Recount Lessons Since Bush v. Gore

Long before the days of hanging chads, butterfly ballots and Katherine Harris, electoral recounts were conducted in relative obscurity. Occasionally, an election dispute would make national news. A 1974 U.S. Senate election in New Hampshire was so close that the Senate actually ordered a new election. The 1984-85 recount to resolve a congressional race in Indiana’s “Bloody 8th” generated so much ill-will on Capitol Hill that House Republicans walked out when Democrat Frank McCloskey was eventually declared the winner by just four votes. But generally recounts were conducted quietly and meticulously without controversy or partisan rancor.

That all changed with the 2000 presidential race when the Florida recount proved to be a turning point in both the politics and the law of recounts. Now, recounts are seen as part of the “permanent campaign.” Both parties begin preparing for possible recounts well in advance of Election Day. As early as election night, a team of experienced recount lawyers is dispatched to oversee the developing election dispute. The campaign’s consultants and press staff continue molding the daily message and fundraising goes on unabated, as recounts can sometimes cost as much as the campaigns that precede them.

One might question all this effort and expenditure of resources as recounts rarely reverse the election night outcome. However, errors in tabulating election returns are inevitable given the time pressures on election night. Recounts uncover as many as hundreds of mistakes in the counting and transposing of numbers—although the net change in the vote count is usually very small. But, for all the posturing and preparation, no recount will change the outcome unless the votes are actually there. Yet, a poorly prosecuted recount may prevent the identification of errors in arithmetic or uncounted legal votes. The reality that an election result could flip persuades candidates who have already invested massive time and money to seek the certainty of results only a thorough recount can produce.

Recounts also expose real issues with election administration and voting equipment. The Florida recount in 2000 with its hanging chads, butterfly ballots and purge lists sent America a wake-up call to the serious problems which beset our voting system. The 2004 Washington state gubernatorial recount uncovered difficulties inherent in provisional ballots. Florida’s 13th Congressional District race in 2006 underscored the problems with electronic voting that does not produce a paper trail. And, the 2008-09 Minnesota U.S. Senate recount revealed how election officials under pressure to produce results on election night mistakenly reject thousands of valid absentee ballots.

Fortunately, contested elections often produce reform. Most prominently, the chaos and irregularities surrounding the Florida presidential recount prompted Congress to pass the Help America Vote Act (HAVA), which brought important improvements but introduced a whole host of new problems. Recently, Congress has been considering legislation to ensure the counting of military ballots after it came to light that large numbers of such ballots went uncounted in the 2009 election dispute in the U.S House special election in New York’s 20th Congressional District, as well as in the 2008 presidential election. But the kind of comprehensive election reform that is truly needed to cure an ailing system has yet to come to pass.

Bush v. Gore, the controversial Supreme Court decision that handed George W. Bush the presidency in 2000, altered approaches to recounts. The Court famously limited the ruling to “the present circumstances.” Nonetheless, the case has provided new constitutional ammunition to those challenging voting procedures. If it did nothing else, Bush v. Gore laid down the principle that the process of recounting ballots must have rules that are applied uniformly and fairly. That seems to be a fairly obvious guideline, but academics have been debating its meaning since 2000.

Several major recounts have occurred since 2000 that provide important lessons for wlection administration and recounts. In particular, the marathon 2008-09 U. S. Senate recount contest between Al Franken and Norm Coleman is instructive.

Voting technology can make a difference in the quality and possibly the outcome of an election. Almost a decade after the presidential election meltdown in Florida, voting technology continues to bedevil election administration. No mode of voting is perfect, and problems inherent in any system of voting are magnified during a recount. In Florida 2000, the recount debacle was rooted in faulty punch card voting, now outlawed. In the 2006 congressional race in Florida’s 13th district, new electronic voting which failed to produce verifiable proof of the results undermined confidence in the outcome. In fact, what is often called a recount of an election using electronic voting without a paper trail is really just a re-determination of results. The votes cast on electronic machines are not actually recounted. Minnesota uses optical scan, paper ballots that are electronically tabulated. Optical scan voting provides the paper trail necessary to make a recount meaningful. However, optical scanners also miss a small number of votes that can only be identified in a hand count. Some legitimate ballots are initially recorded as “no votes” because, for example, the voter’s mark is slightly outside the box or the voter’s mark has been made too lightly for the scanner to record. This is one of the reasons 2,528 votes were added to the candidates’ totals in the Minnesota U.S. Senate hand recount. All in all, though, optical scan has proven superior to others in establishing an accurate count worthy of the public’s confidence. Still, we are a long way from a voting system that gets it right the first time.

Fairness does not require perfection

The almost anti-climactic unanimous opinion of the Minnesota Supreme Court in favor of Al Franken provided the first important appellate interpretation of Bush v. Gore. Bush v. Gore requires a process that is fair and uniformly applied. Coleman argued that on election night Minnesota election officials in the various counties treated like ballots differently in violation of equal protection and Bush v. Gore. The Minnesota courts understood some unequal treatment by election officials is inevitable in every election. That is the nature of our decentralized system of election administration. Elections and recounts will be considered fair, according to the reasoning of the Minnesota Court, so long as there are clear standards for counting ballots and local officials do not favor one candidate over another in carrying out those rules. Minor deviations, like those cited by Coleman, in the application of rules governing the acceptance and rejection of absentee ballots do not violate equal protection. In other words, to win a Bush v. Gore equal protection claim, a candidate will have to prove dramatic differences in application of laws and/or intent to treat similar ballots differently. The Minnesota recount was conducted without partisan machinations of the type that were personified by Katherine Harris in Florida in 2000. Unanimous bi-partisanship marked the decision-making rocess at every juncture from the State Canvass Board to the Minnesota Supreme Court. It remains to be seen whether Bush v. Gore will find application in a recount controlled by officials acting in a more partisan manner.

Absentee and provisional voting will continue to be sources of contention. The most contentious battles during recounts tend to be over whether and how absentee and provisional ballots should be counted. That is because local election officials render judgments about voter eligibility and ballot legitimacy, and in doing so they make mistakes. In Minnesota, election officials initially rejected some 12,000 of the absentee ballots cast in 2008 for failure to comply with the technical requirements of the state’s absentee ballot laws. It was later determined that over 1,300 of them were improperly rejected. State laws also lack clear and consistent standards for how to count provisional ballots, which are not considered until after the election. In some instances, counties in the same state set different requirements for provisional ballots. Post-election ballot-by-ballot battles between candidates in close elections will continue until such time as the absentee and provisional ballot laws are changed. Outmoded and unnecessarily strict absentee laws should be relaxed so that voters are not disenfranchised on the basis of application and ballot envelope imperfections unrelated to protecting the integrity of the election. Provisional ballot rules should require the counting of all ballots cast by voters who meet voting eligibility requirements. Minnesota avoided partisan wrangling over provisional ballots because it has Election Day registration. Though Minnesota’s absentee laws need improvement, other states would be wise to follow its lead on provisional ballots.

Allegations of voter fraud almost never result in overturning an election

During every election cycle there are overblown charges of voter fraud. In the context of
a recount, allegations of voter fraud are usually lodged in an attempt to undermine the legitimacy of an outcome. But genuine voter fraud rarely exists in amounts sufficient to change the outcome of an election. In fact, in eight years Bush administration officials only won a handful of convictions despite making prosecution of voter fraud a priority. There are several reasons. First, to have impact in most instances, fraud must be part of an organized effort. But the Bush Justice Department turned up virtually no evidence of any organized effort to alter federal elections. Second, what often is characterized as voter fraud turns out to be a bureaucratic or voter mistake—e.g., somebody registering twice yet only voting once. Of course, there have been instances of voter fraud, usually in unique political environments. But such cases are extraordinarily rare. In the Minnesota contest, the parties stipulated that there was no fraud. In the contest trial of the Washington state gubernatorial election, the judge concluded that the few illegal votes found were cast for the loser. In spite of claims by some commentators who seem to have made careers out of exploiting public fears, voter fraud is only in rare instances responsible for election irregularities.

Neither the House nor Senate will decide an election dispute. The Constitution makes the U.S. House and Senate sole judges of the qualifications of its respective members. As such, each body can decide who actually won an election and when to seat them. In years past, the House and Senate each intervened on numerous occasions to sort out disputed elections. As mentioned, the Senate ordered a new election in New Hampshire after it concluded it was impossible to determine who really won. The House conducted its own recount in Indiana’s 8th Congressional District after thousands of votes were tossed out during a state recount. But we are not likely to see that level of involvement by either body any time soon. The Franken campaign asked the Minnesota Supreme Court to order the secretary of state to issue an election certificate because Franken won the recount. The Court ruled that the Minnesota statutory scheme did not provide for a certificate until after all appeals had been exhausted, adding that the Senate had the constitutional authority to seat Franken without a certificate. But the Senate was not about to step into the matter. For one thing, the politics would not permit it. Coleman’s appeal was made possible because Republicans wanted to keep the seat vacant for as long as possible to delay passage of President Obama’s agenda. Republicans would have filibustered any attempt to seat Franken. But more fundamentally, most members have a visceral distaste for intervening in election disputes. Even when there is justification for intervention, the result is likely to poison the institution for years to come, as was the case following Indiana’s 8th District election dispute. In short, candidates cannot count on the House or Senate to resolve their election disputes. Congress will not intervene except in a limited manner unless the recount process is very seriously flawed, and then only reluctantly.

If the purpose of a recount is to produce a result worthy of the public’s confidence, then the Minnesota U.S. Senate recount—unlike the 2000 Florida presidential recount—was a success. Minnesota election officials and courts took great care to get it right. As a result, only a handful of partisans questioned the outcome. But while judges and officials involved in the eight-month long ordeal deserve praise, not all went so well on Election Day itself. Absentee ballots were improperly invalidated, the counting of duplicate ballots was bungled, and a bag of ballots was even lost. Unfortunately, Minnesota’s Election Day missteps are representative of what goes on throughout the country. Such problems are not likely to disappear until more resources are invested in election administration. Most states do not share Minnesota’s tradition of fairness and bipartisanship in conducting elections. Nor have they established as effective a system of recounting ballots as has Minnesota. Until they do, the possibility of another Florida-like meltdown looms over every close election.

Chris Sautter is an attorney, media strategist, and documentary filmmaker. He is co-author of "The Recount Primer" (1994) and has served as consultant/attorney on virtually every major recount over the past 25 years, including the Minnesota U.S. Senate recount. Sautter is also an adjunct professor at American University, where he teaches election law.