“America has to count on more than prayer in the case of close election”

Ned Foley oped:

So, how can we improve the odds that any overtime this year ends like 1884 and 1916, instead of 1876 and 2000? It starts with a commitment to state procedures that certify vote counts, several weeks after Election Day, as genuinely reflecting the choice made by the eligible voters participating in the election. These procedures permit candidates to challenge questionable ballots. Candidates should use these procedures with whatever evidence they have. No candidate should condemn a whole category of ballots, permissible under state law, as inherently unreliable.

If there are concerns about details of ballot-review procedures in particular states, the campaigns should raise them now, to be addressed before November. The American Law Institute took a long look at this topic and, with the input of recount lawyers from both major parties, developed a bipartisan set of principles to guide reform. (Disclosure: I worked on these principles for the ALI.) For any revision of these state laws in the next few months, the ALI principles provide an off-the-shelf source. Otherwise, the campaigns should accept existing laws and be prepared to honor results produced using these procedures.

A pipedream, you say, to expect candidates this year to credit adverse tallies when certified? If so, then Congress had better get prepared. Contestation over state-certified results could extend overtime into January, when Congress meets in joint session to receive the votes from the states. There are two ways in which Congress’s own rules for this are deficient and worth redressing in advance….

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