Posted: December 12, 2006

Happy Birthday, Bush v. Gore

Six years ago today, the U.S. Supreme Court ordered an end to any recount of the presidential election in Florida that year. With all the electoral reforms that have occurred since then, and all the talk of more congressional legislation to require paper trails in the wake of Florida’s problem with electronic voting machines this year, it amazes me that the central practical lesson of Bush v. Gore goes largely ignored. That lesson is that recounts in presidential elections must end by the so-called “safe-harbor deadline” established by Congress, which is the fifth Tuesday after Election Day. As I previewed last week, today is the fifth Tuesday after this year’s Election Day, and although most recounts this year are now complete, a few significant ones remain ongoing, including one that will determine which party controls Pennsylvania’s House of Representatives. [UPDATE: This morning's Philadelphia Inquirer reports that this recount, which has not yet begun because of disagreement of what procedures to use, may not be complete for another few weeks.] Moreover, the safe-harbor deadline applies to all disputes over a state’s delegation to the Electoral College, not just recounts. Thus, the current litigation in Florida seeking a revote in that state’s thirteenth congressional district would now be stopped dead in its tracks, if this litigation involved a presidential election instead. Call me obsessed by this safe-harbor deadline, but I’m afraid that many election reform advocates are simply missing its significance. Congress can require a paper trail, and mandate an audit of that paper record, but if there isn’t time to complete the audit before the safe-harbor deadline, then this reform is useless in a presidential election, when it matters most. The good news on the recount front during this past week was that, with respect to Ohio’s fifteenth congressional district, Franklin County completed an audit of ten percent of its paper trails in that race, corresponding to over 19,000 electronic ballots, and discovered no discrepancies. But before anyone becomes overly optimistic as a result, it is worth remembering that as of last night litigation remained pending concerning uncounted provisional ballots in that race. Moreover, Franklin County would have been hard pressed to review the remaining 90% of paper trails by the end of today, had a discrepancy emerged from an initial 10% audit, and it is unclear that some other large urban counties in the state—most noticeably Cuyahoga—would have been able to duplicate Franklin’s measure of success. Lest anyone forget the potential significance of litigation over uncounted provisional ballots, just consider this question: who would be Governor of Washington State today had the safe-harbor deadline applied to that race? Not the current incumbent, Christine Gregoire, but instead her opponent, Dino Rossi, who had twice been certified the winner and still remained ahead on December 7, the fifth Tuesday after Election Day that year. It was not until December 15, 2004—two days after the Electoral College had met in each state—that King County rectified an administrative error regarding several hundred uncounted ballots, an error uncovered in the wake of litigation over uncounted provisional ballots. On December 22, the Washington Supreme Court confirmed the permissibility of King County’s decision to correct this mistake as part of a then-ongoing manual recount of ballots, thereby clinching Gregoire’s victory, which was finally certified on December 30, when the manual recount was complete. If this recount and all disputes over the state’s gubernatorial election had been halted on December 7, the administrative error over the uncounted ballots would not have been discovered, and a different candidate would have been inaugurated. [UPDATE: This year’s statewide recount of the Auditor’s race in Vermont also shows the consequence of discovering vote tabulation errors too late to comply with the safe-harbor deadline. According to an AP report this morning, the Democratic candidate has pulled ahead because the recount has revealed that 302 votes for this candidate had been misattributed to another candidate during the initial count, which had the Democratic down by 137 votes. The recount continues in three of the state’s largest counties, however, and thus if this recount concerned a presidential election and were halted today, the wrong candidate would be declared the official winner based on the erroneous initial count.] Because of the need to complete all recounts and other disputes concerning presidential elections by the safe-harbor deadline, I have developed this model schedule for states to consider with respect to any vote-counting controversies that might arise in 2008:

Day	Date	Event
Tues	Nov. 4	Election Day
Sat	Nov. 8	deadline for voters to submit missing identification
Fri	Nov. 14	verification & count of all provisional ballots; initial certification of winner
Sat	Nov. 15	notice of recount (automatic or requested)
Sun	Nov. 16	commencement of recount
Wed	Nov. 19	deadline for administrative challenge to rejected ballots
Wed	Nov. 26	completion of recount & review of rejected ballots; final certification of winner
Thurs	Nov. 27	Thanksgiving Day
Fri	Nov. 28	deadline for filing judicial contest of final certification
Mon	Dec. 1	deadline for defendants’ answer to contest
Tues	Dec. 2	trial proceedings commence on judicial contest
Fri	Dec. 5	deadline for trial court ruling on judicial contest
Mon	Dec. 8	appellate hearing on judicial contest
Tues	Dec. 9	safe-harbor deadline
Mon	Dec. 15	Electoral College meets
Tues	Jan. 6	Congress counts electoral votes

Even a cursory glance at this schedule reveals that there is not a lot of time for the completion of each part of the process. Most election officials would say that it is desirable to have more than ten days to verify the eligibility of provisional ballots. Likewise, ten days for conducting a statewide recount, especially one that requires a manual review of all ballots, is an extraordinarily tight timeframe. Perhaps even more pressing is the obligation to complete the trial and appeal of any judicial contest within a single week. Because of the demands that this schedule places upon state officials, Congress should seriously consider adjusting the Electoral College calendar, including the safe-harbor deadline, as suggested two years ago by my colleague Steve Huefner. He proposed December 31 as the new safe-harbor deadline, with January 3 being the new date on which the Electoral College meets, and January 10 the new date for Congress to review the Electoral College submissions from the states. This proposal would add just over three weeks—22 days to be exact—to the time between Election Day and the safe-harbor deadline. States could profitably apportion these extra days among the three parts of the aforementioned schedule that are especially stressed: (1) the verification of provisional ballots; (2) any requested or automatic recount; and (3) any judicial contest. If Congress takes up any election reform next year, it ought to include this revision of the Electoral College calendar as part of its package. Indeed, even if Congress does nothing else, it should address this issue, because the current timetable is unrealistically demanding upon the states. Thus, by the time the seventh birthday of Bush v. Gore rolls around next year, it would be cause for true celebration if Congress diminished the practical significance of that decision by extending the safe-harbor deadline an extra three weeks.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile