The State Laws That May Decide a Disputed 2020 Election

As the 2020 presidential election grows nearer, anxiety over the possibility of a disputed election has reached a fever pitch. And no one has done more to stir this anxiety than President Trump himself. For months, he has inveighed against the mail-in ballots that a substantial number of (disproportionately Democratic) voters are expected to use, leveling unsubstantiated claims of voter fraud and electoral insecurity. Most recently, he even suggested that he might be unwilling to peacefully accept if he were to lose on account of those ballots, raising the prospect that he and his supporters might use an election dispute as a pretext for remaining in power, no matter the election results.

The truth, however, is that the president isn’t going to be resolving any disputes that may arise in the 2020 election. Nor, for that matter, is it likely to be up to Congress or the federal courts, at least in the first instance. Instead, in the United States, those questions are presented first and foremost to the states for resolution—and that makes them the first line of defense in preventing an electoral dispute from becoming a full-fledged constitutional crisis.

Under the Constitution, each state appoints presidential electors “in such manner as the Legislature thereof may direct,” giving state legislatures broad authority to define through state law how that state’s electors should be allocated. Consistent with this broad authority, Congress has given the states a similarly central, though not exclusive, role in resolving presidential election disputes. Since 1887, federal law has contained what the Supreme Court has described as a “safe harbor” provision, which provides that the results of any state legal procedure for resolving disputes over the allocation of electors—judicial or otherwise—established in state law prior to Election Day shall be “conclusive” in determining how electors are to be allocated from that state. The only requirement is that these procedures must be concluded at least six days before the date that Congress sets for the national electors to meet, namely the first Monday after the second Wednesday in December (which this year is Dec. 14). If the states don’t resolve the disputes in question, then Congress itself may step in to determine which electors should be accepted using its own convoluted and somewhat unclear process. But states get the first bite of the apple.

For this reason, we’ve spent the past few weeks canvassing relevant provisions of state law in order to identify how any such dispute is likely to be resolved. And now we’re sharing the results with Lawfare readers so that you can have a better understanding of what may come if and when an electoral controversy arises.

We started with the 15 states that the Cook Political Report rates (as of Sept. 29) as “toss-up” or “lean” states in the 2020 presidential election on the logic that those disputes are more likely to be able to change or sow doubt regarding the final results in a tight race. (Note that two states—Maine and Nebraska—award an electoral vote to the plurality winner in each of their congressional districts, and the remainder to the plurality winner statewide. While only one congressional district for each is included in this list, we’ve included rules for the state as a whole.) For each, we examined statutes relating to election disputes, recounts and vacancies for the presidential election. We also examined the same for congressional elections, on the logic that the composition of the new Congress could play a central role in determining the new president if state procedures fail to resolve any disputes or if no candidate captures a majority of electoral votes. To best understand how these congressional election-related rules might impact the 2020 election, we’ve included some basic information on what electoral votes and congressional seats are up for grabs and who holds the key state offices that most often play a role in resolving election controversies, namely the governor and secretary of state. Finally, we’ve also included links to related posts about pandemic election challenges in swing states written as part of the Healthy Elections Project that Lawfare is hosting in connection with Stanford University and Massachusetts Institute of Technology.

The results of this survey underscore the diverse approaches that states take in approaching these questions. Some states have developed extensive dispute resolution proceedings that seem implicitly (if not expressly) intended to qualify for the “safe harbor” provided by federal law. Other states, however, do not define any special procedures and instead seem to defer to the dispute resolution mechanisms that federal law provides, both for disputed presidential elections and for disputed elections for House and Senate seats. Which of these laws and procedures, if any, will be implicated by the 2020 election is impossible to predict in advance. But examining them underscores just how many off-ramps may exist before a disputed election even reaches the federal system—but also how complex the state-level mechanisms may prove to be in their own right.

Of course, precisely because these state election laws are so complicated, it’s entirely possible that we missed or misinterpreted something. Find an error or omission? Write to us, and we’ll update our post accordingly.

Arizona

Read the entry on Arizona’s 2020 elections from the Healthy Elections Project series here.

Arizona has 11 presidential electors, nine House seats and one Senate seat up for election in 2020. The current governor is Doug Ducey (R), and the current secretary of state is Katie Hobbs (D).

Presidential and Congressional Election Disputes. Arizona state law permits any registered voter to challenge the results of a statewide election or “question or proposal submitted to vote of the people” upon any of the following grounds:

• Election officials engaged in misconduct.
• The winner of the election was not an eligible candidate.
• Candidates engaged in misconduct (such as seeking to bribe or otherwise influence election officials).
• Illegal votes were cast.
• Officials incorrectly tallied the votes.

A voter must file a challenge within five days of the secretary of state or governor announcing the election results. The challenge must be filed in the superior court of either Maricopa County—which includes the state capital of Phoenix—or the county in which the voter resides. The judge of the superior court has 10 days to arrange a hearing, and then must decide whether to confirm the results of the election or annul and set aside the results. If a judge determines that a candidate other than the declared winner has in fact received the most votes, the judge will declare that candidate the winner. Otherwise, he or she may annul and set aside the election results, triggering a vacancy.

Arizona case law sets a high bar for voters challenging the results of an election. In the 1986 case Moore v. City of Page, the Arizona Court of Appeals ruled that judges must draw all reasonable presumptions in favor of validity of an election. And Arizona case law has long held that a challenger must prove fraud by clear and convincing evidence; slight irregularities will not suffice.

While experts have noted that these provisions do not expressly address elections for federal office, an Arizona superior court judge ruled in the 2016 case Brakey v. Reagan that Arizona voters could challenge the results of Arizona’s presidential primary. In the judge’s view, such an election counted as a “question or proposal submitted to vote of the people.” This ruling suggests that federal elections—including both presidential and congressional elections—can similarly be challenged in Arizona courts. Arizona state law does not otherwise provide any specific provisions for challenging results of statewide elections.

Recounts. Arizona state law provides for an automatic recount in very close elections. For statewide or federal elections, an automatic recount is triggered if the difference in total votes between the two top candidates is less than or equal to one-tenth of 1 percent or 200 votes, whichever is less. When an election yields such results, the secretary of state must first certify the facts requiring the recount to the superior court in Maricopa County. The superior court judge must then order a recount.

The secretary of state then oversees a recount conducted using an “automatic tabulating system.” In practice, that means that the votes will be run again through the same machines used to conduct the original vote. Afterward, officials from both political parties will select 5 percent of precincts at random and conduct a recount by hand of all the votes cast within the selected precincts, with members of both parties and election officials present. If the hand-count total falls within a designated margin of the reported electronic total for the relevant precinct (2 percent for early ballots and 1 percent for polling places), then the electronic total constitutes the final result of the recount. If the hand-counted total does not fall within the designated margin, the hand recount will be expanded to include more precincts, and the same test will be applied.

The results of the recount must then be presented to the court that ordered the recount. The court will then certify the results and announce the winner.

Vacancies. Arizona state law expressly provides that any elector who refuses to vote in line with the results of the election is “declared vacant by operation of law” and that the “chairperson of the state committee of the political party represented by that elector” selects a replacement for that person. Though it does not say as much expressly, language in this and other provisions also suggests that vacancies among presidential electors that arise for other reasons should be similarly filled by the state party chairperson.

In the event of a vacancy in a Senate position, state law indicates that the governor should appoint a member of the same political party as the individual who vacated the seat. (If the official has changed political affiliation since being elected, the governor must appoint an individual from the party the official belonged to at the time of his or her election). The person appointed serves in that capacity until a replacement can be elected at the next biannual general election or, if the vacancy arises within 150 days of a general election, until the subsequent general election. The person elected serves the remainder of the original term in office.

Vacancies among Arizona members of the U.S. House of Representatives, meanwhile, remain open until filled at the next general election, provided one occurs in the next six months. If no general election will take place within six months, then the governor is required to call for a special election within the next year to fill the seat. The individual elected will serve the remainder of the original term in office.

Florida

Read the entry on Florida’s 2020 elections from the Healthy Elections Project series here.

Florida has 29 presidential electors and 27 House seats up for election in 2020. The current governor is Ron DeSantis (R), and the current secretary of state is Laurel M. Lee (R).

Presidential and Congressional Election Disputes. Florida state law permits any eligible voter, taxpayer or candidate for office to contest an election on any of the following grounds:

• Election officials engaged in misconduct or committed errors sufficient to change or place in doubt the result.
• The declared winner was not an eligible candidate.
• Illegal votes were cast in a number sufficient to change or place in doubt the results of the election.
• Election officials or voters accepted or were offered bribes.

Any candidate, qualified elector or taxpayer presenting such a contest must file a challenge within 10 days of the election’s certification. For statewide elections, the challenge must be submitted to the Florida circuit court in Leon County, which includes the state capital of Tallahassee. A challenger is “entitled to an immediate hearing,” but the state circuit court judge presiding over the hearing has discretion to “limit the time to be consumed in taking testimony.”

In adjudicating claims contesting the validity of provisional or mail-in ballots, judges may not review any evidence apart from “the signature of the elector in the registration records, the signature on the respective voter’s certificate or cure affidavit, and any supporting identification” submitted by the voter. After reviewing such evidence, judges may make a decision only on whether the Florida canvassing board—the group responsible for overseeing various aspects of Florida’s electoral process—abused its discretion in deciding whether to count or not to count the ballots in question.

In Florida, if a judge determines that a candidate other than the declared winner was in fact the eligible candidate who received the most votes, the judge will issue an order to the governor to void the declared winner’s victory and grant the office to the candidate who ought to have won.

Recount. If the margin separating the winning candidate from another is one-half of a percent or less of the total votes cast, the secretary of state must order a recount (unless the candidate or candidates defeated by such a margin request that no recount be performed). Local canvassing boards must then retabulate results, using the same machines they used in their original tally. If a canvassing board’s recount yields a different total than the original tally, the board must ascertain the cause of the difference and file a report to the Florida Department of State indicating how they resolved the issue. Within nine days of the election, all canvassing boards must submit their recount tallies to the Department of State for certification.

Generally, if the total returns of the recount yield a margin between the top two candidates of one-quarter of a percent or less of the total votes cast, the secretary of state must order a manual recount of all overvotes and undervotes. (An overvote occurs when a voter spoils a ballot by selecting too many candidates for the office in question; an undervote occurs when a voter selects too few candidates for the office in question.) But a manual recount need not be undertaken if the total number of overvotes and undervotes is less than the margin between the top two candidates. Similarly, a candidate defeated by such a margin may also request that no manual recount be performed.

Vacancies. When a presidential elector dies or is otherwise unable to carry out his or her duties, the governor may appoint a replacement who meets relevant eligibility requirements. The replacement must swear an oath to support the same candidates the original elector was committed to support.

When a vacancy occurs in the U.S. Senate for one of the two Florida seats, the governor may appoint a temporary replacement. A special election will be held to fill the seat at the next general election, and the winner will serve for the remainder of the unexpired term.

When a vacancy occurs in the U.S. House for a member from Florida, the governor will call a special election to select a replacement. The date of the special election must not be within two weeks of another election happening in the relevant jurisdiction. But if Congress is not scheduled to meet between the date a vacancy occurs and the next general election, then the governor need not call a special election, and the vacant seat will be filled at the next general election.

Georgia

Read the entry on Georgia’s 2020 elections from the Healthy Elections Project series here and Lawfare’s coverage of the project here.

Georgia has 16 presidential electors, 14 House seats and two Senate seats up for election in 2020, though one Senate seat is a special election to fill a vacancy subject to special procedures as described below. The current governor is Brian Kemp (R), and the current secretary of state is Brad Raffensperger (R).

Presidential and Congressional Election Disputes. Georgia state law permits candidates or voters to contest a statewide election on any of the following grounds:

• Election officials engaged in misconduct or committed errors sufficient to change or place in doubt the result.
• The declared winner was not an eligible candidate.
• Illegal votes were received—or legal votes were rejected—in a quantity sufficient to change or place in doubt the result.
• Election officials erred in tabulating the votes or declaring the result of the election.
• Any other cause shows that someone other than the declared winner in fact received the most votes or otherwise should have been elected.

Eligible parties must file their challenge within five days of the declaration of election results. The suit must be filed in the superior court of the county in which the defendant (typically the candidate whose victory is being contested) resides. After a challenge has been filed, the superior court judge presiding over the case must arrange a hearing within 20 days.

Georgia law provides that litigants may “demand” a trial by jury; but Georgia courts ruled in the 1972 case Henderson v. Cty. Board of Registration that, even after such a “demand,” a judge should grant a trial by jury only if he or she determines that “there are issues which under other laws of this State the litigant is entitled to have tried by a jury.” In cases of trial by jury, the judge will provide to jurors a brief explanation of the issues at hand and will submit to them written questions “susceptible of categorical or other brief answer.” If a litigant does not “demand” a trial by jury, the case will be tried and determined by the judge.

Georgia law spells out specific remedies for various election defects. If a court determines that a candidate other than the declared winner has in fact received the most votes, the court will declare that candidate the winner. If the court determines that the declared winner of a contested election is not in fact eligible for the office in question, the court will declare the election invalid and set a date for a second election to fill the same office. If a court determines that an election was so defective as to place in doubt the result, the court will invalidate the election and declare a new one. And election misconduct will require a second election only if the misconduct is sufficient to call into question the results of the election.

Recounts. Georgia state law does not contain provisions for automatic recounts. But if the margin between the winner and another candidate is not more than one-half of 1 percent of the total votes cast, then the other candidate has the right to demand a recount. If an eligible candidate makes a request within two business days of the certification of election results, the secretary of state shall oversee a statewide recount.

Candidates may also petition for a recount if they believe an error has been made in the tabulation of results, and the secretary of state has discretion to grant such a recount in any and all counties. The secretary of state may order the recount at any time prior to certifying the election results.

Superintendents—local officials who oversee election procedure—also have significant discretion in deciding to call a recount of votes within their county or municipality. Either of their own volition or upon the petition of a political party, superintendents may order a recount for any precinct within their county or municipality, at any time prior to certifying the returns from that precinct and submitting them to the secretary of state.

For votes cast by paper, superintendents must notify the candidates ahead of the recount, and the candidates may send observers to watch the recount take place. For votes cast by machine, superintendents must notify the candidates as well as the custodians responsible for maintaining the machines. Superintendents must then conduct a thorough examination of the machines against paper records kept by the precinct.

Vacancies. If a presidential elector dies or cannot be present to cast his or her vote at the appointed time, presidential electors from the same party will select by voice vote a person from the same political party as a replacement.

When a vacancy occurs in the U.S. Senate, the governor will appoint a temporary replacement, who will serve until the first statewide November election that takes place more than 40 days after the appointment. At that election, voters will elect a candidate to fill the seat for the remainder of the term in a special election. Under state law, there are no primaries in advance of special elections. Instead, all qualifying candidates are listed on the ballot and may choose whether or not to list their partisan affiliation. As with all elections in Georgia, a candidate must receive a simple majority of votes to win, and failure to do so may lead to a run-off between the two candidates receiving the most votes.

When a vacancy occurs in the U.S. House of Representatives, the governor will select a date for a special election to select a replacement. The election must be held at least 30 days after the vacancy occurs. The same rules apply to these special elections as for those to fill vacant Senate seats.

Iowa

Read the entry on Iowa’s 2020 elections from the Healthy Elections Project series here.

Iowa has 6 presidential electors, four House seats, and one Senate seat up for election in 2020. The current governor is Kim Reynolds (R), and the current secretary of state is Paul D. Pate (R).

Presidential and Congressional Election Disputes. Iowa state law provides that only a person “who received votes for the office in question” has standing to contest an election. Once this standing requirement is met, the grounds for contesting an election include the following:

• Misconduct, fraud or corruption on the part of any election official or of any board of canvassers of sufficient magnitude to change the result of the election.
• The incumbent was ineligible for the office in question at the time of the election.
• The incumbent had been convicted of a felony prior to the election.
• The incumbent had given or offered a bribe to any elector, election official, or canvasser.
• Illegal votes were received or legal votes were rejected in a sufficient number to change the result of the election.
• The board of canvassers made an error in counting the votes, if the error would affect the result of the election.
• Any other grounds that would show that a person other than the incumbent was the person properly elected.

Iowa state law then provides specific procedures for presidential elector and congressional election contests. A contestant must file a statement of intent to contest in the office of the secretary of state within two days after the election returns are canvassed by the state board of canvassers. The contestant must also serve a copy upon the incumbent within the same time frame. The challenger must also file a bond with security that is conditional to pay all the costs in case the election is confirmed or the contest is dismissed.

After the filing of the contestant’s statement, a special court will be created to hear the election contest. This special court consists of the chief justice of the Iowa supreme court (or the next most senior member of the supreme court if the chief justice is unavailable), who will be the presiding justice, and four judges of a district court that is selected by the full supreme court. The chief justice and two of the selected district court judges constitute a quorum. Before hearing the election contest case, each member of the special court must take an additional oath to support the U.S. and Iowa constitutions and to administer justice to the best of their knowledge and ability.

After the filing of the contestant’s statement, the secretary of state, acting as the clerk of the court, must immediately notify the judges and set a day for the organization of the court within two days after the filing. When the judges meet on the set date, they must “make and announce such rules for the trial of the case as they shall think necessary for the protection of the rights of each party and a just and speedy trial of the case.” The court must render its decision at least six days before the first Monday after the second Wednesday in December (the date when the presidential electors meet in the state capital). The judgment of the court will determine which party is entitled to hold the disputed office, and that ruling constitutes a final determination of the title to the office. A certificate of appointment will then be issued to the successful party.

Recounts. Iowa state law includes two different election recount provisions. Under general recount provisions, a candidate whose name was printed on the ballot (or who otherwise received votes in the precinct where the recount is requested) may sign a written request for a recount of one or more specified election precincts in that county and file it with the commissioner of the county board of canvassers no later than 5:00 p.m. on the third day following the county board’s canvass. Under administrative recounts, the commissioner responsible for conducting an election requests a recount because of suspected voting equipment malfunction or programming errors or when precinct election officials report counting errors to the commissioner.

Under Iowa’s general recount provisions, if a candidate files a proper and timely recount request with the commissioner of the county board of canvassers and posts any required bond, the county board of canvassers must order a recount of the votes cast in the disputed election precincts of that county. Immediately upon receipt of a request for a recount, the county commissioner must send by certified mail a copy of the request to the apparent winner and attempt to contact the apparent winner by telephone. The county commissioner must also promptly notify the Iowa state commissioner of elections of any recount of votes for the office of president, member of Congress, state governor or other state officer.

The recount is then conducted by a board consisting of a designee of the candidate requesting the recount, a designee of the apparent winning candidate, and a person chosen jointly by the other two members. This board will undertake and complete the required recount under the supervision of the county commissioner and must use the same program for tabulating the votes as used on Election Day (unless the program is believed or known to be flawed). The recount board must complete the recount and file a written report of its findings with the county commissioner no later than the 18th day following the county board’s canvass of the election. If the recount board’s report finds that the county board’s canvass was incorrect as to the number of votes cast, the county board will reconvene and correct its previous proceedings. The county commissioner must then notify the Iowa state commissioner of the recount and any potential change in outcome of the election in that county.

In the event of an administrative recount, Iowa’s special precinct election board, which is generally responsible for counting all absentee ballots, will conduct the recount. Iowa state law does not provide specific procedures for conducting administrative recounts, but it provides that the Iowa state commissioner of elections, Iowa’s secretary of state, may adopt rules for doing so. Nonetheless, the law requires that if the recount board finds an error that may have affected the outcome of the election, it must describe the errors in its report to the state commissioner, who must then notify the board of supervisors.

Vacancies. Iowa state law provides that the presidential electors meet in the Iowa state capital of Des Moines on the first Monday after the second Wednesday in December following their election. If any elector is absent for any reason, the electors present will elect from the citizens of Iowa a substitute elector(s) and certify their choice to the governor, who must then immediately notify the newly selected elector.

As for congressional vacancies, if a vacancy occurs in the office of a U.S. senator when the U.S. Senate is in session or during the time when the Senate will convene prior to the next general election, then the governor must fill the vacancy until the next general election. If the vacancy occurs at least 89 days before a general election and the unexpired term of the vacancy has more than 70 days left after the date of that general election, state law provides that the vacancy shall be filled for the balance of the unexpired term at that general election. But if the unexpired term of office for the vacancy will expire within 70 days after the date of the next pending election, the person elected at the next general election will serve a full, six-year term and continue to hold the office until the next election.

In contrast, to fill a vacancy in the office of a U.S. representative, a special election must be held if the House of Representatives either is in session or will convene before the next general election. The governor must order the special election within five days of the vacancy and must give at least 40 days’ notice of the election. The officer elected to fill the vacancy will then hold the office for the duration of the unexpired term.

Maine

Read the entry on Maine’s 2020 elections from the Healthy Elections Project series here and Lawfare’s coverage of the project here.

Maine has four presidential electors, two House seats and one Senate seat up for election in 2020. The current governor is Janet Mills (D), and the current secretary of state is Matthew Dunlap (D). Unlike most states, Maine awards one elector to the presidential candidate who wins a plurality of votes in each of its two congressional districts and the remaining two to whichever candidate wins a plurality of votes in the state as a whole.

In 2020, Maine will also be using a new ranked-choice voting system to determine the winner in both presidential and congressional races. Under this system, voters rank their preferred candidates for each office. Votes are tabulated based on voters’ first preference. If no candidate receives a majority, then the candidate with the least votes is eliminated and his or her supporters’ votes are reallocated to their next preferred candidate. This continues in successive rounds until a single candidate receives a majority of votes.

Presidential and Congressional Election Disputes. Maine’s state legislature revoked its prior election dispute procedures in 1993. As a result, it currently does not outline any special procedures for addressing election disputes other than the recount procedures discussed below. Instead, it appears to defer to federal dispute resolution mechanisms.

Recounts. Under Maine state law, any losing candidate may request a recount within five business days of the close of election. For elections that use Maine’s new ranked-choice voting system, however, a candidate must have finished among the top three in the penultimate round of voting to request a recount. In 2020, this includes both House and Senate races and the presidential election.

In either event, the secretary of state handles the recount. He or she must notify all candidates of the time and place where the recount will occur. During the recount, any ballots that are disputed and cannot be resolved are set aside. If the recount results differ from the initial result, the secretary of state must submit the new results to the governor. For most elections—including, it appears, presidential elections—if the number of challenged or disputed ballots is sufficient to affect the result of the election, then the secretary of state forwards the records of the election to Maine’s highest state court, the Supreme Judicial Court, which adjudicates the issues in dispute and forwards the ultimate results to Maine’s governor. House and Senate elections are not subject to further judicial action. Instead, the secretary of state simply notifies the requisite bodies of the dispute according to their relevant rules and procedures and makes the record and other assembled materials available to them. Those bodies in turn ultimately resolve the dispute pursuant to their own procedures.

Vacancies. Maine law states that if an elector does not show up, then the other electors can vote in a new elector to replace him or her by majority vote.

When there is a U.S. Senate vacancy, the governor must appoint an interim senator. If the vacancy occurs 60 days or more before the next regular primary election of that election cycle, then nominees for the vacant position will be selected by voters at the primary election and the position will be filled at the next general election. If the vacancy occurs less than 60 days before the next regular primary, then nominees will be selected at the subsequent primary and the position will be filled at the subsequent general election.

When there is a vacancy for a seat in the U.S. House of Representatives, the governor must declare a vacancy and schedule a special primary followed by a special election “as soon as reasonably possible.” If Congress is not in session, the governor must schedule these elections before Congress’s next regular or called session.

Michigan

Read the entry on Michigan’s 2020 elections from the Healthy Elections Project series here and Lawfare’s coverage of the project here.

Michigan has 16 presidential electors, 14 House seats and one Senate seat up for election in 2020. The current governor is Gretchen Whitmer (D), and the current secretary of state is Jocelyn Benson (D).

Presidential and Congressional Election Disputes. Michigan state law appears to anticipate and makes certain special provisions for contested elections, but it does not spell out any special procedures outside of the usual litigation process through state courts. In the event of a contested election, either party may petition the court that he or she has good reason to believe that certain named voters in the election were not qualified to vote and that this fact can be established through testimony. The court may then consider this issue as part of the broader election contest and decide it alongside other matters at issue in the case. As part of these proceedings, a court of relevant jurisdiction may have the relevant ballots and other election materials produced in court, though only the judge may handle them in a manner that would identify given qualified voters without their permission.

In addition, for congressional (but not presidential) elections, Michigan state law provides special procedures that are intended to provide “a speedy and effective remedy for the preservation of the evidence of the intention of the voters in the case of elections.” For both House and Senate elections, any candidate may petition under oath for a restraining order prohibiting the certification of the purported winner of the election in open court before the state supreme court (or, in Senate cases, before the circuit court for Ingham County, where the state capital of Lansing is located). The court may then hold a hearing on the application and provide adequate notice so that representatives of the other affected parties may attend. In House cases, any resulting restraining order is simply served upon relevant officials in possession of ballots and other election materials. In Senate cases, if this order is issued, then anyone having custody of the ballot boxes and ballots must deliver them to the county clerks of the counties in which they reside, and the clerks must retain custody of them pending resolution of the dispute. Three commissioners appointed by the supreme court will then retrieve and secure the relevant ballots in the presence of the county clerk and relevant probate judge as well as a representative of each candidate. The commissioners will then issue a statement on their condition and return them to the custody of the county clerk, who may in turn return them to the custody of the other election officials who originally possessed them, who must continue to retain them in compliance with the restraining order issued.

Recounts. Michigan law allows for candidates in an election to request a recount provided their petition states that they are a victim of error or fraud during the state canvassing and that the candidate has a “good faith” argument that they would have won if not for the issues in the canvass. If there is evidence available of the “wrongdoing” in the canvassing, then the candidate must say so in his or her petition but is not required to present the evidence at the petition stage. The candidate must file the petition within 48 hours of when the canvass finishes.

A recount of all the precincts in the state will occur if the margin of victory is 2,000 votes or less. The board of state canvassers will notify all candidates that the recount could affect the outcome.

The Board of State Canvassers will work with the county clerks to conduct the recount and ensure all ballots in question are preserved. The board will also have a right to subpoena anyone whose statements are relevant to the recount.

Vacancies. In the event of a vacancy among presidential electors on the day they are scheduled to meet and cast their votes, Michigan state law allows for the presidential electors to fill the vacancy by electing a new elector through a plurality vote. Electors are legally obligated to vote for the candidate of the political party who nominated them. Doing otherwise constitutes a resignation and results in a vacancy.

In the event of a vacancy in the U.S. Senate, Michigan’s governor will appoint a replacement. A replacement senator will then be elected at the next general election that is at least 120 days from the date of the vacancy. The person elected will replace the governor’s appointee on Dec. 1 and fill the rest of the unexpired term.

If a House seat for Michigan becomes vacant, then the governor must either call for a special election or announce that the vacancy will be filled at the next general election, provided that it is held more than 30 days from the date of the vacancy. In either case, this special election will be preceded by a special primary election, which must occur at least 45 days before the special election.

Minnesota

Read the entry on Minnesota’s 2020 elections from the Healthy Elections Project series here.

Minnesota has 10 presidential electors, eight House seats and one Senate seat up for election in 2020. The current governor is Tim Walz (D), and the current secretary of state is Steve Simon (D).

Presidential and Congressional Election Disputes. Any eligible voter, including a candidate, may contest the election of a presidential elector. The contestant must file the notice with the court administrator of the district court in Ramsey County, the location of St. Paul, the state capital, and serve a copy to the purported winner of the election. If the contestant is challenging the election solely based on the vote count, this contestee does not need to file an answer. If the contestant is challenging the election on other grounds, however, the contestee must file an answer and serve it to the contestant within seven days of receiving the original notice of challenge.

The contest trial must be brought as soon as practicable within 20 days after the filing of the notice of contest and heard by a panel of three judges assigned by the chief justice of the state supreme court based on a majority vote. The court will follow the standard rules for trials in civil actions. Upon conclusion of the trial, the court may invalidate and revoke the original election results if the contestant wins, unless the contest did not involve a question as to which of the candidates received the highest number of votes. If the court decides that a “serious and material” defect in the ballots affected the election outcome, it must declare the election invalid. The panel’s decision may be appealed to the state supreme court within 10 days of the ruling.

The process for contesting a senatorial election is the same as that for a presidential election, except that the court can decide only on the question of which party received the highest number of votes and related issues. Other issues, including violations of Minnesota election law, are entered into the record but not adjudicated.

The process for contesting a U.S. House election is the same as that for a Senate election, except that the contest need not be filed in Ramsey County but can, instead, be filed initially with the district court for wherever the contestee lives within the state. Once the period for appeal elapses or the matter is adjudicated, these records are provided to the House and the Senate along with any other records in the case, and each chamber may decide whether those issues warrant a change in the election results in line with their own rules and procedures.

Recounts. The relevant canvassing board is required to perform a recount when the winning candidate wins an election by less than one-quarter of 1 percent of the total number of votes. The losing candidate may waive an automatic recount, however. A losing candidate may also request a recount when the vote difference is greater than that threshold, but they will bear the financial cost of that recount.

The secretary of state or his or her designee is the recount official for recounts in presidential or congressional elections. Within 24 hours of determining that a mandatory recount is required or within 48 hours of receipt of a candidate’s request for a recount, the recount official must send notice of the date, time and location of the recount to the candidates and the county auditors for each relevant county. The recount must be open to the public. The election officials with custody of the relevant ballots must secure all election materials until all recounts have been completed and until the deadline for contesting an election has expired.

During the sorting of the votes, candidates or their representatives may challenge the manner in which any ballot was counted if they disagree with the recount official’s determination. Challenged ballots are separated from the other ballots. At the conclusion of the recount, the recount official will prepare a summary of the recount vote by precinct.

Next, the recount official must present his or her prepared summary of the recount and any challenged ballots to the state canvassing board. At that time, the candidates may present the grounds for any challenged ballots. The canvassing board will then rule on the challenged ballots and incorporate the results into the summary statement before certifying the results of the recount.

Vacancies. The secretary of state presides over the meeting of electors at the state capitol, and any electors not present at that meeting vacate their positions. Once a seat is vacant, the secretary has the power to appoint a replacement. If an alternate elector is present at the meeting, the secretary will appoint him or her to the vacant position. If the alternate elector is absent, then the secretary will appoint an elector chosen by lot from among the alternate electors present to vote who were nominated by the same political party. In the case that the number of alternate electors present is insufficient to fill the vacant seats, the secretary will appoint any immediately available individual who is qualified to serve as an elector and was nominated by a plurality vote of the remaining electors.

Vacant Senate seats must be filled for the remainder of the term by the winner of a special election. The date of the special election depends on when the seat becomes vacant. If the vacancy arises 11 or more weeks before the next state primary before a general election, then the special election will be held at the next general election. If the vacancy arises within 11 weeks of the next state primary, then the special election will be held at the subsequent general election. In both cases, a special primary will be held at the state primary before the general election where the special election is being held.

As with the Senate election, the date of a House vacancy determines how it will be filled. In general terms, the governor must institute a special election to fill a vacant House seat, with the exact date of both the special primary and the special general election determined by the date when the House seat becomes vacant. If the vacancy arises 27 or more weeks before the next state primary before a general election, then the governor must schedule a special election within 20 to 24 weeks, but no fewer than 47 days before that primary. If the vacancy arises 22 to 27 weeks before the next state primary, then the governor must schedule a special election for the day of that state primary. In both cases, a special primary will be held 11 weeks before the special election. If the vacancy arises less than 22 weeks before the next state primary, there will be no special election; however, the winner of the next general election for the full term for the vacant seat will serve the remainder of the unexpired term and is eligible to be seated in Congress immediately after receiving a certificate of election. Finally, if a vacancy arises after an election but before the new Congress is sworn in, then the newly elected representative may assume the seat immediately upon receiving a certificate of election. If the incumbent was reelected, however, then the vacancy must be filled in line with the rules outlined above.

Nebraska

Nebraska has five presidential electors, three House seats and one Senate seat up for election in 2020. The current governor is Pete Ricketts (R), and the current secretary of state is Robert Evnen (R). Unlike most states, Nebraska awards one elector to the presidential candidate who wins a plurality of votes in each of its three congressional districts and the remaining two to whichever candidate wins a plurality of votes in the state as a whole.

Presidential and Congressional Election Disputes. Nebraska state law allows any resident to contest an election result on the following grounds:

• An election official engaged in misconduct.
• The incumbent was not eligible to the office at the time of the election.
• The incumbent had been convicted of a felony and at the time of the election his or her civil rights had not been restored.
• The incumbent gave or offered a bribe to a voter or election official.
• Illegal votes were received or legal votes rejected at the polls sufficient to change the results.
• Any board of canvassers made an error in counting the votes or in declaring the result of the election, if the error would change the result.
• The incumbent is in default as a collector and custodian of public money or property.
• Any other cause that shows that another person was legally elected.

Misconduct by an election official will be insufficient to set aside the election unless the vote of the relevant municipality would change the result of the election.

Nebraska law provides a detailed regime for challenging state general or congressional elections. The person challenging the election must file a petition with the district court of Lancaster County—the location of Lincoln, the state capital—within 40 days after the election. At least 10 days before that filing, the petitioner must provide the winner of the election with a copy of that petition. Upon presentation of the petition, the court may appoint an official of the court to take the testimony of the petitioner and the winner.

The court must determine contested elections in a summary manner without any formal pleading. The contest will be heard within 15 days after the filing of the petition unless the contest is continued by the parties’ mutual consent or for good cause. The court may issue a writ to an election commissioner or county clerk requiring that ballots be opened, counted, and compared to the list of voters before certifying the result of that examination. At the conclusion of that process, the election commissioner or county clerk must create a certificate of election based on the results. If the original winner or petitioner wishes to appeal the result of the contest, he or she may appeal under the same rules governing appeals in civil cases.While a contested election is pending, the winner may take office and exercise the duties of the office until the contest is decided. If he or she loses the contest, the court shall order the individual to give up the office to the challenger. If the original winner or petitioner wishes to appeal the result of the contest, he or she may appeal under the same rules governing appeals in civil cases.

Recounts. If an election was decided by a margin of 1 percent or less, the losing candidate is entitled to a recount. Losing candidates may waive that right if they so choose. Recounts will be performed by the county clerk or election commissioner in each relevant county. The procedures for a recount will be the same as those used in a normal election.

Candidates who lost by a margin greater than 1 percent may submit a certified written request for a recount, which will be conducted at their financial expense. Requests must be filed with the filing officer with whom the candidate filed for election no later than 10 days after the state board of canvassers concludes its initial review.

If a recount after a general or special election results in a tie between two or more candidates, then the state board of canvassers will randomly select the winner by lot.

Vacancies. In the event that an elector is absent from the general meeting of electors that takes place on the first Monday after the second Wednesday of December in a presidential election year, those present will vote to fill the empty positions. If they have not filled the positions by 3:00 p.m. on that Monday, the gGovernor will appoint the necessary replacements.

Presidential electors in Nebraska are required to cast their ballots for the candidate who won the highest number of votes in their district. A presidential elector who refuses to present a ballot, who attempts to present an unmarked ballot, or who casts a vote contrary to that requirement vacates the office of elector. In such a case, the governor will appoint a replacement.

Vacancies for House seats will be filled by special election on order of the governor, and the date of a vacancy of a House seat determines the date of the election. If the vacancy occurs on or after Aug. 1 in an even-numbered year, the governor must order a special election to be held in conjunction with the statewide election of that year. If it occurs on or after the day of the statewide general election and prior to the end of the seat’s term of office, no special election can be called. Finally, if the vacancy occurs outside of those two windows, the governor must order a special election to be held within 90 days.

For a vacant Senate seat, the governor must appoint “a suitable person possessing the qualifications necessary for senator” to fill the vacancy until a special election can be held to elect a permanent replacement. Similar to the process for a vacant U.S. House seat, the date of the vacancy determines the subsequent procedure. If the vacancy occurs 60 days or fewer prior to a statewide general election and the seat’s term expires on the following Jan. 3, the appointee shall serve until the following Jan. 3. If the vacancy occurs 60 days or fewer prior to a statewide general election and the seat’s term has more than a year remaining, the appointee shall serve until Jan. 3 following the second statewide general election after his or her appointment. If the seat still has not expired, a senator will be elected in that election to serve the unexpired time. If the vacancy occurs more than 60 days prior to a statewide general election, the appointee shall serve until Jan. 3 following the general election, at which time a senator will be elected to serve the unexpired time, if any.

Nevada

Read the entry on Nevada’s 2020 elections from the Healthy Elections Project series here.

Nevada has six presidential electors and four House seats up for election in 2020. The current governor is Steve Sisolak (D), and the current secretary of state is Barbara K. Cegavske (R).

Presidential Election Disputes. Nevada state law allows any candidate or registered voter to challenge the results of any election for presidential electors in the same manner as for most other elections in the state. To do so, the contestant must file a written statement of contest with the clerk of the district court outlining the alleged grounds for the contest within 14 days of an election or five days of a recount. The following are valid grounds for contesting an election:

• One or more members of the election board are guilty of malfeasance.
• The person elected is not eligible for office.
• Illegal or improper votes were counted, legal and proper votes were not counted, or some combination of the two.
• The election board made errors sufficient to change the results in the course of conducting the election or canvassing the returns.
• The winning candidate or a person acting on their behalf has given or offered anything of value for purposes of manipulating the outcome of the election.
• A malfunction of a voting device or other mechanism was sufficient to raise reasonable doubt as to the outcome of the election.

Once filed, a statement of contest is not to be dismissed on technicalities so long as the alleged grounds for the contest are alleged with sufficient certainty. The district court is required to set the matter for hearing not less than five but no more than 10 days after the statement is filed, and it is to be given precedence over other pending matters. The parties to the contest may take depositions and submit written and oral arguments as directed by the court. A recount may also be conducted as part of any hearing.

If the court finds that a person other than the original winner received the greatest number of legal votes, then it will declare that person as having been elected and he or she will be issued a certificate of election. If the court instead sets aside the results of the election without determining a new winner, then the office is left vacant.

Congressional Election Disputes. Nevada state law expressly excludes elections for U.S. senators and representatives from its procedures for election contests and does not provide alternative procedures for addressing them, other than the recount procedures described below. As a result, Nevada appears to defer the resolution of any such electoral disputes to the House’s and Senate’s own dispute resolution procedures.

Recounts. Both defeated candidates and voters in an election may request a recount in both presidential elections and elections for Congress under Nevada state law. To do so, they must file a written demand with the secretary of state along with a deposit of the estimated cost of the recount, as defined in line with state regulations, within three days of the canvass of the vote and certification of the results.

When a recount is requested, each county and city affected is responsible for assembling a recount board to conduct the recount, overseen by the county or city clerk. Both accepted and rejected ballots must be recounted in the same manner as the original tabulation. The recount must commence within five days of the demand being received and be completed within five days. An authorized representative for each candidate affected by the recount—as well as any voter who requested the recount—may be present but cannot be part of the recount board.

If those who demanded the recount prevail, then they are reimbursed for the deposit of recount expenses they provided with their demand. If they do not win the recount, then they are obligated to pay the full expenses of the recount. Once a recount of a given precinct for a particular election has been completed, no more similar recounts may be demanded. If the result of the recount is a tie, then the state legislature will, by joint vote of both its houses, elect one of the candidates to fill the office.

Vacancies. In the event that there is a vacancy among the presidential electors when they meet to cast their votes on the day established by federal law, the secretary of state—who presides over their meeting—will appoint an alternate elector for that candidate who is present at the meeting. If no such alternates are present, then the secretary of state will appoint an elector chosen randomly by lot from the alternates present. Or if no alternates are present, then the secretary will appoint a qualified voter present at the meeting through nomination and a vote by a plurality of the other electors. If this latter vote results in a tie, then the secretary will select the elector randomly by lot from among those who received the most votes. Regardless, all electors are required by state law to vote for the candidates for president and vice president who received the most votes in the state. If they do not, then they are disqualified as electors and their position is considered vacant, meaning it will be filled in line with the procedure outlined above.

If there is a vacancy in the position of senator, then Nevada’s governor may appoint a qualified person to fill the position. That person holds the office until the next general election, and until his or her successor is elected and seated.

If there is a vacancy in the position of representative, then the governor of Nevada is required to issue a proclamation announcing a special election within seven days. The special election in question must occur on a Tuesday within 180 days of the proclamation—or within 90 days in the event that the vacancy arose as a result of a “catastrophe,” which is defined to mean “a natural or man-made event that causes, by death or disappearance, a vacancy in at least one-fourth of the total number of offices in the United States House of Representatives, including any number of offices representing the State of Nevada, or at least one-half of the total number of offices representing the State of Nevada.” In the event of a special election, there is no primary election. Instead, the candidates of major parties must be nominated by filing a declaration of candidacy and associated fees with the secretary of state. Minor-party and independent candidates may do the same but must file not more than 46 and not less than 32 days before the special election.

New Hampshire

Read the entry on New Hampshire’s 2020 elections from the Healthy Elections Project series here.

New Hampshire has four presidential electors, two House seats and one Senate seat up for election in 2020. The current governor is Christopher Sununu (R) and the current secretary of state is Bill Gardner (D).

Presidential and Congressional Election Disputes. New Hampshire state law does not provide any specific provisions allowing individuals to challenge the results of presidential or congressional elections. Instead, it appears to handle any such challenges through recount procedures (as discussed below) and by deferring to the federal government’s own dispute resolution mechanisms.

Recounts. In congressional and presidential races, any candidate who received at least one vote may apply for a recount provided that they lost by less than 20 percent to the winner of the election. They must submit a recount request to the secretary of state no later than the first Friday after the election. Candidates may apply for only one recount; if more than one candidate applies for a recount to contest the same race, only one recount will occur. Upon receipt of a properly filed application, the secretary of state shall initiate the recount no later than the Wednesday following the application deadline. The recount itself will take place at any “suitable state facility” in the state capital of Concord, and the secretary of state must provide reasonable notice to the candidates of the date and time of the recount and the rules by which it will be conducted.

The secretary of state may order the state police to collect all the ballots from the relevant town or city clerks and bring them to the recount location, where they will be counted by the secretary of state’s office. The recount team must visually inspect each ballot; no mechanical or electronic devices are allowed during the process. The candidates and their attorneys have the right to inspect the ballots and protest the counting of or failure to count any ballot. If they do so, the secretary of state will rule on the disputed ballot and attach a memorandum to it explaining that ruling.

If a discrepancy in any ballot is discovered, the secretary of state must suspend the recount until the discrepancy is resolved, but under no circumstances can a discrepancy cause a second recount. If the recount reveals that a candidate other than the original winner received the highest number of votes, the secretary of state will provide him or her with a certificate of election.

Any candidate who lost a recount may appeal the result to the state Ballot Law Commission within three days of the recount’s conclusion by filing an appeal with the secretary of state. The commission will meet, hear the appeal and review all the rulings of the secretary of state on ballots protested during the recount. Upon concluding its review, the commission may overturn the results of the recount and reward a certificate of election to the candidate whom it declares has actually won, but it does not have the power to order a second recount. Challengers may appeal the commission’s decisions to the state supreme court, which has addressed the threshold that parties must meet in order to convince the Ballot Law Commission or the state courts to void an election result. In the 1994 case Appeal of Soucy, the state supreme court reversed the Ballot Law Commission’s decision to void an election, holding that “to set aside an election the party challenging the results must prove either fraud which leaves the intent of the voters in doubt or irregularities in the conduct of the [election] of such a nature as to affect the result.

In a presidential election, the candidate who loses in the commission’s hearing may appeal to the state supreme court by filing an appeal within five days after the decision of the commission is submitted to the secretary of state. Those proceedings will be limited to questions of law; the court will rely on the commission’s findings of fact, provided they are supported by the requisite evidence. The court may hold a special session if it deems one necessary to hear the appeal.

Vacancies. In the event that the requisite number of four presidential electors are not present at the official meeting to cast their votes—or if there is a tie in the election of a given elector—the electors who are present shall “choose by ballot the number needed.”

In New Hampshire, the governor has the power to appoint a replacement to a vacant Senate seat. The replacement will hold that seat until the next state general election.

In the event of a vacant congressional seat, the governor will direct the selectmen who sit as the executive bodies of the towns and cities in the relevant district to call a special election on the day he or she designates. The winner of the special election will fill the vacant seat.

North Carolina

Read the entry on North Carolina’s 2020 elections from the Healthy Elections Project series here.

North Carolina has 15 presidential electors, 13 House seats and one Senate seat up for election in 2020. The current governor is Roy Cooper (D), and the current secretary of state is Elaine Marshall (D).

Presidential and Congressional Election Disputes. North Carolina law allows for any eligible voter or candidate in the election to file a written “protest” against how the state conducted the election. The protest must state whether it relates to the manner in which votes were counted and results tabulated or some other alleged irregularity.

If the protest is about the counting or tabulation of the votes, then the protester must file his or her protest by the beginning of the canvass meeting. County canvasses occur at 11:00 a.m. on the 10th day after the election, and statewide canvasses take place at 11:00 a.m. on the third Tuesday after the election. The protest can wait until 5:00 p.m. on the second business day after the canvassing is complete if the protester provides a valid reason for the delay. If the protest is about anything besides the counting and tabulation of the votes, then the protester must file it by 5:00 p.m. on the second day after the canvassing is complete.

If the protest does not concern the counting and tabulation of the votes and the protester files the protest before Election Day, the state board of elections will stay the protest until the day after the election if the state has printed the ballot, the voter registration deadline has passed or the resulting proceedings would occur within 30 days of the election. If the party on the opposing side of the protest moves otherwise, however, the state board of elections may not stay the election even if the conditions listed above are present.

Protests are first filed with the county board of elections. The county board of elections will consider whether the protest complies with the requirements of filing protests listed above. If the protest does not meet the requirement for filing a protest, the county board will give the protester a chance to amend the filing to be compliant with the requirements. If the protest is valid, the county board will hold a hearing for the protester to speak at, along with any candidates potentially impacted by the protest. The county board will consider all evidence filed and then make a decision. The board can dismiss the protest, order a recount, declare new results or refer the protest to the state board of elections.

The state board of elections becomes involved if the county board refers the complaint to them or a protester appeals the county board’s decision to the state board. An appeal can be filed by the protester or a candidate or a person impacted by the county board’s decision who participated in the prior hearing. The appeal must be filed within 24 hours of the county board’s decision. The state board can either just review the county board’s decision or request additional evidence. If the state board believes a county is unable to handle a recount, then the state board can step in. Conversely, if the state board cannot take care of a statewide issue, then the state board can assign a county board to take control of the process.

A state board can call for a new election if four of the eight members of the board vote for a new election on the basis of voting irregularities that impacted the result of the election. The state board will determine how the election will be conducted in terms of the location, who can vote and who can be a candidate in the election.

After the state board renders its decision, the contestant can appeal to the superior court of Wake County, where the state capital of Raleigh is located. The court can stay the certification of the election only if the appellant can prove he or she is likely to win the appeal.

Recounts. North Carolina state law provides for two circumstances in which the state may conduct a recount. First, if the county or state board of elections requires a recount to complete the canvassing process, it may direct one—though the county board of elections may not do so if the state board of elections has already denied a petitioner’s recount request. Alternatively, candidates may demand a mandatory recount if the difference between the votes they received and those received by the winning candidate is below a certain threshold. In a non-statewide race, the difference must be less than 1 percent of the total votes cast or 1 percent of the votes cast for those two candidates in a multiseat race. In a statewide race, meanwhile, the difference must be less than either 0.5 percent of the total votes cast or 10,000 votes, whichever is less.

Candidates must submit their request for the recount in writing by noon on the second business day after the canvass is completed. The executive director of the state board of elections determines whether the candidate is entitled to a recount.

The state board of elections oversees the recount and decides the method of the recount, such as when to use hand recount or machine recount. And the state board of elections determines what involvement partisan campaign members and the public will be allowed to have.

Vacancies. North Carolina state law has two provisions for the vacancy of presidential electors. If the election of the electors cannot be resolved by six days before the day the electors meet, then the general assembly can appoint the electors. If the general assembly cannot come to a resolution by 12:00 noon the day before the electors meet, then the governor can appoint the electors. In either case, the governor and general assembly are supposed to choose the electors based on their best judgment of what the electorate wanted. Alternatively, if an elector fails to show up or vote on the day the electors meet, the electors may then fill the vacancy.

If a U.S. senator vacates his or her position, the governor appoints someone to fill the vacancy. Within 30 days of the vacancy, the state organization of the party to which the senator belonged will provide the governor with three names to choose from. The governor will then schedule a general election on the date of the next general assembly election that is 60 days or more after the vacancy opens.

If a U.S. representative vacates his or her seat, the governor will schedule a special election to fill the seat. If the vacancy occurs 10 days or less before the filing deadline for running for the seat, the state party will select the nominee. Otherwise, a regular primary will occur.

Ohio

Read the entries on Ohio’s 2020 elections from the Healthy Elections Project series here and here.

Ohio has 18 presidential electors and 16 House seats up for election in 2020. The current governor is Mike DeWine (R), and the current secretary of state is Frank LaRose (R).

Presidential and Congressional Election Disputes. Under Ohio state law, elections for federal offices are not “subject to a contest of election.” (As the Ohio Supreme Court has explained, a contest of election is a “specific remedy provided by statute for the correction of all errors, frauds, and mistakes which may occur in an election”). A comprehensive study of Ohio election law describes this provision as a “little-noticed” part of “a major overhaul of the state’s electoral system after 2004.” But this provision has important consequences, as it means that only federal law remedies are available for electoral disputes. State law remedies, meanwhile, are limited to recounts.

Recounts. There are two types of recounts under Ohio law: automatic and requested. In statewide races, the secretary of state must order a recount when the margin is less than or equal to a quarter of a percent of the total votes cast. Additionally, in a statewide election, a losing candidate may request a recount by filing a written application within five days of the announcement of the official results. After receiving the application, the board of elections “shall promptly fix the time, method, and the place at which the recount will be made.” The recount shall take place no later than 10 days after a recount order or an application is filed. To ensure any recounts are completed in time to qualify for the “safe harbor” provision in federal law, state law requires that any recounts related to presidential elections must be completed at least six days before the date set in federal law for the meeting of electors. In 2020, that meeting is currently scheduled for December 14, meaning any recounts will have to be completed by December 8.

State law and a directive issued by the secretary of state establish the procedures for a recount. According to the directive, “[t]he recount must be conducted by teams of elections officials equally divided among the state’s two major political parties.” The precise procedures vary depending on how the ballot was cast but in general the elections board randomly selects precincts whose vote totals for the race amounts to at least five percent of the total vote.

During a recount, only state officials may handle and recount the ballots. Candidates or their delegates may observe ballots. Media is also permitted to attend a recount.

Vacancies. If an elector is not present when the electors convene in Ohio on Dec. 14, the present electors may vote to appoint a replacement. The law establishes that “the person appointed shall be of the same political party as the duly elected presidential elector whose absence requires such appointment to be made.” If there is a tie, then the governor randomly selects the winner.

In the event of a vacancy in a U.S. Senate position, state law establishes that the governor makes a temporary appointment. Then at the next regular state election that occurs at least 180 days after the vacancy, there is a special election for the Senate seat. The governor’s appointee serves until Dec. 15 following the special election, at which point the winner of the special election takes office and serves out the remainder of the Senate term.

In the event of a vacancy in a U.S. House seat, the governor is required to call a special election at a date of the governor’s choosing. The relevant board of elections must give at ten days advance public notice before the election takes place.

Pennsylvania

Read the entry on Pennsylvania’s 2020 elections from the Healthy Elections Project series here and Lawfare’s coverage of the project here.

Pennsylvania has 20 presidential electors and 18 House seats up for election in 2020. The current governor is Tom Wolf (D), and the current secretary of state is Kathy Boockvar (D).

Presidential and Congressional Election Disputes. Pennsylvania’s Election Code includes provisions for election contests for presidential and congressional offices. Under state law, presidential elector and U.S. Senate election disputes are both considered “Class II” contests and House election contests are “Class IV.”

For an election contest of a presidential elector, U.S. Senate or House seat, a petition can only be filed by a registered voter who voted in the election. The petition must be filed within 20 days after the day of the election and must include the cause of complaint (which may be amended with leave of court). The petition must also be supplemented with at least five affidavits made under oath indicating that the affiants believe the “election was illegal and the return thereof not correct.” The petition must be filed with the state court with jurisdiction, as discussed below, and notice of the filing of the petition, as well as a notice to appear at the time set for the court hearing must be served upon the person whose election is contested. The court will have the “plenary power to make, issue, and enforce all necessary orders, rules, process and decrees” necessary to make a determination in the case. The court will also have the power to compel the attendance of any election officer or other person as a witness; to compel the production of all the ballots, boxes, voting machines, books, papers, tally lists, and any other documentary evidence; and to issue subpoenas for these purposes.

To initiate an election contest for either a presidential elector or Senate seat (Class II), at least 100 voters must file the petition. Pennsylvania grants exclusive jurisdiction to resolve these disputes to the Commonwealth Court, one of Pennsylvania’s two intermediate appellate courts. After the hearing of the case, the judges will decide which of the candidates received the greatest number of legal votes and is entitled to the nomination or office. Within five days of the decision, a certified copy of the decision will be delivered to the Pennsylvania secretary of state.

To initiate a House election contest (Class IV), at least 20 voters must file the petition in the Pennsylvania court of common pleas, Pennsylvania’s general trial court, in the county where the winning candidate resides. The court will then set a time for a hearing, and the candidate elected must be provided with at least 10 days’ notice of the hearing. The petitioners and the candidate elected will then be the parties to the trial of the contested election, and the court will have the power to compel the attendance of election officers and others capable of testifying to the contested election and to compel the production of evidence. After the hearing, the court will determine which candidate had the greater number of votes and is entitled to the election.

Recounts. Pennsylvania’s Election Code provides several methods for a recount and recanvass. First, a county board of elections must conduct a recount or recanvass of all ballots cast whenever a “discrepancy” appears in the returns of an election. Under this same provision, at least three voters may petition their county board of elections, supported by affidavit, that fraud or error not apparent on the face of the returns has occurred. Importantly, this petition must be filed prior to the completion of the computation of all the returns for the county. If the board rejects the voters’ petition, the aggrieved petitioners can appeal the decision to the appropriate county Pennsylvania common pleas court.

Second, the Pennsylvania secretary of state may order a recount and recanvass of all county boards if the unofficial election returns indicate that a candidate was defeated by half a percent or less of the total votes cast for the office. However, this recount and recanvass will not be ordered if the defeated candidate requests in writing that it not happen. If the defeated candidate does not make this request by 12:00 noon on the second Wednesday following the election, then the secretary of state must issue the recount and recanvass order by 5:00 p.m. of the second Thursday following the day of the election and must provide 24 hours’ notice to each candidate and the county chairman of each party affected. A candidate affected by the recount may be present either in person or by attorney at the recount proceedings, and a party affected may send two representatives.

Third, voters may petition the Pennsylvania common pleas court of the county in which their election district is located to open the ballot boxes and/or recanvass the voting machines. To do so, at least three voters in the same precinct must verify that they believe that fraud or error not apparent from the returns was committed in the vote tabulation. Such a petition must be filed no later than five days after the completion of the county’s election returns. But if any error or fraud is found, the interested parties will have an additional five days to file petitions requesting additional ballot boxes be opened or voting machines/systems be recanvassed.

Though it is not necessary that the petitioners specify a particular act of fraud or error or offer other evidence to substantiate their allegations in the petition, the petitioners must file qualified petitions in every single precinct in which ballots were cast for the office in question unless they plead fraud or error with particularity and offer prima facie evidence supporting the allegation (see the 2016 case of Stein v. Cortes, where three petitioners would have had to file affidavits from voters in more than 9,000 precincts to contest the statewide presidential election without prima facie evidence of fraud.)

If the above requirements are met, the Commonwealth Court must serve notice of the time and place of the recount to each candidate. Voting machines may be recanvassed at any time within 20 days after the date of the election for which they were used, and the ballot boxes may be opened at any time within four months after the date of the election. The court must then have the entire vote of the district recounted by persons designated by the court. Each candidate may be present at the recount, either in person, by attorney or by another authorized representative.

Vacancies. Pennsylvania state law provides that if any presidential elector is unavailable for the meeting of the electors, the electors present must choose by oral vote a person of the same political party as the absent elector to fill the vacancy. Immediately after this vote, the name of the person chosen must be given to the governor, who must then immediately notify the chosen elector in writing.

If a vacancy occurs in the office of a U.S. senator, Pennsylvania state law provides that the vacancy must be filled for the unexpired term at a “special election” to be held at the same time as the next general election. Until the vacancy is filled, the governor may make a temporary appointment.

If a vacancy occurs in the office of a House representative during a session of Congress—or a meeting of Congress will occur before the next general election—the governor must issue an order for a special election within 10 days of the vacancy (or within 10 days of an extraordinary session of Congress). The special election must then be held no sooner than 60 days after the governor issues the order. If the vacancy occurs during any other time, no special election will occur and the vacancy will be filled at the next general election.

Texas

Read the entry on Texas’s 2020 elections from the Healthy Elections Project series here.

Texas has 38 presidential electors, 36 House seats and one Senate seat up for election in 2020. The current governor is Greg Abbott (R), and the current secretary of state is Ruth R. Hughs (R).

Presidential and Congressional Election Disputes. Generally, Texas’s Election Code provides for election contests when allegations are made that the outcome of an election was altered due to the counting of illegal votes or other fraud, illegal conduct, or mistake occuring in the election proceedings.

Only a presidential candidate whose name appeared on the ballot or who qualified as a write-in candidate (or an elector candidate who receives express approval from his or her corresponding presidential candidate) may initiate a presidential elector contest. To do so, the contestant must file a petition stating the grounds for the contest and file the petition with the Texas secretary of state no earlier than the day after the date of the election and no later than 10 days after the election records become publicly available or the result of the election is determined. The secretary of state must then immediately notify the elected candidate of the filing and deliver a copy of the petition to him or her. The elected candidate must then reply to the petition in an answer and file the answer with the secretary of state no later than eight days after the contestant’s petition was filed.

Texas’s laws grant the state governor exclusive jurisdiction to resolve election contests involving presidential electors. After the elected candidate’s answer is filed, the governor must set a time and place for hearing the presidential election contest, provide notice to the parties and investigate the issues and legal evidence presented. The governor will determine the procedure for hearing the contest and, though the rules of evidence are generally applicable, the governor may modify them. The governor may appoint a “master of discovery” and any party to the contest can conduct discovery and take depositions in accordance with the Texas district court’s civil procedure rules (subject to potential changes imposed by the governor or the master of discovery). The governor can also require the attendance of witnesses and the production of evidence through the issuance of subpoenas. The governor must determine the outcome of the contested election, declaring which set of presidential electors was elected, no later than seven days before the meeting of the electors.

While Texas’s Election Code generally provides for the possibility of election contests, the state law expressly prohibits Texas tribunals from deciding contests for U.S. House and Senate general and special elections. Rather, the law provides that the Senate has exclusive jurisdiction of a contest for senator and the House of Representatives has exclusive jurisdiction of a contest for representative. However, the law does allow Texas courts to hear election contests of primaries for federal legislative seats (see Rodriguez v. Cuellar, where the Texas Court of Appeals considered an election contest regarding a 2004 Democratic primary for a House seat).

To proceed with a congressional election contest in either the House or the Senate, a candidate in the election must file a petition stating the grounds for the contest with the Texas secretary of state no later than seven days after the election records become publicly available or the result of the election is determined. The contestant must also deliver a copy of the petition to the winning candidate by the same deadline. The winning candidate must then file a reply to the contestant’s petition with the secretary of state no later than seven days after receipt of the petition. Once the secretary of state receives the contestant’s petition, he or she must deliver it to the president of the Senate or the speaker of the House, as applicable, by the day after the petition is received. The secretary of state must do the same with delivery of the elected candidate’s answer. After this point, the Senate or the House will prescribe its own procedures for the hearing of the election contest.

Recounts. Texas’s Election Code provides for an automatic recount only in the event of a tie vote. Otherwise, for a recount of a precinct using paper ballots, a candidate for an election to an office, including a presidential general election, can petition for an initial recount if the difference between the number of votes cast for the petitioning candidate and the winning candidate is less than 10 percent of the votes cast for the winning candidate or fewer than 1,000 total votes were received for all candidates for the office. A candidate may also petition for an initial recount if an election judge swears and the secretary of state certifies that counting errors affecting the election occurred in at least one precinct where paper ballots were used (this is rare). By contrast, for those election precincts where an electronic voting system was used, any defeated candidate may request a recount without showing grounds and without a close vote margin.

A petition for an initial recount must be submitted to the Texas secretary of state by 5:00 p.m. of the fifth day after Election Day or 5:00 p.m. of the second day after the date the canvassing authority completes its canvass, whichever is later. The petition must state the grounds for the recount, identify the election precincts where a recount is desired and indicate the voting method used, and it must be signed by the person (or his or her agent) requesting the recount. In addition, to obtain a recount on the ground of counting errors in paper ballot precincts, the petition must be accompanied by an affidavit from at least one presiding judge of the election stating that counting errors were made. By contrast, there is no additional affidavit requirement for petitioning for an electronic voting system recount. Finally, for requesting a recount of electronic voting system ballots, the petitioning candidate may choose the method of the recount (either a manual recount, an electronic recount using the same program as the original count, or an electronic recount using a corrected program, if available), but the same counting method must be used in all precincts that shared the same method of counting in the original election.

If the petition complies with the applicable requirements, the secretary of state, acting as the “recount coordinator,” must approve the petition and the “recount supervisor(s)”—the presiding officer of each local canvassing authority included in the recount—must then order the recount for a date no later than seven days after the date of the petition. If the petition does not comply with all requirements, then the recount coordinator must determine whether the petition can be corrected by amendment (in which case he or she cannot act on the petition until the deadline for amending it has passed) or not (in which case he or she must reject the noncomplying petition).

If a recount petition is approved, then the recount coordinator must notify all opposing candidates for election of the approval and must provide “personal notice” of the time and place of the recount at least 18 hours before the recount is set to begin.

The recount supervisor must manage and supervise the recount, which is to be completed by a recount committee applying the provided counting procedures. The recount committee will have access to all ballots, machines, or materials or programs used in the election and has the authority to determine whether a ballot should be counted or not and how a voter’s ballot should be interpreted. Generally all votes cast in an election precinct included in the recount are to be included. However, as a noteworthy exception, early voting ballots rejected by the early voting ballot board may not be counted in the recount.

Each candidate for office is entitled to be present at the recount, and the candidates’ corresponding political parties are also entitled to have watchers present. The recount is not otherwise open to the general public and only persons specifically permitted by law are allowed to attend. Based on the recount committee’s findings, the recount supervisor will then prepare a report representing the official statement of the vote count in the local canvassing authority’s jurisdiction.

After receiving the results of the recount from the recount supervisor(s), the secretary of state must then promptly determine the result of the recount and the state governor, who is the final canvassing authority for statewide elections, must conduct a final canvass that will be the official result for the election.

Texas’s Election Code does not provide for voter-initiated recounts of an election and does not provide for an appeals process for any recount decisions.

Vacancies. Under Texas state law, if a presidential elector withdraws, dies or is declared ineligible before Election Day, then a replacement elector candidate can be named by the party that originally nominated the elector candidate (or by the independent or write-in presidential candidate who named the elector candidate). If a political party’s rules do not provide for the selection of a replacement elector candidate, then the party’s state executive committee may choose the replacement by filing with the Texas secretary of state the name and address of the new, replacement elector candidate.

But if an elector becomes absent after the election and is unavailable at the time of the meeting of the electors at the Texas state capitol in Austin on the first Monday after the second Wednesday in December following the election, then the electors may declare the position vacant by a majority vote of those present at the meeting. If that happens, the electors present may appoint a replacement elector by a majority vote and must then immediately notify the secretary of state of the name and address of the replacement elector.

If a vacancy occurs in the office of a U.S. senator and the Senate is in session or will be in session during the vacancy, then the governor must make a temporary appointment to fill the vacancy until the position is filled by election. If the vacancy occurs in an even-numbered year on or before the 62nd day before the primary election, then the vacancy must be filled at the next general election. If the vacancy occurs in an odd-numbered year or after the 62nd day before the primary, then the unexpired term of the vacancy must be filled by a special election. The governor must order such a special election, and the election must be held on or after the 36th day after the election is ordered.

If a vacancy occurs in the office of a House representative, the unexpired term may be filled by a special election. As with a Senate vacancy special election, the governor must order a special election to fill a House seat, and the election must be held on or after the 36th day after the election is ordered.

Wisconsin

Read the entry on Wisconsin’s 2020 elections from the Healthy Elections Project series here.

Wisconsin has 10 presidential electors and eight House seats up for election in 2020. The current governor is Tony Evers (D), and the current secretary of state is Doug La Follette (D).

Presidential and Congressional Election Disputes. Wisconsin state law does not contain any provisions specifically addressing dispute resolution in the context of presidential or congressional elections. Instead, the recount procedures discussed below are the exclusive remedy for any alleged election fraud, irregularity, defect or mistake committed during the voting or canvassing process, as confirmed by the Wisconsin Court of Appeals. Disputes over issues not addressed by these provisions are left to federal procedures for resolution.

Recounts. Wisconsin’s election laws allow for any “aggrieved party” to file a petition for a recount in a presidential or congressional election. It defines an “aggrieved party” as a candidate who trailed the leading candidate by no more than 1 percent of the total votes cast for that office when at least 4,000 votes were cast or who was within 40 votes of the winner’s total if fewer than 4,000 votes were cast. There is no provision under the Wisconsin election laws for an automatic recount, even if the unofficial results are extremely close.

A recount for any federal office is requested by filing a sworn petition with the Wisconsin Elections Commission (the filing officer), along with a filing fee, if required. For the office of the president, a petition for recount must be filed no earlier than the completion of the canvass and no later than 5:00 p.m. on the first business day following the day on which the Wisconsin Elections Commission receives the last county board of canvassers statement. For all other offices, including for Congress, a petition for recount must be filed no earlier than the completion of the canvass and no later than 5:00 p.m. on the third business day following the last meeting of the board of canvassers to determine the result for the office.

The recount petition must specifically request a recount, indicate the petitioner was an aggrieved candidate, include the basis for requesting a recount, specify the ward or wards to be recounted and be verified with a signature made under oath. Possible grounds for a recount include the petitioner’s belief that a mistake has been made; fraud has been committed; or another specified defect, irregularity or illegality has occurred. In the 2000 case Carlson v. Oconto County Board of Canvassers, the Wisconsin Court of Appeals found that the challenger must generally show the probability of an altered election outcome in the absence of the challenged irregularity.

If a recount petition involves more than one county, the boards of canvassers must consult with the Wisconsin Elections Commission in order to ensure that standard procedures are used to the extent practicable. The recount must then begin no earlier than 9:00 a.m. on the day following delivery of notice to all candidates for the office and no later than 9:00 a.m. on the day following the last day for filing the recount petition. The county board of canvassers for the counties in which the contested votes are cast will conduct the recount. Any person—including the petitioner, all opposing candidates and any other interested persons—is entitled to be present in person and by counsel to observe the recount proceedings.

Unless a court orders otherwise, the board of canvassers may decide to either hand-count or use voting equipment to tabulate the ballots for the recount. The board of canvassers must conduct the recount in accordance with specified procedures, and all steps of the recount are to be performed publicly. The board of canvassers is also required to make a complete written record of the recount, including any objections or offers of evidence, the canvass board’s decisions, and any findings of fact regarding any irregularities discovered during the recount.

The results and minutes of the recount are to be forwarded immediately to the Wisconsin Elections Commission and should be received no later than 13 days after the recount is ordered. The commission must then convene by the next business day and determine the results no later than the first day of December following a general election.

After the recount determination is made, any candidate aggrieved by the recount has a right to appeal in Wisconsin circuit court by filing an appeal within five business days of the completion of the recount in all counties concerned. If an appeal is filed, it will be heard by a judge, not a jury. The court may not receive evidence not originally offered to the board of canvassers (with the exception of evidence not formerly discoverable with due diligence) and may not dispute the board of canvassers’ findings of fact. Unless the court finds a ground for setting aside or modifying the determination of the canvassers, it shall affirm the determination. Within 30 days after entry of the order of the circuit court, a party aggrieved by the order may then appeal to the Wisconsin Court of Appeals. No certificate of election may be issued by the Wisconsin Elections Commission until the recount is completed and the deadline for filing all appeals has passed. At that time, the commission will prepare certificates of election to be delivered to the U.S. House, U.S. Senate or U.S. administrator of general services for the respective Senate, House or presidential election results.

Vacancies. Wisconsin state law provides that when the presidential electors meet in the state capitol in Madison on the first Monday after the second Wednesday in December, if any elector is absent for any reason, the electors present must elect a substitute elector by a plurality of votes. Once all electors are present and any vacancies filled, they must then perform their duties.

Wisconsin law then provides that any vacancies in the office of either a U.S. senator or a representative to the U.S. House must be filled by special election for the remainder of the unexpired term. Wisconsin state law does not provide for an interim gubernatorial appointment for a Senate seat. The special election must be ordered by the governor, and then notice must be immediately given by publication in a newspaper.

If a vacancy occurs between the second Tuesday in April and the second Tuesday in May in the year of the general election, the vacancy must be filled at the partisan primary and general election (by holding the special primary on the same day as the partisan primary and the special election on the same day as the general election). If a vacancy occurs prior to the second Tuesday in April in the year of the general election, then the vacancy must be filled at a special primary and election. The date of the special election may be ordered between 122 and 92 days prior to the special primary, and the special primary must occur on the day that is four weeks before the day of the special election (if the primary is necessary).