The first part concerns the rules for “non-precinct voting”—the casting of ballots by means other than the traditional polling place on election day. Voting before the election day, either by mail or at locations of early in-person voting, has become an important part of our electoral landscape.
The second part concerns general principles for the resolution of disputed elections and is applicable to both presidential and nonpresidential elections. Disputed elections have played a large role in our national consciousness over the last two decades, mostly as a result of the 2000 presidential election but also because of high-profile senatorial and gubernatorial elections.
The third part concerns presidential election disputes specifically and establishes procedures to complete the resolution of a disputed presidential election within the unique and challenging time constraints established by Congress. Presidential elections present distinct issues for a number of reasons, including the importance of what is at stake, the very compressed five-week period that Congress provided for the task, and the potential legal risks of not having procedures in place when the dispute arises.
Part I - Early In-Person Voting and Open Absentee Voting
Part I responds to the dramatic increase and continuing interest across the country over the past two decades in the use of non-precinct voting options. Indeed, a majority of states now provides voters with one or both of these alternatives. The principles of Part I are designed both to assist states that have already adopted these alternatives to continue to refine their implementation, as well as to provide guidance to states that might yet adopt one or both methods.
Sections 101, 102, and 103 of Part I contain definitions and general principles. Sections 104 through 106 then contain principles applicable to what Part I defines as “early in-person voting,” a type of voting designed to provide voters with a range of additional voting days and hours that replicate the Election Day voting experience. Next, §§ 107 through 110 contain principles applicable to what Part I defines as “open absentee voting,” a type of absentee voting open to any voter without a requirement that the voter claim some impediment to Election Day voting (as typically has been required for absentee voting). Open absentee voting is often popularly termed “no excuse” absentee voting. Finally, § 111 calls for the collection of specific types of election-related data, reflecting the fact that voting methods will continue to evolve and can best be refined only when thoroughly understood.
ALI does not take a position on the advisability of a state adopting either early in-person voting or open absentee voting. Rather, the purpose of the principles in Part I is to provide guidance about how a state can best implement either of these alternatives if it chooses or has chosen to do so.
Section 103 expresses this principle of state discretion, and the Comment to that Section is intended to help states in their exercise of that discretion by identifying various relevant considerations, including some of the potential drawbacks of these alternative voting methods, in addition to the more obvious benefits of increased voter convenience and potential administrative efficiencies and cost savings. Both the black letter and the associated Comment of § 103 reflect our view that states should be aware of and attentive to both the pros and cons of various voting options.
The other point on which it was somewhat difficult to reach consensus concerned the time period for early in-person voting. Section 104 recommends a period that begins at least 10 days before Election Day and continues through the second day before Election Day. The content of § 104 reflects our balancing of multiple, often competing, concerns, including voting convenience and access, voting security and integrity, fairness to all voters, and administrative burden.
Part II – Model Code for the Resolution of Ballot-Counting Disputes
The Model Code of Part II endeavors to benefit from knowledge of the nation’s historical experience with the adjudication of vote-counting disputes.
(1) The primary purpose of this Code is to enable a state to resolve a disputed election fairly and impartially, without regard to partisanship or other form of favoritism, and to do so within a period of time that enables the duly winning candidate to take office on the date when the term of office is scheduled to begin.
(2) A fair and impartial resolution of a disputed election will endeavor to count all eligible ballots, and only eligible ballots, accurately according to how those ballots were cast.
(a) The ideal of perfect accuracy is constrained by the necessity to achieve closure of the dispute-resolution process, so that the elective office may be filled by the appointed date and the purpose of holding the election achieved.
(b) The ideal of perfect accuracy is also constrained by human and technological imperfection and the extent to which fair and impartial procedures, for the sake of clarity, predictability, and other values associated with free and fair electoral competition in a democracy, are unable to guarantee that the count of ballots fully conforms to the subjective mental intentions of the voters who cast them.
(c) The ideal of perfect accuracy is further constrained by the inability to count ballots not cast and, to the extent that the efforts of eligible voters to cast ballots in a particular election have been frustrated by deficiencies in the administration of the voting process, the need to balance the benefits and costs of voiding the election because of these deficiencies with the benefits and costs of declaring a winner based on the most feasibly accurate count of the eligible ballots actually cast.
(3) By making paramount the goal of fairness and impartiality in all its rules and procedures, this Code endeavors to enable a state to resolve a disputed election in a way that maximizes the likelihood that the voters in the election, regardless of whom they voted for, as well as the candidates and other members of the public, will believe that the method employed to resolve the dispute was appropriate and that the candidate finally declared the winner is entitled to take office as a result of an exercise of democratic governance.
Part III – Procedures for the Resolution of a Disputed Presidential Election
Part III reflects the fact that presidential election disputes are unique. Among other distinctions, they require a specific set of procedural rules carefully designed to enable a state to resolve a presidential election dispute within the extraordinarily tight schedule set by the Constitution and Congress. The bifurcation described above between Parts II and III reflects the need for two different sets of black-letter text, one for elections generally, and another for presidential elections specifically.
Given Part III’s particular design to address the unique timetable of a disputed presidential election, Part III begins with a thorough introductory explanation of the background circumstances, including the applicable constitutional and congressional requirements that give rise to its necessity in the event of a presidential-election dispute.
The extraordinary challenge of completing the resolution of a disputed presidential election within the five-week window that Congress has provided (or to stretch it out one more week, to meet the constitutional requirement that all states cast their Electoral College votes on the same date) requires a detailed scheme to coordinate all the essential pieces needed for this situation—including a recount, the canvassing of returns, and a potential judicial contest of the result. It simply does not suffice for a state statute merely to decree, as some do, that the adjudication of a vote-counting dispute in a presidential election must conclude by the congressionally (or constitutionally) specified date. A simple decree of this nature does not provide the mechanism for making compliance feasible. Instead, all the intricate moving pieces (each complicated enough by itself) must be constructed in advance and designed so as to work together and reach fruition in an incredibly compressed amount of time.
As described in the Introductory Note to Part III, as well as throughout its Comments and Reporters’ Notes, this undertaking is in the nature of an engineering project—and a daunting one at that. Thus, if the Procedures that are set forth in Part III seem complex, there is at least some assurance in knowing that this complexity, while inevitable, has been managed in a particular way by design and thus serves a purpose. It is much better than the false hope of decreeing that the entire dispute-resolution process must end five weeks after Election Day, but then providing no mechanism to enable a state to carry out that command.
Part III contains a set of three schematic calendars representing the relationships among the various portions of the procedures for resolving a disputed presidential election. A link to these calendars also is posted on the ALI web pages; the color-coding may help readers better visualize the engineering structure of Part III and its Procedures.
Edward B. Foley
Reporter, Principles of the Law, Election Administration
Edward Foley (known as “Ned”) directs Election Law @ Moritz at Ohio State University, Moritz College of Law, where he also holds the Ebersold Chair in Constitutional Law. His book, Ballot Battles: The History of Disputed Elections in the United States, was published January of 2016. While Professor Foley has special expertise on the topics of recounts and provisional ballots, he has also co-authored the casebook, Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law.
Steven F. Huefner
Associate Reporter, Principles of the Law, Election Administration
Steven Huefner is the Alumni Society Designated Professor of Law at Ohio State University, Moritz College of Law. Before joining the Moritz College of Law faculty, Professor Huefner practiced law for five years in the Office of Senate Legal Counsel, U.S. Senate, and for two years in private practice at the law firm of Covington & Burling in Washington, D.C. He also clerked for Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Christine M. Durham of the Supreme Court of Utah. Professor Huefner was a Harlan Fiske Stone Scholar at Columbia Law School, where he served as head articles editor for the Columbia Law Review.