ALI Membership voted to approve the Election Administration Tentative Draft No. 2 at this year’s Annual Meeting on May 22.* Approval of the Draft marks the completion of this Principles project. This Draft includes Part II, Principles for the Resolution of Ballot-Counting Disputes, of the three-part project. Parts I and III were previously approved at the 2016 Annual Meeting.

Part II has 16 sections. The first six are general principles, in order of priority, and the next 10 concern specific procedures.

The principles apply to any type of elective office and are structured to be useful to multiple audiences, including state legislatures, state courts, or state officers such as secretaries of state or local election officials.

The animating principle is that government officials and institutions involved in the counting of ballots should neither be, nor appear to be, favoring one side in the implementation of ballot counting rules and that procedures should be adopted to promote a sense of legitimacy or integrity of the vote counting and election process.

The themes in Part II are that it is important to have rules for counting ballots that are established before ballots are cast, and the rules should be enforced as written. If the rules are not established or there is not a rule on a specific issue, a second principle is to fill gaps in a way that maximizes the equal right of all qualified voters to participate in the election by being able to cast ballots that count (or that maximizes the number of valid ballots counted and minimizes the number of invalid votes counted).

In some circumstances, though, furtherance of this equality of participation principle necessitates protecting the integrity of the electoral process by invalidating ballots that may be tainted by irregularity for which the voter is not at fault. In a toss-up, protecting the integrity of the election should prevail.

A third order principle is that the adjudicator must try to determine how reasonable and impartial observers would have decided the question in advance of the election without knowing what the relative position of the competing candidates would be at the time the question arose.

Here is the breakdown of Tentative Draft No. 2.

PART II. PRINCIPLES FOR THE RESOLUTION OF BALLOT-COUNTING DISPUTES

SUBPART A. GENERAL PRINCIPLES

§ 201. Maximum Clarity and Specificity in Advance of the Election

§ 202. Transparency§ 203. Equal Treatment

§ 203. Equal Treatment

§ 204. The Accurate Counting of Eligible Ballots

§ 205. Duty of Nonpartisanship

§ 206. Certification of the Election Before the Term of Office Begins

SUBPART B. SPECIFIC PROCEDURES

§ 207. Disputing the Eligibility of Uncounted Ballots

§ 208. Determining the Eligibility of Provisional Ballots

§ 209. Verification of the Returns

§ 210. The Recounting of Previously Counted Ballots

§ 211. Recount Procedures

§ 212. Final Administrative Certification of an Election

§ 213. A Judicial Contest of a Certified Election

§ 214. Pre-Certification Petition to Nullify Election Because of Calamity

§ 215. Chain-of-Custody

§ 216. Multiple Ballots Cast by a Single Individual

Appendix A. Black Letter of Tentative Draft No. 2

Appendix B. Other Relevant Black-Letter Text

For more information about this project, please contact us.

*All approvals by membership at the Annual Meeting are subject to the discussion at the Meeting and usual editorial prerogative.