During the extended count and litigation, we are hearing a lot of terms tossed around that are usually the special reserve of election law geeks. So here is a quick primer on some of these terms.
Audit — This term typically covers the process of double-checking the count. While not every state does an audit, and the audit process differs from state to state, there are some aspects that are shared by several states. First, the most simple audit is simply a check that the machines are functioning properly. This typically involves a “test deck” with a known count to see the machine records the count correctly. Second, several states do a hand count of random precincts and random races. As with the test deck, the hand count is to make certain that the machines are roughly correct. Of course, a hand count will pick-up some ballots that the machine is unable to read. If this part of the audit reveals a significant deviation from the machine count, it can be expanded to cover more precincts and more races. Third, some states do other types of machine tests to verify the programming. Fourth, depending on the state, an audit might include checks to make sure that the counts of ballots and voters match.
Canvass — This term is somewhat slippery as it is sometimes used to refer to local processes and state processes and often includes the certification process. At it’s most simple, it refers to the local process of reviewing ballots — primarily absentee and provisional — and making sure that the vote totals from all precincts and voting centers are accurately recorded. If there is time, the canvass can include an attempt to resolve any discrepancies in the counts of ballots and voters.
Certification — This term is the process of making the counts final. Every state has a deadline for certification. As such, the canvass needs to be completed by that date. The certification process is an administrative, ministerial task which is why, in most states and locations, certification boards have acted unanimously. If there are unresolved issues from the canvass, a report on those issues can be released with the certification, but the certification is the last, best, official count from the area. For multi-county or state races, there is both a local certification and a state certification. However, the state certification is the ministerial task of adding the county certifications together to get the last, best, official count for the state. Certification is an important step in the process because it defines the baseline for post-certification election contests.
Election Contest — An election contest is usually a court case. Every state has its own rules regarding election contests and, for certain offices, may require the contest by filed with a specific court or handled by the state legislature. (For example, Congress has final authority over any election contest for federal offices but will typically defer to state courts.) An election contest can involve recounts of certain disputed ballots and review over whether certain ballots should have been counted that were not. Often, election contests will involve claims that ballots were wrongfully counted or that there were flaws in election procedures. The key thing about an election contest is that the problems alleged in the election contest need to have impacted the results. As such, the certification of votes is key. If the final certified margin is large, the problem needs to be comparatively large. An election contest focusing on 1,000 votes will not succeed if the margin in the official results was 50,000 votes.
Injunction — While not limited to election matters, an injunction is usually a court order to a party to not do something or to prevent something from happening. Right now, the Trump campaign is seeking injunctions to stop the certification process.
Mandamus — While not limited to election matters, a mandamus is a court order to do something. Typically, it is issued in a case in which a party has a legal duty to take a certain act. In the current context, writs of mandamus may issue to election boards to certify election results.
Recount — As the name recount suggests, it is simply conducting a second count of the ballots to make sure that the first count was accurate. And the rules differ from state to state. Some states have automatic recounts if the margin is less than a certain percentage or number of votes. In other states, a candidate has to request a recount. In many states, a recount can be part of the election contest. The manner of conducting a recount also differs from state to state. In some states, any recount is a recount of the full state (as is apparently being requested in Georgia). In other states, candidates can request a partial recount (as was apparently done in Wisconsin). In some states, again Georgia is an example, the recount happens after the final state certification. In other states, again Wisconsin is an example, the recount happens before the final certification. In some states, the recount is simply re-running all ballots through counting machine. In other states, the recount is a hand recount in which ballots are examined to determine voter intent. In some states, the recount is limited to examining the ballots. In other states, representatives of the parties can ask the recount officials to re-examine the validity of an absentee or provisional ballot to preserve such claims for an election contest.
Remedy — While not technically an election term, remedy will be discussed often in court cases and stories about any continuing challenges. Simply put a remedy is the fix for the problem identified in an election contest. The remedy should fit the problem. As noted in the recent decision in Pennsylvania, if the alleged flaw is the exclusion of valid votes, the remedy would typically be to count those votes rather than to exclude votes or throw out the election. Right now the remedy typically being asked for the by the Trump campaign is rather big (basically to award him the electors from states in which he did not win the majority of the votes) and, as such, courts are going to require him to demonstrate very large problems with the election.
Safe Harbor — Again, this term is not unique to the election law context. A safe harbor in law is a rule setting forth procedures to be followed. If those procedures are followed, the decision is immune from certain challenges even if a mistake might have been made. In the election law context, this term refers to a series of provisions in Title 3 of the United States Code. Under these provisions, if a state follows its usual procedures and resolves election disputes by the deadline (this year, December 8), its certification of electors is presumptively valid and can only be overturned if both houses of Congress agrees. In Bush vs. Gore, the United States Supreme Court used these provision to create a further presumption that, if a state is unable to resolve challenges to the count by that date, a state would want to certify its electors based on the last official count prior to that deadline.
We should be nearing the end of the election fights, but the reality is that we should have been nearing the end a week or so ago. The electors do not meet and vote until December 14. It is not beyond the realm of possibility that Trump will continue to litigate past the Safe Harbor date and maybe even past the meeting of the electors. It is very likely, however, that after December 8, courts will simply defer to Congress to act when it meets to count the electoral votes on January 6. But until then, be prepared to hear folks using and misusing these terms in an attempt to explain what is happening in various states.
