter’s eligibility had been indisputable, the voter would have cast a regular ballot instead—provisional ballots were an open invitation to fight over a tight finish.

But Ohio in 2004 did not end up quite close enough for this scenario to unfold. Although there were 158,642 provisional ballots cast in Ohio that year, this number was not large enough in relationship to the lead that George Bush had over John Kerry, his Democratic challenger, at the end of Election Night: 121,012 votes. Even if all the provisional ballots were determined to be eligible for counting, an obviously untenable proposition, Kerry would have needed to win almost 90% of them (88% to be exact), another untenable proposition. The math showed that a fight was not worth it. In the jargon coined at the time, Bush’s margin of victory was “beyond the margin of litigation.” Kerry conceded at about 11:00 a.m. on Wednesday, the day after Election Day.

To election professionals, 2004 in Ohio was a near-miss scare, akin to the doomsday asteroid that comes frighteningly close to hitting earth but ultimately passes safely by without a trace of damage. Had the 2004 presidential election in Ohio resulted in a margin similar to the state’s outcome in either 1976 (when Carter beat Ford by only 11,116 votes) or 1948 (when Truman bested Dewey by only 7,107), then Kerry undoubtedly would have pressed on, and the nation would have become engulfed in a Florida-like fight over the provisional ballots (and possibly others as well). There would have been litigation in both state and federal courts over whether or not to count particular provisional ballots, and the US Supreme Court would have been asked to weigh in.

One need not concoct hypotheticals to realize what a nightmare it would have been. In 2008, an Ohio congressional election was tied up for weeks in litigation over provisional ballots, and if it had been a presidential election the safe harbor deadline easily might have been missed. Two years later, an Ohio local judicial election was unresolved for over twenty months because of a lawsuit challenging the disqualification of provisional ballots. The claim in that case, which prevailed in the federal court of appeals 2–1 (with the judges regrettably split along partisan lines), was an equal protection argument derived directly from Bush v. Gore. Testimony in the case showed that poll workers had mistreated ballots because they could not tell the difference between odd and even street address numbers. If a presidential election had hinged on these ballots, it is unclear how the lawsuit could have been completed within the five-week timeframe mandated by the safe harbor deadline.

Ohio is hardly alone in having its elections mired in lawsuits over provisional ballots. In 2004, for example, North Carolina had a statewide race (for office of superintendent of public instruction) go to its supreme court. At issue was the validity of provisional ballots cast in a precinct other than the one in which the voter resided. The all-Republican court ruled the ballots ineligible under the state law at the time, only to have the Democratic-controlled state legislature enact a new law to supersede this result. Had a presidential election been at stake, the next move presumably would have been to federal court based on the due process precedent from the 1994 Alabama chief justice election. But since the North Carolina Supreme Court did not issue its ruling until February 5 in the following year (2005) and the state legislature did not enact its superseding statute until March 2, one can only surmise how this same fight over North Carolina’s provisional ballots would have played out under the compressed schedule imposed by the safe harbor deadline.

This litigation over provisional ballots proved that if a presidential election ended up close enough in a pivotal state, it would be easy, despite the elimination of punch-card machines and their hanging chads, to replicate the kind of fight that had occurred in 2000. But provisional ballots were not the only source of vulnerability after 2000. Other issues, especially those involving absentee ballots, could prove fruitful grounds of contention in a tight race. This point was most vividly made by the two most prominent disputed elections in the first decade of the new century: Washington’s gubernatorial election of 2004 and Minnesota’s US Senate race of 2008. While each of these disputes was certainly important in its own right, especially for the state in which it occurred, together they present an ominous warning about the nation’s preparedness for another disputed presidential election. Neither of these disputes was resolved until June of the following year, well beyond the timeframe acceptable for a presidential election. Even more disturbingly, for both these disputes the candidate perceived as leading on the date of the safe harbor deadline that year (and even six days later, on the date that presidential electors met) was not the candidate who ultimately prevailed. Had either of these disputes involved presidential ballots, the question inevitably arises whether either state would have been able to identify the actual winner within the amount of time Congress allotted for doing so.

Reprinted from BALLOT BATTLES: The History of Disputed Elections in the United States by Edward B. Foley with permission from Oxford University Press, Inc. Copyright © 2016 by Oxford University Press.

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