Remedying Election Wrongs

Abstract

Many matters of U.S. election administration have attracted significant popular, political, and scholarly attention in recent years, especially after Bush v. Gore. Largely slighted, however, has been the matter of how the various state election systems respond when an election outcome is unsettled or contested. Moreover, some recent electoral reforms, such as widespread provisional balloting and increased use of no-fault absentee voting, actually may increase the frequency with which contested elections occur. This article explores the complex issues that arise in remedying a failed election, and argues for the refinement and clarification of remedial standards and procedures for dealing with an election dispute. The article first identifies the primary causes of election failures, as well as the types of remedial options available beyond recounts. The article next discusses the primary values that should be protected in remedying an unsettled election. With these values in mind, the article then urges states to reconstitute their remedial processes for failed elections. First, it recommends much greater specificity in defining the remedies available for particular types of election failure. It then identifies several additional issues that a state's election contest statute should address with clarity, such as who can contest an election, what evidentiary showings to require, and the time within which a contest should be resolved. It also recommends empowering non-judicial forums, such as administrative or legislative tribunals, to settle some election contests, and encouraging citizens to adjust their expectations about our election processes - and about the appropriate remedies for failures in these processes - in recognition of the practical impossibility of developing a flawless election system.

JEL Classification: H11, K10, K40