The morning after Election Day in 2008, Norm Coleman faced a tough question from reporter Curt Brown of the Minneapolis Star Tribune. “If you were down by 725 [votes], would you say forget it and save the taxpayers’ money?”
It is a question no candidate slightly ahead of a competitor wants to answer. Although the public accepts election totals as they come in on election night as an accurate representation of the truth, such numbers are usually wrong and almost always incomplete. In the rush to get everything done on election night, election officials sometimes misreport numbers or, as we saw in the Wisconsin Supreme Court race, even forget to report totals from entire towns. It takes days for officials to verify and recheck the numbers. Many states also have absentee ballots to process and count, and now, in part thanks to the Help America Vote Act, there are often piles of provisional ballots to consider. When the apparent winner is ahead by thousands of votes in a statewide race, and Election Day comes and goes with no reports of widespread problems or irregularities, it is usually safe for candidates to expect that the outcome will not change. Election officials then certify the results weeks later. But when the margin is closer, candidates concede or declare victory at their peril.
Coleman expressed a confidence in the vote margin that would later come back to bite him. “Curt, to be honest, I’d step back….I just think the need for a healing process is so important, the possibility of any change of this magnitude in the voting system we have is so remote, but that would be my judgment. I’m not…again, Mr. Franken will decide what Mr. Franken will do. But do I think under these circumstances it is important to come together? I do.”
Months later, after Franken took the lead following a recount and election contest, Coleman saw less need for “healing.” He contested and litigated all the way to the Minnesota Supreme Court, which ultimately voted unanimously to reject his challenge to Franken’s lead. Although the election was in November and the winner was supposed to be seated in January, the protracted legal battle meant that Minnesota was missing one of its two senators until July 2009, when Franken was sworn into office.
Coleman did not have a monopoly on flip-flopping. When Franken was behind in the polls, his mantra echoed Al Gore’s during the Bush v. Gore saga of 2000: Count every vote. But by the time the dispute made it to the Minnesota Supreme Court, Franken, now in the lead, had changed his tune. The court had to decide the standard for including in the count absentee ballots that may not have perfectly conformed to the technical requirements of Minnesota law, and Franken urged “strict compliance”: no excusing those minor errors. What happened to “count every vote”?
The Republican-majority Minnesota Supreme Court, citing a history of using “strict compliance” for evaluating the validity of absentee ballots, unanimously sided with Franken. Coleman conceded the race rather than seek review in the U.S. Supreme Court.
The flip-flopping by both sides was neither surprising nor new. Never mind that outside of the recount/contest arena, Democrats line up more with broad enfranchisement arguments and Republicans urge sticking to the rules as written. It is elementary that if you are behind in the count you need to mine for votes, calling for the counting of as many uncounted ballots as possible (ideally, cherry-picked from supporters’ districts, though sometimes it makes sense to cast a wider net). If you are ahead, you need to make it clear that “the people have spoken” and it is time to move on.
What’s changed since 2000 about election-related litigation? To start with, there’s much, much more of it. When I first started teaching Election Law in the 1990s, the off-season for election disputes was all the time except for the fall in even-numbered years. These days, it is hard to keep up with all the litigation filed every year (though it peaks in presidential election years). I track the court action on the Election Law Blog, and I’ve posted more than 30,000 items since 2003.
In the period just before Bush v. Gore, courts in the U.S. collectively decided on average fewer than 100 election-related cases per year. Since 2000, that figure has more than doubled, to over 230 such cases nationally per year. Candidates are litigating early and often.
We do not know exactly why there has been an explosion in election litigation since 2000, but here are some possibilities. First is the emergence of election law as political strategy. The resistance to challenging election rules in court seems to have evaporated. Although the matter is somewhat in dispute, Nixon supposedly accepted Kennedy’s very close victory in the presidential election of 1960 rather than dispute the results because conceding defeat was in the national interest. Today, candidates have apparently become more emboldened (or simply learned that courts may grant relief) in the face of a close election and inevitable election problems. These problems became clear to everyone in 2000, and the possibility of “another Florida” gives candidates more hope of prevailing even if they are behind.
Two other factors — both indirectly a result of Florida 2000 — also may have made litigation more attractive. First, there’s a lot of new election law and technology since 2000. Provisions of the Help America Vote Act kicked in nationwide beginning in 2003, and some of those rules have provoked bitter and nasty court fights over “wrong precinct” voters, database “mismatches” and other questions. States changed their rules, too (think of the new voter ID laws and changes to voter registration rules), or changed their voting machines. Each change offers lawyers room to argue over gaps and ambiguities in applying the new law to new technology, or the old law to new technology, or the new law to old technology — it is how election lawyers earn their money. In a close election, those gaps give the lawyer a foot in the courthouse door.
Second, concern about the partisan biases of election administrators, which came to light in the Florida controversy, have energized the opposition. In many states, elected Republicans or Democrats are in charge of counting the votes. As we will see, the Internet magnifies these partisan feelings and encourages more litigation, not just by candidates but by parties, interest groups and voters. The Voting Wars are the most elaborate and protracted when they take place in court.
Richard L. Hasen is the Chancellor’s Professor of Law and Political Science at the University of California, Irvine School of Law. He is a nationally recognized expert in election law. This piece is excerpted from his book, The Voting Wars: From Florida 2000 to the Next Election Meltdown, July 12, 2012 © Yale University Press. Reprinted with permission from Yale University Press.