Remedying election wrongs

Harvard Journal on Legislation

Volumn 44, Issue 2, 2007, Pages 265-325

  Huefner, Steven F ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 34547731833     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (476)

1. Summaries and analyses of the 2000 election are voluminous. See generally, e.g., RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001);
2. THE VOTE: BUSH, GORE, AND THE SUPREME COURT (Cass R. Sunstein & Richard A. Epstein eds., 2001);
3. Symposium, Recounting Election 2000, 13 STAN. L. & POL'Y REV. 1 (2002);
4. Gillian Peele, The Legacy of Bush v. Gore, 1 ELECTION L.J. 263 (2002).
5. For a state-by-state list of recent election reforms, see ELECTIONLINE.ORG, Election Reform: What's Changed, What Hasn't and Why 2000-2006, at 39-72 (2006), available at http://www.electionline.org/ Portals/1/Publications/2006.annual.report.Final.pdf.
6. Pub. L. No. 107-252, 116 Stat. 1666 (codified in scattered sections of 42 U.S.C.).
7. See, e.g., 42 U.S.C. § 15481 (Supp. 2006) (voting systems requirements);
8. U.S.C. § 15302 (Supp. 2006) (replacement of punch card or lever voting machines);
9. U.S.C. § 15483 (Supp. 2006) (computerized statewide voter registration list requirements and requirements for voters who register by mail);
10. U.S.C. § 15482 (Supp. 2006) (provisional voting and voting information requirements).
11. Some proposals in the 109th Congress included H.R. 5913, 109th Cong. (2d Sess. 2006) (proposing to require government photo identification in order to vote); H.R. 3058, 109th Cong. § 83 (1st Sess. 2005) (proposing to fund the Election Assistance Commission to carry out election reform portions of HAVA); H.R. 550, 109th Cong. (1st Sess. 2005) (proposing to require paper audit trails for electronic voting equipment); S. 17, 109th Cong. (1st Sess. 2005) (proposing to amend HAVA in several respects); S. Con. Res. 53, 109th Cong. (1st Sess. 2005) (proposing to express the "sense of Congress that any effort to impose photo ID requirements for voting should be rejected").
12. See infra notes 136-37 and accompanying text.
13. See SAM REED, WASH. SEC'Y OF STATE, 2004 GOVERNOR'S RACE (2004), http://www. secstate.wa.gov/elections/2004gov_race.aspx (providing complete election results from the Washington gubernatorial race); see also Symposium, Where's My Vote? Lessons Learned from Washington State's Gubernatorial Election, 29 SEATTLE U. L. REV. 313 (2005).
14. See supra note 1 and accompanying text.
15. See Waiting Was the Hardest Part, COLUMBUS DISPATCH, Nov. 3, 2004, at 1A.
16. See Lloyd Dunkelberger, Computer Code at Heart of Congressional Election Dispute, GAINESVILLE SUN (Fla.), Dec. 21, 2006, available at http://www.gainesville.com/apps/pbcs.dll/article?AID=/ 20061221/LOCAL/612210369/-1/today (describing several proffered explanations for abnormally high rate of undervoting in Sarasota County);
17. infra note 46 and accompanying text.
18. See infra Part I.A.
19. Provisional ballots are ballots offered to voters who cannot satisfy poll workers that they are eligible to vote. Issues concerning the eligibility of these voters can then be resolved after the election, and all provisional ballots determined to have been cast by eligible voters then can be processed and included in the vote totals.
20. See Daniel Tokaji, Are Election Reforms Increasing the Margin of Litigation?, ELECTION LAW @ MORITZ WEEKLY COMMENT, June 21, 2005, http://moritzlaw.osu.edu/ election law/comments/2005/050621.php. The phrase "margin of litigation," which gained wide-spread use during the 2004 presidential election, describes an election outcome close enough to draw post-election legal action.
21. See id. Gratifyingly, the 2006 congressional election did not produce a dramatic increase in post-election litigation, despite prospects that it might.
22. See Edward B. Foley, Will the Election System Function Properly This Year?, ELECTION LAW @ MORITZ WEEKLY COMMENT, Sept. 5, 2006, http://moritzlaw.osu.edu/ electionlaw/ comments/2006/060905.php. In fact, the only major election to end up in court was the race for Florida's thirteenth congressional district.
23. See ELECTIONLINE.ORG, BRIEFING: THE 2006 ELECTION 1-3 (2006), available at http://www.electionline. org/Portals/1/Publications/EB15.briefing.pdf.
24. See Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 WASH. & LEE L. REV. 937, 957-59 (2005) (cataloguing a dramatic increase in the number of election cases since 2000). However, this increase cannot be wholly attributed to the underlying facts necessary to support such litigation becoming more commonplace. At least some of this increase (and perhaps much of it) may instead reflect candidates' and the public's increased awareness of the potential of post-election litigation that Bush v. Gore precipitated. See id.
25. Well-intentioned efforts to provide all eligible voters the right to vote by guaranteeing any person who appears at a polling place at least a provisional ballot have dramatically increased the number of ballots cast provisionally. See ELECTIONLINE.ORG, supra note 2, at 32-33.
26. See id. at 28-29 (reporting that in 2000, twenty-nine states required an excuse to vote absentee, while only twenty-three required such an excuse in 2006);
27. see also JOHN C. FORTIER, ABSENTEE AND EARLY VOTING: TRENDS, PROMISES, AND PERILS 54-57 (2006);
28. Edward B. Foley, Will the Expansion in Absentee Voting Yield an Increase in Abuse?, ELECTION LAW @ MORITZ WEEKLY COMMENT, Mar. 28, 2006, http://moritzlaw.osu.edu/ electionlaw/comments/2006/060328.php;
29. CTR. FOR DEMOCRACY AND ELECTION MGMT., BUILDING CONFIDENCE IN U.S. ELECTIONS-REPORT OF THE COMMISSION ON FEDERAL ELECTION REFORM 2005, at 35-36 (2005), available at http://www.american.edu/ia/cfer/ report/full_report.pdf.
30. The term "election failure" describes any election that does not satisfactorily produce an answer to the choice on which the electorate is voting. It does not necessarily describe a design flaw, however, as even a perfectly designed system could generate a tie vote. In any event, it is unrealistic to expect perfection in the design of our election systems; even in a well-designed system the reality is that some implementation error is almost always present. While such error usually is harmless, it inevitably gets intense scrutiny when an election is close.
31. Some of these issues were addressed by a younger Kenneth Starr, see Kenneth W. Starr, Federal Judicial Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U. L. REV. 1092 (1974), and by a 1975 article containing a section on "Postelection Remedies,"
32. see Developments in the Law - Elections, 88 HARV. L. REV. 1114, 1298-1339 (1975).
33. Since then, the legal literature has not focused much sustained attention on these issues, with the exception of the variety of articles analyzing Bush v. Gore and the specific problems in Florida in the 2000 election. See, e.g., Hugh M. Lee, An Analysis of State and Federal Remedies for Election Fraud: Learning from Florida's Presidential Election Debacle, 63 U. PITT. L. REV. 159 (2001);
34. Daniel Tokaji, First Amendment Equal Protection: On Discretion, Inequality and Participation, 101 MICH. L. REV. 2409, 2487-95 (2003);
35. Louise Weinberg, When Courts Decide Elections: The Constitutionality of Bush v. Gore, 82 B.U. L. REV. 609 (2002);
36. see also R. Michael Alvarez, Betsy Sinclair & Richard L. Hasen, How Much is Enough? The "Ballot Order Effect" and the Use of Social Science Research in Election Law Disputes, 5 ELECTION L.J. 40 (2006) (urging caution in applying generalized social science data to resolve particular election contests);
37. Developments in the Law-Voting and Democracy, 119 HARV. L. REV. 1127, 1155-65, 1188-1200 (2006) (summarizing ways to adjust election outcomes for illegal votes, and describing frequent judicial reluctance to remedy election administration problems).
38. The right to a recount is a statutory right that did not exist at common law. See, e.g., Abbene v. Bd. of Election Comm'rs of Revere, 202 N.E.2d 827, 829 (Mass. 1964);
39. Eldredge v. Nickerson, 78 N.E. 461, 462 (Mass. 1906);
40. In re Hearst, 76 N.E. 28, 29 (N.Y. 1905);
41. Coe v. State Election Bd., 221 P.2d 774, 776 (Okla. 1950).
42. For background regarding state laws concerning recounts, see Daniel Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 FORDHAM L. REV. 1711 app. B at 1817-36 (2005). During the 2000 election, some states' recount provisions became famous for identifying how many corners needed to be detached in order for a hanging chad to be included in a recount.
43. See, e.g., Joseph Crawford, Michigan's Recount - No Dimples, Dapples or Disarray, GRAND RAPIDS PRESS (Mich.), Dec. 22, 2000, at A12 (describing Michigan's requirement that at least two corners be detached).
44. Questions receiving the most attention concern whether to require a paper trail to accompany electronic voting and whether a paper trail should be the official ballot in the event of a recount. See Peter Katel, Voting Controversies, 16 CQ RESEARCHER 745, 750 (2006), available at http://library.cqpress.com/cqresearcher/getpdf.php?type=color&file= cqr20060915C.pdf.
45. Many updated recount statutes explicitly contemplate electronic voting. See, e.g., FLA. STAT. ANN. § 102.141(6)(a)-(c) (West 2006) (differentiating between procedures for touchscreen voting and optical scan voting);
46. ILL. COMP. STAT. ANN. § 5/22-9.1 (West 2006);
47. OKLA. STAT. ANN. tit. 26, § 8-114 (West 2005).
48. Some states that have chosen to use electronic voting machines with paper audit trails provide that for purposes of a recount, the official ballot is the paper audit trail. See, e.g., CAL. ELEC. CODE § 19253(b)(1) (West 2005);
49. ILL. COMP. STAT. § 5/24C-2 (2003);
50. OHIO REV. CODE ANN. § 3506.18 (A) (West 2006). In the event of a recount, these paper audit trails may be; incredibly difficult to count, perhaps more difficult than manually recounting punch cards or other types of previously used paper ballots (as when the audit trail is recorded sequentially on a continuous paper scroll, which is harder to handle and read than a stack of individual punch cards or ballots).
51. See, e.g., N.M. Stat. Ann. § 1-1-6 (West 2006) (defining "recheck" as method of recounting electronic ballots by regenerating printout of electronic record for comparison with original printout).
52. See infra Part I.B.2.
53. See, e.g., Johnson v. Stevenson, 170 F.2d 108, 110 (5th Cir. 1948);
54. Griffin v. Buzard, 342 P.2d 201, 202 (Ariz. 1959);
55. McPherson v. Flynn, 397 So. 2d 665, 668 (Fla. 1981);
56. Missouri ex rel. Bouchard v. Grady, 86 S.W.3d 121, 123-24 (Mo. Ct. App. 2002);
57. cf. Whitley v. Cranford, 119 S.W.3d 28, 31-32 (Ark. 2003) (ordering new elections solely on authority of state constitution's provision requiring "free and equal" elections).
58. But see State ex rel. Nicely v. Wildey, 197 N.E. 844, 847 (Ind. 1935) (holding that "courts have inherent power to protect the sovereign people, and those who are candidates for office or claiming title to or rights in an office from fraud or unlawfulness").
59. See generally 26 AM. JUR. 2D Elections § 412 (1996) (describing election contest as "purely a constitutional or statutory proceeding").
60. See Developments in the Law-Elections, supra note 18, at 1311.
61. See id. at 1306-07.
62. See infra Part I.B.
63. See generally TRACY CAMPBELL, DELIVER THE VOTE (2005) (providing a provocative account of the range of election fraud that the United States has experienced through-out its history);
64. John Fund, How to Steal an Election, CITY J. (2004), available at http://www.city-journal.org/html/14_4_urbanities-election. html.
65. See, e.g., JOHN FUND, STEALING ELECTIONS 1-9 (2004);
66. Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Melt-down, 62 WASH. & LEE L. REV. 937, 942 (2005);
67. Stephanie Philips, The Risks of Computerized Election Fraud: When Will Congress Rectify a 38-Year Old Problem?, 57 ALA. L. REV. 1123, 1123-50 (2006).
68. See Eric Lipton & Ian Urbina, In 5-Year Effort, Scant Evidence of Voter Fraud, N.Y. TIMES, Apr. 12, 2007, at A1;
69. DAVID CALLAHAN & LORI MINNITE, DEMOS, SECURING THE VOTE: AN ANALYSIS OF ELECTION FRAUD 4 (2003);
70. Spencer Overton, Voter Identification, 105 MICH. L. REV. 631, 644-50 (2007);
71. Tova A. Wang, Competing Values or False Choices: Coming to Consensus on the Election Reform Debate in Washington State and the Country, 29 SEATTLE U. L. REV. 353, 361-62 (2005).
72. Not only are many features intended to reduce the possibility of fraud, but the possibility that fraud may have occurred often gives losing candidates a basis for contesting an election. See Edward B. Foley, The Legitimacy of Imperfect Elections: Optimality, Not Perfection, Should Be The Goal of Election Administration, in MAKING EVERY VOTE COUNT: FEDERAL ELECTION LEGISLATION IN THE STATES 97, 105 (Andrew Rachlin ed., 2006).
73. See infra Part I.B.4.
74. See FORTIER, supra note 16, at 52-55;
75. John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret Ballot: Challenges for Election Reform, 36 U. MICH. J.L. REFORM 483, 512-13 (2003);
76. Wang, supra note 32, at 389-90.
77. See, e.g., Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1187-91, 1206-07 (Ill. App. Ct. 2004) (describing candidate's unlawful efforts to assist absent voters in casting their ballots).
78. See FORTIER, supra note 16, at 58.
79. See FUND, supra note 31, at 145;
80. FORTIER, supra note 16, at 53.
81. See Jeff E. Schapiro, FBI Looks Into Voter Intimidation, RICHMOND TIMES-DISPATCH (Va.), Nov. 7, 2006, at A6;
82. Jerry Seper, Early Charges of Vote Fraud Suggest a Raft of Challenges; Parties, Interest Groups Claim Bungling, Dirty Tricks, WASH. TIMES, Nov. 3, 2004, at A11.
83. See In re Gen. Election for Dist. Justice, 670 A.2d 629, 633 (Pa. 1996) (describing ballot tampering that occurred after election day).
84. See Holly Zachariah, London Schools Contest One-Vote Election Loss in Court: District Asks to Have Double Votes Tossed Out, COLUMBUS DISPATCH, NOV. 25, 2004, at D8.
85. See id.
86. See, e.g., Miller v. Picacho Elementary Sch. Dist. No. 33, 877 P.2d 277, 279 (Ariz. 1994) (setting election aside because of irregularities associated with absentee ballots);
87. Womack v. Foster, 8 S.W.3d 854, 871-76 (Ark. 2000) (invalidating several hundred absentee ballots with various types of irregularities);
88. Boyd v. Tishomingo County Democratic Executive Comm., 912 So. 2d 124, 131-32 (Miss. 2005) (discussing several types of irregular absentee ballots and invalidating some).
89. See, e.g., Bauer v. Souto, 896 A.2d 90, 94 (Conn. 2006) (finding that a voting machine malfunctioned and failed to record votes for one candidate);
90. LaCaze v. Johnson, 310 So. 2d 86, 87 (La. 1974) (finding similarly that a voting machine malfunctioned).
91. See, e.g., Foulkes v. Hays, 537 P.2d 777, 779 (Wash. 1975) (finding that election officials failed to preserve and safeguard ballots between canvassing and recount).
92. Newspaper Links Age, 'Undervotes, ' ORLANDO SENTINEL, Jan. 3, 2007, at C5 (citing data showing a higher undervote where the median age was over sixty-five and stating "[s]everal experts have said the trend supports the theory that poor ballot design made the District 13 race hard to see on Sarasota County's touch-screen machines").
93. See Jonathan N. Wand et al., The Butterfly Did It: The Aberrant Vote for Buchanan in Palm Beach County, Florida, 95 AM. POL. SCI. REV. 793, 795, 802-03 (2001);
94. see also Jon Sawyer, Party Spin Doctors Battle for Public Opinion: Both Camps Distort Truth in Florida, ST. LOUIS POST-DISPATCH, NOV. 15, 2000, at A15 (describing Buchanan himself as "sure" that most of the 3407 ballots cast for him in Palm Beach County were intended for Gore);
95. Don Van Natta Jr., Counting the Vote: The Ballot; Gore Lawyers Focus on Ballot in Palm Beach County, N.Y. TIMES, NOV. 16, 2000, at A29 (describing New York Times' analysis of Palm Beach voting patterns).
96. See Fladel v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000) (holding that claim of confusing ballot design did not state cause of action for non-compliance withelection statute);
97. see also David Von Drehle et al., In Florida, Drawing The Battle Lines: Big Guns Assembled as Recount Began, WASH. POST, Jan. 29, 2001, at A1.
98. But see Stephen J. Mulroy, Substantial Noncompliance and Reasonable Doubt: How the Florida Courts Got It Wrong in the Butterfly Ballot Case, 14 STAN. L. & POL'Y REV. 203, 204 (2003);
99. Stephen J. Mulroy, Right Without a Remedy? The "Butterfly Ballot" Case and Court Ordered Federal Election "Revotes," 10 GEO. MASON L. REV. 215, 216-17 (2001) (arguing that a judicial remedy should have been available).
100. See Gunaji v. Macias, 31 P.3d 1008, 1010 (N.M. 2001).
101. See id. at 1010, 1017-18 (holding that the proper remedy was not to call a new election but to throw out all the votes from the precinct using the faulty machine);
102. see also Whitley v. Cranford, 119 S.W.3d 28, 31-32 (Ark. 2003) (upholding lower court's decision to void election for justice of the peace because 183 ballots omitted that race and margin of victory was only 55 votes);
103. Lakes v. Estridge, 172 S.W.2d 454, 456 (Ky. 1943) (invalidating school board election when ballots in three precincts omitted several candidates' names, notwithstanding election officials' handwritten corrections to ballots);
104. Ferguson v. Rohde, 449 S.W.2d 758, 760 (Ky. Ct. App. 1970) (finding that balloting equipment omitted a candidate's name).
105. Campbell v. Whittington, 733 So. 2d 820, 825-26 (Miss. 1999).
106. Id.; see also Dugan v. Vlach, 237 N.W.2d 104, 106 (Neb. 1975) (refusing to count disabled voter's ballot that did not meet statutory criteria).
107. O'Neal v. Simpson, 350 So. 2d 998, 1008 (Miss. 1977); we also Brooks v. Crum, 216 S.E.2d 220, 223-24, 227-28 (W. Va. 1975) (rejecting votes from entire precinct in which election workers provided voting assistance to large numbers of voters who were not eligible to receive assistance).
108. See, e.g., Douglas Hadden, Voters Handicapped, PAWTUCKET TIMES (R.I.), Nov. 15, 2006, available at http://www.zwire.com/site/news.cfm?newsid = 17472755&BRD=1713& PAG=461&dept_id=24491& rfi=6 (describing widespread malfunctioning of AutoMark ballot readers for visually impaired voters).
109. See FORTIER, supra note 16, at 56;
110. Foley, supra note 33, at 107.
111. See WYO. STAT. ANN. § 22-17-101(v) (2006) (referencing the criminal provisions in WYO. STAT. ANN. §§ 22-26-101 to 22-26-121 (2006), which prohibit such misdemeanor conduct as electioneering within 100 feet of a polling place or possessing alcoholic beverages at a polling place, as well as more serious felonies such as bribery or tampering with ballot boxes and machines).
112. See Fish v. Redeker, 411 P.2d 40, 43 (Ariz. Ct. App. 1966).
113. See Ross v. State Bd. of Elections, 876 A.2d 692, 706 (Md. 2005).
114. See MD. CODE ANN., ELEC. LAW §13-332 (West 2006).
115. See Ross, 876 A.2d at 706.
116. See National Briefing South: Louisiana: New Orleans Election Postponed, N.Y. TIMES, Dec. 13, 2005, at A31 (describing Louisiana Governor's indefinite suspension of New Orleans elections);
117. Gary Rivlin, New Orleans Election in Doubt, N.Y. TIMES, Dec. 3, 2005, at A15 (describing Louisiana Secretary of State's recommendation that New Orleans' February 2006 election be postponed as long as eight months because of Katrina's disruptive impact).
118. See Primary Elections are Cancelled, N.Y. L.J., Sept. 12, 2001, at 3.
119. Gore v. Harris, 772 So. 2d 1243, 1253 (Fla. 2000), rev'd sub nom. Bush v. Gore, 531 U.S. 98 (2000);
120. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1282 (Fla. 2000). However, in Bush v. Gore, the U.S. Supreme Court was sharply critical of the "intent of the voter" standard when employed without some uniform, objective criteria for determining the will of particular voters whose ballots are ambiguous. 531 U.S. at 104-06.
121. 2 ELLIOT'S DEBATES 257 (2d ed. 1859), available at http://memory.loc.gov/cgi-bin/ampage.
122. See infra notes 132-35 and accompanying text;
123. see also Developments in the Law - Elections, supra note 18, at 1311 (describing election contest statutes as providing "little guidance as to the grounds that are cognizable").
124. See, e.g., Gunaji v. Macias, 31 P.3d 1008, 1014-15 (N.M. 2001) (deciding to throw out all votes from precinct using machine that listed wrong candidates' names rather than call new election);
125. State ex rel. Olson v. Bakken, 329 N.W.2d 575, 580 (N.D. 1983) .
126. See supra notes 19-25 and accompanying text.
127. See Tokaji, supra note 20, at 1817-36. A few states even conduct some form of recount in every race, as an audit or check on their processes. See id.
128. See id.
129. See Hogg v. Howard, 242 S.W.2d 626, 628 (Ky. 1951).
130. Id.; see also Kearns v. Edwards, 28 A. 723, 724 (N.J. 1894) (holding that ministerial recount process is inappropriate forum for determining legality of ballots);
131. cf. Carlson v. Oconto County Bd. of Canvassers, 623 N.W.2d 195, 197 (Wis. Ct. App. 2000) (finding that contest statute is the "exclusive remedy" for election fraud or irregularity).
132. See, e.g., Hendon v. N.C. State Bd. of Elections, 633 F.Supp. 454 (W.D.N.C. 1986) (describing a contest action in which plaintiffs requested a court-ordered recount that would include "split ticket" votes cast for a specific candidate on a ballot that was also marked as a straight-ticket ballot for the opposite party).
133. 531 U.S. 98, 110 (2000).
134. See McIntyre v. Fallahay, 766 F.2d 1078, 1080 (7th Cir. 1985) (explaining that the federal court to which the proceedings had been removed no longer had a justiciable issue once the House of Representatives had adjudicated the election).
135. See, e.g., Miller v. County Comm'n of Boone County, 539 S.E.2d 770, 777 (W. Va. 2000) (interpreting West Virginia election law, W. VA. CODE ANN. §§ 3-6-9, 3-7-6 (West 1999), as requiring contestant who seeks to challenge validity of ballots to request recount first).
136. See, e.g., ALA. CODE §17-16-21(d) (West 2007) (describing a recount that changes vote totals sufficiently to alter an election outcome as "grounds for an election contest" rather than cause for automatic adjustment of certified winner).
137. See, e.g., Waltman v. Rowell, 913 So. 2d 1083, 1086 (Ala. 2005).
138. See, e.g., Jones v. Jessup, 615 S.E.2d 529, 531 (Ga. 2005).
139. See, e.g., Cochran v. Grubbs, 913 So. 2d 446, 448 (Ala. 2003).
140. See, e.g., Joan Mazzolini, Thousands Voted Illegally, PLAIN DEALER (Cleveland), Dec. 5, 2006, at A1.
141. See, e.g., Big Spring v. Jore, 109 P.3d 219, 220 (Mont. 2005) (clarifying legal standard of ballots invalidated by overvotes);
142. In re Election for Sch. Comm. Representative for Dist. 3 in Portland, No. CV-04-695, 2004 WL 3196881, at *3 (Me. Super. Dec. 3, 2004).
143. See, e.g., Whitley v. Cranford, 119 S.W.3d 28, 30 (Ark. 2003) (ordering a new election when the margin was 55 votes and 183 ballots improperly omitted the race from ballot).
144. See, e.g., In re Petition to Contest the Gen. Election for Dist. Justice in Judicial Dist. 36-3-03, 695 A.2d 476, 479 (Pa. Commw. Ct. 1997) (describing ballot tampering after voting had concluded).
145. See Infra Part I.B.3.
146. If discounting the illegal votes will not change the outcome, courts generally will not adjust the official results of the election, and instead will affirm the outcome based on the original tally. See 26 AM. JUR. 2D Elections § 438 (1996). An alternative framework would be to adjust the totals anyway, even when the outcome would remain unchanged, if only for the sake of greater historical accuracy. However, to obtain judicial relief a contestant is ordinarily required to prove sufficient illegal votes to call the outcome into question. See id. When that predicate is not met, courts effectively have no authority to alter the election results, even if some illegal voting can be proven.
147. See Womack v. Foster, 8 S.W.3d 854, 863, 875-76 (Ark. 2000).
148. See Zachariah, supra note 41 and accompanying text.
149. See Randy Ludlow, Double Votes Moot in Levy Loss; Couple Says They Split on London Schools Tax, COLUMBUS DISPATCH, Dec. 17, 2004, at 1A. In some instances of voter fraud, courts have compelled the voters to disclose for whom they voted, creating an exception to the sanctity of the secret ballot. See infra notes 150-53 and accompanying text. Yet voter testimony in such instances may not always be sufficiently reliable, as the voters themselves may choose to testify falsely in order to produce the outcome they desire, and because they have voted secretly, their testimony may not be amenable to independent verification.
150. See Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1207 (Ill. App. Ct. 2004). In some states, candidates proven to have committed fraud are disqualified from office. See, e.g., HAW. REV. STAT. § 19-4 (2006).
151. See, e.g., Pabey v. Pastrick, 816 N.E.2d 1138, 1154 (Ind. 2004) (ordering special election to remedy pervasive fraud that rendered it impossible to know true winner of regular election);
152. see also infra Part I.B.3.
153. See, e.g., Nugent v. Phelps, 816 So. 2d 349, 357 (La. Ct. App. 2002);
154. Rogers v. Holder, 636 So. 2d 645, 650, 652 (Miss. 1994) (holding that it would be "imprudent" to void all absentee ballots when only twelve of eighty-five were proven illegal).
155. See, e.g., Bolden v. Potter, 452 So. 2d 564, 567 (Fla. 1984);
156. Ellis v. Meeks, 957 S.W.2d 213, 217 (Ky. 1997).
157. In re Protest of Election Returns and Absentee Ballots in the Nov. 4, 1997 Election for Miami, FIa., 707 So. 2d 1170, 1174 (Fla. Dist. Ct. App. 1998).
158. Id.
159. See id. at 1172.
160. See id. at 1174.
161. See id. A less radical historical approach, where the party affiliation of those casting an invalid ballot is known, was to attribute the vote to that party's candidate.
162. See, e.g., Talbott v. Thompson, 182 N.E. 784, 789 (Ill. 1932).
163. See, e.g., Application of Bonsanto, 409 A.2d 290 (N.J. App. 1979);
164. Burkett v. Francesconi, 23 A.2d 780, 782-83 (N.J. 1942); Vigil v. Garcia, 87 P. 543, 545-46 (Colo. 1906).
165. See Vigil, 87 P. at 545-4-6.
166. See Developments in the Law - Voting and Democracy, supra note 18, at 1156.
167. See, e.g., Canales v. City of Alviso, 474 P.2d 417, 422-23 (Cal. 1970) (describing proportional deduction as an appropriate standard when no evidence for allocating votes exists);
168. McNabb v. Hamilton, 181 N.E. 646, 647 (Ill. 1932) (apportioning disputed ballots in same proportions as overall vote);
169. In re Durkin, 700 N.E.2d 1089, 1095 (Ill. App. Ct. 1998) (approving use of proportional deduction and rejecting use of party affiliation as methods for allocating invalid votes).
170. See Huggins v. Superior Court in and for County of Navajo, 788 P.2d 81, 85-86 (Ariz. 1990).
171. See Transcript of Oral Decision at 15-17, Borders v. King County, No. 05-2-00027-3 (Wash. Super. Ct. June 6, 2005) [hereinafter Borders Transcript] (terming this problem the "ecological fallacy").
172. In addition, proportional deduction has received "virtually no academic commentary." Developments in the Law - Voting and Democracy, supra note 18, at 1156.
173. See, e.g., Pabey v. Pastrick, 816 N.E.2d 1138, 1141 (Ind. 2004) (concluding the court has authority to order new election when candidate's misconduct makes it impossible to determine election's outcome).
174. The 1974 election for one of New Hampshire's U.S. Senators produced a two-vote margin of victory. Nine months later, after a protracted election contest, the U.S. Senate declared the seat vacant and New Hampshire held a new election. See ANNE M. BUTLER & WENDY WOLFF, U.S. SENATE ELECTION, EXPULSION AND CENSURE CASES FROM 1793 TO 1990, S. Doc. No. 103-33, at 421-25 (1st Sess. 1995).
175. See Ex parte Vines v. Allen, 456 So. 2d 26, 28 (Ala. 1984);
176. see also Bauer v. Souto, 896 A.2d 90, 99 (Conn. 2006) (ordering a new election after a lever machine was proven not to have recorded votes);
177. Whitley v. Cranford, 119 S.W.3d 28, 30 (Ark. 2003) (ordering a new election when margin was 55 votes in an election where 183 ballots improperly omitted the race).
178. See Savage v. Edwards, 722 So. 2d 1004, 1004-08 (La. 1998).
179. Id. The same conceptual disagreement is reflected in the Indiana Supreme Court's reversal of a trial court's refusal to order a new election in the face of widespread absentee ballot fraud.
180. See Pabey, 816 N.E.2d at 1151. Although the number of absentee ballots cast vastly exceeded the margin of victory, the trial court had interpreted the contest statute to require proof to a "mathematical certainty" of enough illegal votes to alter the outcome.
181. Id. at 1149. The Indiana Supreme Court instead concluded that a new election was required because the absentee ballot fraud "substantially undermin[ed] the reliability of the election and the trustworthiness of its outcome." Id. at 1150-51.
182. LA. REV. STAT. ANN. § 18:1432(A) (2007).
183. See Jenkins v. Williamson-Butler, 883 So. 2d 537, 539-40 (La. 2004).
184. See, e.g., Gunaji v. Macias, 31 P.3d 1008, 1012, 1016-18 (N.M. 2001) (creating an equitable remedy of partial revote, in contrast to code requirement of disregarding the entire precinct);
185. State ex rel. Olson v. Bakken, 329 N.W.2d 575, 579-82 (N.D. 1983) (approving the equitable remedy of partial special election for an identified set of voters whose votes were not counted).
186. See infra Part IV.A.
187. See Jenkins, 883 So. 2d at 540. 115 Id. at 541.
188. Hester v. McKeithen, 882 So. 2d 1291, 1294 (La. 2004).
189. See, e.g., Hester v. Kamykowski, 150 N.E.2d 196, 200-01 (Ill. 1958) (ordering a new election because see-through ballots printed on low-quality paper compromised the secrecy of the election).
190. Adkins v. Huckaby, 755 So. 2d 206, 208 (La. 2000).
191. Id. at 222. This is in contrast to cases in which courts have compelled witnesses who voted fraudulently to disclose for whom they voted, in order to enable the court to adjust the vote totals accordingly.
192. See infra note 151 and accompanying text. It also is in contrast to circumstances in which voters have voluntarily disclosed for whom they voted in order to resolve an election dispute.
193. See supra note 88, infra note 150, and accompanying text.
194. See, e.g., OHIO REV. CODE ANN. § 3501.27(A) (West 2006) (stating that "[n]o person who has been convicted of a felony or any violation of the election laws . . . shall serve as an election officer");
195. id. § 3501.22(A) (providing that the election officers of the precinct "may be summarily removed from office at any time by the board for neglect of duty, malfeasance, or misconduct in office or for any other good and sufficient reason").
196. See Gage v. Monescalchi, 793 N.YS.2d 235, 235 (N.Y. App. Div. 2005).
197. But see Hutchinson v. Miller, 797 F.2d 1279, 1280 (4th Cir. 1986) (holding that federal courts should not entertain claims for damages caused by election irregularities).
198. For instance, attorney Hugh Lee, who participated in the litigation of the 2000 Florida election, has urged greater use of 42 U.S.C. § 1983 (2006). See Lee, supra note 18;
199. see also SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURES OF THE POLITICAL PROCESS 1073-86 (rev. 2d ed. 2002) (discussing damages remedy for defective elections).
200. See Santana v. Registrars of Voters of Worcester, 502 N.E.2d 132, 135 (Mass. 1986) (finding no basis for damages for deprivation of voting rights absent financial loss or physical or emotional injury).
201. Injunctions can also occasionally cover conduct after an election, as with an injunction against counting ballots pending the resolution of a controversy about their eligibility or against a candidate taking office. See, e.g., Tate-Smith v. Cupples, 134 S.W.3d 535, 537 (Ark. 2003) (enjoining victor from taking office until contest was resolved); James M. Fischer, Preliminarily Enjoining Elections: A Tale of Two Ninth Circuit Panels, 41 SAN DIEGO L. REV. 1647, 1648-19 (2004);
202. Suzy Loftus, Punch-Card Ballots, Residual Votes and the Systematic Disenfranchisement of Minority Voters: A Look at the Decision to Allow the California Recall Election to Proceed, 39 U.S.F. L. REV. 763, 782-85 (2005).
203. See Developments in the Law-Voting and Democracy, supra note 18, at 1188-1200 (discussing judicial reluctance to interfere with ongoing elections).
204. See, e.g., Diana Marrero & Deborah Barry, Voting Problems Widespread, GANNETT NEWS SERV., Nov. 8, 2006, available at http://www.deseretmorningnews.com/dn/view/0,1 249,650205323,00.html (describing Indiana court order that polls "remain
205. William Presecky, Kane County Judge Backs Counting Overtime Ballots: Democrats Lose Appeal About Elgin Township, CHI. TRIB., Nov. 29, 2006, at M4 (describing a court order to keep polls open an extra ninety minutes because "numerous problems prevented voting from starting on time"). Most states already require that all voters in line at the time polls are scheduled to close be allowed to vote, however.
206. See, e.g., IDAHO CODE ANN. § 34-2422(1) (2007);
207. ME. REV. STAT. ANN. tit. 21-A, § 626(2)(A) (2006);
208. NEB. REV. STAT. § 32-908(3) (2006);
209. NEV. REV. STAT. § 293.305(1);
210. N.M. STAT. ANN. § 3-8-45(A) (2007);
211. OHIO REV. CODE ANN. § 3501.32(A) (2007);
212. see also Barry H. Weinberg & Lyn Utrecht, Problems in America's Polling Places: How They Can Be Stopped, 11 TEMP. POL. & CIV. RTS. L. REV. 401, 430 (2002) ("Most states provide that any voter in line at the time of poll closing is entitled to vote.").
213. See Waiting Was the Hardest Part, COLUMBUS DISPATCH, Nov. 3, 2004, at 1A (describing judicial order that election workers provide paper ballots to voters waiting in long lines).
214. See, e.g., Warren Richey, GOP Slips at Foley Scandal's Epicenter, CHRISTIAN SCI. MONITOR, Oct. 27, 2006, at USA2, (referencing a judge's order that poll workers not explain to voters why disgraced Florida Congressman Mark Foley's name was on the ballot instead of the name of the actual candidate Joe Negron).
215. See Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 912, rev'd on reh'g en banc, 344 F.3d 914 (9th Cir. 2003);
216. Gilmore v. Green County Democratic Party Exec. Comm., 368 F.2d 328, 329 (5th Cir. 1966);
217. cf. Chisom v. Roemer, 853 F.2d 1186, 1192 (5th Cir. 1988) (vacating trial court's order enjoining judicial election).
218. See Primary Elections Are Cancelled, N.Y. L.J., Sept. 12, 2001, at 3.
219. See generally Diane Cardwell, Questions Face Elections Board Before Primary, N.Y. TIMES, Sept. 20, 2001, at A20;
220. Jerry H. Goldfeder, Could Terrorists Derail a Presidential Election?, 32 FORDHAM URB. L.J. 523, 525-27 (2005);
221. Clyde Haberman, Reaffirming Democracy, Here and Now, N.Y. TIMES, Sept. 22, 2001, at A9.
222. See, e.g., COLO. REV. STAT. § 1-11-216 (2006);
223. N.J. STAT. ANN. § 19:29-8 (West 2006);
224. MISS. CODE ANN. § 23-15-951 (West 2006);
225. WYO. STAT. ANN. § 22-17-08 (2006);
226. N.D. CENT. CODE § 16.1-16-08 (2006) (prohibiting voiding election unless the contestee "connived" to produce illegal votes or number of illegal votes is greater than margin of victory).
227. MO. REV. STAT. § 115.593 (2006).
228. See, e.g., HAW. REV. STAT. § 11-174.5 (2006);
229. KAN. STAT. ANN. § 25-1448 (2006).
230. The Texas statute provides a particularly succinct statement: a tribunal may "declare the outcome" if it "can ascertain the true outcome" but "shall declare the election void if it cannot ascertain the true outcome." TEX. ELEC. CODE ANN. § 221.012 (West 2006).
231. Pabey v. Pastrick, 816 N.E.2d 1138, 1140 (Ind. 2004) (quoting Pabey v. Pastrick, No. 45D10-0305-MI-007, at 99 (Ind. Super. Ct. 2003)).
232. One of the two principal election law casebooks devotes one chapter to describing "Remedial Possibilities for Defective Elections." See ISSACHAROFF ET AL., supra note 122, at 1039-88. The other principal election law casebook contains only isolated, brief referenees to the topic of remedies.
233. See DANIEL H. LOWENSTEIN & RICHARD L. HASEN, ELECTION LAW (2d ed. 2001).
234. These organizations include The National Research Commission on Elections and Voting, see http://elections.ssrc.org; electionline.org, see www.electionline.org; The Century Foundation, see http://www.reformelections. org; The Brennan Center for Justice, see http://www.brennancenter.org/subpage. asp?key=38&projkey=76; and The United States Election Assistance Commission, see www.eac.gov. Similarly, the National Conference of State Legislatures has not focused its efforts on encouraging and tracking state reforms in this area. See NCSL ELECTION REFORMS TASK FORCE, THE STATES TACKLE ELECTION REFORM, Mar. 24, 2003, http://www.ncsl.org/programs/legismgt/elect/ taskfc/electaskfc.htm.
235. These are by no means the only values important to our election processes, but they are the values most directly implicated in the choice of how to remedy election failures. Other values, such as accessibility to the ballot or the security and integrity of the voting process, may have greater salience in evaluating other components of an election system. See, e.g., Wang, supra note 32, at 354;
236. Tokaji, supra note 20, at 1774.
237. See Hasen, supra note 31, at 995-99;
238. see generally JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA (2006).
239. See supra note 13 and accompanying text.
240. See supra notes 35-38, 43, and accompanying text.
241. See HAVA, § 302, 42 U.S.C. § 15482 (Supp. 2006).
242. Such challenges often revolve around the question of which provisional ballots to count, an issue that may loom large in any election close enough to trigger a recount. The standard for determining this issue has been the subject of intense scrutiny during the past several years. See, e.g., Gerald M.,Feige, Refining the Vote: Suggested Amendments to the Help America Vote Act's Provisional Balloting Standards, 110 PENN ST. L. REV. 449 (2005);
243. Edward B. Foley, The Promise and Problems of Provisional Voting, 73 GEO. WASH. L. REV. 1193 (2005);
244. David C. Kimball, Martha Kropf & Lindsay Battles, Helping America Vote? Election Administration, Partisanship, and Provisional Voting in the 2004 Election, 5 ELECTION L.J. 447 (2006);
245. Two Steps Forward, One Step Back, and a Side Step: Asian Americans and the Federal Help American Vote Act, 10 ASIAN PAC. AM. L.J. 31, 58 (2005).
246. Administrative and legislative guidelines addressing this issue are already plentiful. See, e.g., MICH. COMP. LAWS ANN. § 168.813 (West 2005) (stating that a provisional ballot should only be tabulated if a voter's valid voter registration is located or if an elector's identity is verified with acceptable identification such as a driver's license and verification of current address).
247. The typical mantra of healthy elections is that they be "free and fair." For instance, the U.S. State Department has published a series of one-page primers on the fundamentals of democracy, including a discussion of the key principles of democratic elections titled "Free and Fair Elections." U.S. DEP'T OF STATE, PRINCIPLES OF DEMOCRACY: FREE AND FAIR ELECTIONS (2005), available at http://usinfo.state.gov/products/pubs/principles/election. htm.
248. 531 U.S. 98, 110 (2000).
249. See Edward B. Foley, The Future of Bush v. Gore, 68 OHIO ST. L.J. (forthcoming 2007).
250. Secret ballots became the norm in the United States after the Populists made them part of their platform in the late nineteenth century. See, e.g., In re Hearst, 76 N.E. 28, 29-30 (N.Y. 1905) (describing New York legislature's adoption of secret ballot);
251. see also Fortier & Ornstein, supra note 35, at 487-92 (describing the origins of the "Australian" or secret ballot and its adoption in the U.S.).
252. See, e.g., ARIZ. CONST, art. VII, § 1;
253. CAL. CONST., art. 2, § 7;
254. NEB. CONST, art. VI, § 6;
255. UTAH CONST, art. 4, § 8;
256. WASH. CONST., art VI, § 6;
257. WIS. CONST, art. III, § 3.
258. See Fortier & Ornstein, supra note 35, at 489-90.
259. See, e.g., In re General Election for Dist. Justice, 670 A.2d 629, 638-39 (Pa. 1966) (allowing five voters whose valid ballots had been tampered with to reveal their votes voluntarily).
260. See, e.g., Mahaffey v. Barnhill, 855 P.2d 847, 850 (Colo. 1993) (reaffirming the principle that citizens who had cast invalid votes could be compelled to testify as to how they had voted, but only if they had not voted in good faith);
261. see also TEX. ELEC. CODE ANN. § 221.009 (Vernon 2003) (providing that voters who cast invalid votes can be compelled to disclose their votes, but also providing that the tribunal need not compel such disclosure, even if the number of invalid votes is sufficient to create doubt about the outcome).
262. See, e.g., McCavitt v. Registrars of Voters, 434 N.E.2d 620, 630 (Mass. 1982).
263. See ARK. CONST, amend. L, § 3 (repealed 2002);
264. see also Womack v. Foster, 8 S.W.3d 854, 868 (Ark. 2000) (observing that framers of this constitutional provision "chose to continue to subordinate the secrecy of the ballot to the purity of the election"). Similarly, in Britain votes are recorded with unique identifiers precisely to permit tracing in the event of a dispute about the legality of a particular vote.
265. See ELECTORAL COMMISSION, BALLOT SECRECY FACTSHEET (Dec. 29, 2006), http://www. electoralcommission.org.uk/templates/ search/document.cfm/6127. Another report claims that the use of touch screen voting can create a similar tracing capability.
266. See MARK MILLER, SECRET BALLOT COMPROMISED IN GEORGIA!, http://www.countthevote.org/ no_secret_ballot.htm (last visited Feb. 21, 2007).
267. A variety of research has discussed the importance of accurate vote tabulation and the relative accuracy of different voting mechanisms. See, e.g., Tokaji, supra note 20, at 1717-41.
268. See supra Part ILA.
269. See supra notes 100-104 and accompanying text.
270. However, acts of fraud that do not call the outcome of an election into question should still be addressed through imposition of civil liability or criminal prosecution to discourage similar acts that may affect the outcome of future elections.
271. See Foley, supra note 33, at 104.
272. See In re 2003 Election for Jackson Twp. Supervisor, 840 A.2d 1044, 1046 (Pa. Commw. Ct. 2003) ("The integrity of the election process requires immediate resolution of disputes....");
273. Smith v. King, 716 N.E.2d 963, 969-70 (Ind. Ct. App. 1999) ("[E]lection contest procedures . . . manifest a clear legislative intent that election contests be resolved expeditiously.").
274. See R. W. Apple, Jr., Bush Sues to Halt Recount in Florida: The Limits of Patience, N.Y. TIMES, Nov. 12, 2000, at Al (reporting results of interviews with a variety of scholars and public officials).
275. See, e.g., Gunaji v. Macias, 31 P.3d 1008, 1011 (N.M. 2001) (noting terms of office had expired by time court resolved underlying remedial issue).
276. See NAT. COMM'N ON FED. ELECTION REFORM (THE CARTER-FORD COMM'N), TO ASSURE PRIDE AND CONFIDENCE IN THE ELECTORAL PROCESS 68 (2001).
277. In addition, it may be that part of the price we pay for our First Amendment freedoms, especially as interpreted to permit unlimited political expenditures, is a frenzied, no holds barred election atmosphere. This atmosphere may further unsettle election outcomes, as losing candidates in close races (and their supporters) may be more likely to challenge election procedures after having spent so much on their campaigns.
278. See Jim Drinkard, Scarcity of Poll Workers Persists, USA TODAY, Oct. 26, 2004, available at http://www.usatoday.com/news/ politicselections/nation/president/2004-10-26poll-workers_x.htm ?csp= 19_wxia.
279. See ADVANCEMENT PROJECT, PLIGHT OF THE POLL WORKER: EFFORTS TO IMPROVE TRAINING AND SUPPORT FOR POLL WORKERS IN OHIO, PENNSYLVANIA, MARYLAND, FLORIDA, AND MICHIGAN 1, 1-2 (2006), available at www.projectvote.org/fileadmin/ProjectVote/ Publications/Plight_of_the_Poll_Worker-Advancement_Project.pdf.
280. See supra note 26 and accompanying text.
281. At the same time, courts have historically adjudicated voters' damage actions alleging that they had been deprived of their personal rights to vote. See, e.g., Memphis Community School Dist. v. Stachura, 477 U.S. 299, 312 n.14 (1986) (collecting cases). But while courts were comfortable deciding that a voter had in fact been disenfranchised (and awarding relief to the voter), they were not comfortable relying on the same facts to examine the validity of the underlying election outcome, absent an election contest brought under a statutory cause of action.
282. See, e.g., Johnson v. Stevenson, 170 F.2d 108, 111 (5th Cir. 1948) (distinguishing voters' individual rights, protected under principles of federal law, from candidates' right to political nomination, protected exclusively under state statute);
283. cf. United States v. Bathgate, 246 U.S. 220, 226-27 (1918) (distinguishing personal right to vote from political, nonjusticiable, public right to fair election).
284. See, e.g., Hutchinson v. Miller, 797 F.2d 1279, 1280 (4th Cir. 1986) ("The legitimacy of democratic politics would be compromised if the results of elections were regularly to be rehashed in federal court.").
285. See Huggins v. Superior Court in and for County of Navajo, 788 P.2d 81, 84 (Ariz. 1990) (identifying a range of problems in ordering a new election).
286. However, in some states the only available remedies are either to validate the entire election or to find it void, in which case a new election is required to fill the seat. See, e.g., Becker v. Pfeifer, 588 N.W.2d 913, 918 (S.D. 1999) (explaining that a court adjudicating an election contest must either uphold the entire election or declare it void).
287. See IOWA CONST, art. 4 §5; COLO. REV. STAT. ANN. §§1-11-205, 1-11-208 (West 2007);
288. MASS. CODE ANN. §23-15-923 (West 2007).
289. See infra notes 292-295and accompanying text.
290. See infra notes 176-181 and accompanying text.
291. See supra notes 47-48 and accompanying text.
292. See supra note 46 and accompanying text.
293. See Bradley v. Perrodin, 131 Cal. Rptr. 2d 402, 405 (Cal. Ct. App. 2003).
294. See id. at 406.
295. For a thorough review of the primacy or "ballot order" effect, see Alvarez et al., supra note 18.
296. Bradley, 131 Cal. Rptr. 2d at 406 n.2.
297. Id. at 406.
298. Id.
299. See Alvarez et al., supra note 18, at 46-52 (presenting statistical analyses that discount the primacy effect hypothesis).
300. See, e.g., Brad T Gomez, Thomas G. Hansford, & George A. Krause, The Republicans Should Pray for Rain: Weather Turnout and Voting in U.S. Presidential Elections 69 J. POL. (forthcoming 2007), available sub nom. The Effect of Bad Weather on Voter Turnout and Partisan Vote Share in U.S. Presidential Elections, 1948-2000, available at http://people. cas.sc.edu/gomezbt/WeatherPaper_v2.pdf (concluding that rain reduces turnout by one percent per inch of rain).
301. See, e.g., ARIZ. REV. STAT. ANN. § 16-464 (2007);
302. KAN. STAT. ANN. § 25-2115 (2007);
303. MONT. CODE ANN. § 13-12-205 (West 2007);
304. WYO. STAT. ANN. § 22-6-122 (2007).
305. In other words, every voter using the butterfly ballot had an opportunity to over-come whatever potential confusion existed in the ballot design and to cast a ballot that accurately registered the voter's preference.
306. See NewsHour with Jim Lehrer: Florida Recount (PBS television broadcast Nov. 28, 2000), available at http://www.pbs.org/newshour/bb/ election/july-dec00/fl_l l-28.html.
307. Transparency and objectivity would almost certainly be lacking in the sense that the public would have difficulty understanding how a contest tribunal neutrally settled upon how many votes to adjust. See supra Part U.C.
308. See supra note 46.
309. A design that makes it more likely that some subset of voters will overlook the race is categorically different from a ballot design that omits a race entirely, for instance, thereby precluding or making it impossible for voters using that ballot to register their preference.
310. For instance, Florida, like most states, allows candidates and the public to inspect ballots and to observe the testing of voting equipment prior to the election. See FLA. STAT. § 101.5612 (2006).
311. Accordingly, calling for a new election because the ballot paper was too thin to permit secret voting, see Hester v. Kamykowski, 150 N.E.2d 196, 200-01 (111. 1958), would be overreaching without some additional showing that the thin paper in fact altered some voters' ability to register their vote fairly.
312. See, e.g., Gunaji v. Macias, 31 P.3d 1008, 1010 (N.M. 2001).
313. See More than 4500 North Carolina Votes Lost Because of Mistake in Voting Machine Capacity, USA TODAY, Nov. 4, 2004, available at http://www.usatoday.com/news/politics elections/vote2004/2004-11 -04-votes-lost_x.htm.
314. Cf. Lisa Abraham, Ballot Postage Problem Licked; Post Office Will Deliver Absentee Votes Anyway, AKRON BEACON J., Oct. 31, 2006, at Al (describing potential problem of insufficient postage compounded by lack of time to repost, attributed in part to tardy mailing of absentee ballots).
315. See infra notes 233-234 and accompanying text.
316. See infra Part IV.B.4.
317. See SW. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, rev'd after reh'g en banc, 344 F.3d 914 (9th Cir. 2003).
318. See SW. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003).
319. See George Merritt & Katy Human, Voting Problems Overwhelm City, DENVER POST, NOV. 7, 2006, available at http://www.denverpost.com/economy/ci_4620304;
320. Waiting Was the Hardest Part, COLUMBUS DISPATCH, Nov. 3, 2004, at 1A.
321. See supra note 126.
322. See supra Part I.B.5.
323. See supra note 126.
324. See infra Part III.E.
325. See Borders Transcript, supra note 103, at 5.
326. See id. at 19.
327. See id.
328. See id. at 13.
329. See id. at 14.
330. See í'¿. at 16-17;
331. see also supra note 85 and accompanying text.
332. See Borders Transcript, supra note 103, at 24.
333. See WASH. REV. CODE ANN. §29A.68.110 (West 2007).
334. See Borders Transcript, supra note 103, at 9, 21-24.
335. See infra Part IV.B.4.
336. See Foley, supra note 33, at 109-10.
337. See id.
338. See Zachariah, supra note 41, at D8.
339. See id.
340. See id.
341. See supra note 151 and accompanying text.
342. See supra Part II.B.
343. See, e.g., ME. REV. STAT. ANN. tit. 21, § 732 (2007);
344. MONT. CODE ANN. § 13-16501 (2007);
345. N.H. REV. STAT. ANN. § 669:36 (2007).
346. The practical difficulty is that the candidate with the greater number of absolute votes will claim to be the outright "winner," even if the margin is too close to justify bestowing that label on one candidate with any greater confidence than on the other. We are likely to be able to treat very close races as functional ties only if candidates and the public recognize that within some narrow margin, we in fact cannot say with any confidence which candidate was truly the voters' preferred choice.
347. See supra notes 209-211 and accompanying text.
348. See In re Protest of Election Returns and Absentee Ballots in the Nov. 4, 1997 Election for Miami, 707 So. 2d 1170, 1172 (Fla. Dist. Ct. App. 1998).
349. See id.
350. See supra notes 92-93 and accompanying text.
351. Cf. Borders Transcript, supra note 103, at 3 (opining that fixing the deficiencies in the state's election processes will "require more than just constructing new buildings and hiring new staff").
352. Most election contest provisions do comparatively little to constrain a court's choice of remedy once a court is satisfied that irregularities render the outcome unreliable. See supra notes 65-66 and accompanying text.
353. Protecting ballot secrecy means that in most cases the specific beneficiary will not be known. See supra notes 150-153 and accompanying text.
354. "Reasonable uncertainty" is shorthand for a circumstance in which the number of errant votes is sufficient to create reasonable uncertainty about the validity of the election outcome. As applied to illegal votes resulting from mistake, rather than fraud, it is flexible enough to allow some degree of proportionality in assessing the likely impact (though not necessarily in implementing a remedy). In contrast, when fraudulent voting favoring one candidate is proven, the presumption may be that all the illegal votes accrued to that candidate, in which case the standard is expressed in terms of whether the number of illegal votes favoring the victorious candidate is "proven to exceed" the margin of victory, or if not so proven, whether the number of fraudulent votes "could reasonably exceed" this margin.
355. "Reverse outcome" is shorthand for deducting sufficient votes from the victor to award the election to the runner-up. In some hypothetically extreme cases, it is possible that the runner-up may have received so few votes as to render becoming the victor problematic.
356. For instance, an election might have a combination of problems, such as voting fraud compounded by mistake, or fraud by both of the top two finishers in the election.
357. See Gunaji v. Macias, 31 P.3d 1008 (N.M. 2001) (creating an equitable remedy of partial revote, in contrast to the then-existing code requirement of disregarding the entire precinct).
358. See N.M. STAT. § 1-12-37-1 (2003) (allowing court to order county clerk to send new ballots to the voters identified as having voted with a defective ballot). Courts in other states have rejected such a remedy absent statutory authority.
359. See, e.g., Howell v. Fears, 571 S.E.2d 392, 393 (Ga. 2002) (concluding that the Georgia contest statute does not authorize limiting a new election to an isolated precinct with defective ballots).
360. More than a generation ago, two mathematicians proposed a model that would estimate the probability that a specified number of irregular votes would have altered the outcome of the election had they not been irregular. See Michael O. Finkstein & Herbert E. Robbins, Mathematical Probability in Election Challenges, 73 COLUM. L. REV. 241 (1973). Unfortunately, there has been little consideration of matters relating to the implementation of this model, such as considering which statistical tools to use and who would be charged with administering them.
361. For instance, a contest statute could require convincing the court that at least a ten percent probability exists that the irregular votes would alter the outcome before allowing the court to require a new election. Regardless of the exact magnitude of the threshold, it would provide the benefit of an objective standard.
362. Of course, it is hard to worry too much about this result when turnout rates for many local elections hover around twenty percent. See Donald P. Green, Alan S. Gerber, & David W. Nickerson, Getting Out the Vote in Local Elections: Results from Six Door-to-Door Canvassing Experiments, 65 J. POL. 1083, 1083 (2003). The result is that even a landslide victor often cannot claim much of a true mandate.
363. Republican Party of Garland County v. Johnson, 193 S.W.3d 248, 252 (Ark. 2004); see also Ex parte Vines, 456 So. 2d 26, 28 (Ala. 1984) (describing election contests as "strictly statutory"); Collin v. Knoblock, 25 La. Ann. 263 (La. 1873) (stating that courts have no jurisdiction over elections absent delegated authority).
364. For similar reasons, prospects for successfully federalizing our election processes are slim. Even where nationalization of some aspects of our election processes (perhaps through Congress's authority to make or alter the regulation of the times, places, and manner of conducting congressional elections, see U.S. CONST, art. I, § 4, cl. 1, or through making federal funding contingent on states' satisfying specific requirements) might ease the problems of post-election litigation, American elections likely will continue to be administered primarily at the local level, with a wide range of personnel and processes. Nonetheless, the issue of nationalization has not gone undiscussed.
365. See, e.g., Paul Hernnson, Improving Election Technology and Administration: Toward a Larger Federal Role in Elections?, 13 STAN. L. & POL'Y REV. 147 (2002);
366. Richard L. Hasen, Beyond the Margin of Litigation, supra note 14, at 964-73.
367. See, e.g., ARK. CODE ANN. § 7-5-801 (2000);
368. IOWA CODE ANN. § 57.1(1)(a) (West 1999);
369. TENN. CODE ANN. § 2-17-101(b) (2003).
370. See, e.g., CONN. GEN. STAT. ANN. §9-328 (West 2002);
371. FLA. STAT. ANN. § 102-168 (West 2006);
372. NJ. STAT. ANN. 19:29-1 (1999);
373. OHIO REV. CODE ANN. § 3515.08 (West 1994).
374. See, e.g., ALASKA STAT. § 15.20.540 (2006) (allowing ten voters to commence certain types of election contests);
375. N.D. CENT. CODE § 16.1-16-02 (2004) (permitting ten qualified electors to contest election);
376. OR. REV. STAT. ANN. §258.016 (1991) (authorizing county clerk to bring election contest);
377. Phillips v. Ericson, 80 N.W.2d 513, 523 (Minn. 1957) (describing former statute permitting twenty-five voters to commence election contest); State ex rel. Farnsworth v. McCabe, 35 N.E.2d 474, 476 (Ohio 1940) (describing former statute permitting any five voters to demand recount).
378. But see Kyle Whitmore, War on Dumb: No More Gracious Losers, Birmingham Weekly Online, Aug. 3, 2006, available at http://www.bhamweekly.com/archived/pages/2006 0803_war%20on%20dumb.php (describing ugly and unwarranted primary contest as an example that "the era of the gracious loser died with the 2000 presidential election");
379. supra note 163 (describing possibility that high campaign costs may make some candidates unwilling to concede defeat easily).
380. Voters, too, could in theory be discouraged from contesting an election by a concern for political accommodation, recognizing both that contests are quite stressful to democratic processes and that the prospect of a future election mitigates the inevitable imperfections of any particular election. See generally Foley, supra note 33. Indeed, such political realism may partially explain the strong presumption that election results are reliable.
381. See infra note 254 and accompanying text.
382. Alternatively, a numerical requirement could be structured in terms of a petition process, in which the complaint in an election contest must be supported by a petition signed by some number of voters. Illinois employs this approach, requiring a petition signed by the same number of voters as must sign a petition to nominate a candidate for the office in question. See 10 ILL. COMP. STAT. § 5/23-1.2a (2004).
383. An individual voter aggrieved by an election failure might still seek to bring a civil rights action for damages or prospective injunctive relief rather than a contest action to invalidate the election outcome. See supra notes 121-131 and accompanying text.
384. Most contest statutes that permit voters to contest elections have these provisions. See 26 AM. JUR. 2D Elections § 460 (1996).
385. A set of related questions asks whether election contests should be heard by judges or by juries, whether appellate review should be available, and whether factual questions should be tried de novo on appeal. At least one court has answered in the affirmative to this last question. See Big Spring v. Jore, 109 P.3d 219, 222 (Mont. 2005).
386. See, e.g., NEV. REV. STAT. §293.417 (2005) (providing only that a court shall alter an election outcome if it "finds from the evidence" that the outcome is incorrect);
387. UTAH CODE ANN. § 20A-4-404 (2003) (providing only that a court shall alter an election outcome if it "determines" that the outcome is incorrect).
388. See, e.g., KAN. STAT. ANN. § 25-1446 (2000) (providing that election contests be tried as civil actions under applicable provisions of code of civil procedure);
389. N.J. STAT. ANN. § 19:29-5 (West 1999) ("[Contest] proceedings shall be similar to those in a civil action.");
390. N.D. CENT. CODE § 16.1-16-06 (2003) (providing that election contests "be tried as civil actions").
391. See, e.g., Maynard v. Hammond, 79 S.E.2d 295, 299 (W.Va. 1953);
392. Pierce v. Harrold, 138 Cal.App.3d 415, 428 (Cal. Ct. App. 1982);
393. In re Gen. Election of Nov. 5, 1991 for Office of Twp. Comm. of Maplewood, 605 A.2d 1164, 1170 (N.J. Super. Ct. Law Div. 1992).
394. See, e.g., Rogers v. Holder, 636 So. 2d 645, 650 (Miss. 1994) (using "beyond a reasonable certainty" standard).
395. See, e.g., MD. CODE ANN. [ELEC. LAW] §12-204(d) (LexisNexis 2003);
396. Wilks v. Mouton, 722 P.2d 187, 190 (Cal. 1986);
397. Bazydlo v. Volant, 647 N.E.2d 273, 276 (III. 1995);
398. In re Election of Nov. 6, 1990 for the Office of Att'y Gen. of Ohio, 569 N.E.2d 447, 450 (Ohio 1991);
399. Quinn v. Tulsa, 777 P.2d 1331, 1341 (Okla. 1989);
400. Concerned Citizens for Better Educ, Inc. v. Woodley, 623 S.W.2d 488, 491 (Tex. 1981).
401. See 26 AM. JUR. 2D Elections §439 (1996).
402. See, e.g., Taft v. Cuyahoga Cty. Bd. of Elections, 854 N.E.2d 472, 476 (Ohio 2006) (stating that in Ohio election contests, the clear and convincing standard applies to both proof of irregularity and proof that irregularity altered outcome).
403. See State ex rel. Wahl v. Richards, 64 A.2d 400, 407 (Del. 1949);
404. Jaycox v. Varnum, 226 P. 285, 289 (Idaho 1924);
405. Brown v. Grzeskowiak, 101 N.E.2d 639, 656 (Ind. 1951);
406. Wilkinson v. McGill, 64 A.2d 266, 274 (Md. 1949), State ex rel. Brogan v. Boehner, 119 N.W. 2d 147, 151-53 (Neb. 1963).
407. Greater guidance is required given that the tribunal now must choose between a wider range of possible remedies-from ordering a full new election, to ordering a partial new election, to making some corrections or adjustments to the vote totals. See supra Part I.B.2&3.
408. See supra note 143.
409. See supra note 248.
410. A few states already grant jurisdiction over election contests to special panels of judges drawn from throughout the judiciary. See Miss. CODE ANN. § 23-15-935 (2001);
411. VA. CODE ANN. § 24.2-801 (2006).
412. The contest statute also should be structured to permit the contest to begin before administrative recounts are completed, in order to expedite the final determination of the outcome. The recount still may provide the official result that is the subject of the contest action, but in many cases the preliminary steps of a contest could begin before the recount has generated the final tally.
413. See, e.g., NEB. REV. STAT. § 32-1110 (2004) (directing court to hear contest in "summary manner without any formal pleading").
414. See, e.g., CAL. ELEC. CODE §16003 (2003);
415. TEX. ELEC. CODE ANN. § 231.009 (2003);
416. VT. STAT. ANN. tit. 17 § 2603 (2006).
417. Some similar issues may arise with respect to those state elections whose outcomes are adjudicated in the state legislature, although more typically it may be that the matter is heard exclusively in the legislature without any court assistance.
418. See Roudebush v. Hartke, 405 U.S. 15, 25 (1972) ("A [state's] recount proceeding does not prevent the Senate from independently evaluating the election any more than the [state's] initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.").
419. One aspect of the presidential election process that the 2000 election highlighted is that to prevent Congress from rejecting a state's slate of presidential electors, states must have their results finalized by the second week of December in a presidential election year. See 3 U.S.C.A. §5 (2000). If a state misses this safe harbor deadline, Congress is no longer statutorily obligated to accept that state's certification of its electors. See 3 U.S.C.A. § 15 (2000). Florida's effort to meet this deadline persuaded the U.S. Supreme Court to conclude that Florida would not be willing to continue any recount after the safe harbor date. See Bush v. Gore, 531 U.S. 98, 113 (2000).
420. See Foley, supra note 33, at 103-04;
421. Steven F. Huefner, Reforming the Timetable for the Electoral College Process, ELECTION LAW @ MORITZ WEEKLY COMMENT, Nov. 30, 2004, http://moritzlaw.osu.edu/electionlaw/comments/ 2004/041130.php.
422. For further discussion of this proposal, see Edward B. Foley, 77GEO. Promise and Problems of Provisional Voting, 73 GEO. WASH. L. REV. 1193, 1203-04 & n.69 (2005).
423. See Ross v. State Bd. of Elections, 876 A.2d 692, 705-06 (Md. 2005) (concluding that laches barred an election lawsuit brought after the election that could have been brought before the election).
424. In certain circumstances, a similar approach could be used to handle a group of invalid (rather than missing or lost) votes. Rather than deducting the votes from candidates in proportion to the vote distribution of some representative class from which the invalid votes are drawn, as in traditional proportional deduction, the analysis would seek to ascertain the probability that these votes would be distributed in such a way as to change the outcome. This analysis also could include more sophisticated predictors of the likely beneficiaries of the invalid votes, to avoid the "ecological fallacy" that the trial court in the Washington gubernatorial race found fatal to proportional deduction, see supra note 103 and accompanying text, but would not purport to identify the specific number of invalid votes cast for each candidate because of the impossibility of knowing the precise number when voting is by secret ballot.
425. See, e.g., Boyes v. Allen, 32 A.D.2d 990, 991 (N.Y. App. Div. 1969) (finding no reasonable probability that twelve-vote margin of victory would be altered by eliminating thirteen disputed votes); Badillo v. Santangelo, 15 A.D.2d 341 (N.Y. App. Div. 1962) (refusing to overturn election because it was "highly unlikely" that eighty-three of ninety invalid votes were cast for victor, as would be necessary to overcome seventy-five-vote margin of victory).
426. See supra Part II.F.
427. See supra notes 184-187 and accompanying text.
428. See Wand et al., supra note 47, at 799-801.
429. See supra Part II.F.
430. See supra note 185 and accompanying text.
431. For instance, many states now require that the order in which candidates are listed on the ballot be rotated, to prevent giving the candidate listed first a systematic advantage. See supra note 184. But it would be problematic for courts to require a new election for every close race conducted without a requirement of ballot order rotation. See Bradley v. Perrodin, 106 Cal. App. 4th 1153 (Cal. Ct. App. 2003) (overturning lower court vote reallocation based on testimony about the "primacy effect" of first ballot position).
432. See infra notes 289-291 and accompanying text.
433. Several nominating methods are in use in the United States today, from party conventions (in which delegates choose the party's nominees), to closed primaries (in which only registered party members may vote), to open primaries (in which any registered voter may vote, selecting in which party's primary to vote in the privacy of the voting booth), and variations thereon. See JOHN F. BIBBY, POLITICS, PARTIES, AND ELECTIONS IN AMERICA 155-64 (2003).
434. This interval can range from as long as eight months, see OHIO REV. CODE ANN. § 3513.01 (West 2007) (mandating that primaries during years in which a presidential election is held occur on the first Tuesday after the first Monday in March), to as short as one to two months.
435. see, e.g., HAW. REV. STAT. ANN. § 12-2 (LexisNexis 2006) ("The primary shall be held at the polling place for each precinct on the second to the last Saturday of September in every even numbered year; provided that in no case shall any primary election precede a general election by less than forty-five days.");
436. ILL. COMP. STAT. ANN. 5/2A-1.1 (West 2006) ("In odd-numbered years, an election to be known as the consolidated election shall be held on the first Tuesday in April except as provided in Section 2A-1.1 a of this Act; and an election to be known as the consolidated primary election shall be held on the last Tuesday in February").
437. A state's political traditions can influence such factors as the amount of competition at the primary stage, or the ability of party leaders to unify defeated candidates behind the party's nominee.
438. See, e.g., ALA. CODE §§17-13-70 to 17-13-89 and 17-16-40 to 17-16-76 (2006) (delineating separate rules governing primary and general elections);
439. ALASKA STAT. §15.25. 090 (2006) (treating primary and general elections the same);
440. ARIZ. REV. STAT. ANN. §16671 (2006) (treating primary and general elections the same);
441. MICH. COMP. LAWS ANN. §§ 168.574-168.588 and 168.641-168.799a (2007) (delineating separate rules governing primary and general elections);
442. MISS. CODE. ANN. §§23-15-921, 23-15-923 (West 2006) (providing that party executive committee resolves primary election contests);
443. WASH. REV. CODE. ANN. §29A.52.121 (2007) (treating primary and general elections the same).
444. See supra note 280. Several states have advanced or are contemplating advancing their primary date to provide more time to resolve primary election contests.
445. See IMPROVING ARIZONA'S RECOUNT AND ELECTION CONTEST LAWS 5-8 (2005), available at http:// www.azsos.gov/election/Brewer_Voting_Action_Plan/ Election_Law_Advisory_Committee /Committee_Report_12-30-2005.pdf.
446. See U.S. CONST, art. II, §1;
447. U.S. CONST, amend. XII; 3 U.S.C. §§1-15 (2000) (prescribing process for selecting presidential electors, for voting by the electors, and for counting the elector's votes).
448. See supra note 266 and accompanying text.
449. See 3 U.S.C.A. § 15 (2000) (prescribing processes by which Congress counts electoral votes, including process for resolving objections to particular votes). However, as the 2000 election made clear, state and federal courts can play significant roles at earlier stages - roles that ultimately may obviate the need for Congress to settle an election controversy.
450. U.S. CONST, art. I, § 5, cl. 1.
451. W. at art. I, § 4, cl. 1. However, when congressional elections are contested, Congress typically awaits the disposition of any state proceedings before making a final determination whether to accept the state's choice of candidate. See, e.g., Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
452. See, e.g., ALA. CONST, art. II, § 12;
453. KY. CONST. § 38;
454. LA. CONST, art. III, §7;
455. MICH. CONST, art. IV, § 16;
456. see also Steven F. Huefner, Echoes of Bush v. Gore: Courts Are Not Always the Right Forum for Election Contests, ELECTION LAW @ MORITZ WEEKLY COMMENT, Jan. 10, 2006, http://moritzlaw.osu.edu/electionlaw/comments/ 2006/060110.php (describing contested Kentucky state senate race that state supreme court resolved contrary to state senate's resolution).
457. See COLO. REV. STAT. ANN. §§ 1-11-205, 207 (West 2000).
458. See N.C. GEN. STAT. ANN. § 120-10.10 (West 2006);
459. see also Last Unresolved State Election is Settled, N.Y. TIMES, Aug. 24, 2005, at A14.
460. Cf. Richard Pildes, Democracy and Disorder, 68 U. CHI. L. REV. 695, 715-16 (2001) (describing Bush v. Gore majority as distrustful of legislatures resolving highly political elections).
461. See Samuel Issacharoff, Political Judgments, 68 U. CHI. L. REV. 637, 655 (2001) (discussing a "presumption . . . that vindication [of majority preference] lies in the political arena"). Because the political composition of a state legislature presumably approximates the political composition of the electorate of the state, it may be most appropriate to let the legislature resolve statewide election contests, as well as contests over its own membership, but not to task it with resolving local races.
462. For instance, a Republican U.S. Senate ultimately rejected a challenge to the very close 1996 election of Democratic Senator Mary Landrieu of Louisiana, although not until after conducting an investigation over the objection of Senate Democrats. See Lizette Alvarez, Senate Election Inquiry Clears Democrat from Louisiana, N.Y. TIMES, Oct. 2, 1997, at A17.
463. Because of their authority to judge the elections of their own members, legislatures of course are already fully capable of manipulating the outcomes of these elections, but this authority does not appear to have been frequently abused.
464. A similar option is to charge the state board of elections with hearing the full merits of an election contest action, and thereafter subject their decision to judicial review. See 10 III. COMP. STAT. ANN. 5/23-1.8b (West 2006). As long as the board of elections is a bipartisan panel, this has the advantage of insulating the court from allegations of partisan favoritism if the court is ultimately able to uphold the administrative decision.
465. See KAN. STAT. ANN. § 25-1443 (2000).
466. See IOWA CODE § 60.1 (2003).
467. See IOWA CODE § 57.7 (2003) (prescribing this method for contest of public measure).
468. In many instances, when a legislature voids an election, the technical result is that the disputed office is temporarily vacant. The vacancy is then filled according to statute, which may call for a new election. In that sense, the legislature itself is not technically calling for a new election. If the legislature does not want to void the entire election, however, its remedial options may be limited because it lacks a mechanism for triggering only a partial new election.
469. Cf. GOV'T ACCOUNTABILITY OFFICE, THE NATION'S EVOLVING ELECTION SYSTEM AS REFLECTED IN THE NOVEMBER 2004 GENERAL ELECTION 31 (2006) (concluding that "administration of election systems will never be error free or perfect").
470. For a fuller discussion of the impossibility of holding perfect elections, see generally Foley, The Legitimacy of Imperfect Elections, supra note 33.
471. Cf. Black v. McGuffage, 209 F. Supp. 889, 891 (N.D. 111. 2002) (describing equal treatment of voters, not perfect accuracy, as the goal of judicial supervision of elections);
472. Foley, supra note 33, at 110 (stressing that voting system errors must be randomly distributed).
473. Cf. Huggins v. Superior Court in and for County of Navajo, 788 P.2d 81, 86 (Ariz. 1990) (observing that in conducting elections, "we lack the luxury of perfection"). Shortly after the 2000 election, mathematics professor John Allen Paulos noted that our effort to determine who was the true victor of the presidential race in Florida (and hence in the nation) was like trying to measure bacteria with a yardstick.
474. See John Allen Paulos, OpEd., We're Measuring Bacteria with a Yardstick, N.Y. TIMES, NOV. 22, 2000 at A27.
475. See New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
476. See THE FEDERALIST NO. 10 (James Madison).