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

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

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

Phase One refers to pre-election cases.  These cases are almost always about the rules that govern the election.  In other words, how people register to vote, what is the deadline for registering, how people vote by mail, what is required for a valid mail-in vote, how many precincts are open in a county, how many drop-off boxes are in a county, what is the early vote period, etc.   And many of the disputes are about who gets to make those decisions:  does a state election authority have the ability to issue binding rules on local authorities; what is the limits on the discretion of the local election authority, etc.

Now, there are three basic possible reasons that would support a challenge to a particular election “rule.”  First, the claim could be that a local practice or an order by a state election authority is contrary to the state election statues.  Second, the claim could be that some provision of the state constitution that provides more protection than the federal constitution is violated by that rule.  Finally, the claim could be that some provision of the federal constitution or a federal statute bars that rule.   As noted above, only this last type of claim gets you into federal court.

Over time, especially over the last twenty years, the United States Supreme Court has expressed a strong preference that federal courts should resolve disputes about election procedures before voting starts.   After voting starts, the rules should not be changed.  If a rule is invalid, the ruling should only apply to future elections.  While there is something wrong with allowing an invalid rule to stay in effect, even if only temporarily, there is something to be said for the concept that you shouldn’t change the rules for voting once voting has begun.  In other words, all voters should be voting under the same rules.

However, this preference is not a matter of constitutional law.  It is merely a matter of the Supreme Court’s authority over the operations of federal courts.  As such, a state Supreme Court can opt to not follow this principle.  We have seen this split recently with the United States Supreme Court barely deciding (by a 4-4 vote) not to place a Pennsylvania Supreme Court ruling about state election procedures based on the state constitution on hold.  On the other hand, over the past month, the U.S. Supreme Court has put multiple decisions from the federal courts on hold.  While there are still a handful of cases still taking place in the lower courts, we should pretty much be done with these cases.

Phase Two are emergency cases that tend to occur on election day.  These cases typically involve some problem that occurs in a particular county or particular precincts.  This problem prevents a precinct or precincts from being fully operational for part of the day.  In response to this issue, somebody (a candidate, a party, an interest group, or even the local election authority) asks a court for permission to keep the impacted precincts open past the usual closing time to give folks who were turned away earlier due to the problem a full opportunity to vote.  Whether state law permits this and what needs to be shown differs from state to state.  It is not unusual for one court to allow grant the relief (allowing the precinct to stay open) and then have a higher court intervene to bring the extended voting period to an abrupt end.

Phase Three occurs after the election.  While Phase One is about the rules, Phase Three tends to be about the application of those rules to individual ballots that are in dispute.  Occasionally, these disputes arise during the canvass process, but, most of the time, they arise in the context of a post-election contest.  Almost every state has a statute allowing the losing candidate to challenge the outcome of the election after the official count is concluded.   In some cases, the election contest can involve a full recount.  In other cases, the issue is not counting specific ballots.  Instead, it is claiming that something happened that makes the entire election invalid or precludes an accurate recount.  It is rare for a Phase Three case to end up in federal court (the 2000 Bush-Gore election being an exception to the rule) because the standards for conducting a recount and determining whether a ballot is a valid vote for a particular candidate is defined by state law.  (The issue in 2000 was whether Florida law had such a standard that would assure that all ballots were judged by the same principle.)

It is, of course, too early to tell if we are going to have any significant Phase Three disputes.   While recounts are not unusual, it is rare to see recounts turn into a battle to the death between the two sides.  Most recounts are local elections in which the trial judge can supervise the recount and the recount is taking place in one location with a very limited number of ballots in dispute.  On the other hand, both the 2000 recount in Florida and the 2008 recount in Minnesota have taught both major parties valuable lessons.  Both parties have teams of attorneys who are ready and prepared to go into action on November 4 if the election is actually in dispute.  Each time that we have one of these disputes, the issues tend to be different.  Everybody has learned the lessons of the last war.  As such, the mistakes of 2000 and 2008 are unlikely to be repeated.  The desire to avoid those mistakes will  probably increase the issues that the courts will have to address and the scope of any dispute over ballots.  (Traditionally, many lawyers understand the importance of conceding things that are beyond dispute to avoid aggravating the judge by fighting about everything and limit the fights to the issues that they have a chance at winning.  However, as election contests typically come down to a handful of ballots, election lawyers have learned that the other side may not concede that certain types of ballots are valid votes and other types of ballots are invalid.  Even if you think the rules are clear, you could face a situation where the other side pushes a different version of the rule — either to get their votes counted or your votes excluded.  If you don’t fight everything, you could end up in a situation where different rules are applied to your ballots then applied to their ballots.)

The best way to avoid Phase Three disputes is to vote and get your friends and family to vote.  It is all but impossible to file and win a n election contest if the election was a landslide.  It is only close elections that become court cases.