As the prospects of a close Presidential election this fall show no signs of abating, it is worth reflecting on what might – and should – happen after Election Day in the event of an election that is too-close-to-call. My colleague Ned Foley has already addressedone aspect of this “what if” scenario, namely, the possibility that a swing state like Ohio, because it has a large number of provisional ballots or late-arriving absentee ballots, may not be able to declare a winner until some ten days after Election Day. But beyond that reality of the regular election processes, what if alleged errors or mistakes in the casting or counting of ballots lead to an election contest over the outcome in a particular state? How well prepared are states to handle post-election litigation on a very compressed timetable, and under the glare of the national spotlight?
This is an issue that the American Law Institute currently has under consideration. The ultimate goal of this multi-year ALI project on election law is to promulgate principles that individual states could adopt to assist them in fairly, reliably, and expeditiously resolving post-election disputes. But those principles are still in their formative stages, and the ALI has not yet taken any official position on what principles to recommend. Nevertheless, the work to date of the ALI project may offer some guidance in the event of an election contest this year.