Sabato's Crystal Ball

Impact of Multiple Recounts Could Go Beyond Borders

Thurgood Marshall Jr. and Steven Okun, Guest Columnists November 5th, 2012

Almost everyone fervently hopes that the presidential election result is decisive, whichever way it goes. Few who went through the “overtime” election of 2000 would ever wish that on America again. But wishing may not make it so. Two politically experienced attorneys, Steven Okun and Thurgood Marshall, Jr., give us a glimpse of what might be Christmas future this year, if Tuesday night produces very close contests in key swing states.
The Editors

In 2000, with one state’s election results being contested for weeks past Election Day, the images were not pretty. There were congressional staffers, party activists and lobbyists all making their way down south to protest how they were being disenfranchised. Antiquated voting machines, confusing ballot designs and voter intent derived from analysis of chad perforations dominated every news cycle. Now, fast forward 12 years. The country is much more partisan, and the United States’ reputational standing globally has been changed by all of the events post-9/11.

A replay of such a protest could increase the country’s partisan divide and diminish the United States’ ability to highlight its democratic foundation when it is needed more than ever throughout the world as many countries begin their own transition to a more representative government.

Remarkably, we may not be looking at just one contested vote this time around post-Election Day.

Instead, we may be looking at a handful of them.

There is the disconcerting possibility that our fate may once again be thrown into the cauldron of voter recounts and extended litigation. We have recent experience with such a process, of course. But many states remain stubbornly in the category of too-close-to-call, leaving open the possibility that in a matter of days we may see a Bush v Gore redux play out in multiple state and federal systems.

Much has been written in recent weeks about the various electoral vote and popular vote combinations that could result in an election outcome during this cycle that presents us with a president-elect who has prevailed on electoral votes but lost the popular vote. That anomaly has occurred four times in our history, starting in 1824 and occurring most recently in 2000. There has also been considerable analysis of the various ways in which the electoral map could result in an electoral vote tie, along with a description of the electoral vote process. This is an attempt to identify the various issues and considerations that could come into play should we be plunged into another presidential recount.

The 2000 election was resolved over the course of six weeks with recount efforts stopping and starting and multiple trips to the Florida and United States Supreme Courts. Four short years after the crucible of Bush v Gore, Ohio emerged as a possible flashpoint but resolved quickly.

Then in 2008, the Minnesota Senate race yielded a recount battle royale that played out through recount and court proceedings over a period of eight months.

A sampling of the state election and recount laws provides a sense of the complexity of the issues and process as well as a glimpse into how easily a close national election could trigger multiple recounts. A number of the 2012 swing states, including Ohio, Colorado and Florida, include provisions for automatic recounts where the winning vote margin is equal to half a percent or less. Most will initiate a recount upon a request by a candidate who loses by half a percent or less. Some may also entertain a recount through a complicated petitioning process in certain circumstances. The time to file ranges from days to weeks as does the projected time for a number of state recount processes.

In 2000, Florida Secretary of State Katherine Harris went from relative obscurity to a household name because of her responsibilities with the state election process. The same thing quite nearly happened to Ohio’s then-Secretary of State Ken Blackwell in Ohio in 2004. The vast majority of officials in comparable positions during this election cycle are experienced in their fields, but none has faced the challenges and scrutiny that could easily land on their doorstep during the wee hours of Wednesday, Nov. 7.

Since judicial relief comes in many potential forms, court challenges could be initiated to trigger a recount or enjoin one from taking place or assess the adequacy and fairness of a completed recount. Ultimately, those claims could be heard individually or in some consolidated fashion.

Many state supreme court jurists owe their appointments to a governor and some have been elected to their positions. While not necessarily a predictor of judicial ideology or outcome, the party affiliation of those judges could influence outcomes in recount litigation. In the Commonwealth of Virginia, the Supreme Court includes two justices appointed by former Governor George Allen (R) and two appointed by former Governor Tim Kaine (D), who now face each other in a hotly contested Senate race. Rounding out the Court are three justices chosen by the Virginia General Assembly, one of whom served previously on the staffs of Republican members of the U.S. House and Senate. The Bush v Gore majority sought to limit the scope of that decision to the unique facts presented but five who sat on that case continue to serve on the High Court and the 2000 experience surely shaped their current views to some degree.

While it may be too much upon which to hope in our polarized political system, one can still dream that if there is a contested election, the recount will be played out along settled legal principles in courts of law and not with faux protests in which no one looks good and the well-deserved reputation of the United States for peaceful and orderly elections and transitions takes a hit abroad.

Thurgood Marshall, Jr. is a Partner at Bingham McCutchen LLP and represents clients engaged in public policy. Steven Okun is the Chairman of the Asia Pacific Council of American Chambers of Commerce and has lived in Singapore since 2003. They were colleagues in the Clinton Administration, where Marshall served as Cabinet Secretary at the White House and Okun was Deputy General Counsel and Aviation Advisor at the Department of Transportation. Both are graduates of the University of Virginia and the University of Virginia School of Law.