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Election Litigation: Recounts

Swing-State Recounts in the 2016 Presidential Election
Great America PAC v. Wisconsin Elections Commission (James D. Peterson, W.D. Wis. 3:16-cv-795), Stein v. Thomas (Mark A. Goldsmith, E.D. Mich. 2:16-cv-14233), and Stein v. Cortés (Paul S. Diamond, E.D. Pa. 2:16-cv-6287)
Following the 2016 presidential election in which a candidate earned more votes in the Electoral Candidate than the candidate who received the most popular votes, a minor party candidate sought recounts in the three states that the Electoral College victor won by the smallest margins. The matter was litigated in state courts and in federal courts in the Western District of Wisconsin, the Eastern District of Michigan, and the Eastern District of Pennsylvania with mixed results for the minor party candidate’s litigation efforts and no change in the Electoral College outcome.
Topics: Recounts; election errors; voting technology; matters for state courts; laches; intervention; recusal; case assignment; Electoral College.

Emphasis Votes
Texas Democratic Party v. Dallas County (Jorge A. Solis, N.D. Tex. 3:08-cv-2117)
During a recount for a state legislative election, one political party and two voters filed a federal action complaining that emphasis votes—in which a voter casts both a straight-party vote and a vote for the specific office—would improperly not be counted because of the switch from punch-card ballots to voting machines. After the recount was completed, the plaintiffs dropped their claims with respect to the specific election, but more general claims remained. The district court found that election procedures with respect to emphasis votes did not discriminate in violation of section 2 of the Voting Rights Act, but they were in violation of section 5 because they had not been precleared. In time, the Justice Department precleared the changes.
Topics: Voting technology; recounts; section 5 preclearance; three-judge court; section 2 discrimination; intervention.

Turned-Away Voters in a Close Election
Bennink v. City of Coopersville (Robert Holmes Bell, W.D. Mich. 5:06-cv-82)
Voters turned away from the polls in a close election on a school bond sued for the right to vote in the election immediately after the election was over. The court denied the plaintiffs the requested relief.
Topics: Enjoining certification; registration procedures; provisional ballots.

Complete Ohio 2004 Presidential Recount
Rios v. Blackwell (James G. Carr, N.D. Ohio 3:04-cv-7724), Ohio ex rel. Yost v. National Voting Rights Inst. (Edmund A. Sargus, S.D. Ohio 2:04-cv-1139), and Delaware County Prosecuting Attorney v. National Voting Rights Inst. (James G. Carr, N.D. Ohio 3:05-cv-7286)
The Green and Libertarian candidates for President sought a complete recount of the 2004 presidential election in Ohio. After a teleconference, the district judge denied injunctive relief because neither candidate had a chance of prevailing in a recount. In Ohio’s other district, a county sought an injunction against a recount there, and supporters of the recount removed the action to federal court. The district judge was reluctant to reach a decision inconsistent with the decision reached first by the judge in the other district. The second judge transferred the action to the first judge.
Topics: Recounts; presiding remotely; intervention; Electoral College.

Unequal Recount Procedures in a Gubernatorial Election
Washington State Republican Party v. Reed (Marsha J. Pechman, W.D. Wash. 2:04-cv-2350)
Supporters of a gubernatorial candidate filed a federal complaint over a weekend challenging recount procedures. The Clerk of Court was able to find a judge available to hear the case on an emergency basis, and the judge held a telephonic conference on Sunday. The judge determined that immediate relief was not required because the ballots in question would be preserved for later examination. Litigation in state and federal court continued as the recount continued, and the federal plaintiffs’ candidate ultimately did not prevail.
Topics: Recounts; equal protection; intervention; case assignment; matters for state courts.

Close Vote in Puerto Rico
Rosselló v. Calderón (3:04-cv-2251) and Suárez Jimenez v. Comisión Estatal de Elecciones (3:04-cv-2288) (Daniel R. Domínguez, D.P.R.)
The 2004 election of Puerto Rico’s governor depended upon a recount. One of the candidates filed a federal complaint seeking enforcement of a prompt and just resolution of the recount. The district court began evidentiary hearings in mid-November. One issue to be resolved was how to count ballots in which a voter cast a vote for one party generally but for candidates of other parties for all individual offices. A state case on this issue was removed to the federal court before it was resolved, but Puerto Rico’s supreme court resolved the case anyway. The district court vacated the state court’s post-removal ruling and commenced additional hearings. The court of appeals determined that removal was improper. In December, the court of appeals ordered a halt to the district court’s intervention in the local electoral dispute.
Topics: Matters for state courts; enjoining certification; removal; recounts; absentee ballots; intervention; attorney fees.

The 2000 Election of the President
Siegel v. LePore (Donald M. Middlebrooks, S.D. Fla. 9:00-cv-9009) and Touchston v. McDermott (John Antoon II, M.D. Fla. 6:00-cv-1510)
Among the litigation over who won the presidential contest in Florida in 2000 were two emergency actions filed in two of Florida’s three districts seeking federal court intervention in manual recounts. Both judges denied the plaintiffs immediate relief, and the court of appeals affirmed those decisions en banc. Reviewing a decision by the state’s supreme court, however, the U.S. Supreme Court determined that the manual recount procedures violated equal protection.
Topics: Recounts; matters for state courts; intervention; equal protection; military ballots; absentee ballots; election errors; voting technology; enjoining certification; Electoral College; voter identification.