Legal Processes for Contesting the Results of a Presidential Election
Recounts of election results generally involve a re-canvassing or re-tabulation of votes and/or vote tallies that were given and recorded in the state or in particular election districts.[1] Such recounts may be automatic under state statute for particularly close election results, or may follow a request or petition for a recount made by a candidate under circumstances that allow such recounts.
An election contest, however, usually addresses allegations of fraud in voting, or mistake or irregularity in election administration, that has resulted in the wrong candidate having been found to have received the most votes in the election, or which has made the ascertainment of the winner “reasonably uncertain.” Courts have been historically cautious in interfering with and overturning the results of a popular election on the basis of allegations of fraud or election irregularities.[2]
As is the case in general with civil law suits under American jurisprudence, the burden of proof is upon the challenger, that is, the moving party, not only to prove all of the allegations and charges with specific, credible evidence,[3] but also—in the case of an election contest—to show that any fraud or irregularity proven was to such an extent that it would actually have changed the result of the election or rendered the actual outcome reasonably uncertain.[4] This would mean, for example, that even if a candidate could show that there were, in fact, several hundred fraudulent votes in a particular election, if that candidate lost in the state by several thousand votes, the results of that election would not be affected by such fraud or errors. However, even where the number of illegal, fraudulent, or mistaken votes is shown to exceed the margin of victory, such showing may not, in most states, necessarily invalidate or overturn the results of an election. This is because it may be difficult for a challenger to show for whom those votes were given, or would have been given. In many jurisdictions it must be shown by “direct evidence” (or by some acceptable method of “proportional deduction”)[5] that any such illegal, fraudulent, or mistaken votes were for the “winning” candidate in such numbers that he or she would not have won the election.
It should be noted that there may be several different types and categories of potential voter or election “fraud” or irregularities that may occur in any particular election. With respect to in-person voting fraud, including voter “impersonation” or multiple voting by one person, such fraud to any extent that would affect the results of a statewide or nationwide election would appear to be unprecedented in recent American history, as several independent studies have
- ↑ See generally, Steven F. Huefner, Remedying Election Wrongs, 44 Harv. J. on Legis., 265, 269-70 (2007); and Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 Fordham L. Rev. 1711, app. B at 1817-1836 (2005).
- ↑ Note, Developments in the Law: Voting and Democracy, 119 Harv. L. Rev. 1127, 1155–65, 1188–1200 (2006); See, e.g., In re Wallingford-Swarthmore School Dist. Election, 66 Pa. D. & C.2d 616 (1974).
- ↑ 29 Am.Jur.2d, Evidence, §174: “Typically, the plaintiff has the burden of pleading and proving every essential fact and element of his or her cause of action.”
- ↑ “Although their language varies by state, contest statutes typically require the contestant to plead that the complained of fraud or irregularities 1) changed the election’s outcome or 2) rendered the outcome uncertain. Known respectively as ‘but for’ and the ‘uncertain outcome’ tests, courts measure the contestant’s proof against these standards to determine if the contestant prevails.” Election Law Manual, supra at p. 9-7. (Footnotes omitted). “[T]o obtain judicial relief a contestant is ordinarily required to prove sufficient illegal votes to call the outcome into question [citation omitted]. When that predicate is not met, courts effectively have no authority to alter the election results, even if some illegal voting can be proven.” Steven F. Huefner, Remedying Election Wrongs, 44 Harv. J. on Legis., 265, 280, n. 85 (2007).
- ↑ “[M]any courts have been reluctant to adopt the elimination of uncertainty approach, and instead have turned to the direct evidence or proportional deduction method.” Developments in the Law: Voting and Democracy, 119 Harv. L. Rev. 1127, 1158 (2006).
