This post highlights a chart containing information about who would decide a post-election challenge in each of the fifty states, broken down by type of election. To access the chart, click here. For a summary and further analysis, read on. Doomsday scenarios abound regarding an election that might last into extra innings. What will happen if, on the morning of Wednesday, November 7, we do not know who won the presidential election, or other races? More menacingly, what happens if post-election challenges last several weeks, beyond the routine provisional ballot and recount procedures?
One important aspect of understanding a post-election proceeding is recognizing who decides an election contest. Importantly, an “election contest” is a challenge to the result after a recount is complete and the state has certified a candidate as the winner. Of course, who decides can matter to the outcome. Once we are through with a recount and there are alleged election irregularities or other questions, what mechanisms have states created to handle an adjudicatory election contest? For example, after the initial recount in 2000, Al Gore initiated an election contest in the Florida courts—which eventually made its way to the U.S. Supreme Court and became Bush v. Gore. How would a post-recount election contest proceed in 2012?
All fifty states have statutory schemes covering election contests, and they all direct an election contest to a particular tribunal, such as a trial court, state supreme court, legislature, or other body. I have compiled a chart that depicts how each state would resolve an election contest, broken down by type of election. This chart is an Appendix to a forthcoming article, Joshua A. Douglas, Procedural Fairness in Election Contests, 88 Ind. L.J. ## (2013). Special thanks to the Indiana Law Journal for allowing me to post this Appendix before publication of the article; a draft version of the full article is available here. (One caveat: this Appendix is still a draft version and has not yet been fully cited or cite checked. That said, it should still provide a useful resource for those wondering how an election contest would proceed. Citations to all of the state’s statutes are available in the full draft article.)