Posted: November 7, 2006
Be Thankful If It’s All Over By ThanksgivingAs lawyers look for close races to contest, it is important to remember that just because the result of an election is challenged in court, it does not necessarily mean that the public should view the result as tainted or the electoral process broken. Instead, if the litigation ends with the losing side acknowledging that ultimately the votes weren’t there, then this kind of delayed concession speech should be accepted as evidence of the system working successfully, just as if the concession speech is delivered tonight. This observation is a specific application of a general Election Validity Test that I proposed in a previous Weekly Comment: the electoral system operates successfully, regardless of its ability to produce a winner on Election Night, if by the time the winner is supposed to take office the losing candidate accepts the result as fair and accurate. Measured against this standard, the presidential election of 2000 cannot be considered a success. Although Al Gore delivered a speech accepting the decision of the U.S. Supreme Court to stop the recount in Florida, it was not a speech acknowledging that the process had fairly and accurately determined that more votes had been cast for his opponent. Instead, it was a gracious but begrudging acceptance of the finality of the Court’s decision for the simple benefit of ending the dispute. Yet, although the presidential election of 2000 was most certainly not a success, I also would not condemn it as a failure. As others have observed both then and recently, that election was simply too close to demand that an electoral system accurately identify the rightful winner beyond any reasonable dispute. A standard for evaluating whether an electoral system operates successfully needs to let the system off the hook in the event of a statistical tie. My proposed Election Validity Test would set this threshold at one hundredth of one percent. In other words, if the certified margin of victory is less than this threshold—which translates to 100 votes for every million cast—then I would not expect the electoral system to be able identify an indisputable winner. But it is much less important that my proposed threshold become the prevailing one than it is that, as a society, we settle upon a publicly recognized threshold. We have yet to seriously and systematically consider the question. That policy discussion, however, is for the future. Meanwhile, it is necessary to ask whether the operation of electoral system this year, even if it yields results well above any plausible threshold for a statistical tie, will be able to be deemed a success. As polling places are about to open, one cannot know for sure either way. Even if the margin of victory in an important statewide race turns out to be one percent, it is possible (although unlikely) that a major system failure prevents a tallying of ballots that a reasonable losing candidate must accept as fair and accurate. For example, if voting machines were inoperable on a widespread basis only in precincts demographically aligned with one candidate, and there were no back-up paper ballots available in these precincts, then the losing candidate might be able to complain legitimately that even a one percent margin of victory cannot be accepted as a valid in light of disenfranchisement that occurred. Conversely, however, despite all the controversy that has already surrounded the electoral process this year, it is by no means a foregone conclusion that the system is destined for failure, and this point is true even if the system is unable to identify a winner tonight, or even by Thanksgiving. For example, the counting of provisional ballots in a very close race (but one that is still above the threshold of a statistical tie) may take several weeks. But if in the end both sides agree that this counting of provisional ballots accurately includes the votes of all those who were in fact eligible, while accurately excluding the ballots cast by those who turned out to be ineligible, and if they are no disputes over regular ballots, then the outcome of this election—although delayed several weeks—would be entirely successful in identifying the rightful winner. Thus, as long as the system produces a winner by New Year’s Day, and does so pursuant to a final and official count of the ballots that the losing candidate recognizes as fair and accurate, then the system passes my Election Validity Test. To be sure, it would be better to have the election resolved in November rather than December. But it is much better to have it settled in December by a mutually accepted count than to have it end in November with a count that one side rejects as incomplete and error-ridden. Most significantly, it is unrealistic to expect a very close election to be resolved on Election Night, or even in the following few days, especially in this new and welcome era of provisional ballots. Election Night returns are just early, unofficial results. There cannot possibly be an official winner until after voters who need to produce identification that they did not bring to the polls have an opportunity to do so—and, then, after all the provisional ballots are sorted into countable and uncountable stacks. A concession speech on Election Night is simply a candidate’s recognition that the winner’s margin of victory is large enough that there’s no need to wait for completion of the official count. But a concession speech that comes after the official count is complete, and which recognizes that the official count ultimately identified the rightful winner, is just as much a vindication of democracy at work, if not more so, since the system was put to a greater test. And if in a very tight race this kind of concession speech is able to be given before the two candidates—and all their supporters—sit down at their respective Thanksgiving dinners, then that successful outcome of the electoral process is something for which all citizens should be especially grateful.
Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile