Recently, in this space, Ned Foley, Steve Huefner, and Josh Douglas have offered some characteristically thoughtful comments on election overtime. Ned reminded us thatpatience is a virtue; we have a process to work through narrow margins of victory, and even in a world a-Twitter, we should let the process run its course without panic. Steve mentioned a model calendar for shaping that process, at least in the context of a Presidential dispute. And Josh discussed the fora provided by state law in which to work through the details. At the kind invitation of the Moritz team, I would like to add a fourth element to the discussion: neither the appropriate emotional disposition for a post-election process nor timing nor location, but the substantive standards to be deployed. I think it extremely unlikely that the Presidential race will head into overtime. But it is virtually certain that some race, somewhere in the country, will. And it is therefore important to be prepared.
In overtime, the problem is often, though not always, that the margin of potential error is greater than the margin of known victory. There are ballots lying about — provisional ballots or disputed absentee ballots or ballots that have not been read properly by an optically scanner. Somewhere along the line, something has not gone as planned. The question is whether the ballot should be counted despite the blip.
In these circumstances, many states seem to resort to an uncomfortable counting rule. They recognize that some problems should render the ballot invalid, and some should not. So far, so good. But then they attempt to deal with the blip in two unfortunate ways. First, they try to see whether the potential error causing the dispute is “major” or “minor.” And then they try to determine whether the error was the fault of the voter or an official.
The problem with the distinction between “major” and “minor” is that the terms are not self-defining. One judge’s major mistake is to another judge quite minor; without any grounded reference point, distinctions quickly become ad hoc. The problem with focusing on fault is that the investigation can be extensive, and nets little benefit for the expense. There isn’t a very good theory explaining why the appropriate remedy for a procedural glitch is to refuse to count the ballot of a voter otherwise known to be eligible and cast without fraud.