How Americans settle close and disputed elections (in fact, not fantasy)

Ultimately, our government’s legitimacy derives from the consent of the governed, and we agree to abide by election results by mutual consent. While our system of government is not strictly based on majority rule, all of our elections are governed the principle of majority rule — i.e., he who gets the most votes wins.

This doesn’t mean our elections are dispute-free. But our election disputes generally arise not from the structure of our government or the majority rule principle, but in two main problem areas — issues like gerrymandering, voter roll purging, and vote suppression; and problems with the voting process itself, such as defective voting machines, lost ballots, improperly marked ballots, and counting errors. Problems in the first category are mostly deliberate; problems in the second category are mostly inadvertent.

This article will focus on the election process itself: What can go wrong, how problems are resolved, and how we get a final result.

Generally speaking, an election is most likely to come under scrutiny and criticism if the outcome is close, the best-known example being the 2000 Florida recount. In a close election, every vote matters, and that’s when partisans begin questioning the collecting and counting of ballots and perhaps the legitimacy of the outcome. With all this being said, no matter who you choose to vote for, we all have our reasons for it. Whether you agree with your neighbour or not, these custom banners for sale are in the front yards and is going to stay standing. Everyone wants to show their support to whoever they favour.

In America, elections are administered locally, with the ultimate responsibility for fair and accurate elections falling on county and state officials, who often are elected and identify with a political party. Election departments typically have a bare-bones staff of permanent full-time employees, who are responsible for year-round chores such as registering voters and maintaining registration rolls, and are familiar with the voting process. On Election Day, trained volunteers or temporary workers recruited from the general public staff polling stations and help with ballot processing. Parties and candidates can (and often do) dispatch observers to watch the vote counting process, but only election workers are allowed to touch ballots. Election officials don’t choose the observers, but can revoke their credentials and remove them from the ballot processing facility for violating the observing rules.

There are three major ways to vote: Mechanical voting machines (mostly retired now), electronic voting machines (with or without a paper trail for verification), and paper ballots (in various formats). Absentee and mail-in voting is always on paper ballots, except 25 states currently allow some form of online voting for military voters stationed overseas and civilians residing in foreign countries. (No, you don’t lose your voting rights by living abroad, unless you’ve renounced your citizenship to get out of paying taxes or for some other reason.)

Before voting, voters must register to vote, and this is when citizenship and eligibility are verified. I won’t go into that process here, or what happens if eligibility is disputed, in the interest of time.

On Election Day, polling place workers match voters’ names to voting rolls, check I.D.s, and voters sign a book. These signatures can be matched against the original voter registrations on file if a question arises. In mail voting, there is no I.D. check, but signatures on ballot envelopes are matched against voter registration records by election workers. Mail ballot secrecy is preserved by enclosing the ballot inside a second envelope or sleeve. After the signature check, the ballot is removed and batched with other ballots, and at this point can no longer be traced to the voter and is presumed to be legitimate.

The easiest way for me to describe how votes are counted is by using an actual election for illustration purposes. For this purpose, I’ve chosen Washington’s 2004 gubernatorial election, which Republican Dino Rossi led after the initial counting and machine recount, but Democrat Christine Gregoire won after the manual recount, based on the procedures in King County, where Seattle is located, which processed over a million ballots in that election.

Washington uses optically scanned ballots. These are paper ballots, and voters fill in ovals with a black pen to designate their choices. In the 2004 election, voters could either go to a polling place or mail in their ballots, at their option. (Since then, Washington has switched to all mail-in voting, which has significant cost savings for the counties.) At polling places, voters fed their ballots into optical scanning machines on site; after the polls closed, the pollworkers collected printouts from the machines and submitted them to the county election office, along with the ballots, signature logs, and other records. Mailed ballots were machine-counted at a centralized ballot counting facility.

Initial machine counts are almost never 100% accurate in any election; the only way to achieve perfect accuracy is with a laborious hand count following strict procedures which I’ll describe below. But the inevitable counting errors become material only if the election results are within the margin of error, and therefore potentially could change the result. This rarely happens, and less-than-perfect machine counts are the norm in American elections. It’s unusual for an election to be mistake-free; but the errors that typically occur in most elections are not fraud, they are innocent mistakes, and it’s important to keep that in mind. Election officials rely on good training and careful supervision to minimize errors.

Except in very small elections involving only a few dozen ballots, a machine count is practically guaranteed to be incomplete. There almost always are additional ballots. These include ballots the machines can’t read because of tears, creases, or stray marks; misplaced ballots, and disputed ballots. Vote totals often increase in recounts by including initially overlooked ballots. That isn’t evidence of fraud or ballot box stuffing; it’s simply how the process works.

In the 2004 election, the Gregoire camp did two things to keep their chances alive after Rossi won the initial count and first recount. First, they mounted a campaign to validate about 1100 ballots that were rejected for signature mismatch or no signature, using an army of 7000 volunteers (recruited mostly from labor unions) to contact those voters and get them to sign a signature card that was submitted to the election department. Gregoire picked up over 600 additional votes this way. This procedure is authorized by law, is perfectly legitimate, and was upheld by the Washington Supreme Court when Rossi sued to challenge it. Currently in Florida, Democrats are conducting a similar effort to validate ballots rejected for signature deficiencies, according to news reports I’ve seen in the last day or two, and Republicans predictably are crying foul, but it’s legal and proper under Florida law.

If an election is close enough, state law mandates a machine recount. This consists of feeding the ballots through the optical scanning machines again. You can expect to get results very close to the original results, but when you’re counting over a million ballots, there are bound to be a few missed in the first count. In the 2004 machine recount, both candidates’ vote totals rose slightly, and Rossi held onto the lead, but Gregoire closed the gap a little.

Enough to request a manual or hand recount. This was an expensive proposition, costing over half a million dollars, which the Gregoire campaign had to front (but the county had to refund this money when she won). The manual recount required hiring dozens of temporary workers, who were paid $12 an hour (in 2004 dollars), and the counting took place over a period of two weeks.

From Election Day onwards, the ballots were kept in secure storage, under police guard, with seals on the boxes holding the ballots, which had been sorted by precinct (each box contained several dozen ballots). The seals ensured the boxes couldn’t be opened to add or remove ballots without election officials knowing about it. The chain-link storage cages and police guards ensured nobody could get unauthorized access to the boxes. The county rented a building at Boeing Field and the counting took place in a single large, open plan room with concrete floors and cement pillars. All the counting tables were in this room. Each party submitted a list of names to county election officials, and counters were hired from these lists.

At each counting table, the counting team consisted of a Democratic counter, a Republican counter, and a permanent county employee acting as the tally official and referee. Most of the counters ordinary people who just wanted temporary work and a paycheck, and applied to the parties to get on the lists — not party employees or activists. Media representatives, TV crews, and observers were kept behind rope lines. They were in close proximity to the counting tables, and could see and hear everything going on, but were not allowed to converse with the counters, or vice versa. Monitors were stationed throughout the room to observe the counting teams, observers, and media representatives to make sure everyone followed protocol. Cell phones weren’t allowed to be used in the building, and anyone who violated this was summarily ejected from the facility and not allowed to return.

The counting procedure was simple but effective. I’m confident the manual recount was not off by a single vote. Here’s how it worked. Each counting team was given a box with a specific precinct’s ballots. In full view of the referee, observers, and journalists, they broke the seal and took out the ballots, then each counter took roughly half the ballots and counted them, not disclosing their count to the other counter. Upon finishing, they exchanged stacks, and counted the other half. Thus, every ballot was counted once by each counter. They wrote their results on slips of paper, folded them, and handed them to the referee. Their counts had to agree exactly. If they didn’t, the ballots were given to a different counting team for recounting. This procedure was repeated several times, so that every box of ballots was counted at least three times by different teams, and most were counted seven times. Each of these counts had to agree with all the other counts, or they were set aside for additional processing. Under this system, I could see no way for a miscount to get through, as multiple people counted every ballot and any counting error would stand out.

The counters had unlimited discretion to pull any ballot from the stack and send it to the canvassing board for decision, and their actions in this regard were not subject to review and couldn’t be overruled. They were instructed that if in doubt, let the canvassing board decide. State law mandates that canvassing boards must base their decisions on voter intent. (That’s also Florida’s legal standard for judging disputed ballots.)

Most of the other counties completed their recounts in a day or two. Because King County had by far the largest number of ballots, their manual recount took longer — two weeks — and King County was the last county to report results. When their results were added to those from the state’s 38 other counties, Gregoire led by 8 votes. The King County canvassing board added several hundred votes to each candidate’s total, with Gregoire netting 121 more votes than Rossi from that process, increasing her lead to 129; her final 4 votes making her official 133-vote victory margin were awarded by a judge in an election contest lawsuit that cost the Republicans $2 million in legal expenses. Gregoire would defeat Rossi again in 2008, and serve two terms as Washington’s governor. Rossi lost a U.S. Senate election in 2010, and in 2018 lost a seat in Congress that had never been won by a Democrat until now.

Getting back to election processes, an election isn’t over when the counting ends. There are more steps before the winner takes the oath of office. Following the counting, and any recounts, the election is certified. In Washington and most other jurisdictions, the certification can, for a limited time, be contested in court under a specific election contest statute. This happened in Washington’s 2004 gubernatorial election. The judge’s decision went against Rossi, and while he could have appealed, he chose not to. In that case, the judge’s decision — which invalidated 4 votes for Rossi — was the final, legally binding result. In elections where there is no court contest, the certification becomes the final, legally binding result. In federal elections, Congress has the final say in accepting or rejecting electoral votes for president, or seating its own members. (Congress also can reprimand, censure, or eject its members, despite their having been elected.)

Here’s the important thing to understand about final, legally binding election results, whether certified or decided by a court: They’re final. That’s the point at which it’s over. Even if proof of fraud, irregularities, or errors surfaces, the election has been decided, and the outcome can no longer be questioned. Beyond that final line it enjoys, in the words of the law, an irrebuttable presumption of validity. (If you don’t know what that means, ask a lawyer to explain it to you.) This arises from a practical need to declare the winner by a certain date so offices can be filled and government can conduct its business. The underlying philosophy is that it’s better to award the office to the wrong person than leave the matter up in the air.

The exact procedures and processes, deadlines, and so forth, are determined by legislative bodies and enshrined in statutes. They can be quite complex, and there are lawyers who specialize in election law.

There are three final points I want to touch on.

First, concession speeches are merely a courtesy, and have no legal significance. A candidate does not lose an election by conceding, and nothing prevents a concession from being withdrawn. Along the same lines, claiming victory does not get a candidate anything, except his crowd’s cheers. Votes, not speeches, determine winners and losers.

Second, our system generally does not provide for do-overs or revotes. Instead, it relies on recounts and election contest lawsuits to resolve close and disputed elections. Following Gregoire’s 2004 victory, some Rossi supporters — egged on by conservative talk-radio hosts — organized protests and rallies to demand a “revote.” There was no legal authority for that, and it didn’t happen. Currently, I’m reading that in Arizona, some Republicans are calling for a revote of the Senate race there, where their candidate narrowly trails. Apparently in their view losing an election is a sufficient reason to redo it.

Revotes, however, are not totally impossible. In Georgia, a judge has ordered a new election in a state legislative race because a ballot misprint prevented numerous voters of that district from voting in that race. But this is the exception. Throwing out election results and holding a new election is possible only where authorized by statute — and I know of no jurisdiction with such a statute — or ordered by a judge acting within his/her judicial authority. It is American practice to resolve close elections with recounts, not revotes. Recounts, too, can be flawed or inaccurate, but at some point the philosophy that “perfect is the enemy of good” comes into play. Our election laws dictate when enough is enough, and this is the result that everyone is going to live with. In general, the system strives to balance the desire for accuracy with a need for finality, with emphasis on accuracy in the early stages and stressing finality over accuracy at the final stage.

Third, when an election goes into recount, only the final recount “counts.” In 2004, many Rossi supporters claimed he “won twice.” That was a meaningless talking point. Gregoire won the final recount, and therefore the election.

Most states provide for an automatic recount if the candidates are within a given percentage of each other, typically 0.5% or 1%. This is what’s happening in Florida right now, in the 2018 Senate and governor races there. This recount almost always is a less expensive machine recount. In some states, including Washington, a party or candidate can request a manual recount at their own expense — and, as noted above, hand counting an election involving a million or more ballots is incredibly expensive.

I know of no jurisdiction that allows more than two recounts.

You may have seen in the news that Trump and other Republicans are labeling as “fraud” Democrats’ efforts to overturn the Election Night results in Georgia and Florida by insisting on uncounted ballots being counted, counting provisional ballots, validating rejected signatures, and/or requesting recounts. These activities are legal, legitimate, and fair. Until these elections are certified and the deadlines for election contests have passed, nothing is final and legitimate votes can still be counted — and, based on our democratic values, should be.

Naturally, Election Day “winners” want the counting to end there, but they’re not entitled to that. The election laws, not their protests, define the final and legally binding results. Until finalized according to law, these elections are undecided. Claims based on preliminary counts have no legal stature. Unfortunately, this kind of partisan posturing tends to undermine our democracy by impugning the processes of democracy.

It also seems that some people will consent to be governed only by those they vote for. This is a fundamentally antisocial attitude. We all remember from our childhoods the kid who threatened to pick up his marbles and go home if we didn’t let him win. That’s what these people are. The rest of us grew up long ago, and understand a game or society can’t exist on those terms.
















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