November 07, 2006

Will Control of the Senate Be Within the Margin of Litigation?

At 11:30 pm West Coast time election night, it appears that my Code "Orange" on election litigation was warranted. There's now a reasonable chance (maybe 25%) that control in the Senate will go to a recount, or possibly the courts or the Senate itself because of the close race in Virginia.

In my Code Orange post I said: "Here's what would need to happen [for election litigation to have national significance]: 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 had pegged the Missouri Senate race as the most likely place for a problem. But now it looks like it will be Virginia. (The Missouri results appear to show the Democrat with at least a 30,000 vote lead, likely beyond the margin of litigation unless provisional or absentee ballots narrow that lead considerably. Hotline now reports Sen. Talent has conceded).

Assuming Democrats have picked up Ohio, Missouri, Montana, Pennsylvania, and Rhode Island, they will need Virginia to take control of the Senate. [UPDATE at 5:40 am: Montana remains unclear at this hour as well. Later, after I've had some coffee, I'll post on the Montana situation. If Montana goes for the Republicans, the Va. recount would not affect the balance of power. Here is the latest news from Montana. In the meantime, check out this post by Steve Huefner and this post by Spencer Overton about the Virginia situation.] At this hour, it is not clear what votes remain to be counted in Virginia. (I remember writing a similar sentence about Ohio votes for Kerry in 2004.) According to the official Virginia website, with 99.63% of the precincts reporting, the Democrat Webb leads the Republican Allen by 7,815 votes. However---and this is a big however---there are still votes being counted. Hotline reports 30,000 votes from Fairfax county that were not counted (it is not clear how many of those votes are not included in my new totals) plus an unknown number of provisional ballots to be ruled upon in the morning.

So we don't know if the 7815 figure will shrink considerably. If it does not shrink considerably, I think Virginia is over and the Democrats take control of the Senate. If it does shrink to within a few thousand, or a few hundred, votes, then this gets ugly.

According to the recount rules as I understand them, the recount process is very liimited, especially for recounting the results of electronic or optical scan results. There's just not much discretion there for making those kind of "hanging chad" decisions we saw in Florida 2000. But if the recount doesn't change much, it is not clear now that there is a contest procedure in Virginia courts for U.S. Senate races. That means that Allen could still potentially go to federal court if he has some constituional claims or, more likely, to the Senate itself for a contest of the result. That Senate decision could be quite chaotic and could lead to a possible new election. But politically that would be difficult if the margin were not very close or election problems particularly compelling.

One possible compelling scenario suggested to me by Nate Persily surrounds provisional ballots. If the election somehow swung back to Allen, and the state did not count ballots cast in the wrong precinct, Democrats could point to allegations some Democratic voters in Virginia received directions to go to the wrong polling place or not to vote at all.

At this point, I think there's a 75% chance by the end of the day Wednesday that Allen concludes the election is beyond the margin of litigation. But this assumes that the 7815 margin---or something like it---holds.

Posted by Rick Hasen at November 7, 2006 11:41 PM