Legal Processes for Contesting the Results of a Presidential Election
Although it has national impact, the presidential election is, in essence, 50 state and District of Columbia elections for presidential electors held on the same day throughout the country.[1] Therefore—and consistent with the states’ traditional authority over the administration of elections within their jurisdictions—it is an individual state that has the initial responsibility for resolving a challenge, recount, or contest to the results of a presidential election within that jurisdiction. The state rules and procedures for filing election contests generally, and with respect to the selection of presidential electors specifically, may vary greatly from state to state. Candidates or electors who seek to challenge election results must follow the particular rules and meet the specific state deadlines for such actions within that jurisdiction.
It should be noted that the Electoral Count Act of 1887, as amended[2]—which governs procedures for Congress to count the electoral votes and certify the presidential winner under Congress’ Twelfth Amendment responsibility—contemplates that contests and challenges to the vote for presidential electors are to be initially handled in the states. The electoral count law provides that if a contest or challenge in a state to the election or appointment of presidential electors is resolved in that state by an established procedure before the sixth day prior to the meeting of the electors, that such determination shall be “conclusive” and shall “govern” when Congress counts the electoral votes as directed in the Twelfth Amendment.[3] The Supreme Court has referred to this as the “safe harbor” provision.[4] This year the presidential electors are scheduled to meet on December 19, 2016.[5] Six days prior is December 13, 2016 which, therefore, would be the last day for a state to make a final determination in order for it to be “conclusive” when Congress counts the electoral votes.
Contests in the State
Under the United States Constitution, the states are delegated the initial and principal authority for the administration of elections within their jurisdictions, including elections to federal office.[6] Such election administration in the states would generally include provisions for recounts, challenges, or contests to the results of such elections in the state that may be filed by the appropriate parties within a specific time frame and procedure established by state law.[7]
- ↑ State elections for presidential electors have, since 1845, been required to be held on the same day in November every presidential election year. 5 Stat. 721, ch. 1 (1845) (now 3 U.S.C. § 1). Note U.S. Const., art. II, § 1, cl. 4.
- ↑ Electoral Count Act of 1887, 24 Stat. 373, ch. 90 (1887); see P.L. 771, 62 Stat. 671 (1948) (now 3 U.S.C. §§ 3-21).
- ↑ 3 U.S.C. § 5.
- ↑ Bush v. Gore, 531 U.S. 98, 110-11 (2000).
- ↑ 3 U.S.C. § 7. The electors are to meet on the first Monday after the second Wednesday in December.
- ↑ U.S. Const., art. 2, §1, cl. 2, McPherson v. Blacker, 146 U.S. 1, 35 (1892), Bush v. Gore, 531 U.S. 98, 105 (2000) (as to states’ authority over the “Manner” of appointing electors); and U.S. Const., art. 1, § 4, cl. 1, Storer v. Brown, 415 U.S. 724 (1974), Jenness v. Fortson, 403 U.S. 431 (1971); see United States v. Gradwell, 243 U.S. 476, 482, 484-85 (1917), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-35 (1995) (as to states’ authority over congressional federal elections). Congress has an express reserved and superseding authority with respect to congressional elections (U.S. Const., art. 1, § 4, cl. 1), and a recognized inherent authority to assure the integrity of presidential elections.
- ↑ For a general overview, see Marie Garber and Abe Frank, Contested Elections and Recounts, A Summary of State Procedures for Resolving Disputed Federal Elections, National Clearinghouse on Election Administration, Federal Election Commission (1990); William and Mary School of Law, Election Law manual Ch. 9, “Election Contests.” (http://www.electionlawissues.org/Resources/Election-Law-Manual.aspx); and Steven F. Huefner, Remedying Election Wrongs, 44 Harv. J. on Legis. 265 (2007).
