November 06, 2006

Election Litigation Threat Level: Orange

Major news outlets have been running their stories on the possibility of post-election litigation in light of continued problems with both voting technology and new voting rules (both indirect results of the 2000 election debacle). As I've written in the past, the press and public pay attention to election reform issues only just before the election, when it is too late to do anything about it. The phone has been ringing off the hook today with reporters wanting to know the answer to the following question: will we know who controls the outcome of the House or Senate before we go to sleep tomorrow night, or is there the potential for this election to go to litigation?

First, let me disagree with the premise of the question, which assumes that it is only litigation that could delay the announcing of the results of the election on election night. In jurisdictions where many absentee votes have been cast (I just heard a report, which I have not verified, that up to 80% of Maryland voters are voting by absentee), it could take up to a few days for the ballots to be processed and a winner announced if the election is close. So we could have a delay even without litigation. So, too, as I've noted, "[t]hanks to the Supreme Court's opinion in LULAC, three congressional races in Texas are actually part one of a two-stage general election. If, for example, Henry Bonilla gets less than 50% of the vote in the TX-23 primary (something Democrats are hoping for), control of the House might not be determined until December. Think of the resources that would be poured into that race." That would cause a delay even without litigation. Think also of the race for Tom DeLay's old seat. It is possible that there will be a delay in the outcome of the race for the TX-22 congressional seat as partisan election officials decide using a vague "intent of the voter" standard whether a voter was really intending to vote for the Republican-endorsed write-in candidate, Shelley Sekula-Gibbs.

Now on to the question of litigation: How likely is it that litigation would cause a delay in knowing which party controls the House or Senate, a sort of mini-Florida Debacle II? I would say that the chances are fairly small. Here's what would need to happen: control of the Senate or House would have to turn on the results of a single seat or a handful of seats, and those elections would have to be either (1) too close to call because the absolute margin of votes is very close (in the hundreds or low thousands) or (2) in dispute because of widespread problems or irregularities at the polls (such as a massive failure of equipment, shortage of ballots, etc.). I've predicted that the Missouri Senate race is the most likely site for such problems.

That's not to say there won't be problems raising legal issues in the way the election is conducted tomorrow. There will be. But most of those problems won't cause the results of nationally-significant elections to be in jeopardy.

The chances are small that we would see both control of the Senate or House turning on one race and a razor-thin election in that race (or massive problems in how the election in that race was conducted). Small but not negligible (hence the reason for my code "Orange": elevated threat level).

If there is litigation post-election with national significance, what will it look like? It is hard to say. In a very close race, there could be a recount, which could depend upon whether certain provisional ballots are counted (or the failure of a jurisdiction to allow voters to cast such ballots). With HAVA-mandated changes in voter databases, which has caused the purging of some voters from lists, the disputes here could be factually intensive and difficult to resolve quickly. Such disputes could well go to litigation.

It would also not surprise me to see Democrats running into court somewhere in a Democratic-dominated city, arguing that the lines are too long and that the polls need to be kept open later. Look for Republicans to fight these efforts.

If the election is close, watch for Democrats to claim voter suppression and Republicans to claim voter fraud. This is a longstanding pattern. These charges are often ways to rile up the party's supporters as much as anything else.

If issues go to court, watch reporters quickly identify the party affiliation of the judge who is hearing the case, and make predictions based upon that prediction. On this basis, expect in many places to see Democrats headed to state court and Republicans to federal court.

What needs to be done? Just like we would take great care to prevent a small chance of a nuclear meltdown, we should be taking great care to prevent the small risk of a major election meltdown. (If the election goes without a major glitch tomorrow, watch for this issue to be forgotten by the press and public until just before the 2008 election.) I've written extensively elsewhere about the kind of changes we need to our election system, beginning with a move toward nonpartisan election administration (where the election officials have ultimate allegiance toward the integrity of the election process, not the election of a particular party). But that's an issue for another day (a day when, unfortunately, most of the press and public will have ceased paying attention).

Posted by Rick Hasen at November 6, 2006 12:50 PM