COLUMN: The Law in Real Life: States Face Prolonged Election Cycle, Waiting for Vote Tallies, Recounts or Runoffs

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

States Face Prolonged Election Cycle, Waiting for Vote Tallies, Recounts or Runoffs

Nov. 11, 2008

Election fatigue is a powerful malady, leading many of us to avoid CNN, turn away from poll-watching websites and watch anything on television — anything — other than political coverage. We are tired; we are relieved that it’s over.

But, believe it or not, it’s not over yet. As of this writing, three Senate races remain undecided: Alaska, Georgia and Minnesota. Scattered races elsewhere, including Virginia, are also up in the air. It will be weeks before they’re all decided. How did this happen? When is Election Day perhaps not Decision Day? And is a dragged-out process necessarily a bad thing?

Alaska’s Vote-Count Delay

In Alaska, the delays arise from counting absentee and early votes, counterintuitive though that may seem. Alaska used to start counting absentee ballots on Election Day, but a problem during the primaries with a handful of people who voted twice — once absentee and once in person, which is a felony — led to a change. Now, the Alaska Division of Elections cross-checks absentee ballots against records of in-person voters before counting them, which requires the office to hold off on even getting started on the 40,000 or so absentee ballots until after Election Day.

As of the afternoon of Nov. 7, Alaska had more than 9,500 early and absentee ballots left to count. And the Division of Elections shows Sen. Ted Stevens — recently convicted of several felony counts — with a 3,257-vote lead over Democratic challenger Mark Begich. While Begich has an uphill climb to overcome a 3,257-vote deficit from a pool of 9,500 votes, popular poll-analysis website fivethirtyeight.com suggests that if early-vote ratios between Begich and Stevens hold up, it might just happen. There, the positive side of a lagging process is, at least in theory, more certainty that no one’s vote is double-counted.

Virginia’s Possible Recount

In addition to delayed counting, the now-famous recount, a process that became wildly more familiar to the public eye after the 2000 presidential election, can change the outcome of a race. Many states give a losing candidate the right to an automatic recount if the vote is tight enough. Virginia’s congressional contest between incumbent Virgil Goode and Democratic challenger Tom Perriello is a fairly straightforward example. The votes are all counted, everything looks to be done, and Perriello seems to have edged Goode by 751 votes out of the more than 300,000 cast. But Goode has the right to a recount if he requests one because he may obtain one automatically on the basis that the margin is below 1 percent of the votes cast.

Minnesota’s Razor-Thin Senate Race

Things in Minnesota’s Senate race are even tighter. The latest unofficial tallies from the Minnesota Secretary of State’s office show Republican Sen. Norm Coleman 206 votes ahead of Democratic challenger Al Franken — that’s out of nearly 2.9 million votes cast. To give a sense of perspective, Coleman’s lead is not only about two-hundredths of 1 percent of the votes he’s received, it’s also equivalent to about 1 percent of the write-in votes and about two-tenths of 1 percent of the votes received by the Constitution Party candidate. The margin is, essentially, inconsequential. Minnesota law calls for a recount whenever the margin between candidates is less than one-half of 1 percent.

It’s difficult to envision what a “recount” means or why it might change a result, and according to one recent article, Minnesota recounts haven’t typically created large swings in vote tallies that would be enough to change the outcome. But that’s after the results are official, which hasn’t happened yet. With the race this close, clerical errors, tallying errors and, as recently arose, a set of 32 absentee ballots that hadn’t yet been counted can change the landscape before the final totals are even certified before the recount. Minnesota uses a relatively easy style of optical-scan ballot, so visual inspection of “undervotes” — ballots containing votes in other races but none in the Senate race — might not reveal many votes that can be rescued because voters simply marked their ballots in a way the machine couldn’t read but the human eye can. Nevertheless, it’s likely to be a while before a final result is announced.

In some jurisdictions, the law doesn’t end the election even when all votes have been successfully counted. In addition to voting laws, structural laws about elections can require some kind of next step even after we know who got the most votes on Election Day.

Georgia’s Runoff Election

In Georgia, if the leading candidate doesn’t manage 50 percent of the vote, a runoff election is held between the top candidates. There, Sen. Saxby Chambliss, who received 53 percent of the vote in 2002 when first elected, didn’t quite manage 50 percent this year, though he finished ahead. He has 49.8 percent of the vote to Democrat Jim Martin’s 46.8 percent and Libertarian Allen Buckley’s 3.4 percent. Thus, Chambliss and Martin will meet again in December in a very different election that won’t be dominated by a presidential race.

Note the effect a runoff law would have had in Minnesota: Because of the presence of a strong third-party candidate who drew about 15 percent of the vote — that’s the same Independence Party that brought Minnesota Gov. Jesse Ventura in 1998 — neither Coleman nor Franken came anywhere near 50 percent of the vote. If Minnesota were Georgia, it would simply proceed to the runoff. As unappealing as the lack of finality in the Chambliss–Martin race may be, it’s easy to conclude that it would be more democratic, in a sense, to allow the more than 437,000 Minnesotans who voted for third-party candidate Dean Barkley to express a preference between Franken and Coleman than it is to have either of them win by some 200 votes and wind up as a senator for whom 60 percent of the state didn’t vote. Election fatigue is powerful, but finality isn’t everything.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.