Recounts in Presidential Elections Edward B. Foley Ebersold Chair in Constitutional Law Director, Election Law @ Moritz The Ohio State University, Moritz College of Law
Key Features of ALI Procedures Designed to meet federal safe harbor deadline Which is always exactly 5 weeks after Election Day Presidential recounts need special procedures because of unique and accelerated Electoral College deadlines Most states recount laws can t handle a presidential recount 2016 confirms this; but also true in 2000, 2004 & 2008 Starts recount immediately after Election Day Don t wait for certification of returns, provisional votes Possible to recount Election Day ballots right away, while waiting for verification of provisional ballots, etc. Trigger an expedited recount only when warranted Use risk-limiting audits when no need for full recount Sequence potential litigation over different types of issues so that a state s judiciary can handle all of it
Procedures for a Presidential Dispute: Schedule for Official Institutions WEEK Local Election Authority Presidential Election Court State Supreme Court 1 Recount complete 2 Canvass complete Recount review complete 3 Contest discovery Canvass review complete Contest motions hearing Recount appeal complete 4 Recount remand complete Contest trial, if necessary Canvass appeal complete 5 Canvass remand complete Recount remand review Canvass remand review Recount remand appeal Canvass remand appeal Contest appeal complete Recount: reexamination of initially counted ballots Canvass: determination of eligibility of ballots not initially counted (absentee, provisional) Contest: adjudication of claims that count is tainted by ineligible ballots or other error 2016 American Law Institute
2016 American Law Institute
ALI procedures & Jill Stein How would the ALI procedures, approved in May, have handled Jill Stein s request for recounts? It would have denied her requests, since she s not a candidate with a chance of prevailing in a recount Her recounts also came way too late Her concern for accuracy would have been adequately addressed, instead, by a risk-limiting audit The risk-limiting audit would happen automatically, without any candidate request, no matter the margin of victory ALI procedure triggers expedited recount when: Either a candidate within 1% of winner wants one, & state could determine Electoral College outcome Or winner leads by < 0.5% in outcome-tipping state Or state s chief elections officer thinks it necessary The trigger happens no later than 24 hours after polls close
ALI 303, Illustration 6 B trails A by 20,000 in Colorado & whichever candidate wins Colorado gets 270 electoral votes 20,000 is 0.8% of total preliminary votes counted Within margin that B is entitled to trigger recount, BUT Not within margin that automatically triggers recount On Election Night and into next morning, B looks at numbers but concludes Colorado is unwinnable Thus, makes public concession speech Wednesday a.m. Colorado s Secretary of State has power to trigger expedited recount, but no obligation to do so Candidate C, with no chance to win, can t force recount
ALI 303, Illustration 6 In this situation, Colorado is not required to conduct a mandatory Expedited Presidential Recount. This conclusion holds even if a third candidate, C, publicly asks for one and publicly asserts a belief that B would prevail in an expedited recount. C, who has no chance of winning, should not be in a position to obligate Colorado to conduct a mandatory expedited recount. It remains that the Secretary of State has the discretion to trigger an expedited recount, even though B has publicly conceded defeat. Thus, if C offers the Secretary of State a compelling reason, the Secretary of State can trigger one. It is just that C, unlike B, cannot force the Secretary of State to do so."