Tag Archives: election contests

Where Things Stand

In part because of one sore loser, this year’s election seems to be the one that will not end.  And that means that almost any post based on current information is no longer accurate several days later.  As noted in previous posts, there are three big questions:  1) when are absentee ballots due; 2) when will the vote be certified; and 3) what states might be subject to recounts.  There is also the never-ending litigation being filed by the Trump campaign.

At the present time, California is probably the biggest state in which we are still waiting for late absentee ballots with a deadline of Friday.  At the time that I am writing this post, the margin in the Twenty-Fifth District is less than 100 votes; so late arriving ballots could be a key.  In addition, a recount is a real possibility.

The other big state in which there remains a significant number of ballots to be counted is New York.  At the present time, Democrats have apparently lost the Eleventh District (Staten Island).  There are three Democratic districts that have not been called, but Democrats now lead in two of the three.  There are also two Republican districts that have not been called, but the Republicans have significant leads in both.  Whether the remaining votes will actually swing the districts is unclear. Continue Reading...

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Election Night Preview — Part 6 (Aftermath)

This election may go down in history for being very, very bizarre.  Or it may lead to some necessary changes in state election law.  If Tuesday is a good night for the Democrats and Joe Biden, there will not be much to fight about starting Wednesday.  Likewise, a lot depends on what is still outstanding and remaining to be counted.  As we have noted previously, some states allow absentee ballots to be received after election day and some will not start counting the absentee ballots that have been received until election day.  The folks at 538 have done a summary of what states are likely to have almost all of the ballots counted by the end of election night and what states will still have many ballots to count.

Current polling suggests that Democrats are more likely to vote by mail and Republicans to vote in person.  As such, there are likely to be dramatic shifts in the vote as different types of ballots are counted.  This shift will matter in some of the states that will count almost all of their votes on election night, but it will matter more in the states that will be counting a significant number of votes after election night.

What happens after election night depends on where things stand at the end of the evening.  If Trump can hold some of his marginal states (Florida, Georgia, Iowa, and North Carolina), the race will come down to some late counting states.  On the other hand, if Trump is trailing in these states (and Arizona and Ohio) at the end of election day, the race is over. Continue Reading...

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Election Cases

Right now we are in the midst of phase one of election cases.  Here are some basic to understanding the disputes that are currently occurring and may occur over the next several weeks.

As noted in previous posts on legal issues and elections, the United States is big on the concept of federalism.  There is a very sharp, but not absolute, division between state law and federal law.

For the most part, election law is a matter of state law.  As such, many election disputes occur in state court.  For an election dispute to go to federal court, there has to be a federal issue.  Since only a handful of federal statutes restrict state discretion on federal elections, most federal cases involve a claim that the state election law implicates the United States Constitution (most frequently, the Equal Protection Clause of the Fourteenth Amendment).  This division between state court and federal court can be rather significant for this first phase of election case. Continue Reading...

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