If you think our marathon election season will end on Tuesday, you might be wrong.
“Margin of litigation” is a phrase we might hear a lot after Tuesday if the presidential election is close in one or more states. It refers to the number of votes by which a candidate must win in order to prevent litigation — and delays — before a result is final. Both parties will have armies of lawyers deployed on Election Night looking for irregularities and opportunities to go to court. On Sunday, Trump running mate Mike Pence told Fox News Sunday that “a clear outcome, obviously both sides will accept.” But then he went on to say, “I think both campaigns have also been very clear that, you know, in the event of disputed results, they reserve all legal rights and remedies.”
In 2004, George W. Bush won nationwide by 3 million popular votes, but his Electoral College majority hinged on his winning Ohio. On Election Night, he had a 136,000-vote lead over John Kerry in that state, with 159,000 provisional ballots left to be examined. Two days after the election, the New York Times reported that election-law specialists had told Kerry that “the number of votes that might have been harvested using all the legal tools available to him could not bridge that gap.” So Kerry conceded on the Wednesday morning after the election, even though his running-mate, John Edwards, and others were urging him to go to court over other alleged irregularities. (Bush’s final certified margin in Ohio was just over 118,000 votes.)
This year, the election could be close enough in one or more states to bring one or both sides into court. “The risk of that happening is higher than it used to be — and higher than most of us realize,” Edward B. Foley, the director of an election law center at Ohio State, and Charles Stewart III wrote in the Washington Post today. They note that votes counted after Election Day can easily determine the outcome of a close election. In 2012, President Obama’s final victory margin exceeded his Election Night margin by more than 20,000 votes in several battleground states.
With nearly 200,000 polling places across the country, an average of five provisional votes per precinct would mean a million provisional ballots would be evaluated after everyone knew how close the election was and how many votes the losing candidate would need to make up to win a close state. Laws on how long states have to evaluate provisional ballots vary. In Florida, they must be counted by the fourth day after an election. In Colorado, the process is set to take 14 days. But it can take longer. In 2002, it took 35 days for a congressional contest to be declared final with a 121-vote margin.
Conny McCormack, the former registrar for Los Angeles County in California, once told me, “It’s become a competition over what’s more important, accuracy or speed.” Adding to the complexity is the fact that each state has its own set of rules. The number of provisional ballots that will be rejected will vary from state to state. For example, 29 states require that any provisional vote be cast in the precinct where the voter lives.
In addition to the issue of provisional ballots, our local election systems use a patchwork of inconsistent rules, operate often antiquated machines, and can turn a blind eye to voter fraud. There are also jurisdictions that harbor incompetent bureaucrats. During the infamous recounts of the 2004 governor’s race in Washington State, Seattle’s King County mysteriously managed to “find” uncounted ballots on 18 separate occasions. America’s voting system is “a bit like trying to measure bacteria with a yardstick,” and we often can’t figure out who really won ultra-close races, mathematician John Allen Paulos mournfully noted after assessing the 2000 presidential results in Florida.
Luckily, there are some clear limits on how long any post-election dispute can go on. Florida in 2000 pushed the limit, with its 37 days of overtime. This year, it’s only 34 days because Congress has set a December 12 deadline for states to submit a final vote result. The Constitution requires that by December 19, states must have chosen electors, who will meet on that day to cast their votes for president.
But pre-election lawsuits are already being filed by both parties. Democrats have sued in New Jersey, Ohio, and Michigan, alleging that Republicans are illegally deploying election monitors. The GOP has responded in North Carolina by going to court with evidence that the vice-chairwoman of the Lee County Democratic party, Margaret Murchison, suggested in a Facebook post that supporters bring baseball bats to the polls.The recent surge in the number of absentee ballots has dramatically increased the potential for delay in a final election count because many states allow them to be counted if they are postmarked as late as Election Day. Absentee ballots also increase the chances for fraud, because the ballots float freely in the community, where they can be used by a spouse, employer, or union official to coerce someone to vote a certain way. Other mischief is possible. Last week, a San Pedro, Calif., man found 83 unused absentee ballots delivered outside his home in a single wrapped pile, each with a different name on them, none of which he recognized, and all supposedly living in his elderly neighbor’s two-bedroom apartment. It’s strongly suspected that someone used the elderly woman’s address to register fictitious voters but didn’t pick up the pile.
It’s said that the fervent wish of every election official is “Lord, please don’t make the election super close.” But if several of Tuesday’s races are tight, we could enter a quagmire of recounts, lawsuits, and protests outside government offices. If you thought the election campaign was ugly, just wait in case there is a post-election legal contest.
— John Fund is NRO’s national-affairs correspondent.